Proceedings of the Symposium on the Purposeful Jettison of Cargo

PART II:
LEGAL STATUS OF JETTISONING



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Purposeful Jettison of Petroleum Cargo Proceedings of the Symposium on the Purposeful Jettison of Cargo PART II: LEGAL STATUS OF JETTISONING

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Purposeful Jettison of Petroleum Cargo MARINE SALVAGE: NEW LAWS AFFECTINGTHE JETTISONINGOF OIL Warren L. Dean and Laurie L. Crick At the request of the United States Navy, the Marine Board of the National Research Council is examining the status and continuing viability of the intentional discharge of oil (jettisoning) as a means of saving vessels and cargoes during marine salvage operations. The legal standards that govern discharges of oil within waters over which the United States exercises jurisdiction have recently been revised. First, the Oil Pollution Act of 1990 (OPA 90) overhauled federal law concerning oil pollution and encouraged the states to adopt supplemental laws.1 Second, the International Convention on Salvage 1989 placed new emphasis on the salvor's duty to prevent or minimize damage to the environment. Together, these developments have changed the legal regime governing salvage-related discharges of oil in waters over which the United States exercises jurisdiction. This paper will first analyze the new regime's effects, intended and unintended, on salvage operations and will then explore means by which adverse effects might be avoided or minimized.2 SALVAGE LAW Current Law The term ''salvage'' is generally used to describe all services rendered to save property at sea. The admiralty definition of salvage is "a voluntary response to a maritime peril by other than the ship's own crew, and from which the ship or property could not have been saved without the effort of the salvor."3 The "salvage award" is "the compensation allowed to persons by whose assistance a ship or her cargo have been saved, in whole or in part, from impending peril on the sea, or in recovering such property from actual loss, as in case of shipwreck."4 The concept of maritime salvage encompasses three essential elements: A marine peril placing property, vessel and cargo, at risk of loss.  Salvage services voluntarily rendered. 1   Pub. L. No. 101-380, 104 Stat. 484 (Aug. 18, 1990), codified primarily at 33 U.S.C. §§2701-2719. 2   Unless specifically stated otherwise, for purposes of this paper "salvage-related discharges" include only jettisoning, which is the intentional discharge of oil for the purpose of saving the vessel and cargo, and unavoidable, incidental discharges from the imperiled vessel during salvage operations. 3   Intergovernmental Maritime Consultative Organization, Legal Committee, Coastal State Protection Against Major Maritime Disasters: A Secretariat Study of Certain Legal Aspects of Intervention, Notification, and Salvage in Respect to Incidents Like the Amoco Cadiz (Sept. 15, 1978). 4   The Blackwall v. Sancelito Water & Steam Tug Co., 77 U.S. (10 Wall.) 1, 12 (1870).

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Purposeful Jettison of Petroleum Cargo  Success, in whole or in part. Traditionally, these elements are the sine qua non of salvage; the salvor is entitled to a salvage award only when all three are present. The salvor's compensation, the salvage award, may be as great as the value of the property salved, including the vessel and cargo. The salvor does not qualify for any award unless it saves at least some property—thus the principle "no cure-no pay." In addition, any award will be reduced by the amount necessary to compensate the owner for losses caused by the salvor's failure to exercise the necessary degree of care.5 The degree of care required of a salvor varies with the source of the risk. The salvor will be liable for losses caused by the perils to which the property was originally exposed—that is, for losses caused by ineffectual salvage operations only if such losses resulted from the salvor's gross negligence or willful misconduct.6 The salvor will be liable for "distinguishable and separate injury" to the property, however, if such injury is caused by the salvor's failure to exercise ordinary care.7 By statute, foreign vessels are prohibited from engaging in salvage operations in the territorial waters of the United States unless permitted by treaty or approved by the Commissioner of Customs.8 Under treaties with both Canada and Mexico, vessels from those countries may engage in salvage operations within specified territorial waters.9 The 1910 Brussels Salvage Convention, to which the United States is party, is primarily a codification of the English and American law of salvage at the turn of the century.10 The 1910 convention does not impose any duty to protect the environment or to prevent the owner from incurring liability for environmental harm. Nor does it permit consideration of such matters in determining the size of the salvage award. Because of its failure to address environmental concerns, the 1910 convention is now set to be replaced by the 1989 Salvage Convention, as discussed below. The United States is also party to the Convention for the Prevention of Pollution from Ships, 1973 and its 1978 Protocol (MARPOL).11 This treaty generally prohibits pollution of the oceans from seagoing vessels, but recognizes an exception for salvage-related discharges. Prior to OPA 90, this exception prevented salvors (or vessel owners and operators) from incurring liability for discharges of oil during salvage operations at sea, but not for such discharges in the territorial waters of the United 5   The Noah's Ark v. Bently & Felton Corp., 292 F.2d 437, 440-41 (5th Cir. 1961). 6   Id. at 441. 7   Id. at 440-41. 8   46 U.S.C. app. § 316(d), (e). "Only a vessel of the United States, a numbered motorboat owned by a private citizen, or a vessel [permitted to operate by treaty] shall engage in any salvage operation in territorial waters of the United States unless an application addressed to the Commissioner of Customs to use another specified vessel in a completely described operation has been granted." 19 C.F.R. § 4.97(a). 9   Treaty Providing For Reciprocal Rights For United States and Canada in Matters of Conveyance of Prisoners and Wrecking and Salvage, signed at Washington May 18, 1908 (entered into force June 30, 1908), 35 Stat. 2035, T.S. No. 502. See also 46 U.S.C. § 725 (also regarding Canadian salvage in United States waters). Treaty for the Sending of Vessels for Purposes of Assistance and Salvage, signed at Mexico June 13, 1935 (entered into force March 7, 1936), 49 Stat. 3359, T.S. No. 905. 10   1910 Brussels Salvage Convention, signed at Brussels Sept. 23, 1910, 37 Stat. 1658, T.S. No. 576; implemented by the Salvage Act of 1912, 46 U.S.C. app. §§ 727-30. 11   International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, 12 I.L.M. 1319 (MARPOL 73). Protocol of 1978 Relating to the Prevention of Pollution from Ships, 1973 done at London, Feb. 17, 1978, 17 I.L.M. 546 (MARPOL 73/78). MARPOL is implemented by the 1980 Act to Prevent Pollution from Ships. Pub. L. No. 96-478, 94 Stat. 2297 (codified at 33 U.S.C. §§ 1901-1911).

