Safety motion for tro (00082468)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

GEORGE BARISICH, individually and on behalf of THE UNITED COMMERCIAL FISHERMAN’S ASSOCIATION, INC. Civil Action No. 2:10-cv-01316 v. Section N Mag. 2 BP, P.L.C., BP EXPLORATION & PRODUCTION INC., and BP AMERICA PRODUCTION COMPANY

PLAINTIFF’S SUPPLEMENTAL EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

NOW INTO COURT, through undersigned counsel, comes Plaintiff, George Barisich,

individually and on behalf of the United Commercial Fisherman’s Association, Inc. as President

thereof, who, pursuant to Federal Rule of Civil Procedure 65, moves this Court for supplemental

emergency relief and a temporary restraining order enjoining Defendants, BP, plc, BP

Exploration & Production Inc., and BP America Production Company (collectively “BP”), from

ignoring or otherwise circumventing its responsibility for safety oversight as to hazardous

chemical exposure for services performed by vessel owners, captains, and crews under the

Master Vessel Charter Agreement (“MVCA”) (or substantially similar documents) attached as

Exhibit A to both Plaintiff’s Supplemental Verified Complaint for Declaratory and Injunctive

Relief and to the memorandum of law filed herewith.

As set forth more fully in the corresponding Supplemental Verified Complaint for

Declaratory and Injunctive Relief and the memorandum of law, parties entering into the MVCA

and their captains and crews are likely to be exposed to hazardous chemicals. The MVCA

specifically states that “SERVICES shall include, but not be limited to, tending or deploying

boom and skimming equipment, skimming operations, recovering oiled debris, collecting

Case 2:10-cv-01316-KDE-JCW Document 9 Filed 05/06/10 of 7

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garbage, assistance with wildlife operations and towing equipment.” MVCA at Art. 2. The

agreement contemplates that the vessels may require “decontamination” but is shockingly silent

as to any hazardous chemical exposure safety oversight responsibility on the part of any entity.

Ex. A, passim.

Other than a brief reference to non-specific “training,” there is nothing in the MVCA that

(1) alerts parties to the Agreement that they, their captains, and/or crews may be exposed to

hazardous (and particularly) flammable chemicals as part of the cleanup services nor (2) informs

vessel owners of safety oversight needs for such hazardous and flammable chemical exposure.

The silence on this important issue is of grave concern to Plaintiff and the members of the United

Commercial Fisherman’s Association, Inc. who believe that it is either gross oversight or

intentional manipulation by BP.

Clearly, the vessel owners are not experts in the area of hazardous chemical exposure nor

dealing with flammable crude oil. Further, they do not have experience under the OSHA or U.S.

Coast Guard regulatory regimes respecting hazardous materials exposure or the handling of

flammable crude oil, as does BP. And, of course, it is BP that is responsible for the cleanup of

this disaster and has asked for the special aid of these vessel owners, captains, and crews, despite

their prior lack of experience with hazardous chemical exposure and handling of flammable

crude oil.

As explained by Cdr. David Cole, USCG (ret.):

As commercial fishing vessels, the vessels found in the Gulf Coast region are not inspected by the Coast Guard and their overall condition and fitness will be dependant on the efforts of the individual owners. They are not constructed or equipped to operate in the presence of oil or other hydrocarbons as either cargoes or where these commodities ate [sic] freely in the environment, as where there is a discharge into the environment. Further, the persons-in-charge (captains) of these vessels, along with the crews are not trained, by virtue of the customs of their industry or the professional competence requirements of the Coast Guard, to


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recognize or avoid the hazards to their health or the safety of their vessels, of exposure to the commodities which would be found in a spill of crude oil. . . . Crude oil is also a flammable liquid and will emit flammable vapors, which may be ignited by an ignition source, such as spark-generating motors, hot exhaust fixtures, or any other spark generating equipment (i.e.; two metal items rubbing against each other).

Cole Declaration, Ex. C, at ¶¶ 7, 9.

