In Alfred v. Anadarko Petroleum Corporation et al., No. 13-211, 2014 WL 6633105 (M.D. La. November 21, 2014), newly-minted Judge John W. DeGravelles re-affirmed the spirit of Romero v. Mobil Exploration, 939 F.2d 307, 311 (5th Cir. 1991), holding that the reinvented SEMS II rules (Safety and Environmental Management Systems) found in the Code of Federal Regulations (“CFR”) do not create a private cause of action under Louisiana law.
In Alfred, the plaintiff alleged that he was injured on a fixed platform on the OCS owned by Anadarko Petroleum Corp. On behalf of Anadarko, Kean Miller filed a Motion for Summary Judgment arguing that Anadarko could not be found independently negligent because it merely owned the fixed platform and had no employees onboard. Anadarko also asserted the traditional independent contractor defense, arguing that its contractors were responsible for the safety of their employees and Anadarko did not exercise any control over them. Accordingly, Anadarko could not be held responsible for the negligence of its independent contractors.
In Opposition, Plaintiff argued that Anadarko was independently negligent for its failure to provide him with a safe place to work. Particularly, Plaintiff asserted that 30 C.F.R. § 250.1900 imposed a legal obligation on Anadarko to ensure that all operations conducted on its platform were safe. Plaintiff also argued that 30 C.F.R. § 142.4 required Anadarko to maintain its platform in compliance with workplace safety and health regulations and be free from recognized hazards, arguing that Anadarko’s failure to comply with these CFRs gave rise to liability.
In Romero, the U.S. Fifth Circuit held that the then-existing MMS rules found in the Code of Federal Regulations created no implied cause of action for their breach, though under Louisiana law, they would be relevant evidence in weighing a defendant’s liability. In October 2010, BSEE (formerly MMS) issued the SEMS II final rule (the “Workplace Safety Rule”) which expanded, revised, and supplemented the provisions of 30 C.F.R. § 250.1900, et seq. One such revision was to make the regulations mandatory on oil and gas operators on the Outer Continental Shelf. Since then, in an effort to get around the independent contractor defense, Plaintiffs have begun arguing that the non-delegable nature of the Workplace Safety Rule (and the change from MMS to BSEE) effectively abrogated Romero, and all other pre-October 2010 cases addressing these CFR’s.
In Alfred, the Court acknowledged the continued application of Romero post-MMS, holding that while Louisiana law recognizes applicable federal regulations as relevant evidence in weighing culpability,Louisiana law does not provide a cause of action from the breach of MMS (now BSEE) regulations. “[T]hese regulations do not alone form an independent basis for the imposition of liability for negligence.” Accordingly, “[t]he Code of Federal Regulations does not create an independent cause of action by which Anadarko could be liable for insuring that all work done by sub-contractors on its platforms is done in a safe and workmanlike manner.”
SEMS II undoubtedly imposed non-delegable duties upon platform owners, however, Alfred provides platform owners with post-SEMS II support to deflate any argument that those duties create any cause of action under which an injured worker can sue. Those regulations only govern the relationship between BSEE and the platform owner, not between the platform owner and its contractors. Thus, any breach of the duties imposed by SEMS II would be dealt with and punished by BSEE, not by a civil court.