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Purposeful Jettison of Petroleum Cargo States.12 As will be discussed below, however, the MARPOL exception no longer provides protection for discharges of oil into the contiguous zone or exclusive economic zone, because OPA 90 now makes the vessel owner and operator responsible for removal costs and damages for all such discharges without exception.13 Salvage operations may also be affected by the Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (Intervention Convention) and the Protocol Relating to Intervention on the High Seas in Cases of Marine Pollution by Substances Other Than Oil,14 both of which are implemented by the Intervention On The High Seas Act.15 Under these authorities, the United States may prevent, mitigate, or eliminate a grave and imminent risk of pollution to the coastline or related interests when a foreign vessel suffers a collision, stranding, or other incident of navigation on the high seas.16 The authority extends to all measures reasonably necessary to prevent environmental damage, including taking control of a salvage operation and causing the vessel and cargo to be destroyed.17 The United States is not liable for damages to the owner, operator, crew, cargo owners, underwriters, or other interested parties for measures taken that are reasonably necessary and proportionate to the prevention of actual or threatened harm to the coastal environment.18 The law of salvage and responder immunity provisions, which will be discussed in further detail below, may not apply to the removal of a wreck.19 12   MARPOL and its implementing legislation and regulations govern discharges of oil into the sea only. The implementing regulations for the 1980 Act to Prevent Pollution from Ships, 33 U.S.C. §§ 1901-1911, which itself implements MARPOL, specifically provide that all discharges, including emergency discharges, within the navigable waters continued to be prohibited by the FWPCA. 33 C.F.R. §151.10; 33 U.S.C. § 1321. Although the FWPCA was enacted prior to implementation of MARPOL, it was not superseded by MARPOL. Under general rules of statutory construction, a treaty is given the same force and effect as any other federal law. When a treaty and another federal law conflict, the most recent controls. This last-in-time doctrine does not apply, however, to treaties, such as MARPOL, which require implementing legislation before becoming effective in the United States. In implementing MARPOL, Congress authorized the Coast Guard to prescribe "any necessary or desired regulations to carry out" MARPOL or the Act. 33 U.S.C. § 1903(b). It is those regulations that provide, notwithstanding any permissible discharges under MARPOL, that the FWPCA governs discharges within the navigable waters. 13   33 U.S.C. § 2702(a). 14   Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, done at Brussels Nov. 29, 1969, 26 U.S.T. 765, 970 U.N.T.S. 211. The Protocol Relating to Intervention on the High Sea in Cases of Marine Pollution by Substances Other Than Oil, done at London Nov. 2, 1973, T.I.A.S. 10561. The Protocol is discussed under Annex II of this paper regarding hazardous substances. 15   Pub. L. No. 93-248, 88 Stat. 8 (Feb. 5, 1974) (codified at 33 U.S.C. §§ 1471-1487). 16   33 U.S.C. § 1472. The FWPCA provides similar authority with respect to U.S.-flag vessels in all waters subject to the jurisdiction of the United States and with respect to foreign flag vessels in such waters other than the high seas. 33 U.S.C. §1321(c)(2). 17   33 U.S.C. § 1477. Such measures, however, may not be taken against a warship or any vessel owned or operated by a government and used at the time for non-commercial service. Id. § 1483. 18   Id. § 1477(a). In this situation, the principle of no cure-no pay would prevent the salvor from recovering a salvage award. Under the 1989 Salvage Convention, however, the salvor may recover expenses for performing salvage services to a vessel or its cargo that threaten damage to the environment. Even before the 1989 Convention enters into force, the salvor may recover expenses under contracts such as the Lloyd's Open Form of Salvage Agreement 1990. See pages 5 and 6 below. 19   The owner, lessee or operator of a vessel sunk in a navigable waterway must immediately mark and begin removal of the sunken vessel. Such entities are strictly liable for the costs of removing the wreck regardless of fault. 33 U.S.C. §409.

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Purposeful Jettison of Petroleum Cargo Although the result of both salvage and wreck removal operations may be the same—recovery of imperiled property-there is a distinction in the intent and purpose of the performance of each. The intent and purpose of wreck removal is to eliminate the sunken vessel as a hazard to navigation. The intent and purpose of salvage operations is to save or recover the vessel and cargo for the owner and to earn a salvage award. Because wreck removal is not generally undertaken as a response to an oil spill, responder immunity under OPA 90 would not appear to be available. Under the general maritime law, the imperiled vessel, unless it is derelict (abandoned without intent to return), remains subject to the possession and control of the vessel's master during salvage operations.20 Upon completion of the salvage operation, however, the salvor may take and retain possession of the salved property (vessel and cargo) to the extent necessary to enforce its right to a salvage award.21 If a vessel is derelict, the salvor has an exclusive right to possession until the salvage award is made, security is posted for the salvage award, or the salvor's rights are determined judicially.22 When salvage is conducted pursuant to a contract, the terms of the contract should be examined to determine the extent to which the salvor may take possession and control of the vessel. One such contract is Lloyd's Open Form Of Salvage Agreement 1990 (LOF 90), No Cure-No Pay, which provides that the master of the imperiled vessel must "cooperate fully with the salvor in and about the salvage" while the salvor must "use best endeavors to salve the [vessel] and/or her cargo."23 As a general principle, the shipowner remains in possession of both the vessel and cargo while salvage services are being performed under the LOF.24 Once salvage services are begun, however, the salvor must be given a reasonable opportunity to complete them, and the owner's control is subject to such control as the salvor may need to carry out its obligation to salve the vessel with best endeavors.25 The failure of a party to perform its obligation will result in liability for breach of contract.26 Even when the salvor takes possession and control of a derelict vessel, it does not become liable as an owner under OPA 90 for a discharge from such vessel. The right of ownership and title remain in the owner; possession alone does not vest ownership in the salvor.27 In addition, OPA 90 expressly states that the responsible 20   The Bark Cleone, 6 F. 517 (C.D. Calif. 1881). See Cromwell v. The Island City, 66 U.S. (1 Black) 121 (1862). 21   The Alcazar, 227 F. 633 (E.D.N.C. 1915), The Hyderabad, 11 F. 749 (E.D. Wis. 1882). The salvor must relinquish possession if the owner provides other security for the award. Id. 22   Crossman v. West, 13 App. Cas. 160 (1887), Merrill v. Fisher, 204 Mass. 600, 91 N.E. 132 (1910). 23   LOF 90, clauses 1(a)(i) & 3. The LOF has been revised periodically since the 1890's. The latest revision, made in 1990, incorporates parts of four Articles of the 1989 Salvage Convention related to definitions, duties of the parties, criteria for fixing the award and special compensation. See LOF 90, clause 2. 24   China Pacific S.A. v. Food Corp. of India (The Winson), 1 L.L.R. 117 (1981) (salvage performed under LOF 72). LOF 90 security provisions provide that the salvor has a maritime lien on the property salved, and that the salved property will not be removed from its place of delivery until security is provided. LOF 90, clause 5(a). The salvor is not to arrest or detain the property salved unless security is not provided within 14 days of termination of salvage services, or there is reason to believe, or any attempt is made, to remove the salved property from its place of delivery. Id. 5(b). 25   The Unique Mariner (No. 2), 1 Lloyd's Rep. 37 (1979) (salvage performed under LOF 72). 26   Id., The Tesaba, 1 Lloyd's Rep. 397 (1982), The Eschersheim, 2 Lloyd's Rep. 188 (1974). 27   Continental Ins. Co. v. Clayton Hardtop Skiff, 367 F.2d 230 (3d Cir. 1966). See The Port Hunter, 6 F. Supp. 1009 (D. Mass. 1934).