These concerns are echoed by the industrial hygenist Dr. Vernon E. Rose, Dr.PH.:

Workers, including those vessel owners and crew members who are or will be subject to the Master Vessel Charter Agreements, exposed to crude oil are at risk for a variety of adverse health effects resulting from the inhalation, skin contact and even ingestion of the chemicals in the crude. Inhalation of the chemical vapor as well as skin contact with the vapor and liquid are obvious. Ingestion can occur through inadequate work practices such as the lack of sanitary facilities to wash hands before eating.

Rose Declaration, Ex. B, at ¶ 4.

Without acknowledgement by BP that it is responsible for safety oversight of hazardous

chemical exposure for services performed under the MVCAs and assumption of that

responsibility, the fishermen, shrimpers, oystermen, and owners of all commercial fishing

vessels subject to the Agreement will be gravely harmed. Insult cannot be added to injury.

Before these brave men and women whose income and entire way of life are in jeopardy take

action in the cleanup, all steps must be taken by BP to insure that physical injury will not occur

to them as well. BP must acknowledge immediately that the regulatory compliance burdens for

vessel owners will be impossible to undertake, or at a minimum, so unduly burdensome that they

are prohibited for financial reasons from participating as responders in this issue of critical

national concern.

The most direct route to insure that all necessary protections are in place is for BP to

acknowledge that the OSHA hazardous material safety oversight standards apply to the workers

under the MVCAs, and that it is the responsible party under those standards, not the vessel


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owners. Further, BP should report to the Court on an ongoing basis how BP is complying with

those standards as respects the workers performing services for it under the MVCA.

To be clear, Plaintiff and the members of the United Commercial Fisherman’s

Association, Inc. which Plaintiff represents do not criticize BP’s decision to utilize the

experience and knowledge of the people who know best how to navigate the sensitive areas most

threatened by this horrific commercial and environmental disaster. However, as aid is rendered

on behalf of BP, it is incumbent that assurances be made regarding safety plans and provisioning.

BP is clearly the only entity that could and should be responsible for such.

For these reasons, Plaintiff, individually and on behalf of the United Commercial

Fisherman’s Association, Inc. as President thereof, respectfully submits that this motion should

be granted to alleviate the risk to him of immediate and irreparable harm before a preliminary

injunction hearing may be scheduled to hear all evidence regarding the issues raised in this

motion.

Pursuant to Federal Rule of Civil Procedure 65(b), undersigned counsel certify that they

have made efforts to provide notice to the BP by contacting the lawyers believed to be BP’s

counsel and relaying Plaintiff’s intention to protect himself by taking this action. However, as

explained more fully in the memorandum of law filed herewith and as set forth in Plaintiff’s

Verified Complaint for Declaratory and Injunctive Relief, the facts at issue here clearly show

that immediate and irreparable injury will result before BP can be heard in opposition to this

motion. The discharge spreading across the Louisiana coastal waters continues with every

passing minute, and every helping hand is needed in the efforts to attempt to redress it.

However, persons assisting under the MVCAs cannot be put in harm’s way without necessary

protection.


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WHEREFORE, Plaintiff respectfully requests the Court order the following relief for all

persons contemplating or actually performing services under the MVCA that:

(1) BP is responsible for safety for all persons performing work under the MVCA; (2) BP provide the written safety and health program specific to this class of workers

(i.e., all persons performing services under an MVCA), which should be filed with the Court instanter; however, if such a written program does not exist, then BP should prepare one and file it with the Court within five (5) working days;

(3) BP provide a medical surveillance program for this class of workers, which program and the results of such should be filed with the Court instanter with further updates as they become available to BP filed immediately; however, if such a medical surveillance program does not exist, then BP should provide one and file it with the Court within five (5) working days;

(4) BP monitor airborne hazardous chemicals in the areas in which this class of workers have been or will be assigned to perform work, the status of such should be communicated to the Court immediately; however, if such a monitoring program does not exist, BP should enact one instanter and file proof of such with the Court;

