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New York-based Bouchard Transportation and three former and current company officials have paid $375,000 in restitution to a whistleblower who the company fired after cooperating with a federal investigation into a deadly barge explosion off Port Aransas, Texas in 2017.
The seamen, who was also an employee of Bouchard Transportation, was the brother of one of two seamen killed in the barge explosion. He alleged the company fired him for cooperating with investigators and reporting safety concerns to the U.S. Coast Guard.
The explosion occurred on Oct. 20, 2017, off Port Aransas aboard the Buster Bouchard/B. No. 255.
Investigators with OSHA’s Whistleblower Protection Programs found that the employers’ actions constituted retaliation against the seaman for protected activity under the Seaman’s Protection Act and would dissuade a seaman from reporting safety issues.
Reporting alleged violations of maritime safety laws and regulations, cooperating with safety investigations, and furnishing information to the Coast Guard about facts related to any marine casualty resulting in death, are all protected activities under the SPA.
In addition to the payment, Bouchard Transportation and the individual respondents agreed to take other remedial actions in a settlement agreement with the U.S. Department of Labor’s Occupational Safety and Health Administration to resolve violations of whistleblower protection provisions.
OSHA previously concluded in December 2019 that actions of Bouchard and three of its officers – Morton S. Bouchard, III, Brendan Bouchard, and Kevin Donohue – constituted retaliation against the seaman for protected activity under the SPA. According to OSHA, the brother was fired just over three months after the he engaged in activity protected under the SPA beginning several days after his brother’s death.
OSHA preliminarily ordered Bouchard to pay the seaman a minimum of $250,000 in emotional distress and punitive damages, plus back pay with interest, compensatory damages to his retirement account, and an additional two years of lost wages.
“Employers and vessel owners must know and respect that, under the Seaman’s Protection Act, seamen have the right to report safety concerns and cooperate with the U.S. Coast Guard and other safety investigators,” said OSHA Regional Administrator Richard Mendelson in New York. “Failure to recognize these rights can instill a culture of intimidation that could lead to disastrous or deadly consequences for workers.”
Under the agreement announced today, in addition to the $375,000 in restitution, the company must also remove any reference to the seaman’s termination and exercising of his rights under the SPA from their files, and provide a neutral reference if contacted by any prospective employer. Bouchard must also train its managers and employees about seamen’s SPA rights and post a Notice to Seamen about their rights under the SPA.
“This agreement underscores the U.S. Department of Labor’s commitment to pursuing necessary and effective legal remedies to protect and preserve a worker’s right to a safe and healthful work environment,” said Regional Solicitor of Labor Jeffrey S. Rogoff in New York. “Bouchard Transportation Co. Inc.’s disregard for worker safety is unacceptable.”
The National Transportation Safety Board’s investigation into the explosion found that the probable cause of the accident was a lack of effective maintenance and safety management of the barge by Bouchard Transportation Company. The report also cited ineffective inspections and surveys by both the Coast Guard and the American Bureau of Shipping and failure to correct unsafe conditions as contributing to the accident.
Testimony about Bouchard’s safety culture was also one of the focal points in a two-week formal public hearing in 2018 into the cause of the Barge 255 explosion conducted by the U.S. Coast Guard. At the time, Bouchard was so concerned about the impact of the testimony on its reputation that the company filed a lawsuit in U.S. District Court in Houston halfway through the inquiry seeking, unsuccessfully, to shut down the hearings.
Bouchard Transportation filed for chapter 11 bankruptcy back in September with debtor-in-possession financing. In March 2021, a U.S. bankruptcy judge ordered the immediate removal of Morton Bouchard as the company’s CEO.
The bankruptcy followed several months of back and forth with the U.S. Coast Guard over Bouchard’s Document of Compliance certificate, which is required by the Coast Guard for persons or companies who own certain U.S.-flagged vessels and certifies satisfactory completion of a safety management audit. Without the certificate Bouchard was unable to operate, at one point leaving Bouchard crews stuck on board the company’s vessels without pay until it eventually received a temporary DOC certificate and secure financing.
Bouchard Transportation was established in 1918 and has been closely-held and family-run ever since. Morton ‘Morty’ Bouchard took the helm of the company in 1992, becoming the fourth-generation of Bouchard’s to run the business.
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