PURPOSEFUL JETTISON OF PETROLEUM CARGO

COMMITTEE ON MARINE SALVAGE ISSUES

MARINE BOARD

COMMISSION ON ENGINEERING AND TECHNICAL SYSTEMS

NATIONAL RESEARCH COUNCIL

National Academy Press
Washington, D.C.
1994



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Purposeful Jettison of Petroleum Cargo PURPOSEFUL JETTISON OF PETROLEUM CARGO COMMITTEE ON MARINE SALVAGE ISSUES MARINE BOARD COMMISSION ON ENGINEERING AND TECHNICAL SYSTEMS NATIONAL RESEARCH COUNCIL National Academy Press Washington, D.C. 1994

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Purposeful Jettison of Petroleum Cargo NOTICE: The project that is the subject of this report was approved by the Governing Board of the National Research Council, whose members are drawn from the councils of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine. The members of the panel responsible for the report were chosen for their special competencies and with regard for appropriate balance. This report has been reviewed by a group other than the authors according to procedures approved by a Report Review Committee consisting of members of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine. The National Academy of Sciences is a private, nonprofit, self-perpetuating society of distinguished scholars engaged in scientific and engineering research, dedicated to the furtherance of science and technology and to their use for the general welfare. Upon the authority of the charter granted to it by the Congress in 1863, the Academy has a mandate that requires it to advise the federal government on scientific and technical matters. Dr. Bruce M. Alberts is president of the National Academy of Sciences. The National Academy of Engineering was established in 1964, under the charter of the National Academy of Sciences, as a parallel organization of outstanding engineers. It is autonomous in its administration and in the selection of its members, sharing with the National Academy of Sciences the responsibility for advising the federal government. The National Academy of Engineering also sponsors engineering programs aimed at meeting national needs, encourages education and research, and recognizes the superior achievements of engineers. Dr. Robert M. White is president of the National Academy of Engineering. The Institute of Medicine was established in 1970 by the National Academy of Sciences to secure the services of eminent members of appropriate professions in the examination of policy matters pertaining to the health of the public. The Institute acts under the responsibility given to the National Academy of Sciences by its congressional charter to be an adviser to the federal government and, upon its own initiative, to identify issues of medical care, research, and education. Dr. Kenneth I. Shine is president of the Institute of Medicine. The National Research Council was organized by the National Academy of Sciences in 1916 to associate the broad community of science and technology with the Academy's purposes of furthering knowledge and advising the federal government. Functioning in accordance with general policies determined by the Academy, the Council has become the principal operating agency of both the National Academy of Sciences and the National Academy of Engineering in providing services to the government, the public, and the scientific and engineering communities. The Council is administered jointly by both Academies and the Institute of Medicine. Dr. Bruce M. Alberts and Dr. Robert M. White are chairman and vice-chairman, respectively, of the National Research Council. The program described in this report is supported by cooperative agreement No. 14-35-0001-30475 between the Minerals Management Service of the U.S. Department of the Interior and the National Academy of Sciences. Library of Congress Catalog Card Number 94-66134 International Standard Book Number 0-309-05081-2 Limited copies are available from: Marine Board Commission on Engineering and Technical Systems National Research Council 2101 Constitution Avenue Washington, DC 20418 Additional copies are for sale from: National Academy Press 2101 Constitution Avenue Box 285 Washington, D.C. 20055 800-624-6242 or 202-334-3313 (in the Washington Metropolitan Area) B-344 Copyright 1994 by the National Academy of Sciences. All rights reserved. Printed in the United States of America. Cover: The Argo Merchant, photograph courtesy of the U.S. Coast Guard