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Purposeful Jettison of Petroleum Cargo party immediately prior to abandonment of a vessel remains liable.28 The salvor could, however, become strictly liable as the operator of the vessel under OPA 90 for any discharges that occur while it is in possession and control after salvage operations have been completed.29 RECENT DEVELOPMENTS IN SALVAGE LAW The International Convention on Salvage 1989 (1989 Salvage Convention), which will enter into force upon acceptance by 15 nations,30 modifies the traditional law of salvage by emphasizing the salvor's duty to protect the environment and authorizing a special compensation award to promote that duty.31 Special compensation under the 1989 convention is separate and distinct from the traditional salvage award. When the imperiled vessel or its cargo threatens damage to the environment, Article 14 of the convention authorizes a special compensation award in the amount of the expenses incurred by the salvor if the traditional salvage award is insufficient to cover those expenses.32 If the salvor's actions prevent or minimize damage to the environment, the salvor may receive special compensation in addition to expenses. The convention envisions that this additional special compensation in excess of expenses ordinarily will not exceed 30 percent of the salvor's expenses, but the adjudicating tribunal is authorized to award up to 100 percent of such expenses "if it deems it fair and just to do so."33 The 1989 Salvage Convention provides that the salvor has a duty to carry out salvage operations with due care, and a salvage or special compensation award may therefore be reduced for negligent conduct.34 Although negligent conduct may reduce a salvage or special compensation award, damages arising from the salvor's 28   33 U.S.C. §§ 2701(32)(A) & 2702(a). 29   Id. 30   International Convention On Salvage 1989, opened for signature July 1, 1989. The Convention is the product of an April 1989 conference conducted under the auspices of the International Maritime Organization (IMO) and attended by representatives from 66 states. It will enter into force one year after 15 states consent to be bound by it. Thus far, six contracting states, including the United States, have so consented through ratification or its equivalent. Seventeen other states have signed but have not yet ratified or otherwise agreed to be bound. The United States signed the 1989 Salvage Convention on March 29, 1990. This was subsequently ratified by the Senate on October 29, 1991. 137 Cong. Rec. S15398 (daily ed. Oct. 29, 1991). The United States' documents of ratification were deposited with the IMO March 27, 1992. 31   Sections 729 of Title 46 Appendix of the United States Code was recently amended to reflect Article 16 of the 1989 Salvage Convention. That section now provides that salvors of human life are entitled to share in the special compensation award, as well as in the traditional salvage award. 46 U.S.C. app. § 729. This amendment has little significance until the 1989 Convention enters into force, because until then the property salvor is not entitled to a special compensation award. 32   International Convention on Salvage 1989, Arts. 14(1), 14(3). "Salvor's expenses" include out of pocket expenses reasonably incurred by the salvor in the salvage operation and a fair market rate for equipment and personnel actually and reasonably used in the salvage operation. Id. Art. 14(3). 33   Id. Art. 14(2). Thus the special compensation could be as much as twice the amount of the salvor's expenses. The special compensation is payable only by the owner of the vessel, not by cargo interests, and is not subject to general average. Id. Art. 14(1); York-Antwerp Rules, Rule VI(b), as amended June 29, 1990 (disallowing special compensation as general average). 34   Id. Arts. 8, 14(5) & 18.

