Bouchard ordered to compensate fired whistle-blower

An investigation by the US Department of Labour’s Occupational Safety and Health Administration (OSHA) has found that Bouchard Transportation Company Inc B Number 272 Corp – a petroleum barge company based in Melville, New York – and its officers violated the whistle-blower protection provisions of the Seaman’s Protection Act (SPA) when it retaliated against a seaman who cooperated with US Coast Guard (USCG).

OSHA’s Whistle-blower Protection Programme investigators found  that the actions of the company, as well as Morton S Bouchard III; Brendan Bouchard and Kevin Donohue, constituted retaliation against the seaman for protected activity under the SPA, and that these actions would dissuade a reasonable seaman from reporting safety issues.

On October 20th 2017 the barge Buster Bouchard/B No 255 exploded off Port Aransas, Texas, killing two Bouchard Transportation employees (IMN, October 23rd 2017).

A brother of one of the victims, who was also a Bouchard Transportation Company employee, claimed he was fired for cooperating with investigators and reporting other safety concerns to the USCG. Under the SPA, reporting alleged violations of maritime safety laws and regulations, cooperating with USCG safety investigations and furnishing information to the USCG about facts related to any marine casualty resulting in death, are protected activities.

The seaman engaged in such protected activity some days after his brother’s death. Bouchard Transportation Company Inc B No. 272 Corp, Morton S Bouchard III; Brendan Bouchard; and Kevin Donohue fired him just over three months later. In early January 2018, the seaman inquired about when he could return to work, and received no response. They then gave him no reason for the termination of his employment on January 31st 2018.

OSHA has preliminarily ordered the employer to pay the seaman:

  • Back pay with interest plus compensatory damages for losses to his 401(k);
  • An additional two years of lost wages in lieu of reinstatement;
  • No less than $50,000 for emotional distress, pain and suffering, loss of reputation, and mental anguish resulting from Bouchard’s adverse employment action; and
  • No less than $200,000 in punitive damages for Bouchard Transportation Company Inc B No 272 Corp; Morton S Bouchard III; Brendan Bouchard; and Kevin Donohue’s reckless disregard for the law and callous indifference for seamen’s rights under the SPA and egregious conduct.

OSHA also ordered the employer to refrain from making any adverse statements with respect to the seaman’s termination and/or any of the facts at issue in this case; and to train – within 60 days from receipt of OSHA’s Preliminary Order – its managers and employees about seamen’s rights under the SPA without fear of retaliation and provide proof of such training to OSHA.

OSHA Regional Administrator Richard Mendelson said that “this case revealed troubling safety violations in the wake of a seaman’s death and it exemplifies how a culture of intimidation can have disastrous results for seamen. Employers and vessel owners must know and respect that the Seaman’s Protection Act safeguards seamen’s cooperation with USCG and other safety investigations and the reporting of safety concerns.”

The captain of tug Buster Bouchard (IMO 7814591) reported that the barge, loaded with approximately 133,000 barrels of crude oil and attached to his tug, was on fire and that two crew members were missing. The explosion happened while the tug was pulling in anchor about 3.25m offshore. The vessel was inbound at the time, heading for the Gulf Copper Ship Yard in Port Aransas. 1979-built, USA-flagged, 592 gt Buster Bouchard is owned by Tug Buster Bouchard care of manager Bouchard Transportation Inc of Melville, New York State, US.