Pursuant to the Marine Mammal Protection Act, the Secretary of Commerce may require a vessel to allow onboard a government observer to monitor the vessel’s compliance with fishing regulations. 16 U.S.C. § 1361 et seq. These observers are federal employees, and not the employees of the vessel. Generally, vessels enjoy tort immunity for injuries that may happen to these observers. This immunity does not apply, however, if the observer is injured while “engaged by the owner, master, or individual in charge of a vessel to perform any duties in service to the vessel.” See 16 U.S.C. § 1383a(e)(7)(B).
Here, the plaintiff was working as a fisheries observer aboard the F/V Lady Karen when she was injured by a snapped cable. At the time of her injury, the plaintiff left her post momentarily, to take a bathroom break. She argued that because her injury occurred during her bathroom break, she was not working as an observer when she was injured. The Ninth Circuit disagreed, concluding that the plaintiff’s decision to take a “short on-board break did not somehow cabin or limit [her] ‘service’ as an observer.” Common sense dictated that plaintiff was working in the capacity of a government observer when she was injured, and that the vessel was entitled to tort immunity.
Bauer v. MRAG Americas, Inc., — F.3d —- (9th Cir. 2010).
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)