Monday, June 21, 2010

Recent DBA Ruling in Texas

The following case centers on the undefined term of 'accident' within the Defense Base Act. I've read it through several times. There are some very fine points of law that I haven't quite grasped yet.

United States District Court For The Southern District Of Texas Deprives Battlefield Contractors Of The Protections Of The Defense Base Act
By Sheppard Mullin, Defense Contractor Blog, June 14, 2010

A recent decision by the United States District Court for the Southern District of Texas may have caused grave damage to protections long available to overseas government contractors and their employees under the Defense Base Act (“DBA”), 42 U.S.C. § 1651 et seq.

In Fisher v. Halliburton, 2010 WL 1268097 (S.D. Tex., Mar. 25, 2010), the court ruled the deaths and injuries sustained by a group of civilian convoy drivers in Iraq during insurgent attacks were not “accidents” and, therefore, that they were outside the scope of the protections afforded by the DBA. Absent the DBA’s protections, the Defendant employers are now in the legal “line of fire” – for the hefty compensable tort and negligence damages being alleged. The court, through its own motion, submitted its decision for immediate interlocutory appeal to the U.S. Court of Appeals for the Fifth Circuit. If upheld, the decision could mean an end to the substantial protection from tort liability that the seventy-year old act has afforded contractors deploying personnel to support combat operations.

If I understand correctly - and I most definitely am not a lawyer - at the heart of the suit is whether or not Halliburton was willfully negligent in the deaths of the truck drivers. If yes, it would allow a liability suit to go forward outside of the Defense Base Act.

I guess what I would want to know is: what legal obligation did Halliburton have for the safety of those workers? Because workers would probably want to know before they accept a job if the answer is 'none.'


In related news, the Commission on Wartime Contracting (CWC), 'a body created in early 2008 to investigate waste, fraud and abuse in military contracting services in Afghanistan and Iraq', held hearings in Washington DC. Members of the major security companies were invited to attend.

Hearings Reveal Lapses in Private Security in War Zones
By Pratap Chatterjee, Inter Press Service, June 21, 2010

The U.S. Agency for International Development (USAID) also came in for extended criticism when David Blackshaw, the division chief for overseas security, told the commission that his agency was not legally responsible for the actions of armed guards that accompanied their grantees. "The role of the USAID's SEC's International Security Programmes Division is limited to advice and counsel," Blackshaw told the commissioners.

The commissioners were incensed. Several of them pulled out copies of a USAID Office of Inspector General report on private contracting that was issued last month that stated a third of USAID private security contracts in Afghanistan have no standard security requirements.
Wow. It pretty much sounds like absolutely no one accepts responsibility for security. I find that creepy.

Update II: Good Lord. Talk about a conflict of interest. General Sanchez served as V Corps commander of coalition forces in Iraq from June 2003 to June 2004.

Side note: V Corps issued an identification badge to Kirk von Ackermann that later appeared in the Rolling Stone article, Death of a Contractor: Greed and Murder in Iraq's Lawless Desert by Daniel Halpern, March 8, 2007.

KBR Gives Uncle Sam the One Finger Salute
By David Isenberg, Huffington Post, July 3, 2010
In February it was reported that the U.S. Army [was] trying to stop [retired US Army Gen. Sanchez] from continuing to be an expert for KBR in a lawsuit against it over civilian truck driver deaths and injuries.

Sanchez is being paid $650 an hour and has reviewed documents and written a report that support's KBR's contention it should not be held legally responsible for the deaths of six civilian truck drivers and the injuries of others in a 2004 ambush in Iraq.

The suing drivers and family members contend that KBR should have stopped the convoys when it was warned that attacks would increase on April 9, 2004, the first anniversary of the day allies in the U.S.-led invasion of Iraq reached Baghdad.

KBR argues that the military approved sending the convoys out and several laws protect KBR from responsibility in a wartime situation. The Army contracts with KBR to provide transportation, food services and other logistical support. the Army's own AR 15-6 Report clearly admits, but for the Army's failures in its own processes and procedures on April 9, 2004, the attack, injuries, and deaths associated with the Fisher case would never even have occurred.
Why does the US Treasury feel like it's turned into just one big ATM machine.

Related Reading

Commission on Wartime Contracting
Michael J. Thibault
Christopher Shays
Clark Kent Ervin
Grant S. Green
Robert J. Henke
Katherine Schinasi
Charles Tiefer
Dov S. Zakheim

1 comment:

Marcie Hascall Clark said...

The Defense Base Act Workers Comp is an extension of the Longshore Harbor Workers Act which includes 905 the Exclusiveness of Liablility Clause.
It also includes 941 Safety Rules and Regulations Clause.

At the bottom of the LHWCA in small print, but no where in the DBA where most contractors will look,
is this
These provisions do not include
as amended [42 USC §§ 1651 et seq.].
Who knows that is the Defense Base Act? Few.

It is really quite convenient for all but those covered under the DBA.