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Marine salvage

Responder Immunity: A Matter of National Security Imagine a catastrophic oil spill in the Gulf of Mexico that threatens not only the wildlife in the water but also the livelihood of thousands. Obviously, it would be a matter of utmost importance to get qualified professionals that specialize in cleanups of this nature to mitigate the damage as quickly as possible. It would be equally as important to ensure that these responders could not be held liable for conducting their operations in accordance with specific federal regulations and that, barring malfeasance, any legal blame rest with the correct party, in this case the company responsible for spilling the oil in the first place. This hypothetical situation became reality on April 20, 2010 when the Deepwater Horizon drill rig had a blowout. The resulting explosion claimed 11 lives and resulted in the largest accidental oil spill in U.S. history. The good news is that in 1990 Congress passed the Oil Pollution Act of 1990 (OPA 90) in response to the damage caused by the Exxon Valdez incident. A key tenet of OPA 90 places the burden of the costs incurred during cleanup operations in accordance with the National Contingency Plan on the responsible party for a vessel or facility from which oil is discharged. Thanks to the provisions in the Act, responder companies acting in accordance with the National Contingency Plan could respond immediately to aid in the cleanup process. The efforts of

these responder companies helped to ensure that the catastrophic damage from the Deepwater Horizon oil leak did not become irreversible. Unfortunately, as is to be expected from any law that is almost 25-years old, overzealous plaintiff attorneys have managed to take advantage of portions of the Act that, unintentionally, have left a small amount of room for interpretation and have used those portions as cudgels to sue not only the responsible party but to force the responder companies to defend themselves against charges of damages caused by oil that they did not spill or caused by dispersants specifically approved, and in some cases insisted upon, by the U.S. government that implored these companies into action. This cannot be allowed to stand. It is wrong from both a moral and practical perspective. What sane executive will put the very existence of his company in peril the next time oil or hazardous chemicals have been spilled and the government calls for immediate assistance? Happily, this is a problem with an easy solution. An amendment to the Federal Water Pollution Control Act can clarify the responsibilities and obligations of both responsible parties and responders so that responders can continue to act expeditiously in times of environmental crisis without being burdened by the potential of huge legal


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44 MARINE LOG May 2014

Paul Hankins, President, American Salvage Association

costs for acting within the scope of the law. Any such amendment would not free any responder that acts outside of the law from liability nor would it free that responder from liability for any injuries under existing laws such as the Jones Act. Keeping the responsibility of payment for costs arising from spills and cleanup firmly with the polluter has the duel effect of allowing companies to quickly respond to environmental emergencies while providing a major incentive for companies responsible for the drilling, extraction and transport of oil to ensure that their operations are operating safely and well within federal regulations. Congress cannot afford to be passive in this situation. Companies that helped to effectively save the Gulf Coast economy are being wrongly accused, punished and forced to spend millions defending themselves from frivolous claims. Some of these companies may not survive the financial burden being placed upon them. Those that do will certainly be reluctant to use their full resources to help minimize the next environmental catastrophe, if it exposes them to incorrect and unnecessary liability. Congress needs to pass these much needed clarifications so that responders can be suitably protected in the future. It is much more than a moral or business imperative. The protections of our coastlines and our coastal economies are no less than a matter of national security.

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May 2014 Marine Log  
May 2014 Marine Log