Much of the world is fixated on the submersible Titan, which vanished soon after it descended into the deep sea on its way to the Titanic wreckage with five passengers aboard. The Coast Guard has now found ruins of the minivan-sized titanium vessel, and the company running the tour has put out a statement that its passengers have perished, as no survivors of the vehicle implosion were found.
For those familiar with OceanGate — the private exploration company that facilitated the tour — this was not an out-of-the-blue catastrophe, sadly, but a predictable event. Years ago, OceanGate’s former director of marine operations reported his safety concerns, including about the carbon fiber hull and the lack of vehicle testing. Rather than heed his concerns, the company terminated him, according to a complaint filed in federal court.
His concerns were echoed by dozens of other concerned submersible craft experts, who signed on to a letter addressed to the chief executive of OceanGate in 2018, bringing forward significant engineering flags and imploring the company to agree to pay for an audit by a certification company. Again, the company did not heed the concerns.
The adventure tourism promoted by OceanGate and others has far fewer guardrails than publicly funded or public-private transportation that affects many more people’s lives. Because this was a private company operating outside of U.S. waters, these red flags fell beyond the purview of traditional Coast Guard enforcement or whistleblower action — there was no regulatory body to address these well-founded concerns.
But this is not just a story about a submersible and a few wealthy explorers. It’s about the ways in which our current business climate can sacrifice safety measures and human life for speed and profit. Much of the pushback to regulation in commercial transportation is that regulation will deter innovation. But this is a short-sighted and frankly rote argument that fails to take into account how planes, trains, cars and other vehicles have still been able to advance their technology alongside public-protecting regulation.
This tragedy is also a striking example of how the private sector never wants government involvement or intervention until disaster strikes. It was not a private company that swooped in to recover the vessel, but the taxpayer-funded U.S. Coast Guard. Although OceanGate ignored safety experts and set themselves up to skirt U.S. regulation and conduct tours in international waters, the Coast Guard still expended huge amounts of resources on the search and rescue expedition. Essentially, the public has had to subsidize the recklessness of this company.
Of course, OceanGate isn’t the only company that has turned a blind eye to safety concerns. As whistleblower lawyers, we have worked with whistleblowers who have brought forward information about defective car engines and airbags and a profits-over-safety culture at Boeing. But there were reporting mechanisms for whistleblowers in those cases: for instance, the National Highway Safety Transportation Agency can take action on defective car parts purchased by the American public, and the Securities and Exchange Commission can take action against construction or engineering fraud at public companies. With a private company such as OceanGate, whistleblowers have little option but to apply public pressure — which in this case clearly wasn’t enough.
While it is not likely that many of us will have the budget or risk appetite for private exploration of the Titanic, we should think about how to fill these regulatory gaps, including whistleblower protections and reporting mechanisms for crises that today fall outside of the regular purview of domestic transportation and environmental regulators. As this sad saga shows, lives will be lost, and the public ultimately will still pick up the tab when tragedy strikes.
We could, for example, consider the formation of an international agency that can be a safe place for whistleblowers to report to externally, knowing that many companies clamp down, as OceanGate did, on those who report internally. Commercial spaceflight does not yet have a dedicated whistleblower program, but it might soon need one as more people pursue space tourism. There are all types of adventure tours that are unregulated, including dangerous mountain climbs. While not completely related to ocean and space adventure, there could be boundary-less climate disasters where it’s unclear how and to whom a whistleblower might report concerns on how they are handled.
Regulation and exploration can and must coexist. And we should make it safer for whistleblowers, regardless of their employment or efforts of their employers to dodge regulation, to disclose information that keeps the public safe.
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ABOUT THE WRITERS
Chris McLamb and Marlene Koury are attorneys at the whistleblower practice of law firm Constantine Cannon.
