OSHA has ordered Maersk Line Limited to reinstate the chief mate, promote him to the rank of master, and pay him about $460,000 in back pay, interest and compensatory damages, plus attorney’s fees. The agency added the maximum possible punitive damages award ($250,000) to counteract what it described as the “chilling effect already present from Respondent’s illegal policy,” and it ordered MLL to revise its internal rules for reporting.
Maersk Line Limited has the option to appeal OSHA’s decision to an administrative law judge.
“The U.S. Coast Guard is committed to partnering with OSHA in protecting whistleblowers and to vigorously enforce the Seaman’s Protection Act. We encourage everyone within the maritime domain to support and abide by these protections,” said Assistant Commandant for Prevention Policy Rear Adm. Wayne Arguin in a statement.
“Maersk Line Limited argued that the ISM Code requires crewmembers to report issues up the chain of command, and it asserted that the mate had made the report in bad faith.”
I can kind of understand the ‘bad faith’ argument in the sense that it’s fair to assume the CM was aware of these material deficiencies for some time and didn’t report them. He only reported them once he had a disagreement with the captain about a unrelated issue (drinking onboard). Then when he did report them, he went straight to port state without looping the company in.
Looks like big blue got themselves in another pickle with more bad PR and a hit to the pocketbook do to “assholes” being in position of authority.
Read between the lines, and it sounds like the captain was an asshole, and there were a few previous assholes that gave bullshit retaliatory performance reviews. Maybe office clowns should pay attention when somebody with 10 years of good performance evaluations gets a shit one out of the blue…
These businesses create “company policies” of words and bullshit that are violated daily during normal work activities–but use them as reason for termination at convenient times, due to “you broke muh rulez”.
Regardless, incompetence in the office costs big money and creates bad publicity again!
Read page 5, the logic is valid. It is more likely than not this guy would’ve been sailing captain in short time had he not been shitcan’d.
This particular case is trivial. As an event it is forgettable.
But as a legal precedent it may have wide-ranging application.
You make a business. You decide who runs things for you. Then the government tells you they will decide who will run your business, not you. Because they now have legal precedent for a government entity to appoint a department head in a private business, outside of a receivership/bankruptcy setting.
You set up a lemonade stand with Lucy, but the government tells you you must employ Pigpen instead, even though Pigpen is driving away your customers with his hygiene issues.
That’s the way legal precedent works. So is this precedent new, or has it been on the books? If it’s new depend on business interests to fight it in the courts.
To answer your question, yes I think it is possible that he didn’t know. But, as you know, it doesn’t matter if he knew or not as he (and the CE) are to held to account if that is the situation. That is, if you didn’t know, you should have known.
I don’t think the EFP was out of commission however as (quoting from the article):
“(Maersk) noted that the Coast Guard had cleared the ship to sail after the inspection.”
Pretty sure the EFP is a no sail item if it is not available.
Generally speaking for this is more true for Maersk but not so true for other companies. For most other companies, once you are promoted to Captain you the Captain on a permanent rotation on a specific ship. You maybe considered the “relief captain” for the more senior Captain. And may be ask to switch to a new or another ship after a couple years but most of the time you are on the same ship every hitch.
Not trying to defend what OSHA did here but the better analogy here would be that it was Lucy that called and reported deficiencies, at least that’s OSHA’s position.
From the report:
the ship’s leaders gave Complainant positive feedback and words of praise for his work. They specifically noted that he “has the knowledge, experience, and training to sail as a Captain.”
The C/M should have called the DPA not the CG, but we don’t know why he didn’t. The company firing the C/M opens the company up to this risk. Like it or not a crewmember can and will “drop a dime” and call the Coast Guard, justified or not. It’s a bonehead move to fire them if they do.
Once a person is made permanent Captain, or Chief it can be near impossible to undo that decision. That is the reason companies would prefer to see a permanent mate bump up to relief captain whether it be on their ship or another. On ships with 2 permanent Captains, Chiefs, Mates, or Firsts, no one is considered “relief” or less senior. It helps if you work well with your opposite for the good of the ship, but it doesn’t always work out that way.
A couple things popped up when I read the referenced articles. With regards to the Emergency Fire Pump, firemain leak (flange gasket, drain valve?), cargo hold bilge system or safety rail in need of repair; I would think the mate would usually have a conversation with the chief first.
Wouldn’t the mate direct the bosun to free up the lifeboat blocks and releasing gear? Seems to me that is directly within his area of responsibility.
Where is the union in all this? I would think if this was a bad firing there would be a grievance filed immediately. Yes the union will back you. Several years ago (on my old ship) the captain and mate had a personality clash and attempted to fire him. It did not go well for the company and captain. The mate got his position back, along with back pay and pension credit.
Any Captain/company that retaliates and/or fires somebody for contacting the USCG regarding a US Flagged ship is an absolute fool. There is no way to win that battle.
So again, “assholes” with sociopathic tendencies in place of power.
Why is it so hard to get rid of a bad apple capt/chief? In the real world, the higher one goes, the easier it is to be sacked. As it should…more responsibility and more pay come with that position. This lack of proper oversight of senior officers has cost companies lots of money the last few years.
It’s an OSHA decision. It will have little precedence to Courts. Courts are usually loath to compel someone to work/hire (or not work in the case of non-compete agreements). Money damages are far more likely.
Expect an appeal by Maersk with a request to stay the OSHA decision. The stay request has a reasonable chance of prevailing.
Speaking from the viewpoint of someone who used the Seaman’s Protection Act when, as a Captain for Noble Drilling, I was retaliated upon and fired for reporting safety violations/issues, the Seaman’s Protection Act did exactly what it was designed to do. This individual was awarded back pay and punitive damages and was reinstated. Maersk’s contention that he did not report it internally and give them an opportunity to rectify the situation is, in my opinion, weak at best. One poster commented that he should have reported the issue(s) to Maersk’s DPA. I will surmise this individual feared retaliation if he reported it internally. I can state first hand that I reported the safety violations on my vessel to my DPA both verbally and via email. I never heard from the DPA again and was fired eleven days later. One of the purposes of the ISM Code and safety management systems is to encourage reporting of safety issues. Firing people does not encourage a positive safety culture and results in the opposite of what the ISM Code and safety management systems were intended. Akin to my former employer, it is amazing that Maersk would fire a senior officer over something such as this.
A chance of prevailing on the entire OSHA decision, or just the promotion part?
Can’t fix arrogance combined with stupid. At least figure a way out to do that isn’t isn’t in direct violation of stated .gov protections! The scumbags are getting lazy, or just incompetent–I guess they went cheap on their counsel?
In my opinion, companies such as Maersk and/or Noble have been enabled to behave this way. They know the USCG and the Flag States will look the other way and do nothing. Since they know there will be no repercussions there is no incentive for them to change their behavior or culture. I would like to know who issued them their ISM safety management certificate and their document of compliance. Clearly, they BS’d their way through the auditing process.