(5) BP identify the hazardous chemical exposure risks specific to the work and in the areas in which this class of workers have been or will be assigned to perform work, the status of such identification should be communicated to the Court instanter; however, if such risk identification has not occurred, then BP should conduct an identification and file it with the Court within five (5) working days; (6) BP should be required to identify to the Court instanter the personal protective equipment being issued by it for persons performing services under the MVCA, including but not limited to the specific types of equipment being provided, to whom they are being provided, and the quantity in which they are being provided; (7) BP should be required to describe to the Court instanter the type of training being provided to persons performing services under the MVCA, including copies of all communications being made as part of that training, including but not limited to written materials disseminated, videos shown, or prepared remarks for speakers; (8) BP should be required to describe to the Court instanter the worker notification program it intends to use for persons performing services under the MVCA; (9) For any further relief that the Court may deem proper to mitigate safety hazards for all persons operating under the MVCA; and (10) For such other and further relief to which Plaintiff may be justly entitled.


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Dated: May 6, 2010. Respectfully submitted, /s/ James M. Garner__________________________ JAMES M. GARNER (# 19589) TIMOTHY B. FRANCIS (# 14973) JOSHUA S. FORCE (# 21975) SHARONDA R. WILLIAMS (# 28809) EMMA ELIZABETH ANTIN DASCHBACH (#27358) Sher Garner Cahill Richter Klein & Hilbert, L.L.C. 909 Poydras Street, 28th Floor New Orleans, LA 70112-1033 Telephone: (504) 299-2100 Facsimile: (504) 299-2300

GLADSTONE N. JONES, III (# 22221) EBERHARD D. GARRISON (# 22058) KEVIN E. HUDDELL (# 26930) H.S. BARTLETT III (# 26795) JACQUELINE A. STUMP (# 31981) Jones, Swanson, Huddell & Garrison, L.L.C.

Pan-American Life Center 601 Poydras Street, Suite 2655 New Orleans, LA 70130 Telephone: (504) 523-2500

Facsimile: (504) 523-2508 /s/ Stuart Smith _______

STUART H. SMITH # 17805 MICHAEL G. STAG Smith Stagg, L.L.C. 365 Canal Street, Suite 2850 New Orleans, LA 70130 (504) 593-9600 (504) 593-9601

VAL PATRICK EXNICIOS, ESQ. Liska, Exnicios & Nungesser One Canal Place 22nd Floor 365 Canal Street, Ste. 2290 New Orleans, LA 70130 Telephone: (504) 410-9611 Facsimile: (504) 410-9937


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THOMAS E. BILEK KELLY COX BILEK The Bilek Law Firm, L.L.P. 808 Travis, Suite 802 Houston, TX 77002 (713) 227-7720 FAX (713) 227-9404



GEORGE BARISICH, individually and on behalf of THE UNITED COMMERCIAL FISHERMAN’S ASSOCIATION, INC. Civil Action No. 2:10-cv-01316 v. Section: N Mag. 2 BP, P.L.C., BP EXPLORATION & PRODUCTION INC., and BP AMERICA PRODUCTION COMPANY

PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF EMERGENCY MOTION FOR SUPPLEMENTAL

TEMPORARY RESTRAINING ORDER Introduction The Master Vessel Charter Agreement (the “MVCA”) that defendants, BP, plc, BP

Exploration & Production Inc., and BP America Production Company (collectively “BP”), have

and entered into with volunteers assisting in clean-up efforts off the Louisiana coast are glaringly

silent on an important issue – safety oversight for workers’ exposure to hazardous chemicals.

MVCA attached as Ex. A.

It is not alarmist for Plaintiff to point out that had similar safety oversight been present

and in effect at the location of another national tragedy and disaster—the 9/11 attack on New

York’s Twin Towers—that great physical harm to the first responders could have been

alleviated. This Court has the opportunity and responsibility to insure that worker safety should

not and cannot be forgotten again, even under the most exigent of circumstances.

In a Nutshell: the Emergency Court Action Necessary to Protect these Cleanup Workers

(1) The Emergency Relief Requested

Plaintiff asks that BP acknowledge that it is responsible for hazardous chemical safety

oversight for all persons performing services under an MVCA. Once BP acknowledges this

Case 2:10-cv-01316-KDE-JCW Document 9-1 Filed 05/06/10 Page 1 of 11

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responsibility, BP should then report to the Court how it carrying out its obligations for safety

oversight.