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Purposeful Jettison of Petroleum Cargo negligent conduct are not limited to the amount of such award. The vessel owner may claim its actual loss notwithstanding the amount of the salvage award.35 Neither the 1989 convention nor the 1910 convention applies to the salvage of warships or other non-commercial vessels owned or operated by a government.36 They do, however, apply to salvage operations conducted by such public vessels, which qualify for awards for salvage services rendered to a private vessel.37 The recent changes in oil pollution laws will affect both private and public salvors. Because salvage operations in the United States are often undertaken by the Navy and the Coast Guard, the United States may be exposed to liability for damages and removal costs resulting from the negligent acts of either during salvage operations by virtue of its waiver of sovereign immunity in the Suits in Admiralty Act and the Public Vessels Act.38 Taken together, these acts expose the United States to the same liability to which a private vessel owner would be exposed in an admiralty action.39 The remedy against the United States under the Suits in Admiralty or Public Vessel Act is exclusive of any right of recovery against the individual government employees or agents involved.40 The United States' potential liability for oil pollution relating to salvage operations is discussed further below. UNITED STATES OIL PLLUTION LAWS Discharges of oil into the waters over which the United States exercises jurisdiction are now governed by an interrelated and sometimes overlapping series of laws, including OPA 90, Section 311 of the Federal Water Pollution Control Act (FWPCA), the International Convention for the Prevention of Pollution from Ships (MARPOL), general maritime law, and relevant state laws.41 The Federal Scheme Prior to enactment of OPA 90, discharges of oil into waters subject to United States jurisdiction were addressed at the federal level by the FWPCA, MARPOL, and general maritime law. Section 311 of the FWPCA proscribes most discharges of oil 35   The Tojo Maru, 1 Lloyd's Rep. 341 (1971). 36   46 U.S.C. app. § 731. 37   See 10 U.S.C. § 7365 and 32 C.F.R. § 752.5 (related to the settlement and payment of claims to the United States for salvage services rendered by the Navy). See also In Re American Oil Co., 417 F.2d 164 (5th Cir. 1969); United States v. The James L. Richards, 82 F. Supp. 12 (D. Mass. 1949), aff'd, 179 F.2d 530 (1st Cir. 1950); The Impoco, 287 F. 400 (S.D.N.Y. 1922). 38   46 U.S.C. app. §§ 741-752 (Suits in Admiralty); 46 U.S.C. app. §§ 781-790 (Public Vessels). The Public Vessels Act applies to suits involving damages caused by a public vessel; the Suits in Admiralty Act governs all admiralty claims against the United States. Pascua v. Astrocielo Neptunea Armandora, S.A., 614 F. Supp. 984 (S.D. Tex. 1985). 39   See, e.g., Weyerhaeuser S.S. Co. v. United States, 372 U.S. 597 (1963), overruled on other grounds, United States v. Reliable Transfer Co., 421 U.S. 397, on remand, 522 F.2d 1381 (2d Cir. 1975); Tiffany v. United States, 931 F.2d 271 (4th Cir. 1991); Allan v. United States, 338 F.2d 160 (9th Cir. 1964), cert. denied, 380 U.S. 961 (1965); Eastern S.S. Lines, Inc. v. United States, 187 F.2d 956 (1st Cir. 1951). 40   46 U.S.C. app. § 745. 41   This paper focuses on liability for oil pollution. The liability that may result from discharges of "hazardous substances" under either the Federal Water Pollution Control Act (FWPCA) or the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), or of "harmful substances" other than oil under MARPOL will be addressed briefly in Appendix III.

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Purposeful Jettison of Petroleum Cargo and imposes civil and criminal penalties for unauthorized discharges.42 Within the navigable waters of the United States, which for these purposes includes all internal waters and the territorial sea,43 the FWPCA prohibits all discharges of oil in quantities sufficient to cause a sheen on the water. Beyond the territorial sea within the exclusive economic zone (EEZ), the FWPCA prohibits such discharges only if they are prohibited by MARPOL.44 MARPOL expressly exempts discharges that are necessary to secure the safety of the ship or to save life at sea (which would include salvage-related discharges) and discharges that result from damage to the vessel or its equipment. The FWPCA did not address liability for damages other than removal costs resulting from oil discharges. Under the FWPCA prior to the enactment of OPA 90, the owner and operator of the discharging vessel were liable (to the United States government) for removal costs associated with a prohibited discharge.45 Since salvage-related discharges into the EEZ were not prohibited by the FWPCA, the owner and operator incurred no liability under the FWPCA for such discharges, even for removal costs. For purposes of the current subject, the major change resulting from OPA 90 is its imposition of liability for removal costs and damages resulting from jettisoning and other salvage-related discharges within the EEZ. Thus, while salvage-related discharges within the EEZ still are not prohibited by any United States law (and thus do not subject the salvor or the owner and operator of the vessel to civil or criminal penalties), such discharges now subject the owner and operator to liability for damages and removal costs. 42   33 U.S.C. § 1321. 43   33 C.F.R. §2.05-25(b). The territorial sea extends seaward three nautical miles from the baseline, which consists of the low water mark along the coast plus closing lines across the mouths of rivers, inlets and bays. See 33 C.F.R. §2.05-10 (Coast Guard regulation) and 33 C.F.R. § 329.12(b) (Corps of Engineers regulation). Internal waters includes all waters inside the baseline. Navigable waters are in general subject to regulation by both the federal government and a state, commonwealth or territory. In 1988, President Reagan issued a Proclamation extending the territorial sea to twelve miles from the baseline for purposes of national security. Proclamation No. 5928, 54 Fed. Reg. 777 (1988). The Proclamation's effect on domestic law is less clear. It states that "[n]othing ... extends or otherwise alters existing Federal or State law or any jurisdiction, rights, legal interests, or obligations derived therefrom." Although the Proclamation clearly does not extend state boundaries or jurisdiction, as the establishment of state boundaries is a function for Congress, its effect on federal law is less clear. The domestic effect of the extension of the territorial sea on federal statutes that refer to the territorial sea must be determined by examining Congress' intent in passing each relevant statute. The ultimate effect of the Proclamation will continue to be uncertain, however, until final judicial resolution. Beyond the territorial sea lies the exclusive economic zone (EEZ), which extends from the outer limit of the territorial sea to 200 nautical miles from the baseline. Proclamation No. 5030, 48 Fed. Reg. 10,605 (March 10, 1983). The EEZ includes the contiguous zone, which extends nine nautical miles from the outer limit of the territorial sea to 12 miles from the baseline. Convention on the Territorial Sea and the Contiguous Zone, 15 U.S.T. 1606. 44   MARPOL Annex I, Reg. 11(a); 33 C.F.R. §151.11(a)(1). Since MARPOL covers discharges "into the sea," it is not applicable to discharges in internal waters. Conversely, since the FWPCA and OPA 90 do not address discharges on the high seas beyond the EEZ, MARPOL alone governs discharges in that area. 45   Owners and operators were liable under the FWPCA to State governments for the costs of restoration or replacement of damaged natural resources. 33 U.S.C. § 1321(f)(4). OPA 90 repealed and superseded subs ections (k) and (p) of section 311, which established a federal fund for paying the costs of removing oil pollution and prescribed financial responsibility standards. Subsection (f) of the FWPCA, which prescribes liability for reimbursing the United States for removal costs, was not repealed but overlaps with OPA 90 to the extent that liability is imposed under that law.

