Litigation

Alabama/Louisiana Oil Spill: Complaint filed 5/6/10: United Comerical Fishermans Association v. BP and Others 256-702-5005

By Rick Kuykendall

We're diligently working to protect those in the Commercial Fishing Industry as the man made calamity continues. I'm praying for  minor damage.

Here's part of the Motion filed today:

 RKlaw/safety-motion-for-tro-00082468

PLAINTIFF'S SUPPLEMENTAL EMERGENCY MOTION FOR
TEMPORARY RESTRAINING ORDER

NOW INTO COURT, through undersigned counsel, comes Plaintiff, George Barisich,
individually and on behalf of the United Commercial Fisherman's Association, Inc. as President
thereof, who, pursuant to Federal Rule of Civil Procedure 65, moves this Court for supplemental
emergency relief and a temporary restraining order enjoining Defendants, BP, plc, BP
Exploration & Production Inc., and BP America Production Company (collectively 'BP'), from
ignoring or otherwise circumventing its responsibility for safety oversight as to hazardous
chemical exposure for services performed by vessel owners, captains, and crews under the
Master Vessel Charter Agreement ('MVCA') (or substantially similar documents) attached as
Exhibit A to both Plaintiff's Supplemental Verified Complaint for Declaratory and Injunctive
Relief and to the memorandum of law filed herewith.
 

As set forth more fully in the corresponding Supplemental Verified Complaint for
Declaratory and Injunctive Relief and the memorandum of law, parties entering into the MVCA
and their captains and crews are likely to be exposed to hazardous chemicals. The MVCA
specifically states that 'SERVICES shall include, but not be limited to, tending or deploying
boom and skimming equipment, skimming operations, recovering oiled debris, collecting
Case 2:10-cv-01316-KDE-JCW Document 9 Filed 05/06/10 Page 1 of 7
 

2
garbage, assistance with wildlife operations and towing equipment.' MVCA at Art. 2. The
agreement contemplates that the vessels may require 'decontamination' but is shockingly silent
as to any hazardous chemical exposure safety oversight responsibility on the part of any entity.
Ex. A, passim.
Other than a brief reference to non-specific 'training,' there is nothing in the MVCA that
(1) alerts parties to the Agreement that they, their captains, and/or crews may be exposed to
hazardous (and particularly) flammable chemicals as part of the cleanup services nor (2) informs
vessel owners of safety oversight needs for such hazardous and flammable chemical exposure.
The silence on this important issue is of grave concern to Plaintiff and the members of the United
Commercial Fisherman's Association, Inc. who believe that it is either gross oversight or
intentional manipulation by BP.
Clearly, the vessel owners are not experts in the area of hazardous chemical exposure nor
dealing with flammable crude oil. Further, they do not have experience under the OSHA or U.S.
Coast Guard regulatory regimes respecting hazardous materials exposure or the handling of
flammable crude oil, as does BP. And, of course, it is BP that is responsible for the cleanup of
this disaster and has asked for the special aid of these vessel owners, captains, and crews, despite
their prior lack of experience with hazardous chemical exposure and handling of flammable
crude oil.
As explained by Cdr. David Cole, USCG (ret.):
As commercial fishing vessels, the vessels found in the Gulf Coast region are not
inspected by the Coast Guard and their overall condition and fitness will be
dependant on the efforts of the individual owners. They are not constructed or
equipped to operate in the presence of oil or other hydrocarbons as either cargoes
or where these commodities ate [sic] freely in the environment, as where there is a
discharge into the environment. Further, the persons-in-charge (captains) of these
vessels, along with the crews are not trained, by virtue of the customs of their
industry or the professional competence requirements of the Coast Guard, to
Case 2:10-cv-01316-KDE-JCW Document 9 Filed 05/06/10 Page 2 of 7
3
recognize or avoid the hazards to their health or the safety of their vessels, of
exposure to the commodities which would be found in a spill of crude oil. . . .
Crude oil is also a flammable liquid and will emit flammable vapors, which may
be ignited by an ignition source, such as spark-generating motors, hot exhaust
fixtures, or any other spark generating equipment (i.e.; two metal items rubbing
against each other).
Cole Declaration, Ex. C, at ¶¶ 7, 9.
These concerns are echoed by the industrial hygenist Dr. Vernon E. Rose, Dr.PH.:
Workers, including those vessel owners and crew members who are or will be
subject to the Master Vessel Charter Agreements, exposed to crude oil are at risk
for a variety of adverse health effects resulting from the inhalation, skin contact
and even ingestion of the chemicals in the crude. Inhalation of the chemical
vapor as well as skin contact with the vapor and liquid are obvious. Ingestion can
occur through inadequate work practices such as the lack of sanitary facilities to
wash hands before eating.
Rose Declaration, Ex. B, at ¶ 4.
Without acknowledgement by BP that it is responsible for safety oversight of hazardous
chemical exposure for services performed under the MVCAs and assumption of that
responsibility, the fishermen, shrimpers, oystermen, and owners of all commercial fishing
vessels subject to the Agreement will be gravely harmed. Insult cannot be added to injury.
Before these brave men and women whose income and entire way of life are in jeopardy take
action in the cleanup, all steps must be taken by BP to insure that physical injury will not occur
to them as well. BP must acknowledge immediately that the regulatory compliance burdens for
vessel owners will be impossible to undertake, or at a minimum, so unduly burdensome that they
are prohibited for financial reasons from participating as responders in this issue of critical
national concern.
The most direct route to insure that all necessary protections are in place is for BP to
acknowledge that the OSHA hazardous material safety oversight standards apply to the workers
under the MVCAs, and that it is the responsible party under those standards, not the vessel
Case 2:10-cv-01316-KDE-JCW Document 9 Filed 05/06/10 Page 3 of 7
4
owners. Further, BP should report to the Court on an ongoing basis how BP is complying with
those standards as respects the workers performing services for it under the MVCA.
To be clear, Plaintiff and the members of the United Commercial Fisherman's
Association, Inc. which Plaintiff represents do not criticize BP's decision to utilize the
experience and knowledge of the people who know best how to navigate the sensitive areas most
threatened by this horrific commercial and environmental disaster. However, as aid is rendered
on behalf of BP, it is incumbent that assurances be made regarding safety plans and provisioning.
BP is clearly the only entity that could and should be responsible for such.

Full post as published by Trial Lawyer Resource Center on May 06, 2010 (boomark / email).