Baldwin Haspel Burke & Mayer LLC

Maritime Update: Seaman’s Protection Act Case

Bill Schwartz - 

JOHN R. LOFTUS v. HORIZON LINES, INC.

This case arises under the employee protection provision of the Seaman’s Protection Act, 46 U.S.C.A. § 2114 (“SPA” or “the Act”), as amended by Section 611 of the Coast Guard Authorization Act of 2010, P.L. 111-281, and implementing regulations at 29 C.F.R. Part 1986 (2017). This was the appeal before the Administrative Review Board of the Department of Labor from a decision by the Administrative Law Judge’s decision in favor of the Master/Captain, John Loftus.

John Loftus was a Master or Captain for twenty years with Horizon Lines. Horizon demoted him “due to his lack of good judgment and failure to require a Job Safety Analysis (JSA)” in connection with a March 2013 incident at sea in which his First Mate, Robert McCarthy, sustained serious injuries. After demoting Loftus from his permanent position as Master, Horizon offered him temporary work as a Relief Chief Mate on different vessels on different coasts. Loftus’ union representative rejected the assignment as “the Relief Chief Mate position offered is not a substantially equivalent job” to the Master’s job from which Loftus had been demoted.

However, these demotions came only after Loftus had made certain reports about the safety of Horizon’s vessels.

Specifically, in October 2011, Loftus contacted the United States Coast Guard (“Coast Guard”) and the American Bureau of Shipping (“ABS”) to report what he believed to be safety violations on-board the HORIZON TRADER, including repeated power box fires. Loftus informed Horizon management by email of these activities. As a result of Loftus’ complaint, the Coast Guard investigated and inspected the HORIZON TRADER, ultimately condemning certain equipment. In August 2012, Loftus notified Horizon management that there existed unsafe conditions that violated both Horizon’s internal policies as well as Coast Guard regulations. Two days later, Horizon managers inspected the HORIZON TRADER. Loftus told them during this visit that if Horizon did not contact either the Coast Guard or ABS regarding the unsafe conditions that existed aboard the HORIZON TRADER, he would contact these agencies himself. Horizon did contact ABS and, after an inspection, ABS gave Horizon thirty days to bring certain equipment into compliance with safety regulations. In February 2013, Loftus contacted an ABS inspector and expressed safety concerns about the condition of the ship. During the ensuing inspection, Loftus questioned the inspector as to how ABS could have allowed the HORIZON TRADER to sail given numerous unsafe conditions. After the inspection, Loftus admitted to Horizon, upon being questioned, that he had contacted the ABS inspector. Finally, in April 2013, Loftus contacted the Coast Guard, ABS and a Horizon manager to express a conflict in priorities between a Master’s duty to ensure the safety of a vessel in a situation where the Master also has a duty to ensure that timely, mandatory drug testing is conducted, such as during the March 2013 accident at sea. Loftus told Horizon managers that he had contacted these agencies about his concerns.

The SPA states that, “A person may not discharge or in any manner discriminate against a seaman because. . .the seaman in good faith has reported or is about to report to the Coast Guard or other appropriate Federal agency or department that the seaman believes that a violation of a maritime safety law or regulation prescribed under that law or regulation has occurred.” 46 U.S.C.A. § 2114(a). The “SPA incorporates the procedures, requirements, and rights described in the whistleblower provisions of the Surface Transportation Assistance Act (“STAA”), 49 U.S.C. § 31105.” 29 C.F.R. § 1986.100(a). In turn, the STAA provides, “All complaints initiated under this section shall be governed by the legal burdens of proof set forth in section 42121(b)” of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century. 49 U.S.C.A. § 31105(b); 49 U.S.C.A. § 42121(b).

A determination that an SPA violation has occurred may be made only if the complainant has demonstrated by a preponderance of the evidence that protected activity was a contributing factor in the adverse action alleged in the complaint. If such a determination of a violation is made, relief may not be ordered if the respondent demonstrated by clear and convincing evidence that it would have taken the same adverse action in the absence of any protected activity, thereby establishing its affirmative defense to any liability for the violation. 29 C.F.R. § 1986.109(a), (d).

In hearing this case, the Administrative Law Judge (“ALJ”) found Loftus engaged in protected activity which was supported by substantial evidence and is consistent with applicable law. The ALJ went on to find that Horizon constructively discharged Loftus when it demoted him based on his safety complaints in violation of the SPA, where “new duties as Chief Mate would have been so difficult and demanding that a reasonable person in his shoes would have felt compelled to resign.”

The ALJ awarded $555,198.90 in lost wages and benefits from Loftus’ May 28, 2013 discharge to January 15, 2015, plus severance in the amount of $100,000. They further awarded $10,000 in compensatory damages for emotional harm. Additionally, they awarded $225,000 in punitive damages for the “reckless or callous disregard for the plaintiff’s rights, as well as intentional violations of federal law.” And lastly, they instructed Loftus could recover reasonable attorney’s fees and litigation costs incurred in responding to this appeal before the Board by filing a sufficiently-supported petition for such costs and fees.

The full decision can be found here.

If you have any questions regarding this maritime matter, please contact Bill Schwartz at (504) 569-2900 or wschwartz@bhbmlaw.com.


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