There seems to be more than meets the eye in the personal injury lawsuit by a Capt. Wren Thomas against the owners of the offshore supply vessel (OSV) C-Retriever. Capt. Thomas was kidnapped by pirates and held for 18 days after the C-Retriever was hijacked off Nigeria in 2013. The original petition was filed in a Houston state court in October 2013, then transferred to the US District Court there a month later, where it was recently dismissed. The court dismissed the vessel’s charterer, Chevron, outright and the vessel’s owner, Edison Chouest Offshore (ECO) because the suit was filed in the wrong venue.
That ruling means that Capt. Thomas can refile the suit in the Eastern District of Louisiana, where ECO is domiciled, but that doesn’t mean he’ll get much. Although the state court petition contains a number of spelling and grammar errors — unusual but not unknown in state court filings — the case’s real problems are more substantial.
It’s a known fact among personal injury attorneys that corporate defendants going before juries in South Louisiana do so at their peril, so Capt. Thomas will probably get something regardless. But if he does go to trial, he’ll have to show that Edison Chouest was negligent in some way, and the petition doesn’t offer much in that regard. It devotes more than 200 words to establishing that piracy exists in the Gulf of Guinea. When it does get around to ECO’s negligence, the only clearly defined accusation is that Chevron used VHF radios rather than satellite telephones to communicate between vessels and installations. Now that Chevron’s been dismissed, convincing the court that this was ECO’s fault could be a tough sell, even if that did constitute negligence on Chevron’s part.
One virtually meaningless allegation is that the C-Retriever was “too old, too slow, and not equipped with state-of-the-art anti-piracy countermeasures.” This one’s easy: built in 1999 and fully classed with ABS, the C-Retriever was neither older, slower, nor less-equipped than the bulk of the international OSV fleet. Whether the vessel’s anti-piracy measures were adequate is a question of fact and expert opinion, but assuming that the vessel was fully compliant with the International Ship and Port Facility Security (ISPS) Code, this could be a tough sell as well.
The most troubling accusation in the petition is that “in the Spring of 2013, while working aboard the C-Retriever, Thomas began receiving. . .death threats. The petition also states that ECO “received an email. . .that Wren should not return to Nigeria.” What measures ECO took in response to these threats from its headquarters half a world away, and what it should have done, would probably emerge at trial, but I bet ECO’s attorneys could also get in the fact that Capt. Thomas returned to the “zone of terror” (the petition’s turgid phrase) for at least 12 hitches over a period of two-and-a-half years. There’s also the question, unaddressed in the petition, of what Capt. Thomas did or could have done — presumably ashore — to elicit such personal death threats.
Another of the petition’s allegations is that ECO “circulated a warning to its vessels in the region [to]‘stay very vigilant at all times and review . . . Security plans.’” This isn’t much of an accusation: ECO is required by the ISPS Code to circulate such warnings. The petition also says Capt. Thomas tried to avoid making the trip that resulted in his capture, “but was ultimately overruled and forced to embark on a mission that he knew would make the C-Retriever a sitting duck for pirates and hijackers.”
The question here is whether Capt. Thomas understood the bedrock principle of “master’s overriding authority.” As an ISM/ISPS auditor, I ask the master of every ship I audit what his authority is. A master who doesn’t say he has overriding authority automatically gets a non-compliance. And a master cannot be fired for refusing to undertake an unsafe voyage — or, more accurately, he can be fired, but he has a nice fat lawsuit for that reason alone, including punitive damages.
The petition concludes with an allegation that “neither [Capt. Thomas] nor his crew received any formal education by ECO in the handling of pirates … [including]nothing in the ‘ships security plan.’” This sentence is probably false. Every deck officer on every ship under ISM/ISPS must have a certificate of completion for the required security courses. There is no regulation or standard in the industry requiring a shipboard officer — even the Shipboard Security Officer — to receive in-house (as opposed to on-board) training. And every SSP must have a section on shipboard preparation for and response to threats of piracy.
It may well be that, during his 18 days of captivity, Capt. Thomas was “treated like an animal and developed the realistic expectation of his immanent (sic) death among his captors,” and it may well be that some fault on the part of ECO will emerge at trial, but if I were Capt. Thomas’ counsel — not being a personal injury attorney and based only on the petition itself — I’d be talking about a nice little settlement rather than a trial on the merits.