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Purposeful Jettison of Petroleum Cargo COMMITTEEON MARINE SALVAGE ISSUES MEMBERS GORDON W. PAULSEN, Chairman, Healy & Bailie, New York, New York PETER F. BONTADELLI, Office of Oil Spill Prevention & Response, California Department of Fish and Game, Sacramento J. HUNTLY BOYD, JR., Booz-Allen, Hamilton, Inc., Arlington, Virginia KENNETH J. FULLWOOD, Maritime Relations and Environmental Affairs, Safety and Nautical Services, Mobil Shipping and Transportation Company, Fairfax, Virginia RICHARD F. LEE, Skidaway Institute of Oceanography, Savannah, Georgia J.H. (Mick) LEITZ, J.H. Leitz & Associates, Inc., Portland, Oregon JOHN H. ROBINSON, Gulf Program Office, Office of the Chief Scientist, National Oceanic and Atmospheric Administration, Washington, D.C. NINA SANKOVITCH, Natural Resources Defense Council, New York, New York ROGER E. VAN DUZER, Marine Operations, Shell Marine Department, Shell Oil Company, Houston, Texas JOHN A. WITTE, Donjon Marine Co., Inc., Hillside, New Jersey LIAISONS KEN KEANE, Marine Environmental Protection Division, Office of Marine Safety, Security and Environmental Protection, United States Coast Guard, Washington, D.C. WILLIAM PECK, Salvage and Diving, Naval Sea Systems Command, U.S. Navy, Arlington, Virginia STAFF CHARLES A. BOOKMAN, Director RICHARD WILLIS, Consultant ANDREA JARVELA, Editorial Consultant LAURA OST, Editorial Consultant AURORE BLECK, Administrative Assistant

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Purposeful Jettison of Petroleum Cargo MARINE BOARD MEMBERS JERRY R. SCHUBEL, Chairman, Marine Sciences Research Center, State University of New York, Stony Brook JERRY A. ASPLAND, Arco Marine, Inc., Long Beach, California ANNE AYLWARD, National Commission on Intermodal Transportation, Alexandria, Virginia ROBERT G. BEA, NAE, University of California, Berkeley MARK Y. BERMAN, Amoco Production Co., Tulsa, Oklahoma JOHN W. BOYLSTON, Argent Marine Operations Inc., Solomons, Maryland JAMES M. COLEMAN, NAE, Louisiana State University, Baton Rouge, Louisiana WILLIAM M. EICHBAUM, World Wildlife Fund, Washington, D.C. EDWARD D. GOLDBERG, NAS, Scripps Institution of Oceanography, La Jolla, California MARTHA GRABOWSKI, LeMoyne College and Rensselaer Polytechnic Institute, Cazenovia, New York ROBERT W. KNECHT, University of Delaware, Newark HENRY S. MARCUS, Massachusetts Institute of Technology, Cambridge ASHISH J. MEHTA, University of Florida, Gainesville J. BRADFORD MOONEY, NAE, U.S. Navy, Retired, Consultant to Ocean Engineering and Research Management, Fort Pierce, Florida STEPHEN F. SCHMIDT, American President Lines, Ltd., Oakland, California STEPHANIE R. THORNTON, Coastal Resources Center, San Francisco, California JUDITH S. WEIS, Rutgers University, Newark, New Jersey ALAN G. YOUNG, Fugro-McClelland BV, Houston, Texas STAFF Charles A. Bookman, Director Donald W. Perkins, Associate Director Doris C. Holmes, Staff Associate

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Purposeful Jettison of Petroleum Cargo PREFACE The possible need to discharge oil to save a ship is recognized in the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78), a convention in force for 78 nations, including the United States. On the other hand, U.S. statutes impose penalties for oil discharges into the sea that the convention would permit. Thus, the Oil Pollution Act of 1990 (OPA 90) dictates a strict liability standard for damage from oil spills and establishes criminal sanctions for spillers. It also reaffirms states' rights to set their own rules concerning ship-source oil pollution. During the last 15 years, technological advances in measuring and transmitting environmental conditions in real time, improvements in forecasting, and the development of oil spill trajectory models have dramatically improved the information available to decision makers. These advances may even afford new approaches, both technical and regulatory, to saving ships in distress. Yet in the face of potential penalties and liabilities in the United States, no responsible salvor, administrator, or ship operator is likely to consider seriously a limited discharge of petroleum or other cargo in order to save a ship and thereby avoid a major spill. From a shipowner/operator's or salvor's viewpoint the issue is whether, within U.S. jurisdiction, permission to discharge contaminants purposefully and in a controlled manner in specific, urgent situations can be obtained quickly—within hours—in order to prevent a larger, uncontrolled spill. Such permission must provide for legal protection of the individual making or directing this discharge and assure that other options such as transfer of cargo to ballast tanks or lightering vessels are adequately considered. A closely related issue is the pollution, usually a small amount, that inevitably results from some salvage operations, for example displacing water with compressed air in damaged tanks to restore stability or buoyancy. At the request of the U.S. Navy and the U.S. Coast Guard, a Committee on Marine Salvage Issues was established under the Marine Board of the National Research Council to address this problem of deliberate discharge during salvage operations and to conduct an evaluation of the national salvage capability and to make recommendations. To carry out the first part of its mission, the committee convened a symposium to assess the issues involved in the jettisoning of oil during salvage operations. This report is one output of a two-year study, which has involved questionnaires, regional meetings, commissioned papers, site visits, and committee analysis, in addition to the symposium devoted to the jettison issue. The committee's comprehensive assessment of marine salvage in the United States continues, and a final report with recommendations will be issued in mid-1994. The Symposium on the Purposeful Jettison of Petroleum Cargo, held February 23, 1993, was attended by prominent members of the scientific, engineering, legal, vessel operations, and regulatory communities (the list of participants and the agenda are provided in Appendixes A and B). Their purpose was to:

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Purposeful Jettison of Petroleum Cargo Assess the significance of the jettison issue and its implications for shipping and marine environmental protection. Document the need to clarify U.S. law concerning intentional discharges of petroleum cargoes to save ships and prevent the loss of larger amounts of cargo). Consider the implications of advances in oil spill contingency planning, environmental data acquisition, and spill trajectory forecasting, especially how such advances might be harnessed in making time-critical operational decisions about stranded tankers. Make recommendations concerning the feasibility of developing guidelines for deciding whether to discharge oil intentionally, including consideration of other options. This volume includes the committee's jettison report with recommendations, and the Proceedings of the symposium. The proceedings include presented papers and transcripts of panel discussions and audience question-and-answer sessions with the experts who examined the technical and information management needed in considering whether to jettison and in the decision-making framework leading up to such action. Speakers addressed several broad topics including the historical context, environmental requirements, new spill modeling technology, and the current legal status of jettison under federal and state laws and international treaties. These presentations were followed by a panel discussion that, using an accident scenario as a starting point, focused on the jettison of oil as one alternative for preventing a catastrophic spill. The panel also conducted a Regional Response Team decision-making exercise.

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Purposeful Jettison of Petroleum Cargo CONTENTS Executive Summary   ix Jettison Report and Recommendations   1 Symposium Proceedings     Opening of the Symposium and Welcome from Sponsors   17     Symposium Objectives and Organization, Gordon W. Paulsen   18     Welcome Address from the U.S. Coast Guard, RADM A.E. Henn   19     Welcome Address from the U.S. Navy Supervisor of Salvage, Captain Richard Fiske   21 Part I History and Technical Background   23     Significance of Jettisoning: Oil on Troubled Waters, Michael Ellis   24     Environmental Risk as a Function of Oil Spill Size, F.R. Engelhardt   31     Oil Spill Trajectory Modeling, Jerry Galt   47     Discussion: Questions and Comments Addressed to Speakers   53 Part II Legal Status of Jettisoning   57     Marine Salvage: New Laws Affecting the Jettisoning of Oil, Warren L. Dean and Laurie L. Crick   58     Commentary on the Deliberate Discharge of Oil During Marine Salvage Operations, Philip A. Berns   98     New Laws Affecting the Jettisoning of Oil: Presidential Direction and a Salvor's Standard of Care, Frederick F. Burgess, Jr.   101     New Laws Governing the Jettisoning of Oil, Robert H. Nicholas, Jr.   118     Salvaging a Coherent Approach to Pollution Response: New Federal and State Laws Governing the Jettison of Cargo, V. Lee Okarma Rees   127     Discussion: Questions and Comments Addressed to the Panel on the Legal Status of Jettisoning   137 Part III Considerations in Making Time-critical Decisions   143     Decision Framework: A Scenario for Deciding Whether to Jettison Cargo, Captain Kenneth Fullwood   144     The On-Scene Coordinator as Decision-Maker, Captain Donald S. Jensen   153     The Environmentalist's Perspective, Anne Rothe   156     The Salvor's Perspective, John Jay Driscoll, Jr.   158     The Shipowner/Operator's Perspective, Roger Gale   162     The Salvage Engineer's Perspective, Jack Kalro   164     The State Perspective, Peter Bontadelli   166