(2) Why Plaintiff Needs this Immediate Relief from the Court

The MVCA, pursuant to which commercial fishing vessels and their crews will be

deployed to assist BP in the cleanup, fails to contemplate safety oversight responsibility. To be

clear, these workers will be exposed in the course of the cleanup to hazardous chemicals. While

there are rigorous regulatory schemes in place under OSHA and/or the US Coast Guard

regulations for worker exposure to hazardous chemicals, these commercial fishing vessel owners

have no ability or experience with complying with such safety oversight schemes. On the other

hand, the other party to the MVCA, BP which drafted these agreements, has vastly superior

knowledge and experience in this field.1 Indeed, it is most probable that the vessel owners made

subject to the MVCAs or whom are contemplating entering into the MVCAs have no idea that

they are faced with exposure to hazardous chemicals and that necessary, but complex regulatory

schemes exist for safety oversight of workers threatened with exposure to hazardous chemicals.

BP is the only party that can (and should) assume responsibility for hazardous chemical

safety oversight for these commercial fishing vessels and crews. And, yet, the MVCA is entirely

silent on this issue. This glaring oversight must be corrected before the safety of these first

responders is hideously compromised.

Factual Argument

Despite mustering volunteer workers who do not have pervious experience or training

regarding hazardous chemicals, BP fails in the MVCA to assume safety oversight for hazardous

chemical exposure. Expecting the volunteer responders, already victims of the ongoing oil spill

1 Plaintiff will not, however, comment on BP’s success at complying with such regulations. Instead, he acknowledges only that BP has superior knowledge of and experience at complying with same.


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disaster, also to carry out and be responsible for hazardous chemical safety oversight is

unconscionable. BP has put the entire Gulf Coast and its people in jeopardy with the ongoing

crude oil release from its Macondo prospect. BP should not be allowed to cause further harm by

attempting to foist important safety oversight obligations on the well-intentioned, but non-expert

owners and crews of commercial fishing vessels.

Plaintiff has previously argued to the Court that “BP’s demanding that Plaintiff – and

others, including many, many members of the United Commercial Fisherman’s Association, Inc.

which Plaintiff represents – execute the Agreement BP drafted to cover its own hide before

allowing Plaintiff – and those others – to assist in cleaning up an environmental disaster of

possibly unprecedented scale that BP caused is akin to demanding that a person running into

their own burning home sign a release limiting or giving up their claims against the arsonist that

caused the fire.” See Memorandum in Support of Plaintiff’s [First] Emergency Motion for

Temporary Restraining Order. BP’s failure in the MVCA to assume the necessary hazardous

chemical safety oversight is akin to the aforementioned arsonist expecting that the homeowner

also be a professional firefighter with special “HazMat” training, experience, and equipment,.

The important responsibility for hazardous chemcial safety oversight which will

necessarily arise under the performance of the MVCAs must fall upon the sole party responsible

for this clean-up and for the hiring of non-professional “HazMat” responders, such as the these

commercial fishing vessels and their crews. The silence in the MVCA on this key issue will

cause further – and irreparable – injury to the citizens of Louisiana and responders from all the

Gulf States. And, at worst, it must be considered that this may be yet another dastardly effort by


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BP to compromise the safety of these vessel owners and crews when they are at their most

vulnerable.2

For these reasons, Plaintiff, individually and on behalf of the United Commercial

Fisherman’s Association, Inc. as President thereof, respectfully requests that his Motion for

Supplemental Temporary Restraining Order be granted to alleviate the risk to him of immediate

and irreparable harm before a preliminary injunction hearing may be scheduled to hear all

evidence regarding the issues raised in his Motion.

FACTUAL BACKGROUND

The Facts Previously Presented to the Court

Plaintiff incorporates by reference the factual background contained in his Memorandum

of Law in Support of Emergency Motion for [First] Temporary Restraining Order.

The Supplemental Facts

The compelling facts supporting the requested relief are detailed in the Verified

Complaint for Declaratory and Injunctive Relief. Those facts substantiate that the requirements

for injunctive relief are met.