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Purposeful Jettison of Petroleum Cargo Salvage Operations in Navigable Waters Under United States law, a salvor may not discharge oil into the navigable waters during salvage operations. All discharges of oil into the navigable waters in quantities that cause a "sheen" upon the water are prohibited.46 Since federal law provides no exceptions for state law in this area, all discharges into waters under state jurisdiction are prohibited, regardless of state law. Federal Water Pollution Control Act. The FWPCA specifically prohibits the discharge of oil: (i) into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone, or (ii) in connection with activities under the Outer Continental Shelf Lands Act or the Deepwater Port Act of 1974, or which may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States (including resources under the Magnuson Fishery Conservation and Management Act), in such quantities as may be harmful as determined by the President ....47 A discharge is generally prohibited by the FWPCA if the discharge "violates applicable water quality standards, or causes a film or sheen upon or discoloration of the surface of the water or the adjoining shorelines ..."48 As a general principle, a discharge of oil that does not create a sheen does not violate the FWPCA. Any person who negligently or knowingly discharges in violation of the FWPCA is subject to criminal sanction. A salvor may be subject to criminal penalty for discharges within the navigable waters. If a discharge occurs as a result of the salvor's negligent conduct, the salvor is subject to a fine of not less than $2,500 nor more than $25,000 for each day that the sheen remains and imprisonment for one year, or both.49 If the discharge is intentional, as jettisoning would be, the potential fine is increased to not less than $5,000 nor more than $50,000 per day, and imprisonment can extend to six years.50 A salvor is therefore subject to serious criminal sanctions if cargo is jettisoned into the navigable waters during salvage operations, apparently even if the jettison prevents the loss of the entire cargo or additional environmental damage. Such factors may be taken into consideration by a prosecutor, but may not prevent charges from being brought in the aftermath of an incident that causes serious environmental harm. A review of the case law reveals no cases where a salvor has intentionally discharged oil into the navigable waters. Because of the public's increasing concern about the harmful effects of oil pollution, a voluntary discharge that causes damages is unlikely to be ignored, even if it prevents additional pollution. Refuse Act. In addition to the FWPCA, the Refuse Act of 1899 makes it unlawful to deposit refuse into navigable waters.51 "Refuse" has been interpreted to 46   40 C.F.R. § 110.1. Sheen is defined as "an iridescent appearance on the surface of the water." Id. 47   33 U.S.C. § 1321(b)(3). "Oil" is defined to mean "oil of any kind or in any form, including, but not limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged spoil." Id. § 1321(a)(1). 48   40 C.F.R. Part 110. 49   33 U.S.C. § 1319(c)(1). 50   Id. § 1319(c)(2). 51   The act provides:

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Purposeful Jettison of Petroleum Cargo include all foreign substances and pollutants apart from those specifically excepted in the statute.52 Oil, oily mixtures, or hazardous substances constitute "refuse" for purposes of the act. Violation of the Refuse Act is a misdemeanor, carrying a penalty of $500 to $2,500 or imprisonment for 30 days to one year, or both.53 OPA 90. The vessel owner and operator are subject to strict liability under OPA 90 for any removal costs or damages resulting from a discharge into the navigable waters. The extent of liability under OPA 90 is discussed in further detail below. It is important to note, however, that jettisoning of oil into the navigable waters by a salvor, because it is illegal per se, will automatically break the limitation of liability for the responsible party. Salvage Operations in the Exclusive Economic Zone As noted, the FWPCA does not prohibit discharges into the exclusive economic zone if they are permitted by MARPOL.54 Although MARPOL generally prohibits discharges of oil into the exclusive economic zone, it provides two exceptions. First, the prohibition does not apply to jettisoning and other salvage-related discharges.55 Second, it does not apply to discharges that result from damage to a ship or its equipment if (a) all reasonable precautions have been taken after the occurrence of the damage or discovery of the damage to prevent or minimize the discharge; and (b) the owner or master did not act either with intent to cause damage, or recklessly and with knowledge that damage would probably result.56 Jettisoning that is necessary to stabilize or prevent the loss of the vessel and cargo qualifies as an emergency discharge under MARPOL. Indeed, it could be argued that any incidental discharge during a salvage operation would qualify as an emergency discharge under MARPOL since the salvage operation is, by definition, undertaken to save a vessel or its cargo. Accordingly, a salvor, without risk of criminal penalty, may take advantage of the authority under MARPOL to jettison oil for the purpose of saving life or property if the discharge occurs outside of the navigable waters, even if the discharged oil drifts     It shall not be lawful to throw, discharge, or deposit, or cause, suffer or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft of any kind ... any refuse matter of any kind or description whatever ... into any navigable water of the United States or into any tributary of any navigable water from which the same shall float or be washed into such navigable water. 33 U.S.C. § 407. 52   United States v. Standard Oil Co., 384 U.S. 224 (1966). 53   33 U.S.C. § 411. 54   The FWPCA speaks in terms of discharges into the contiguous zone or "which may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States." For practical purposes, this means the exclusive economic zone. 55   Annex I, Reg. 11, MARPOL; 33 C.F.R. §157.41(a). 56   Annex I, Reg. 11, MARPOL; 33 C.F.R. §157.41. The standard is generally comparable to willful misconduct, which United States courts have consistently defined as the intentional performance of an act, or the failure to act, with knowledge that injury or damage would probably result, or in such a manner as to imply reckless disregard of the probable consequences. See, e.g., Tug Ocean Prince, Inc. v. United States, 584 F.2d 1151 (2d Cir.), cert. denied, 440 U.S. 959 (1978). MARPOL also permits operational discharges from vessels other than tank vessels and from the machinery space bilges of tank vessels if the oil content of the discharge is monitored and is less than a certain proportion of the effluent discharged, 33 C.F.R. § 151.10(a),(b); and cargo-related oily mixtures from tank vessels proceeding en route more than 50 nautical miles from land if the discharge is monitored and does not exceed 60 liters per nautical mile, 33 C.F.R. §157.37(a).