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Purposeful Jettison of Petroleum Cargo     Discussion: Questions and Comments Addressed to the Panel on the Decision-making Framework   169 Part IV A Regional Response Team Decision-making Exercise   175     A Regional Response Team Decision-making Exercise   176     Discussion: Questions and Comments on the Decision-making Exercise   185 Appendix A Symposium Participants   194 Appendix B Symposium Agenda   198

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Purposeful Jettison of Petroleum Cargo EXECUTIVE SUMMARY The possible need to discharge oil to save a ship is recognized in the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78). MARPOL is in force in 78 nations including the United States, yet U.S. statutes impose penalties or liability for oil discharges into the sea that otherwise would be permitted by the convention. The Committee on Marine Salvage Issues, established under the Marine Board of the National Research Council, convened a symposium to assess the issues involved in the intentional discharge of oil during salvage operations as part of a study of U.S. salvage capability. The Symposium on the Purposeful Jettison of Petroleum Cargo, held February 23, 1993, addressed the need to clarify U.S. law concerning intentional discharges of cargoes to save ships and prevent loss of larger amounts of cargo, and the implications of advances in oil spill contingency planning, environmental data acquisition, and spill trajectory forecasting. Speakers addressed the historical context for jettisoning, environmental monitoring requirements, spill trajectory modeling technology, and the legal status of jettisoning under federal and state laws and international treaties. These presentations were followed by two panel discussions that focused on the jettisoning of oil as one option for response to an accident scenario. A number of themes and findings emerged from the symposium presentations, based on the committee's analysis. Speakers generally agreed that jettisoning of oil can be a valuable salvage tool and should be considered as an option, to be undertaken only when failure to take such action probably would result in loss of the vessel and release of the entire cargo. A deliberate discharge of a small volume of oil may be the only practical alternative in certain time-critical situations. Conventional alternatives such as lightering may prove impossible due to the absence of appropriate assisting vessels. Jettisoning has been rare in recent years. One reason may be the Oil Pollution Act of 1990 (OPA 90), which introduced a new strict liability standard for damage from oil spills and established criminal sanctions for spillers. The speakers' varying interpretations of OPA 90 reflect the ambiguities in federal and state oil pollution laws and confusion within the maritime community concerning the legal status of jettisoning. The Congress did not consider implications for salvage in enacting OPA 90, and the resulting uncertainty over liability clearly is a factor in the reluctance to jettison. Furthermore, an intentional discharge would violate the Federal Water Pollution Control Act (FWPCA), and state laws may impose additional liabilities. The most direct means of increasing liability protection for salvors and other responders may be to amend the National Contingency Plan (NCP) to clarify the procedure for arriving at a decision to jettison and to place the responsibility solely on the federal on-scene coordinator (FOSC). As a practical matter, such an approach could obviate the need to persuade the Congress to amend OPA 90, or to await a judicial interpretation following an incident of jettisoning. This change would not