Further, in support of his Emergency Motion and Supplemental Complaint for

Declaratory Judgment and Injunctive Relief, Plaintiff submits the following Declarations, which

are attached and incorporated by reference as follows:

Ex. B: Declaration of Dr. Vernon E. Rose, Dr.PH, with attachments; and

Ex. C: Declaration of Cmdr. David E. Cole, USCG (ret.), with attachments.

2 As this Court is aware, the other thing “spewing” out of BP these days comes from its legal department. One-sided and unconscionable releases and contracts drafted by BP are inundating the fishing communities along the Gulf Coast. That BP would seek to take advantage of the citizens of this region under these exigent circumstances and in such a myriad of ways shocks the conscience.


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The Declaration of Dr. Vernon E. Rose, Dr.PH

The purpose of the submitting the Rose declaration to this Court is two-fold. First, Dr.

Rose informs the Court of the fact that the crude oil spilling from BP’s Macondo prospect

unquestionably contains hazardous materials, including, but not limited to substances such as

benzene, cyclohexane, ethylbenzene, toluene, and xylene. Ex. B at ¶ 5 and 11(a). “[W]orker

exposure to all are regulated as toxic substances by OSHA.” Id. Dr. Rose also points out that

the MCVA clearly addresses vessel and crew contact with those substances as a consequence of

the description of “SERVICES” to be performed as part of the oil-spill clean-up. Id. at ¶ 6.

Second, Dr. Rose educates the Court regarding the complex and multi-layered regulatory

scheme regarding worker exposure to such hazardous materials. In broad strokes, that scheme

provides for the following: (1) a written safety and health program, (2) medical surveillance, (3)

hazard identification, (4) use of personal protective equipment, (5) monitoring of airborne

hazardous chemicals, (6) risk identification, (7) worker notification, and (8) training of workers.

Id. at ¶ 9. Based on his review of the situation, Dr. Rose concludes that:

The Master Vessel Charter Agreement does not address the issue of worker health and safety and appears to require the individual boat owners to become experts in hazardous waste management and the recognition and control of their and their crew’s exposure to hazardous chemicals. This is an unrealistic expectation. To protect the health and well being of the individuals involved in the services described in 11.B above requires the establishment and implementation of an effective and comprehensive hazardous waste and emergency control plan for the owners and crews performing services under the Master Vessel Carter Agreements, as required under OSHA’s Hazardous Waste and Emergency Response regulation. In order to ensure the safety of these workers, BP should file with the court a written safety and health program targeted to this specific class of workers and make periodic additional reports to the court on actions taken under that plan and problems encountered. It would also seem appropriate for BP to fulfill the requirements of the OSHA regulation in all aspects including appropriate training with an emphasis on hazard recognition and exposure control, exposure monitoring and evaluation, as well as the provision of safety and protective equipment and supplies to these workers.

Rose Decl. at ¶ 7.


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The Declaration of Cmdr. David E. Cole, USCG (ret.)

The Declaration of Cmdr. David E. Cole, USCG (ret.) also raises the significant concerns

voiced by Dr. Rose about the crews of commercial fishing vessels being tasked by BP under the

MVCA for the performance of cleanup services without the necessary safety oversight from

trained and experienced parties. Cole Decl. at Ex. 3. Cmdr. Cole recognizes that these fishing

vessels “are not constructed or equipped to operate in the presence of oil or other hydrocarbons

as either cargoes or where these commodities ate [sic] [eat] freely... as where there is a discharge

into the environment.” Id. at ¶ 7. Cole further points out that captains and crews of these vessels

“are not trained, by virtue of the customs of their industry or the professional competence

requirement of the Coast Guard, to recognize or avoid the hazards to their health of the safety of

their vessels, of exposure to the commodities which would be found in a spill of crude oil.” Id.

Cole concludes:

These uninspected commercial fishing vessels, being used in oil recovery without the benefit of crew training and vessel inspection are exposing their crews to... harmful vapors and the risk of explosion and fire. It is my understanding that the vessel owners and operators are executing contracts whereby they are considered independent contractors. However, prudent vessel operation, marine safety and seamanship would require BP to exercise proper supervision and accept responsibility for the workmanlike procedures which would be expected of the vessel crew members.

