Purposeful Jettison of Petroleum Cargo (1994)

Proceedings of the Symposium on the Purposeful Jettison of Cargo

Gordon W. Paulsen

The discussion today focuses on jettisoning, the discharging of some cargo into the sea in order to lighten a grounded ship and possibly save it from further peril. In other words, by creating a comparatively small spill a large, catastrophic spill may be averted. Such actions in time-critical situations are provided for in treaties to which h the United States is party, but U.S. statutes seem to prohibit them.

At the written request of the U.S. Navy Supervisor of Salvage, the Marine Board Committee on Marine Salvage Issues convened this symposium to address the issue of intentional jettison of cargo: its significance and implications, the need for clarification of statutory and treaty law, and implications of technology advances—especially oil spill trajectory forecasting—for time-critical decision making.

The Oil Pollution Act of 1990 (OPA 90) is probably the most discussed piece of legislation having to do with maritime matters in recent years. There are some aspects of our society that regard it as the most important, in the sense that it has done the most good, of any piece of maritime legislation. There are other parts of our society—the maritime community, for example—that don't quite see it that way. They see all kinds of problems.

Today we are focusing on the question of jettisoning. The question of salvage was discussed in depth about ten years ago in sessions organized by the National Academy of Sciences and the Marine Board. There have been a lot of changes since then. The salvage capability isn't quite what it was then. The need may be greater or it may be less. The incidents are fewer, but they are bigger. We have to focus on all these factors.

This symposium format will be based on two forms of participation; presentation of formal commissioned papers and panel discussions. There will be ample opportunity throughout for audience questions and comments.

We are going to begin this symposium with a video presentation of the grounding of the Argo Merchant in 1976. The Argo Merchant, as you will recall, was one of the first incidents to focus on the problem of an oil spill in the waters of the United States coastline. This incident will tell us a lot about what can happen when a ship strands versus what should happen. The video indicates that the extreme measure of cargo jettison was considered but government permission was not granted and it was not done. The result was an oil spill that is still talked about eighteen years later.

Rear Admiral A. E. Henn

This is a symposium built on partnership, not a ''we'' and "they" concept. We can no longer afford to be "we" and "they." We have to go forward as partners. We are here to discuss some extremely complex issues. Those issues regard the intentional discharge of a ship's cargo in an effort to save the rest of the ship and the rest of the cargo. This is not an easy decision for the person who is going to have to make that call. Numerous legal issues, questions of appropriateness, liability, and questions of authority all contribute to the complexity of the topic. For example:

• Under what situations, by whose authority, and under what constraints should oil be purposefully discharged to prevent a potentially greater harm?

• Are there any historical data or casualty analyses that demonstrate a cost-benefit relationship, with respect to environmental harm, that support oil cargo jettisoning as a viable ship rescue tool?

As the head of the Coast Guard's Office of Marine Safety, Security and Environmental Protection, and as a former Captain of the Port of New York and federal on-scene coordinator, I have a great deal of interest in the subject of ship salvage and of jettisoning. I also have an interest in our abilities to provide fire-fighting services. It seems obvious to me that you get "more bang for the buck" in oil spill prevention than in response. Obviously we need response, and I think we have done well on response and we are doing even better. But we need to make major strides in the area of prevention.

Ship salvage, in my eyes, is a prevention tool. Certainly, efforts taken to prevent the uncontrolled discharge of oil resulting from a ship casualty—including a fire at sea—would be far more cost effective than the cost of response after a discharge. This is particularly true in terms of environmental harm, loss of cargo revenue, real cost of cleanup and, of course, a corporation's loss of public trust, not to mention loss of the ship itself or legal penalties! If you do the salvage job right, then we won't have to spend weeks, months, trying to make a bad situation better.

The Marine Board's Committee on Marine Salvage has been requested to perform two tasks. They are formidable:

1. To consider the issues relating to the intentional jettisoning of a portion of a ship's cargo in order to save the rest of the ship.

2.  To review our nation's salvage and marine fire fighting posture, which we haven't done in a decade.

Both tasks are tough ones. One is not more important than the other. Both must be done.

In 1982, a Marine Board report on our nation's salvage posture did not paint an encouraging picture. I don't know if we've gotten better or worse in the last ten years—many would say worse. I think I am stating the obvious when I say that

environmental awareness in this country is at the highest it has ever been, but I think the more important issue is that environmental awareness worldwide is higher than it has ever been. It is only going to increase.

It is evident from recent tanker casualties around the world that our abilities—your and my abilities—to rescue large ships in extremis is lacking. We shouldn't tolerate this. We can't tolerate this. We won't tolerate this.

As the Coast Guard implements OPA 90 through regulations such as the vessel response plans, it has encountered a lot of controversy regarding marine salvage capabilities. Through a negotiated rulemaking process and consideration of the various points of view expressed by industry, environmentalists, the public sector, and the private sector, the agency has required that salvage capabilities be identified in the response plans. We do not believe it is either practical or economically reasonable to require contracting for the services now. Salvage assets are neither uniformly distributed nor competitively available in the current marketplace. As I have said, we've required ship owners and operators to identify salvage services that they would contract for in an emergency. However, by 1998, the Coast Guard will require salvage services to be specifically identified, including marine firefighting services, and to be on-scene within 24 hours.

