The plaintiffs argued the state act did not apply because the federal Longshore and Harbor Workers’ Compensation Act (“LHWCA”) applied as extended by the Outer Continental Shelf Lands Act (“OCSLA”). Under the OCSLA, 43 U.S.C. § 1333(b), the LHWCA applies where (1) an employee’s injury “result[s] from” OCS extractive operations, and (2) his employer is an “employer” under OCSLA. In Pacific Operators Offshore, LLP v. Valladolid, the United States Supreme Court held that an injury “result[s] from” OCS extractive operations if it has a “substantial nexus” to those operations.

Although this decision represents a victory for the employer involved in the dispute, you should check with your legal counsel to ensure you are in compliance with the correct legal standard given the nuanced nature of this ruling.What Is The Outer Continental Shelf Lands Act?Determining what law applies to maritime activities that occur off the shores of various U.S. states presents unique jurisdictional issues. In 1953, the federal Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1333, et seq., was enacted following an era of disputes with the coastal states related to rich natural resource deposits lying off their coasts on the submerged lands commonly called the “continental shelf.”Through OSCLA, the United States ceded a portion of this area to state control, varying between three and nine nautical miles seaward depending on the state at issue.

Determining what law applies to maritime activities that occur off the shores of various U.S. states presents unique jurisdictional issues. In 1953, the federal Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1333, et seq., was enacted following an era of disputes with the coastal states related to rich natural resource deposits lying off their coasts on the submerged lands commonly called the “continental shelf.”Through OSCLA, the United States ceded a portion of this area to state control, varying between three and nine nautical miles seaward depending on the state at issue.

Further complicating this sharp divide, the end-users of both domestic and foreign vessels (i.e. energy companies and offshore operators) are concerned about whether there are enough – or in some cases – readily available, capable vessels in the domestic fleet that can perform the specialized work without sharp and sudden increases in price.Jones Act Coastwise/Cabotage Laws – Background By way of context, the coastwise trading (also known as cabotage) provisions of the Jones Act (typically more well known more for its provisions regarding personal injuries to seamen) are set forth at 46 U.S.C. §§55101 et seq. These provisions prohibit the coastwise carriage – i.e. “between points in the United States to which the coastwise laws apply,” which includes installations/facilities on the OCS (pursuant to 43 U.S.C. §1333(a)) – of “merchandise” by foreign-flagged or majority foreign-owned vessels. In turn, “merchandise” is defined (at 19 U.S.C. § 1401(c)) as “goods, wares, and chattels of every description” and even includes “valueless material” (46 U.S.C. § 55102(a)(2)).

While much of the media attention regarding the bill has been focused on President Trump’s threats to veto unless the bill includes a repeal of Section 230 of the Communications Decency Act (which protects tech companies from being held legally liable for what is posted on their platforms), some very important language relating to the Jones Act and offshore wind was inserted in conference. In particular, the NDAA now includes an amendment to the Outer Continental Shelf Lands Act of 1953 (OSCLA), 43 U.S.C. § 1333(a), the effect of which is to clarify that U.S. law (including the Jones Act) applies to “installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources, including non-mineral energy resources.”This language was previously proposed by Congressman Garamendi of California as part of a separate bill, the Clean Economy Jobs and Innovation Act (H.R. 4447), but is a new addition to the NDAA.

Plaintiff filed a class action, alleging that California laws required compensation for stand-by time. The platforms were subject to the Outer Continental Shelf Lands Act (“OCSLA”), which provides that all law on the Outer Continental Shelf (“OCS”) is federal law and deems an adjacent state’s laws to be inferior to federal law only to “the extent that they are applicable and not inconsistent with” federal law under 43 U.S.C. 1333(a)(2)(A). A unanimous Supreme Court vacated a decision of the Ninth Circuit in favor of Plaintiff on the grounds that where federal law address the relevant issue, state law is not adopted as surrogate federal law on the OCS.

Plaintiff filed a class action, alleging that California laws required compensation for stand-by time. The platforms were subject to the Outer Continental Shelf Lands Act (“OCSLA”), which provides that all law on the Outer Continental Shelf (“OCS”) is federal law and deems an adjacent state’s laws to be inferior to federal law only to “the extent that they are applicable and not inconsistent with” federal law under 43 U.S.C. 1333(a)(2)(A). A unanimous Supreme Court vacated a decision of the Ninth Circuit in favor of Plaintiff on the grounds that where federal law address the relevant issue, state law is not adopted as surrogate federal law on the OCS.

These platforms are subject to the Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. §1331, which provides that all law on the Outer Continental Shelf (“OCS”) is federal law, administered by federal officials. Under the OCSLA, States are denied any interest in or jurisdiction over the OCS, and the adjacent State’s laws are deemed to be federal law “[t]o the extent that they are applicable and not inconsistent with” other federal law. 43 U.S.C. §1333(a)(2)(A). Here, respondent Brian Newton worked on Parker’s platforms – where he was not paid for his standby time -- and filed a class action alleging violations of a number of California wage-and-hour laws and related state-law claims.

Id. (citing 43 U.S.C. § 1333(d)(1)).English v. Wood Grp.

Vicinay argued before the Fifth Circuit that Petrobras’ underwriters waived their choice of law argument by not raising it in the district court until the eleventh hour motion to amend their complaint which was filed after the summary judgment was granted. They asserted that the underwriters confused OCSLA’s subject matter jurisdiction conferred on federal courts in 43 U.S.C. § 1349(b)(1)(A) and which cannot be waived, with OCSLA’s choice of law 43 U.S.C. § 1333(a) which allegedly could be waived, and therefore could not be raised for the first time on appeal. Noting that the court’s precedents firmly established that OCSLA’s choice of law could not be waived by contract, as it was prescribed by Congress and parties may not voluntarily contract around Congress’ mandate, the court determined that, even more so, the choice of law provision could not be waived by failure to raise the issue below.