Id. at ¶ 14. Once again, it is incumbent on this Plaintiff and the United Commercial Fisherman’s

Association, Inc. to point out to this Court the irreparable consequences of the MVCA. Through

this agreement, BP attempts to shift responsibility for key aspects of its own disaster response

obligations onto the shoulders of others who cannot and should not have to bear this heavy, but

absolutely necessary, burden. Allowing BP to shirk the duty of hazardous material exposure

safety oversight for the commercial fishing vessel crews who will play a key role in the clean-up


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will itself be another tragedy BP will suffer unto Louisiana and its citizens. It cannot, and should

not, be allowed to stand.

Legal Argument

The requirements for injunctive relief are well known and previously brought to this

Court’s attention by Plaintiff. Plaintiff must show:

(1) there is substantial likelihood that he will succeed on the merits of his claim;

(2) without the injunction, he faces an imminent threat of irreparable harm;

(3) the threatened harm he seeks to avoid through the injunction outweighs any harm

that may befall BP if the injunction is granted; and

(4) granting the injunction will not disserve the public interest.

Paulson Geophysical Servs., Inc. v. Sigmar, 529 F. 3d 303, 309 (5th Cir. 2008). Each of these

requirements is met here.

As a general proposition, expecting and requiring the volunteer responders – like Plaintiff

and the members of the United Commercial Fisherman’s Association, Inc. who he represents –to

assume hazardous material safety oversight for their role in the clean-up of BP’s oil spill is

unconscionable. BP should, but did not, assume this responsibility in the MVCA. Ex. 1, passim.

Instead BP remained silent. To be very clear, BP fails to (1) alert parties to the MVCA that they,

their captains, and/or crews will be exposed to hazardous and flammable chemicals as part of the

cleanup services nor (2) informs vessel owners of safety oversight needs for such hazardous and

flammable chemical exposure. The silence on this important issue is of grave concern to

Plaintiff and the members of the United Commercial Fisherman’s Association, Inc. who believe

that it is either gross oversight or intentional manipulation by BP.


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The complained-of attempt by BP to shift responsibility for hazardous materials safety

oversight onto vessel owners under the MVCA under these exigent circumstances is

unenforceable. As such, this creates an unconscionable, adhesionary contract under Louisiana

law. See Aguillard v. Auction Management Corp., 2004-2804 (La. June 29, 2005), 908 So. 2d 1,

9 (noting that a contract is adhesionary where one party “is in a position stronger than the

other’s. The party in the weaker position is left with no other choice than to adhere to the terms

proposed by the other[.]”) (emphasis added); LaFleur v. Law Offices of Anthony Buzbee, 2006-

0466 (La. App. 1st Cir. March 23, 2007), 960 So. 2d 105, 112 (observing that adhesionary

contracts are “unconscionable” and invalid where of “unduly harsh substance”).

To put a finer point on it:

No section of the Louisiana Civil Code directly addresses, in so many words, the doctrine of unconscionability or the related concept of adhesionary contracts. Nonetheless, Louisiana jurisprudence does recognize that certain contractual terms, especially when contained in dense standard forms that are not negotiated, can be too harsh to justly enforce. The theory of such decisions, often, is that an unconscionable contract or term can be thought of as lacking the free consent that the Code requires of all contracts.

Iberia Credit Bureau, Inc. v. Cellular Wireless, LLC, 379 F.3d 159, 167 (5th Cir. 2004).

Here, Plaintiff and the other Louisiana fishermen like him are clearly in a weaker position

with regard to negotiation of their rights in relation to BP. Further, BP is vastly more

sophisticated in the area of applicable regulatory schemes such as OSHA and US Coast Guard

regulations relating to hazardous materials. In comparison, most commercial fishing vessel

owners are probably completely unaware that these specific schemes even exist. Because of the

threat to their very livelihood caused by BP’s own actions in causing the catastrophic oil

discharge that Plaintiff and other fishermen are responding to, and because of the expedited

nature of the training of Plaintiff and the execution of associated documents, there was neither


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time nor bargaining position to review the provisions at issue here or to negotiate them. Notably,

this Court, acting as an admiralty court, must provide special scrutiny to the contract at issue

here, and owes special protection to those fishermen such as Plaintiff, who are to be treated as

wards under this Court’s special protection. See Coto v. J. Ray McDermott, S.A., 1999-1866 (La.

