by Elizabeth Grossman
On September 7th, Tropical Storm Nate began roaring over the Gulf of Mexico where a liftboat, the Trinity II, was stationed in the Bay of Campeche working for Geokinetics, a U.S. company engaged to support offshore oil operations of the Mexican oil company Petroleos Mexicanos (Pemex). By the 8th, high seas and winds had disabled the Trinity II – a liftboat that serves as a kind of work platform with legs anchored in the ocean floor – compelling the ten member crew to abandon the Trinity II and attempt to board a life raft. According to a chronology posted by Geokinetics, around noon on the 8th, communications with the crew was lost and severe weather conditions were hampering rescue efforts. By the time the rescue was completed on September 11th, some 51 miles offshore in Mexican waters, four crewmembers had been lost. Three had drowned – two Americans and one Australian – while the fourth, a Bangladeshi, died after rescue in hospital. According to Associated Press accounts, the Trinity II’s emergency-equipped liferaft blew off the deck, leaving the crew clinging to a small inflatable raft.
When an incident like this occurs, involving U.S. companies working outside United States’ borders, what federal agencies, if any, are responsible for oversight? What regulations and safety standards would have been in force where the incident happened?
The short answer to these questions is the same: it’s not entirely clear. The Occupational Safety and Health Administration (OSHA) only has jurisdiction within U.S. borders, and as we learned during the BP/Deepwater Horizon disaster, OSHA’s jurisdiction only extends a limited distance offshore within U.S. waters. The Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) has offshore responsibilities but not outside of U.S. waters. When an employer is based in the US, civil rights laws apply for their U.S workers abroad (as do minimum wage laws for U.S. seamen working on U.S. vessels), but occupational health and safety laws as administered by OSHA and the Mine Safety and Health Administration (MSHA) explicitly do not. There are special provisions under the Defense Base Act for workers employed outside the U.S. who are under contract to the U.S. military and U.S. government agencies doing work related to national defense. But those working for U.S. companies outside the US but not working on government contracts are not covered by U.S. health and safety regulations. Many U.S. and multinational companies with non-U.S. operations have adopted voluntary codes of conduct that include guidelines for workplace health and safety, but these would not be legally binding.
As Garret Brown, Coordinator of the Maquiladora Health & Safety Support Network explained, “There is no way that workers (U.S. or otherwise) for U.S. corporations operating outside of the U.S. can file a complaint with U.S. government agencies (state of federal). U.S. government agencies only have jurisdiction on U.S. soil.”
A shortage of answers
Even getting information about a workplace accident outside the U.S. such as the Bay of Campeche incident has been challenging. Seeking details of the incident on September 12th, I called Geokinetics, which directed me to its then open-ended chronology on the company website. Follow up emails and calls to the company have not been returned. Geokinetics held a telephone press conference about the event on September 16th, but it did not allow listeners to ask questions.
Trinity Liftboats, which owns the Trinity II, is based in New Iberia, Louisiana and directed me to the U.S. Coast Guard Office in Morgan City, Louisiana. A public affairs officer there explained that because she was also an investigator and might be participating in an investigation, I would have to call the Coast Guard in New Orleans for information. The New Orleans Coast Guard office said that any immediate information would have to come from the Mexican Navy since the incident happened in Mexican waters. The Mexico City telephone number provided by the Coast Guard reached not the Mexican Navy as I was told it would, but the U.S. embassy in Mexico City. An exchange of phone calls and emails with the Embassy yielded no information. Nor did conversations with a press officer at the Mexican embassy in Washington, DC. The only public information on the incident has been that provided by press releases from Geokinetics and Pemex (the latter in Spanish) – and now the details in lawsuits filed on behalf of victims. The U.S. State Department reportedly communicated with victims’ families, but calls to the State Department’s public information office yielded no details about the incident.
