A Publication of WTVP

The U.S. Constitution gives the federal government exclusive admiralty jurisdiction, which the Supreme Court has interpreted to include jurisdiction over all navigable waterways of the United States. These would include, for example, Lake Michigan, the Mississippi River, and the Illinois River. Pursuant to this grant of power, the U.S. government regulates vessels operating in the interior of the United States on any navigable waterway. This regulation isn’t limited to barges, but extends to excursion boats, tourist boats, and gambling boats. The United States Coast Guard licenses both the vessels and the crew members on these vessels.

The United States has broad jurisdiction over personal property and damage claims arising out of accidents on navigable waterways, and the terms and conditions of employment of individuals employed on them. There are special laws relating to retaliation against individuals resulting from actions taken in connection with the operation of vessels on navigable waterways. The law regarding retaliatory treatment in this federal maritime jurisdiction is quite different from the Illinois law of retaliatory discharge, and has a considerably broader coverage.

The federal laws regarding retaliatory treatment provide whistleblower protection for individuals who complain of unsafe conditions. One such statute states that no person may discharge or discriminate against a seaman because 1) that seaman has, in good faith, reported or is about to report to the Coast Guard or other federal agency a violation of a safety law or regulation the seaman believes has occurred; or 2) the seaman refuses to perform duties due to a reasonable apprehension or expectation that performing such duties would cause serious injury to him, other seamen, or the public. The seaman’s belief in imminent danger must be such that a reasonable person would conclude there’s such danger. In order to qualify for the protection of the whistleblower’s act, under circumstance No. 1 (the report of a violation), the seaman must have sought a correction of the unsafe condition by his employer, and the employer must have failed or refused to correct the unsafe condition.

If a seaman is discharged or otherwise discriminated against in violation of this law, he may bring a suit in federal district court for an injunction, for reinstatement to his former position with back pay, and for attorney’s fees and costs not to exceed $1,000.

This statute was at issue in a recent decision of the United States Court of Appeals for the 7th Circuit, Gaffney et al vs. Riverboat Services of Indiana et al, which found the plaintiffs, who were employees of a gambling boat operating on Lake Michigan, had been improperly discharged. The plaintiffs had served as captains, chief engineers, assistant engineers, or deck officers on the gambling boat in question. Federal regulations require gambling boats of specific size have officers licensed by the Coast Guard at certain levels of competence. The company operating the gambling boat had requested from the Coast Guard, and had received, a waiver allowing individuals to serve as engineers who wouldn’t otherwise be able to do so.

Several of the plaintiffs wrote letters to the Coast Guard complaining of the waivers and asserting that the safe operation of the vessel was threatened by these actions. The Coast Guard considered the plaintiffs’ request to rescind the waivers and initially denied them. However, on appeal, the district commander agreed with the plaintiffs that the relaxation of the requirements for engineers was improper. Over a period of approximately two and a half weeks, the 10 plaintiffs were fired by their employer. One plaintiff was told he was fired for unauthorized communications with regulatory bodies, but the others were given other reasons for their discharges.

The trial court judge found in favor of eight of the plaintiffs, based on the fact that they’d sent letters to the Coast Guard complaining that certain crew members weren’t adequately experienced and licensed for the requirements of the gambling boat. One plaintiff had written to the Coast Guard complaining that two employees had been fired because of their complaints. The trial court found these activities were protected by the whistleblower statute. It entered a judgment against the corporate and partnership defendants (owners and operators of the gambling boat) and against three individuals who were senior management-level employees of the corporate and partnership defendants. The statute limited the class of liable persons to owners, charterers, and individuals in charge of a vessel. One of the individual defendants was the president and sole shareholder of the corporate defendant who operated the vessel, and another individual defendant was in charge of managing the vessel’s crew, including promotion and termination decisions. In fact, he’d written a letter to one of the plaintiffs terminating him for unauthorized communications with regulatory bodies. The third had recommended firing of one of the plaintiffs.

On appeal, the 7th Circuit affirmed the judgment in favor of the eight successful plaintiffs, and further found the two unsuccessful plaintiffs should’ve been allowed to recover. However, the court reversed the liability on the part of the third individual defendant, even though he’d participated in the decision to fire the plaintiffs, because there was no evidence he knew of the plaintiffs’ complaints to the Coast Guard. It affirmed the award in favor of the plaintiffs of actual damages and punitive damages, and affirmed the denial of the plaintiffs’ request for attorneys’ fees.

Many federal whistleblower statutes cover activities similar to those protected under the law of retaliatory discharge under Illinois law. However, the statutes are typically broader, and protect a greater variety of activities. Any employer who engages in commerce on navigable waterways should be familiar with these laws, since they’ll restrict his freedom to fire and discipline his employees. IBI