App. 4th Cir. Oct. 25, 2000), 772 So. 2d 828, 830.

Irreparable harm is that which “cannot be remedied merely by monetary or other legal

damages.” Tillman v. Miller, 917 F. Supp. 799, 801 (N.D. Ga. 1995), aff’d 133 F. 3d 1402 (11th

Cir. 1998). In light of the impact of the Agreement’s complete silence on hazardous materials

safety oversight responsibility, and absent intervention from this Court, Plaintiff most certainly

faces imminent and irreparable harm.

By insisting that Plaintiff execute the Agreement before allowing them to assist in clean-

up efforts but without informing them of the hazardous material exposure that they will, more

likely than not, encounter and the regulatory regime attendant to worker exposure to such

materials, BP puts Plaintiff and the members of the United Commercial Fisherman’s

Association, Inc. in harm’s way while attempting to shift safety oversight responsibility solely

onto their shoulders. Plaintiff is subject to immediate and irreparable injury if he either

(1) chooses not to sign the Agreement and therefore not to participate in the cleanup activities

and loses his livelihood as a result, or (2) chooses to participate in the cleanup activities to

attempt to protect the source of his livelihood but as a consequence of signing the Agreement is

forced to assume hazardous material safety oversight for exposure to BP’s own crude oil. That

same untenable choice faces every member of the United Commercial Fisherman’s Association,

Inc. to whom BP has also demanded execute the MVCA.


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As indicated above, it is believed that it is BP’s aim to obtain executed copies of the

MVCA from all volunteers who assist in BP’s mandatory clean-up obligations. Some of those

volunteers are likely people represented by counsel or putative members of one of the several

filed, but not yet certified, classes in actions against BP. Thus, the Agreement could irreparably

impact and/or tortiously interfere with attorney-client relationships and be in violation of rules of

the Louisiana State Bar.

In sum, if the Motion is denied, Plaintiff – and others like him – faces immediate and

irreparable harm. On the other hand, if a TRO is issued, BP will be no worse off, nor will

granting a TRO disserve the public interest. To the contrary granting a TRO will serve the

public interest in promoting worker safety and expediting the cleanup of the environmental

disaster now facing the State of Louisiana, the other Gulf States, and their citizens

CONCLUSION

For all of the foregoing reasons, Plaintiff, individually and on behalf of the United

Commercial Fisherman’s Association, Inc. as President thereof, urges this Court to grant his

Emergency Motion for a Supplemental Temporary Restraining Order.

Respectfully submitted, /s/ James M. Garner__________________________ JAMES M. GARNER (# 19589) TIMOTHY B. FRANCIS (# 14973) JOSHUA S. FORCE (# 21975) SHARONDA R. WILLIAMS (# 28809) EMMA ELIZABETH ANTIN DASCHBACH (#27358) Sher Garner Cahill Richter Klein & Hilbert, L.L.C. 909 Poydras Street, 28th Floor New Orleans, LA 70112-1033 Telephone: (504) 299-2100 Facsimile: (504) 299-2300


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GLADSTONE N. JONES, III (# 22221) EBERHARD D. GARRISON (# 22058) KEVIN E. HUDDELL (# 26930) H.S. BARTLETT III (# 26795) JACQUELINE A. STUMP (# 31981) Jones, Swanson, Huddell & Garrison, L.L.C.