In an October 5th email, Commander C.T. O’Neil, Coast Guard chief of media relations, wrote, “A formal marine casualty investigation for this incident was initiated from our 8th Coast Guard District with NTSB’s [National Transportation Safety Board] participation. However, the investigative team has yet to be granted country clearance and entrance into Mexico. The U.S. investigators have conducted interviews with crew that returned to the U.S. and will continue to conduct what investigative efforts they can while awaiting clearance to Mexico.” To date, no incident details have been available through the Coast Guard.
No easy resolution
So what avenues are there for workers involved in a U.S. company workplace incident that takes place outside the U.S. to pursue if there are questions about the adequacy of health and safety measures?
U.S. citizens can file suit in a U.S. court for wrongful death, injuries or illnesses that occurred abroad while working for a U.S. company. They can also try to use the administrative laws of the country where the occupational health and safety violations occurred. Non-U.S. citizens can also sue the company directly via the “Alien Tort Claims Act” or other venues. Garrett Brown describes the challenges involved in any of these options as considerable.
Two lawsuits have now been filed on behalf of victims of this incident, one on behalf of Craig Meyers, one of the Trinity II crewmembers who drowned, another on behalf of Ted Derise, who was injured. The suits, both filed in U.S. District Court, Southern District of Texas, Galveston Division, are brought against Geokinetics, Trinity Liftboat Services, and Mermaid Marine, an Australia-based company, described on its website as “Australia’s largest marine services provider to the offshore oil and gas industry.” Mermaid Marine owns the support boat that the plaintiffs contend should have been standing by for rescue when the Trinity II had to be abandoned. The suit filed on Meyers’ behalf, being pursued under general maritime law and the Jones Act, maintains that the Mermaid Vigilance “ran for base and shelter” and abandoned the crew “to their horrifying fate in the storm ridden seas of the Bay of Campeche.” Further the suit alleges that “All of these actions took place with the full knowledge of the circumstances of the Trinity II’s crew’s horrifying position, given the collapse of the Trinity II’s leg, and despite her Mayday calls.”
In a phone call, Francis Spagnoletti, the attorney representing the plaintiffs, said that the crew of the Trinity II “asked to be evacuated on September 8th and by the 9th and 10th were in dire straits Â¬- but the standby vessel was not there.” Further, Spagnoletti said that the Trinity II crew had no survival suits and the one emergency beacon (known as an EPIRB unit) became inaccessible when the liftboat started to “break up” so was not with the crew when they had to abandon ship and were “left without food or water and clinging to a cork raft.”
“The law is silent with regard to survival suits and EPIRB units,” said Spagnoletti, but “they are good practice” and their absence is “below the standard of care for a prudent vessel owner.”
Geokinetics, which is incorporated in Delaware and traded on the New York Stock Exchange, describes itself as “a full-service, global provider of seismic data acquisition, processing and interpretation to the oil and gas industry.” In its 2010 annual report, the company writes, “A successful claim for which we are not fully insured, or which exceeds the policy limits of our applicable insurance could have a material adverse effect on our financial condition. Moreover, we do not carry business interruption insurance with respect to our operations.”
In 2009, according to the Wall Street Journal, U.S. multinational corporations employed approximately 10.3 million people outside the U.S., and in the past decade many large companies – among them Caterpillar, Cisco Systems, GE, and Oracle – have added many more employees abroad than at home. Granted, these companies operate on terra firma rather than the high seas, but it would be interesting to know what these numbers mean for oversight of occupational health and safety.
Elizabeth Grossman is the author of Chasing Molecules: Poisonous Products, Human Health, and the Promise of Green Chemistry, High Tech Trash: Digital Devices, Hidden Toxics, and Human Health, and other books. Her work has appeared in a variety of publications including Scientific American, Salon, The Washington Post, The Nation, Mother Jones, Grist, and the Huffington Post. Chasing Molecules was chosen by Booklist as one of the Top 10 Science & Technology Books of 2009 and won a 2010 Gold Nautilus Award for investigative journalism.