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Purposeful Jettison of Petroleum Cargo into the navigable waters. The owner and operator of the imperiled vessel, and hence the salvor indirectly, however, will incur liability for removal costs and damages under OPA 90 or under state law (if resources within state jurisdiction are affected). Jettisoning beyond the exclusive economic zone will not result in the imposition of liability under OPA 90 even if the discharge causes damage to resources within the exclusive economic zone. Such a discharge may, however, result in liability under the FWPCA to the United States for removal costs if the discharge damages resources within the exclusive economic zone.57 For example, if a discharge into waters beyond the exclusive economic zone drifts into the exclusive economic zone and damages resources, the discharger would not be liable under OPA 90. Section 1002 imposes liability upon the responsible party for a vessel from which oil is discharged into or upon the exclusive economic zone.58 Unlike the FWPCA, which prohibits discharges that may affect resources within the exclusive economic zone, OPA prohibits discharges only into or upon the exclusive economic zone.59 Further, the definition of discharge in OPA 90 does not include the drifting of oil from beyond the exclusive economic zone.60 The liability imposed by OPA 90 applies to all discharges into the navigable waters and the exclusive economic zone.61 Liability for damages and removal costs resulting from a discharge of oil will be incurred even when the discharge is permitted by MARPOL and the FWPCA.62 Under OPA 90, a responsible party for a tank vessel (i.e., the vessel owner, operator, and demise charterer) is liable for removal costs and damages in an amount not to exceed the greater of $1,200 per gross ton or $10 million ($2 million for a vessel of less than 3,000 gross tons). For any other vessel, the responsible party's liability is limited to the greater of $600 per gross ton or $500,000.63 The liability limit may not apply if the incident was the result of gross negligence or willful misconduct, or the violation of an applicable federal safety, construction, or operating regulation by the responsible party, its agent, or employee, or a person acting pursuant to a contractual relationship with the responsible party.64 This includes a salvor and, therefore, any action by the salvor that violates any of these 57   33 U.S.C. § 1321(f). The FWPCA imposes liability upon the owner or operator of a vessel that discharges oil in violation of that Act, but for which there is no liability under OPA 90, for the actual costs of removal not to exceed $125 per gross ton. No limitation is available if the discharge was the result of gross negligence or willful misconduct within the privity and knowledge of the owner or operator. 58   33 U.S.C. § 2702(a). 59   Id. § 1321(b)(3). To the extent that a discharge into the high seas is not allowed by MARPOL and affects the natural resources of the exclusive economic zone, the United States could impose liability upon the responsible person for removal costs under section 311 of the FWPCA. Id. § 1321(f); see supra note 55. 60   Id. § 2701(7). 61   Id. § 2702(a). 62   Under OPA 90, damages include (1) injury to, destruction of, or loss of use of, natural resources, including the reasonable costs of assessing the damage; (2) injury to or economic losses resulting from destruction of real or personal property; (3) loss of subsistence use of natural resources; (4) loss of taxes, royalties, rents, fees, or net profit shares due to the injury, destruction, or loss of real property, personal property, or natural resources; (5) loss of profits or impairment of earning capacity due to the injury, destruction, or loss of use of real property, personal property, or natural resources; and (6) costs of providing increased or additional public services during or after removal activities, including protection from fire, safety, or health hazards, caused by a discharge of oil. 33 U.S.C. §2702(b)(2). 63   Id. § 2704(a). 64   Id. § 2704(c)(1).

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Purposeful Jettison of Petroleum Cargo services first be made by an incident command agency and require the responder not "profit" from assisting in the response.31 Sovereign Immunity. The decision of the U.S. Coast Guard or the U.S. Navy to undertake salvage is a discretionary one, which is why sovereign immunity initially applies. Once the U.S. government makes a decision to supply a salvage service, then sovereign immunity is waived and recovery allowed for negligent actions of the government in salvaging a vessel.32 Sovereign immunity is strictly construed and thus, unless waived as to state law, may interdict a suit under state law to recover removal costs or damages resulting from a negligent jettisoning of cargo. Nonetheless, there is an argument that the sovereign immunity of the U.S. government is waived for purposes of a state law action. First, the Federal Water Pollution Control Act has a waiver of sovereign immunity for federal facilities. This provision requires each department, agency, or instrumentality of the executive, legislative, and judicial branches of the federal government engaged in any activity resulting, or which may result, in the discharge of pollutants to comply with all state requirements, administrative authority, process, and sanctions in the same manner as any nongovernmental entity, notwithstanding any immunity of such agencies under any law or rule of law.33 Second, federal agencies are under a directive to comply with environmental laws.34 A court might consider these factors in analyzing whether the United States had waived its sovereign immunity, although the general rule mandates an unequivocal waiver as to imposition of liability under state laws. PART II: LIABILITY AND CONSISTENCY UNDER SALVAGE AND POLLUTION LAWS Part II focuses on other issues raised by [Dean's and Crick's] review of international salvage, national, and state pollution laws. Liability Salvage The term "liability salvage" appears to embrace two separate concepts: Risk of liability to the salvor  Liability avoided to the shipowner or third parties by the salvor's actions. Both concepts are explored below. Risk Of Liability To The Salvor It appears a salvor may face increased risk of liability for jettisoning of cargo during salvage operations. In certain circumstances there may be some relief for the salvor's increased risk. Article 8 of the Convention for the Unification of Certain 31   For example, See RCW 70.136.010 32   29 Hood v. U.S., 695 F. Supp 237, 242 (E.D. La 1988) 33   33 U.S.C. 1323(a). This waiver applies to federal facilities. However, the language may be broad enough to apply to vessels. 34   43 Fed. Reg 47707 (1978) Executive Order signed by President Carter October 1979 refers to all of the environmental acts, including the FWPCA. (Each Executive agency is responsible for compliance with applicable pollution control standards.., which means the same substantive, procedural and other requirements that would apply to a private person.)