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Purposeful Jettison of Petroleum Cargo solve the problem fully, however, because OPA 90 expressly does not preempt state law, and the salvor may be exposed to additional liability directly or indirectly under general maritime law or various state laws.1 In any case, clarification of oil pollution laws undoubtedly will require further judicial or regulatory interpretations. Participants in the panel discussions differed as to whether jettison would be an appropriate response to the given accident scenario. This disagreement demonstrates the difficulty and subjective nature of such decisions and suggests a need for standard, objective decision-making criteria. Such criteria could help expedite a process that inevitably involves multiple decision makers and special interests. The following criteria were suggested as fundamental conditions that must exist before any oil is jettisoned: Time pressures demand immediate action. Deliberate discharge of the proposed amount of oil is likely to save the ship and the remaining cargo. All other salvage options, such as internal cargo transfer and lightering, have been exhausted or considered and rejected. Failure to jettison is likely to lead to loss of the ship and release of the remaining cargo. The principal issue is likely to be whether the ship will break up in bad weather, so information is needed concerning tides, currents, and approaching storms. The condition of the stranded vessel—her hull and her intact or damage stability—is adequate so that the ship could be refloated following the jettison, and the remaining cargo saved. All necessary preparations have been made, including the marshaling of tugs, if available, to refloat the ship quickly after the discharge. The FOSC is monitoring the situation continuously to ensure that jettisoning remains the only viable option. Preparations are underway to clean up the discharged oil. Information is needed concerning spill trajectory, characteristics of the oil, physical environmental conditions, containment and recovery measures, geology of the impact zones, toxicological sensitivity of vulnerable species, and ecological characteristics of vulnerable areas. Finally, two general factors that may impede sound salvage practices were mentioned. Several speakers indicated that, even when jettisoning appears to be the correct technical decision, the FOSC in the decision-making exercise only recommends this action to superiors—first the district commander and, ultimately, the commandant. This places the issue in the political arena, as occurred in the Argo Merchant case. Under these circumstances, and without specific criteria on which to base a decision to jettison, public environmental concerns effectively may block action. The other factor is the uncertain legality of discharges that may occur during the normal course of salvage. A number of tools traditionally employed by salvors could be deemed a form of jettisoning, as they may result in a discernible discharge of oil. Examples include pumping out a flooded engine room, pressing down of dirty ballast tanks, expelling water from a flooded cargo or fuel tank, using compressed air 1   States have no jurisdiction (for this purpose) beyond the three-mile territorial sea. States do assess penalties and attach liability, however, to those responsible for spills that originate outside the territorial sea and drift into it.

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Purposeful Jettison of Petroleum Cargo to press out damaged tanks, displacing oily water with buoyant material, and operating many on-water skimmers (which, in separating oil and water, may discharge small quantities of oil). Such actions result in minimal pollution and likely would be part of an approved plan of action; yet, regardless of their benefit, these incidental discharges may violate the FWPCA. CONCLUSIONS AND RECOMMENDATIONS Jettisoning of petroleum cargo can be a valuable salvage tool and should be considered as an option, to be undertaken only when failure to take such action might and probably would result in loss of the stranded vessel and release of the entire cargo. However, a number of unresolved issues tend to inhibit the reasoned use of jettisoning. In the committee's judgment, these issues should be resolved before a marine casualty occurs where a deliberate discharge of oil may be warranted. Otherwise, in the absence of legal certainty, a salvor may reject the jettison option arbitrarily, even when it may be the only means available to avoid a catastrophic spill. Marine pollution response increasingly is being undertaken under a decision-making framework called the ''Unified Command System'' (UCS). The UCS is an incident command partnership that ensures consultation and coordination among principal parties; in the case of marine casualties and potential jettison situations, the principal parties are the federal government acting through the on-scene coordinator; the state, acting through a predesignated representative; and the owner or other predesignated responsible individual. The UCS ensures, at a minimum, consultation among the parties before major decisions are made. It is the premise of the committee's recommendations that a decision to jettison would be made under the UCS. The committee concludes that some unresolved issues regarding intentional discharges could be clarified expeditiously by amending the National Contingency Plan (NCP), and that so doing might avert serious liability problems without requiring any changes in OPA 90. OPA 90 provides conditional immunity to persons acting during the course of rendering care, assistance, or advice that is consistent with the NCP. The committee concludes that, at present, it is unclear whether a jettison may be considered consistent with the NCP. The committee therefore recommends: The NCP should be amended to accomplish the following objectives: To give the FOSC explicit authority, in consultation with the appropriate state authority, to approve the jettison of a situation-specific amount of oil under certain limited circumstances to save a vessel and those on board, as well as her remaining cargo, and to provide procedures whereby such action may be authorized and undertaken. Such an amendment would resolve much of the uncertainty as to salvor liability and immunity by making the act of jettisoning an authorized and viable option in response to the threat of a catastrophic oil spill. This change also would limit owner and operator liability for the salvor's actions (however, this would not in any way change the owner's liability, under the Clean Water Act, for damages and removal costs resulting for oil spills). Such an amendment probably would not protect a salvor against liability under state laws. However, most state statutes require either consistency with the NCP or at least the absence of conflict. Therefore, if in addition to consulting with the states as required by federal law, the FOSC obtains concurrence from the state incident coordinator consistent with the NCP, then there is a possibility that immunity also could be obtained under state laws. Such concurrence may be