Pan-American Life Center 601 Poydras Street, Suite 2655 New Orleans, LA 70130 Telephone: (504) 523-2500

Facsimile: (504) 523-2508 /s/ Stuart Smith _______

STUART H. SMITH # 17805 MICHAEL G. STAG Smith Stagg, L.L.C. 365 Canal Street, Suite 2850 New Orleans, LA 70130 (504) 593-9600 (504) 593-9601

VAL PATRICK EXNICIOS, ESQ. Liska, Exnicios & Nungesser One Canal Place 22nd Floor 365 Canal Street, Ste. 2290 New Orleans, LA 70130 Telephone: (504) 410-9611 Facsimile: (504) 410-9937

THOMAS E. BILEK KELLY COX BILEK The Bilek Law Firm, L.L.P. 808 Travis, Suite 802 Houston, TX 77002 (713) 227-7720 FAX (713) 227-9404



GEORGE BARISICH, individually and on behalf of THE UNITED COMMERCIAL FISHERMAN’S ASSOCIATION, INC. Civil Action No. 2:10-cv-01316 v. Section N Mag. 2 BP, P.L.C., BP EXPLORATION & PRODUCTION INC., and BP AMERICA PRODUCTION COMPANY

ORDER This cause came before this Court on the Supplemental Emergency Motion for

Temporary Restraining Order filed on behalf of Plaintiff, George Barisich, individually and on

behalf of the United Commercial Fisherman’s Association, Inc. as President thereof;

CONSIDERING the pleadings, memoranda, exhibits thereto and applicable law;

FURTHER CONSIDERING that the discharge spreading across the Louisiana coastal

waters continues, that clean-up of said discharge includes the participation of commercial fishing

vessels, that said clean-up will expose those vessels and their crews to hazardous materials, and

therefore, that the facts at issue here clearly show that immediate and irreparable injury will

result before Defendants, BP, plc, BP Exploration & Production Inc., and BP America

Production Company (collectively “BP”), can be heard in opposition to Plaintiff’s motion;

IT IS HEREBY ORDERED that the Supplemental Emergency Motion for Temporary

Restraining Order filed on behalf of Plaintiff is GRANTED;

IT IS HEREBY FURTHER ORDERED that BP shall be responsible for safety for all

persons performing work under the Master Vessel Charter Agreement (“MVCA”);


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IT IS HEREBY FURTHER ORDERED that BP provide the written safety and health

program specific to this class of workers (i.e., all persons performing services under an MVCA),

which should be filed with the Court instanter; however, if such a written program does not

exist, then BP should prepare one and file it with the Court within five (5) working days;

IT IS HEREBY FURTHER ORDERED that BP provide a medical surveillance

program for this class of workers, which program and the results of such should be filed with the

Court instanter with further updates as they become available to BP filed immediately; however,

if such a medical surveillance program does not exist, then BP should provide one and file it with

the Court within five (5) working days;

IT IS HEREBY FURTHER ORDERED that BP monitor airborne hazardous chemicals

in the areas in which this class of workers have been or will be assigned to perform work, the

status of such should be communicated to the Court immediately; however, if such a monitoring

program does not exist, BP should enact one instanter and file proof of such with the Court;

IT IS HEREBY FURTHER ORDERED that BP identify the hazardous chemical

exposure risks specific to the work and in the areas in which this class of workers have been or

will be assigned to perform work, the status of such identification should be communicated to the

Court instanter; however, if such risk identification has not occurred, then BP should conduct an

identification and file it with the Court within five (5) working days;

IT IS HEREBY FURTHER ORDERED that BP identify to the Court instanter the

personal protective equipment being issued by it for persons performing services under the

MVCA, including but not limited to the specific types of equipment being provided, to whom

they are being provided, and the quantity in which they are being provided;


3

IT IS HEREBY FURTHER ORDERED that BP describe to the Court instanter the

type of training being provided to persons performing services under the MVCA, including

copies of all communications being made as part of that training, including but not limited to

written materials disseminated, videos shown, or prepared remarks for speakers; and

IT IS HEREBY FURTHER ORDERED that BP describe to the Court instanter the

worker notification program it intends to use for persons performing services under the MVCA;

New Orleans, Louisiana, this _____ day of May, 2010 at _________ ___.m. __________________________________________ UNITED STATES DISTRICT JUDGE


Safety motion for tro (00082468)

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Transcript of Safety motion for tro (00082468)