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Purposeful Jettison of Petroleum Cargo Rules of Law Relating to Assistance and Salvage at Sea (1910) allowed consideration of the "risks of liability and other risks run by the salvors." Article 13(g) of the 1989 International Convention on Salvage provides among its criteria for fixing the salvor's reward, "the risk of liability and other risks run by the salvors or their equipment." A salvor may be liable for damage inflicted by property in their care.35 Although the likelihood of being named in a lawsuit from third parties may be too tenuous,36 the threat of arrest may be considered as an element of the risk to salvors in calculating the salvage award.37 Thus, it is arguable that at least a portion of a salvor's increased risk of liability could be recovered by an increased monetary award to the salvor. This may not provide much solace to a salvor who still may face a potential contribution action from the shipowner. Liability Avoided If a salvor in jettisoning cargo thereby prevents an even greater oil spill, then that salvor arguably should be entitled to all or a portion of the potential liability avoided by the shipowner. Some courts have declined to consider the prevention of liability to third parties, the public interest or "benefits to the shipowner" as part of the salvor's award.38 Under the 1910 Salvage Convention, a private or public salvor was apparently precluded from asserting an avoidance of environmental damage as part of a salvor's claim.39 Given the new emphasis on avoidance of environmental damage in the 1989 convention, it is possible a court could acknowledge liability salvage as a legitimate part of a salvage award, whether to a private or public salvor. Environmental liability avoided by virtue of a public salvor's actions would seem to be a powerful "bargaining chip" to offset claims for damages in any negligence action instituted against the U.S. Navy or U.S. Coast Guard. Consistency With The National Contingency Plan The current National Contingency Plan does address marine salvage operations and may provide guidance as to consistency with the plan.40 The federal on-scene coordinator must ensure that proper actions are taken. The National Contingency Plan acknowledges the complexity of salvage operations, which may be compounded by local environmental and geographic conditions. Responsible parties or other persons attempting to perform such operations are forewarned that their actions could aggravate, rather than relieve, the situation. This language indicates public salvors must seek advice from the Department of Defense, strike teams, and commercial salvors before engaging in any salvage operations. Private salvors would appear to act at their peril if they do not continuously seek advice from the federal on-scene coordinator, particularly as to the jettisoning of cargo. 35   3A M. Norris, Benedict on Admiralty, Sec. 120. 36   Westar Marine Serv. v. Heerema Marine Contractors, 621 F. Supp. 1135, 1145 (D.C. Cal 1985). 37   Cobb Coin Co. v. Unidentified, Wrecked & Abandoned Sailing Vessel, 549 F. Supp 540, 559 (S.D. Fla 1982). 38   Westar Marine Serv. v. Heerema Marine Contractors, 621 F. Supp. 1135, 1144 (D.C. Cal 1985). 39   Hendricks v. Tug Gordon Gill, 737 F. Supp 1099, 1104 (D. Alaska 1989). 40   See 40 cfr 300.145(e), Special teams and other assistance available to OSCs/RPMs.

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Purposeful Jettison of Petroleum Cargo CONCLUSION Shipowners and public and private salvors face uncertainty regarding potential liability for jettisoning cargo, even if the salvor's actions may be in the public interest, by avoiding a greater discharge of oil and greater harm to the environment. While there are still questions as to the extent of state authority, it appears states have "concurrent" jurisdiction with the federal government and can impose direct and possible unlimited liability on salvors who jettison cargo and impact state waters. One should not lose sight of the public policy implications of such a liability scheme. States should proceed with caution if, in imposing such liability, their actions unduly impact the characteristic features of salvage. If state liability schemes were construed to alter the salvors' incentive for rescue, impact the salvage award, or unduly interfere with traditional maritime activities, then states could face a preemption challenge. Hopefully, in lieu of a legal challenge, states, the federal government, and public and private salvors will work together to facilitate a clarification in the laws to resolve this issue. ADDENDUM A OPA 90 explicitly provides for state regulation and preserves states rights to impose state liability in addition to federal liability. OPA 90 contains the following references regarding state law: * Title I, Oil Pollution Liability and Compensation, Section 1018 Relationship to Other Law (33 U.S.C. 2718) (a) Preservation of State Authorities; Solid Waste Disposal Act. Nothing in this Act or the Act of March 3, 1851 shall (1) affect, or be construed or interpreted as preempting, the authority of any State or political subdivision thereof from imposing any additional liability or requirements with respect to— (A) the discharge of oil or other pollution by oil within such State; or (B) any removal activities in connection with such a discharge; or (2) affect, or be construed or interpreted to affect or modify in any way the obligations or liabilities of any person under the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.) or State law, including common law. (b) Preservation of State funds Nothing in this chapter or in section 9509 of Title 26 shall in any way affect, or be construed to affect, the authority of any State— (1) to establish, or to continue in effect, a fund any purpose of which is to pay for costs or damages arising out of, or directly resulting from, oil pollution or the substantial threat of oil pollution; or (2) to require any person to contribute to such a fund. c. Additional requirements and liabilities; penalties Nothing in this chapter, the Act of March 3, 1851 (46 U.S.C. 183 et seq.), or section 9509 of Title 26 shall in any way affect, or be construed to affect, the authority of the United States or any State or political subdivision thereof— (1) to impose additional liability or additional requirements; or

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Purposeful Jettison of Petroleum Cargo 2 to impose, or to determine the amount of, any fine or penalty (whether criminal or civil in nature) for any violation of law; relating to the discharge, or substantial threat of a discharge, of oil. * Title IV, Prevention and Removal, Subtitle B-Removal, Section 4202 National Planning and Response System, 33 U.S.C. 1321 (c) State Law Not Preempted—Section 311(o)(2) of the Federal Water Pollution Control Act (33 U.S.C.1321(o)(2) is amended by inserting before the period the following: "or with respect to any removal activities related to such discharge." ADDENDUM B OPA 90 amended the Federal Clean Water Act to reflect that a state is not preempted with respect to any removal activities related to discharges of oil. See 33 U.S.C. 1321(o)(2). See H. R. Conf. rep. No. 653, 101st Cong., 2nd Sess. 121 (1990) regarding Section 1018 of OPA regarding its relationship to other law. "Nothing in the substitute, or the Act of March 3, 1851 (the Limitation of Liability Act), shall affect in any way the authority of a state or local government to impose additional liability or other requirements with respect to oil pollution or to the discharge of oil within that State or with respect to any removal activities in connection with such a discharge..." See also H.R. Conf. Rep. No. 653, 101st Cong., 2d Sess. 146 (1990) (Finally, the conference substitute amends section 311(o) of the FWPCA to preserve explicitly the authority of any state to impose its own requirement or standards with respect to the liability of persons involved in the removal of oil. ADDENDUM C When a wrong occurs on navigable waters and bears a significant relationship to a traditional maritime activity (operating a vessel and engaging in maritime commerce) then cases arising out of such activities fall within maritime jurisdiction of the courts. Slaven v. BP American, Inc., 786 F. Supp 853, 856 (C.D. Cal 1992). Article III, section 2, clause I of the Constitution contains a specific jurisdictional grant to the federal courts to "all cases of admiralty and maritime jurisdiction." The implementing legislation of that grant, 28 U.S.C. section 1333 provides: The district courts shall have original jurisdiction, exclusive of the courts of the States, of: Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.  Any prize brought into the United States and all proceedings for the condemnation of property taken as a prize. See Jupiter Wreck, Inc. v. Unidentified Sailing Vessel, 691 F. Supp 1377, 1391 (S.D. Fla 1988). ADDENDUM D The legislative history of the "Savings Clause" of OPA 90 reflects that, "It is not the intent of the Conferees to change the jurisdiction in incidents that are within the admiralty and maritime laws of the United States. The Conferees-wish to promote uniformity regarding these laws. H.R. Conf. Rep. No. 653, 101st Cong., 2d Sess. 159 (1990). The Conference substitute adopts the House provision with respect to admiralty

