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November 2012

Court Holds “Thunder Horse” Floating Production Drilling Quarters Not “Vessel” Under Maritime Law, So Injured Claimant Cannot Be Jones Act Seaman

BP’s production drilling quarters “Thunder Horse,” located in 6,000 feet deep waters approximately 175 miles southeast of New Orleans in the Gulf of Mexico

In recent years, the oil and gas industry has designed, built, and installed in the Gulf of Mexico hugely expensive and technologically complex drilling and production structures capable of extracting hydrocarbons from beneath the seabed in the Gulf’s deep waters.  In shallower waters, the industry can use jack-up drilling rigs, which, since they have hulls and other vessel-like features, and are comparatively easy to relocate from well to well, courts have repeatedly held are “vessels in navigation” for purposes of admiralty and maritime law.  If a crewman of a “vessel in navigation” is injured, then he or she is generally entitled to bring personal injury claims as a “seaman” under the federal Jones Act (for negligence) and under the general maritime law (or federal common law) for unseaworthiness and maintenance and cure.  But, if the structure is not a “vessel in navigation,” then the worker injured while working on it cannot claim to be a crewman of a “vessel in navigation” and entitled to the remedies reserved to seamen.

Kerr-McGee’s spar, “Red Hawk,” in 5,300 feet of water in the Gulf of Mexico

A typical jack-up drilling rig

Recently, a federal district court in Louisiana held that a massive “floating production drilling quarters” called the Thunder Horse, operated by BP, is not a “vessel in navigation,” and, thus, that the claimant, a worker aboard the structure, could not be a seaman as to that structure, and thus that he was not entitled to pursue a seaman’s personal injury claims, noted above.  In Washington v. BP America, Inc., 2012 U.S. Dist. LEXIS 164371 (W.D. La. Nov. 16, 2012), the court focused on how the Thunder Horse was, with reference to the U.S. Supreme Court’s 2005 decision in Stewart v. Dutra Construction Co., not “practically capable of maritime transportation, regardless of its primary purpose or state of transit at a particular moment.”  In Stewart, the Supreme Court concluded, “[t]he question remains in all cases whether the watercraft’s use as a means of transportation on water is a practical possibility or merely a theoretical one.”  In Washington v. BP America, Inc., the court decided the Thunder Horse, like another deep water drilling and production structure at work in the Gulf of Mexico, a “spar” called Red Hawk, is a “work platform,” not a “vessel.”

The key aspects of the Thunder Horse which render it a “work platform,” and not a “vessel,” the court found, are:

  • While it floats like a vessel (on four partially submerged columns), it lacks any means of significant self-propulsion.
  • It was towed to its location in the Gulf of Mexico.
  • It lacks a raked bow.
  • It is “secured to the Outer Continental Shelf with 16 wire and chain mooring lines attached to 19-foot wide piles driven 90 feet into the seabed.”
  • Thunder Horse is connected to the seabed by eight hydrocarbon production lines.
  • Thunder Horse can only move within a 350-foot radius by tightening and slackening its mooring lines and, apart from being temporarily jarred outside this radius in 2005 by Hurricane Dennis, the structure “has stayed within the 350-foot radius.”
  • BP plans to keep Thunder Horse secured to the Outer Continental Shelf for the balance of the 25 year productive life of the wells it services.
  • BP estimated $400 million as the cost to detach Thunder Horse’s mooring lines, secure the wells, and move the structure elsewhere.

Having found the Thunder Horse is not a “vessel,” the Louisiana federal court also concluded the plaintiff in the case, Terrance Washington, who was working as a cook, and who claimed he was injured after he slipped and fell on a walkway on the structure, could not be a seaman under the Jones Act as to the Thunder Horse, and therefore he was not entitled to pursue a seaman’s personal injury claims against BP.


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BP Guilty Plea and Indictments of Individuals

Transocean’s Deepwater Horizon MODU on April 20, 2010

The Deepwater Horizon semi-submersible drilling rig was owned and operated by Transocean and drilling for British Petroleum in the Macondo Prospect (situated in Mississippi Canyon Block 252), about 50 miles offshore Louisiana on April 20, 2010.  When the rig exploded, 11 men were killed, 17 were injured, 99 survived. The Deepwater Horizon burned and eventually sank.  The loss of well control resulted in a multi-day massive oil spill which affected the Gulf of Mexico, the coastlines and economies of several states, and significantly damaged numerous natural resources, both flora and fauna.

Brown Pelican on beach at East Grand Terre Island, Louisiana

In general, I believe when a corporation is allowed to plead guilty and pay a fine, it is unlikely that it will change the corporation’s conduct.  This mindset seems to inform the U.S. Department of Justice’s recent indictment of individual BP employees.  It seems only a matter of human nature that one is more likely to pay closer attention to one’s actions when the individual faces time behind bars.  Do I think these individuals should have been indicted?  Do I think they’re guilty?  I do not know the facts of the case well enough to articulately comment.  And, in my experience, there is no substitute for sitting through an entire trial and hearing all the testimony, watching the demeanor of all the witnesses, and seeing all the trial exhibits, before forming an opinion about any civil or criminal case.

Thus, even though I, like most of us, may reach tentative conclusions in my mind when hearing of an event, or reading in the newspaper a reporter’s account of the day’s testimony in a civil or criminal case, there is simply no substitute for being in the courtroom and listening and watching for oneself.  In this spirit, here are links to the…


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