In October 2000, the USS Cole [i] was attacked by suicide bombers detonating an explosive laden small craft they managed to steer alongside the Cole. Since then, under certain conditions, the United States has required physical security perimeters be set outboard of its vessels, including those at repair facilities in the United States. Typically, those conditions are triggered by a rise in the applicable National Terrorism Advisory System (NTAS) threat assessment level. The missteps in this case arise out of such an increased threat level. That change gave Berschler Associates the opportunity to consult with, then associate with a workers compensation attorney who had found themselves in legal waters too deep for them.

           A defense contractor marine repair facility (“Yard”) was renewing the weather decks of the Navy’s cutter, USS Vincent Price. On a sunny Friday afternoon in May, NTAS threat level increased substantially. The Navy notified Yard to establish either a barrier or manned patrol ASAP, and within 36 hours. Good luck! No barriers were available in time. Fortunately, the Yard had a good working relationship with another adjacent yard Friendly Repairs, Inc. (“Friendly”), which both had a contract with a private security firm, Done & Done (“DoDo”), that employed guards certified and licensed to carry arms pursuant to California Code of Regulations, Title 16, Division 7 as well as access to a small craft owned by Friendly’s sibling company, Strand & Edward, LLC (“StrandEd”). Friendly pulled together a solution for Yards: Friendly would bareboat charter the small craft, m/v Watch Out, from StrandEd, then contracted with DoDo for it to rotate armed guards to patrol offshore of the Vincent Price aboard Watch Out, 24/7. However, margins being margins and the Navy contract not providing much leeway for increased security, Yard insisted on a per diem cap, which caused Friendly to provide a single guard per shift. No second person aboard Watch Out. No formal contract was created, the agreements being memorialized by emails, invoices, and receipts.

           The Yard, hence, the Vincent Price, were located on a river that fed into a large bay that itself opened into the ocean. DoDo’s guard, I. M. Armed, was the best DoDo had; prior decades long service in law enforcement, retired. Guard Armed typically worked for DoDo ashore for years. He was assigned from shoreside work to guard the Vincent Price, assigned to the 2200-0600 shift. Unfortunately, he could not swim and had only been aboard a small outboard motorboat once or twice as a teenager. Friendly, not DoDo, gave Armed 15 minutes of vessel orientation, Sure enough, a few weeks after the patrols began, on a dark and stormy night, the Watch Out swamped being ill-suited to the swift current. Guard Armed inflated his life vest, fired a flare, then swam for his life.  He had to gain the riverbank before reaching the bay or certainly drown. He made it, sustaining personal injuries which permanently partially disabled him. Yard disturbed by discovering extent of Friendly’s or DoDo’s ineptitude, cancelled its agreement with Friendly, and obtained a barrier to Yard’s loss. Since neither DoDo nor Friendly, nor StrandEd nor Yard could sort out who owed Guard Armed any health care or temporary disability support, neither of them offer such. He hired an attorney which filed for state workers’ compensation benefits. Friendly promptly filed for protection under the Limitation of Liability Act, 46 U.SC. §§ 30501-30512 (LOLA). Consequently, Armed had to both defend and to claim in federal court because the LOLA operated to stay the state proceeding.

           Certainly, Armed was entitled to a remedy, but which one[s]? He cross-claimed of DoDo that he either was a Jones Act seafarer (46 U.S.C., §30104), a Sieracki seafarer or a harbor worker entitled to pursue both DoDo and its officers pursuant to the Longshore Harbor Workers Compensation Act, 33 U.S.C., § 905(a). He claimed against Friendly and StrandEd for unseaworthiness and pre-voyage negligence on the theory that they were co-venturers, alternately that Friendly was the owner pro hac vice of Watch Out. Armed did not sue Yard, calculating that Yard was as much a victim as he was. Berschler Associates, PC helped I. M. Armed to recover a full compensation.

  [i] All other names have been changed. The core facts have not been changed.