We in the Coast Guard are dead serious in our intent to force responsible emergency preparation by vessel owners and operators. Some folks thought we were going to blink during the implementation of OPA 90. I am not blinking today, and I don't plan to blink tomorrow. We believe this issue on salvage contracting should send a very strong message to the entire maritime community that we must develop our capabilities over the next five years.

We have a diverse group here today—the Marine Board Committee on Marine Salvage and participants representing the full spectrum of the community. I am very comfortable that all of you can candidly voice your concerns and come up with a consensus recommendation that we, in partnership, can move forward with.

Captain Richard Fiske

The office of the Supervisor of Salvage is responsible for U.S. Navy salvage through Title 10 of the U.S. Code. We also have an interest in our national salvage capability. We are the federal backstop for salvage, and are frequently called upon by the Coast Guard and the Army Corps of Engineers to support or conduct salvage operations and open water pollution control. We maintain a wide range of salvage and pollution control equipment in stand-by, including 24 open-water skimming craft, several miles of 42-inch oil boom, mooring systems, pumps, oil collection bladders, and ancillary pollution support equipment. This system supports U.S. Navy requirements and is on call for national emergencies. This is a demonstrated and proven capability. The Coast Guard credits our office with recovery of half the waterborne oil recovered during the Exxon Valdez spill.

Jettison has long been a valuable if seldom employed technique in the salvage of ships. Michael Ellis has developed the history and significance of the jettison option in some detail (see paper beginning on page 24). Jettison offers a tool and, in our time, a technique of last resort in pollution prevention, by seeking to preserve the ship and the remainder of the cargo from disaster. The Argo Merchant incident dramatically illustrates the implications of the jettison decision. Jettison is not, however, an action readily undertaken by any party to a marine casualty.

The Oil Pollution Act of 1990 (OPA 90) was developed in response to a specific event. In an earnest desire to put protective legislation in place, Congress focused on the Exxon Valdez stranding to provide a model for the law. As a result, certain aspects of the law and its implementation require further examination. The general topic of marine salvage as a prevention and response resource is largely overlooked in OPA 90 and in the proposed rules implementing the law. Specific areas remaining to be addressed include establishing required capabilities for designated salvage responders and protection of responders from liability while engaged in salvage and lightering operations.

This symposium is gathered to consider another very specific issue: jettison—whether, when, and how to permit discharge into the water of a relatively small amount of oil in order to prevent a relatively large, uncontrolled pollution event. Some have suggested that the federal on-scene coordinator can authorize a jettison under the current statutory scheme. Even the careful, thorough, and detailed legal analyses prepared for this symposium are equivocal on whether a person performing a jettison directed by the on-scene coordinator is immune from liability. With this as background, how can a salvor accept the on-scene coordinator's direction or permission to jettison with any degree of comfort? I don't want to be the test case. I don't want any of my contractors to be the test case—even on someone else's job. The

fact that jettison is a seldom-used salvage option does not lessen the potential catastrophe that can devolve on the one occasion that jettison is needed and cannot be employed.

Despite all our best intentions, desires, and efforts, we cannot legislate or regulate marine casualties out of existence. I am reminded of the cartoon which shows a father on his knees changing a fiat tire at night in the rain. Looking up at his son in the car and responding to a question, the father replies, "We can't change channels, son, this is life."

Part of being prepared is to make whatever decisions we can ahead of time. Thus made, those decisions will not then have to be made under the stress of the event. The determination that jettison is, in theory, legally permissible, is one of those decisions. Deciding whether to jettison in a particular case must be made on site, at the time, in light of the current situation. But that decision to actually perform the jettison must be made quickly or it will be too late, as demonstrated in the ST Arrow case referred to by Mr. Ellis and in the Argo Merchant case. Hence, the need for planning and for establishing criteria, parameters, and the decision path in advance.

I have no commercial stake in this issue. However, I can see myself either supporting the Coast Guard or attending a Navy casualty, in charge of a salvage effort and faced with the same kind of situation as those attending the Argo Merchant. The penalties and sanctions now in place for oil discharge put the salvor in an untenable position. If, in the time available, jettison is the only way to refloat a vessel that may otherwise be lost, why should a salvor expose himself to significant liability by jettisoning? Recall that commercial salvage is voluntary. Most salvors are not voluntarily going to subject themselves to the liability created by the present legal framework. It now appears that in certain specific situations, the OPA 90 blanket prohibition of discharge has resulted in greater hazard to the environment than under prior law.

The Navy has worked with the Marine Board to initiate this symposium and to gather as wide a range of marine interests as possible. What we seek in this forum is confirmation of historical precedent, intuitive logic, and common sense:

• That in certain specific emergencies, jettison of a relatively small portion of oil is necessary to prevent greater environmental damage.

• That responsible preparedness requires specific provision for this action in law and/or regulation, that the provision be carefully considered and circumscribed, and that the designated decision path be streamlined enough to support real-time action.

• That this recommendation be positive, clear, and unambiguous.