Maritime attorneys, Gordon, Elias & Seely, on behalf of Party-In-Interest (PII) Douglas Brown, have continually attempted throughout the entire Joint Investigation Task Force (JIT) hearings to prove that the Deepwater Horizon was misclassified by the Republic of Marshall Islands (RMI), the flag state.
RMI had every opportunity to volunteer the information the first week of hearings held by the JIT which included testimony from the RMI. RMI failed to do so and this failure was intentional. Only after repeated written requests from PII Brown did RMI publicly admit its misclassification. Even though it reluctantly admitted this misclassification on the Deepwater Horizon, it successfully fought revealing whether this misclassification had occurred fleet wide for Transocean’s MODUs – DPV.
PII Brown’s Request Letter to The Marshall Islands: #5:
5) Finally, I would like to know if there were other Transocean DP vessels that were flagged to the MI during the time the Deepwater Horizon was flagged to the MI and were classified as MODUs but should have been classified as MODUs DPV. If there were, please state:
a. The name(s) of each of these vessels;
b. The date of the misclassification;
c. If the misclassification has now been corrected; and
d. The date it was corrected.
RMI’s Response to PII Brown’s Request Letter #5:
Finally, Mr. Gordon’s fifth question asks whether there were any other Transocean DP vessels, other than the Deepwater Horizon, that were flagged with The Marshall Islands and “were classified as MODUs but should have been classified as MODUs DPV.” This question again misstates the effect of the clerical error which was previously explained in detail and again requests information which is outside the scope of the Board’s investigative mandate. During my telephone conversation with Mr. Gordon on October 4, 2010, he expressly stated to me that his objective in asking seeking information on these topics was to obtain information to support a private lawsuit against Transocean. In light of the above referenced record of multiple exchanges on these same topics and Mr. Gordan’s explicit admission to counsel that his purpose in seeking the information is to pursue a private lawsuit against Transocean, we respectfully request that the Board decline to entertain further inquiries from Party-In-Interest Douglas Brown on these topics.
The Marshall Islands – A Speck of Sand in the Ocean
Although RMI is a speck of sand in the world, since 1990, they have offered ship registrations under the Marshall Islands flag. The Marshall Islands now registers about 2,000 vessels, the fourth-largest fleet in the world, and receives an income of approximately $4 million annually which represents approximately 3.25 % of the gross revenue of The Marshall Islands that comes from flagging vessels.
Why in the world would Transocean flag the Deepwater Horizon to the Marshall Islands? The answer is simple. They allowed Transocean to live out its management structure which is not to have a licensed captain in charge when the BOP is down. Transocean and RMI thought they would never get caught, but they were wrong – they were dead wrong.
There are many significant findings that are very important in the USCG Report, but Gordon, Elias & Seely have concentrated their efforts on ferreting out the maritime command issues.
See USCG Report.
The following are highlights of the JIT results of the misclassification of the Deepwater Horizon:
(1) Page xi & xii. “B. Key Investigative Findings” “Command and Control” –
“Because of a ‘clerical error,’ by the Republic of the Marshall Islands, DEEPWATER HORIZON, was classified in a manner that permitted it to have a dual-command organizational structure under which the OIM was in charge when the vessel was latched on to the well, but the master was in charge when the MODU was underway between locations or in an emergency situation. When the explosions began, however, there was no immediate transfer of authority from the OIM to the master, and the master asked permission from the OIM to the master, and the master asked permission from the OIM to activate the vessel’s EDS. This command confusion at a critical point in the emergency may have impacted the decision to activate the EDS.”
(2) Page 27 “E. Transocean used a dual-command organization structure that created command confusion during the well control incident and decision to activate the EDS.”