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Purposeful Jettison of Petroleum Cargo obtained through the UCS. Moreover, the reference to "explicit authority" in the recommendation is intended to convey that the FOSC should have the authority to make the time-critical decision to jettison without necessarily obtaining additional approvals from the chain of command (i.e., under circumstances where time might not be available for further discussion and consideration). A related issue concerns certain common salvage practices that also could be considered forms of jettisoning, in that some oil may be discharged. These actions include pumping out a flooded engine room, pressing down of dirty ballast tanks, expelling water from a flooded cargo or fuel tank, using compressed air to press out damaged tanks, displacing oily water with buoyant material, and operating many on-water skimmers. The committee concludes that a salvor should be afforded protection for using these tools under certain limited conditions. The committee therefore recommends: The NCP should be amended to give the FOSC explicit authority, in consultation with the appropriate state authority, to approve certain common salvage actions that may result in incidental discharges of small quantities of oil. Such actions include pumping out a flooded engine room, pressing down of dirty ballast tanks, expelling water from a flooded cargo or fuel tank, using compressed air to press out damaged tanks, displacing oily water with buoyant material, and operating on-water skimmers. The FOSC authority could be contained in approval of the daily work plan, which, if carried out under the UCS, also could be approved by the state. The committee further concludes that the present lack of official, objective criteria for reaching a technical decision to jettison oil may undermine decision making during salvage situations. Such decision making needs to be logical, timely, reliable, and defensible, and the FOSC needs to be competent in analyzing the relevant issues. The committee therefore recommends: The Coast Guard should develop a checklist containing specific conditions that must be met as prerequisites for a decision to jettison oil. The FOSC should follow the checklist in authorizing such action under the NCP. Responder conformance with the checklist and with an FOSC decision authorizing the jettisoning of cargo should ensure full protection against liability for a salvor who jettisons oil. Such a checklist might include the following criteria: Time pressures demand immediate action. Discharge of the proposed amount of oil is likely to save the ship and the remaining cargo. All other salvage options, such as internal cargo transfer and lightering, have been exhausted. Failure to jettison is likely to lead to loss of the ship and the remaining cargo. The condition of the stranded vessel is adequate so that the ship probably can be refloated and the remaining cargo saved. All necessary preparations have been made, including the marshaling of tugs, if available and needed, to refloat the ship quickly. The FOSC is monitoring the situation continuously to ensure that jettisoning remains the only viable option. Preparations are underway to clean up the discharged oil.

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Purposeful Jettison of Petroleum Cargo An amendment to the NCP establishing the process, standards, and criteria for authorizing a jettison or similar discharge would be consistent with the President's authority to direct removal actions as provided under existing law. Specifying conditions when jettisoning may be carried out would indicate clear "direction" from the President and would advance the congressional intent to facilitate prompt and effective response. Explicit authorization for the act of jettisoning also could enable the salvor to avoid criminal or civil penalties that otherwise might be imposed for an unauthorized discharge. Moreover, under certain circumstances, the salvor would be immune from liability for removal costs or damages resulting from the jettison, because these actions would be both consistent with the NCP and undertaken at the direction of the FOSC acting for the President. Utilization of the UCS and the receipt of state concurrence in a decision to jettison also could provide protection in some states. Many issues would remain unresolved, however. In particular, it is not clear whether the states could impose their own criminal or civil penalties on a salvor who jettisons into state waters, and, if not, whether the states could impose liability on the responsible party for damages resulting from the salvor's act. Utilization of the UCS, and modifications to state contingency plans in line with the committee's recommended changes to the NCP, may help resolve some of these issues. Other questions concern whether a responsible party may seek general contribution or indemnification for such acts, or whether certain maritime common law claims and defenses exist, and how the 1851 Limitation of Liability Act applies in light of OPA 90. Implementation of the committee's recommendations to clarify both the authorization and the criteria for jettisoning should go a long way toward resolving these issues, if and when they arise.

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Purposeful Jettison of Petroleum Cargo PURPOSEFUL JETTISON OF PETROLEUM CARGO

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