Boom! A systematic approach to maritime risks

Buddy Bardenwerper (left) and Luis Llamas (right). Credit: Jones Walker

By Luis Llamas and Thomas “Buddy” Bardenwerper, Jones Walker LLP Maritime Practice Group

The bilge alarm is sounding. Smoke is billowing. Oil is spreading. A lot needs to happen in these critical, heart-pounding moments; coming up with an emergency response plan shouldn’t be one of them.

Operating a maritime business is inherently risky. This is so for inland commerce, open ocean navigation, and everything in between. Not only are maritime professionals subject to the whims of Mother Nature, but much of the work itself is dynamic, involving massive vessels, heavy machinery, and hazardous materials. Accordingly, anyone engaged in the maritime industry — from deckhands, machinery operators, and engineers to captains, shoreside support staff, and corporate officers — must be ready to respond to a crisis at a moment’s notice. Because an ounce of preparation is worth a pound of cure, leaders of maritime businesses should expect that crises will occur and train their workforce for the inevitable.

That said, developing a maritime emergency response plan can seem daunting. Again, a lot can go wrong, and many people need to do different things at different times. This can be overcome, however, by breaking down a nascent plan into its logical parts. One way of doing this is to organize the plan hierarchically — i.e., with some aspects geared toward operators and other aspects designed for managers — and temporally — i.e., left of boom, at boom, and right of boom. By making the planning today easier, the response to the crisis tomorrow will be more effective.

Operators, managers and maritime risks

Roughly speaking, operators are those employees who carry out the business’s day-to-day operations. For example, they would be the men and women working aboard the company’s vessels or rigs. Managers, on the other hand, are those individuals who are one step removed. These include the executive leadership team, in-house counsel, or human resources professionals. Because operators and managers will face different kinds of problems during the same crisis, the emergency response plans dictating what they should do and when they should be appropriately tailored.

Left of boom, at boom, and right of boom

To organize a response plan temporally, imagine a hypothetical “boom” event such as an explosion, hurricane, collision/allision, blowout, or spill. And then figure out what the managers and operators need to do left of boom, at boom, and right of boom. In other words, what should be done to prevent a specific emergency from happening? What should be done right now when an emergency does happen? And what should be done to navigate the lingering fallout from a crisis to best protect the business and the community and restore operations? These are the “preparation,” “immediate response,” and “recovery” stages.

Now let’s see how these pieces fit together in terms of maritime risks.

I. Preparation

The preparation, left-of-boom stage requires both managers and operators to brainstorm what kinds of emergencies are most likely to occur in their business. Some risks will be obvious, such as a blowout for the offshore oil and gas industry. Others will be less so, like a pandemic causing port closures while a container ship is underway. Once the various risks have been identified, different teams can begin drafting specific response plans for each. In doing so, they should consider the federal and state regulations related to these risks. What do the Occupational Safety and Health Administration, the Coast Guard, or the Environmental Protection Agency have to say about this kind of hazard? And what capabilities does the company already have on hand, such as firefighting equipment, life rafts, and personal protective equipment? And will it need resources like aircraft, rescue personnel, tugs, or divers from the government or private-sector partners?

As these general plans come together, they should be fine-tuned and eventually spawn easy-to-follow checklists for operators and managers. Scheduled and unscheduled drills will also be critical, as working through these checklists from top to bottom is the only way to reveal shortcomings. Feedback — whether from the most senior, well-coiffed executive to the most junior, grease-splattered wrench-turner — should be solicited and considered, as the response plan is, after all, a living document.

II. Immediate response

Boom! When least expected, the catastrophe strikes. In this phase, the onus is on the operators who are on scene (and potentially in great danger) to make the critical decisions that will dictate the trajectory of the crisis. The goals here will likely be the same regardless of the business: protection of lives, protection of the environment, and protection of property. For operators, this means immediately reporting the incident, seeking assistance, and initiating the emergency response procedures that have hopefully become second nature. Managers will need to rush personnel and assets to the scene — to the extent it is possible — and coordinate with local, state, and federal responders.

III. Recovery

Once the initial crisis has been contained — i.e., anyone in immediate danger has been evacuated, fires have been controlled, hazardous materials are no longer being discharged, etc. — access the risks to minimize negative repercussions and begin recovery as quickly as possible. Again, the tasks confronting operators will differ from those confronting managers. For operators, the focus will be on cleanup, salvage, and restoration of infrastructure. For managers, the emphasis will be on public relations, dealing with civil or criminal investigations or lawsuits, or navigating insurance and indemnification claims. It is only when both the operators and managers are successful that their business will truly be up and running once again — and hopefully more resilient to risks moving forward.

Accidents happen, but effective responses are planned and tested in advance. A maritime emergency response plan should be considered a living document with periodic reviews and audits.

Operators and managers. Left of boom, at boom, and right of boom. A maritime emergency response plan organized in this way will be easier to draft, easier to drill, and easier to execute — give it a try before the next crisis strikes.

ABOUT THE AUTHORS

Luis Llamas is a partner in Jones Walker LLP’s Maritime Practice Group and is the head of the firm’s Miami office. In his maritime practice, Luis has led multiple casualty investigations and resulting litigation and routinely handles cases involving marine casualties, collision, personal injury, complex maritime products liability, commercial litigation, contract disputes, and a wide range of transactional matters. 

Thomas “Buddy” Bardenwerper is an associate in Jones Walker LLP’s Maritime Practice Group based in the Miami office. He is a former U.S. Coast Guard officer and has participated in critical pollution, search and rescue, and law enforcement cases.