“At the time of the casualty, there was confusion on DEEPWATER HORIZON about who was in charge of the MODU arising from the dual-command organizational structure instituted by Transocean. The Minimum Safe Manning Certificate (MSMC) issued by the Republic of the Marshall Islands (RMI) for DEEPWATER HORIZON listed the vessel as a self-propelled MODU rather than as a dynamic positioned vessel. RMI has since acknowledged that listing the unit as a self-propelled MODU was the result of a “clerical error.” For self-propelled MODUs, the RMI requires a master to be on board when the vessel is underway and allows an OIM to be in charge when it is latched-up. For dynamically positioned vessels, the RMI requires a master to be on board at all times but does not clearly define the chain of command. As a result, Transocean implemented a dual-command organizational structure, in which the master was in any emergency situation, the master was to assume full control over the unit. DEEPWATER HORIZON’s operations manual states that “the Master has overriding authority and responsibility to make decisions with respect to safety and pollution prevention and to request all internal company assistance as necessary.” The operational guidance is clear that only one individual can be the person in charge at any given point. During the normal course of operations, if an emergency were to occur while the MODU was latched up, command was to shift from the OIM to the master. The transfer of responsibility and authority could be done verbally, with the time noted and a formal documented transfer completed when time allowed. Whenever possible, a PA system broadcast was to be made at the time of transfer to ensure that all personnel were aware of any change in command. This arrangement may have impacted the decision to activate the vessel’s EDS. At the time of the casualty, the master was in the CCR conducting a familiarization tour for BP and Transocean executives. The OIM was below in his stateroom and did not arrive in the CCR for several minutes after the explosions. Upon his arrival, there was no immediate transfer of responsibility between the OIM and the master and no verbal or PA announcement to indicate that the master had relieved the OIM as the person in charge. This failure to clearly delineate that the responsibility for the operation of DEEPWATER HORIZON had shifted from the OIM to the master created a situation in the CCR where it was unclear who was in charge. The lack of clarity is evidenced by the fact that the master asked the OIM for permission to activate the EDS. The confusion was further demonstrated by the fact that by this time, the subsea supervisor had already activated the EDS. Current U.S. regulations regarding manning requirements for MODUs require self-propelled MODUs to be under the control of the master when underway. MODUs that are bottom bearing or moored with anchors are considered on location, and no longer underway. However, the existing regulations do not account for the use of dynamic positioning (DP) systems. U.S. flagged MODUs using DP for station keeping are considered self-propelled motor vessels that are underway, and cannot be considered on-location as defined in 46 CFR § 10.107. Thus, a dual command structure is not permitted on a U.S. flagged DP MODU. The regulations are less clear about the division of responsibilities between the vessel master and the OIM for foreign flagged DP MODUs operating on the U. S. OCS. Further discussion of the shortcomings of the existing U.S. regulations is provided in Appendix I.
(3) Page 32 under “Conclusions”
H. The Republic of the Marshall Islands’ (RMI’) “clerical error” in listing DEEPWATER HORIZON as a self-propelled MODU instead of a dynamic positioned vessel enabled Transocean to implement a dual-command organizational structure on board the vessel. This arrangement may have impacted the decision to activate the vessel’s emergency disconnect system (EDS). Even though the master, who was responsible for the safety of his vessel, was in the CCR at the time of the well blowout, it cannot be conclusively determined whether his questionable reaction was due to his indecisiveness, a lack of training on how to activate the EDS or the failure to properly execute an emergency transfer of authority as required by the vessel’s operations manual. U.S. regulations do not address whether the master or OIM has the ultimate authority onboard foreign registered dynamic positioned MODUs operating on the U.S. Outer Continental Shelf.”
(4) Page 69 – V. Conclusions -
A. The presence of the visiting BP and Transocean executives in the Central Control Room/Bridge of DEEPWATER HORIZON immediately prior to the casualty may have diverted the attention of the offshore installation manager and senior toolpusher from the developing well conditions, limited their interactions with the on-watch drilling crew, and led to their failure to follow the emergency evacuation procedures.
(5) Page 104 – “A. The Republic of the Marshall Islands did not meet its responsibility to ensure the safety of DEEPWATER HORIZON.”
In 2009, the RMI issued a Minimum Safe Manning Certificate to DEEPWATER HORIZON classifying it as a self-propelled MODU, as opposed to a dynamic positioned vessel. RMI has since described this action as a “clerical error.” This error, however, had significant consequences. A self-propelled MODU without a dynamic positioning system must be anchored to the ocean floor when it is on location to maintain position. According to RMI, a non-DPV does not require a traditional marine crew led by a master while the MODU is on location. However, given that a dynamically positioned MODU is always taking active means to remain on location, a master and full marine crew is required at all times for a DPV. Because the DEEPWATER HORIZON was classified as a self-propelled MODU, Transocean was permitted under international regulations to implement a dual-command organizational structure, which reduced the master’s awareness of potential threats and his effectiveness in ensuring the safety of his MODU. As discussed in Chapter 1, the dual-command organizational structure may have delayed the activation of the vessel’s emergency disconnect system and increased the likelihood of the subsequent events (explosion, fire, loss of life, injury, and sinking).
(6) Page 114 –
“H. The Republic of the Marshall Islands’ (RMI’) “clerical error” in listing DEEPWATER HORIZON as a self-propelled MODU instead of a dynamic positioned vessel enabled Transocean to implement a dual-command organizational structure on board the vessel. This arrangement may have impacted the decision to activate the vessel’s emergency disconnect system (EDS). Even though the master, who was responsible for the safety of his vessel, was in the CCR at the time of the well blowout, it cannot be conclusively determined whether his questionable reaction was due to his indecisiveness, a lack of training on how to activate the EDS or the failure to properly execute an emergency transfer of authority as required by the vessel’s operations manual. U.S. regulations do not address whether the master or OIM has the ultimate authority onboard foreign registered dynamic positioned MODUs operating on the U.S. Outer Continental Shelf.”
Maritime lawyer, Steve Gordon, was the first attorney to bring attention to this travesty.