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Purposeful Jettison of Petroleum Cargo and maritime laws with an amendment clarifying that the provision was subject to the provisions of the substitute. Section 1002 of the Conference substitute establishes liability notwithstanding any other provision or rule of law, including the Act of March 3, 1851 (46 U.S.C. 183). Therefore, there is no change in current law unless there is a specific provision to the contrary. (Section 6001 of the House bill does not affect admiralty and maritime jurisdiction, saving to suitors in all cases other remedies to which they are otherwise entitled. Article III, clause 2 of the Constitution creates the basis for admiralty and maritime law of the United States. This section is intended to clarify that the House bill does not supersede that law, nor does it change the jurisdiction of the District Courts under section 1333 of title 28, United States Code (the codified section of the Judiciary Act of 1789). Lee Rees is an attorney with the firm of Graham & Dunn in Seattle. Her practice includes legislative and regulatory environmental compliance in water resources and water quality. Prior to entering private practice, Ms. Rees worked for the Washington State Attorney General's Office, where she helped implement comprehensive federal and state oil spill legislation.

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Purposeful Jettison of Petroleum Cargo DISCUSSION: QUESTIONSAND COMMENTS ADDRESSEDTOTHE PANELONTHE LEGAL STATUSOF JETTISONING Following the presentation of the papers in Part II, the panel members entertained questions from the symposium attendees. The discussion session was moderated by Gordon Paulsen. NINA SANKOVITCH, NATURAL RESOURCES DEFENSE COUNCIL: I have a question for Mr. Berns. I agree with Mr. Berns that this panel-indeed this whole day-cannot get us to a point where we will have a legal certainty as to what will happen if the salvor jettisons cargo. But I wanted to know if you agreed with what Mr. Burgess said, that the federal on-scene coordinator can play a real role in whether or not the salvor will be held liable. MR. BERNS: Yes, I sincerely feel that if the on-scene coordinator is going to be making decisions, that will have a major effect on whether there is going to be a liability aspect. If you want to take it another step, it was raised in Dean and Crick that under the Suits in Admiralty Act, Public Vessels Act, that the government itself may be negligent. I disagree. The government can't be negligent under OPA or the Clean Water Act because of the sole fault exceptions, and public vessels cannot be found liable or involved under OPA. So if the government couldn't be liable in the first instance, how would it be liable if we do something during a salvage incident and there is a loss? I don`t think we would be liable. I also want to point out, in my paper I refer to Sammi Superstars in this issue of limitation of liability. My understanding is that that case may have settled and you may not see a decision on that case. Sometimes, discretion and certified checks are the better part of valor. WILLIAM PECK, U.S. NAVY: I am assistant supervisor of salvage, Admiralty, U.S. Navy. The question is for the entire panel and it is a burning question for the salvors in the field. We still don't have-and I think it is reasonable to conclude that by the end of the day` as Nina Sankovitch said, we won t have a definitive answer on the question of whether the on-scene coordinator's blessing, direction, or authorization for a jettison will relieve the salvor of liability in the first instance of liability to third parties I understand Mr. Berns to saying that we have to rely on prosecutorial discretion to solve that problem. But I think we need to go back one step and look at

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Purposeful Jettison of Petroleum Cargo what is going to prompt the on-scene coordinator to grant authority to or to direct a jettison, without some specific provision in law or regulation. I think the practicalities are that he or she won't. Yet the law is so vague on this point and the potential liability so overwhelming that without some specific provision, such as appears in MARPOL, it is hard to conceive of an on-scene coordinator determining that a jettison is appropriate and authorizing or directing a salvor to do one. MR. PAULSEN: In a way, that could be summarized by asking you, if you were the on-scene coordinator, would you authorize a jettison? MR. PECK: At present, certainly not. MR. BERNS: There seems to be a skewing here of an approach that we are forgetting. There is no doubt in my mind that if we had a vessel that is on the rocks, fully loaded, and that there was danger to life involved, and jettisoning is needed to protect that life, there is going to be a jettison. If you are talking about a human life and you have to take a risk to protect that human life, so be it. I don't think there is going to be an on-scene coordinator around who is going to say "no, we are not going to do it." The damages that result are going to be paid for by the person who was initially responsible for causing the incident. I think it is fair to say that if you are going to have environmental damage versus the saving of a vessel, you are going to lose the vessel. The environmental damage is going to be the top priority. There is a balancing, however. I can't tell you under what circumstances you save the vessel versus sacrificing the environment. I can tell you, when it came down to Prince William Sound versus destruction of the Exxon Valdez, if the environment could have been preserved, I am pretty sure that you know what the answer would have been. That is an attitude, a whole atmosphere that has been created. Are there going to be situations where you are going to say jettison? Of course there are. But I don't think we can safely say what they are. Many times, jettisoning is only considered because someone refuses to pay the cost of lightering, because it is too expensive to bring a lighter alongside. I have had cases in which that cost was discussed. That is a circumstance you have to take into account. MR. DEAN: When you talk about the responsibilities and the potential liabilities of the United States government and the effect of its actions on other people's liabilities, it is worth keeping in mind that the government performs two separate functions in this area. The first is its regulatory function, which Captain Burgess alluded to, as the on-scene coordinator or the delegate of the President, who has the right, but not the duty, to direct a response to the spill. The Oil Pollution Act stopped short of making that function mandatory. The Coast Guard may remove, or arrange for the removal, direct or monitor federal or private actions to remove or destroy a vessel. There is nothing in the statute that says it shall. The Coast Guard shall only ensure that there is a proper response and that the cleanup occurs. But the only thing that governs its own direct action, including federalization of the spill or directing the response to a spill is preceded by the word "may." However, once the government decides to do that, it does affect the liability and accountability of a potential responder or salvor. I am not sure, at this time, that I would expect the Coast Guard or the on-scene coordinator,

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Purposeful Jettison of Petroleum Cargo however, to order a spill or even sanction a spill into the territorial waters without further clarification of the Coast Guard's own regulations in this regard. The second major function the United States performs is as a salvor. In performing that function, which is inherently different from directing or coordinating a response, the federal government is entitled to claim compensation for its actions as any private party would do. As any private party, the federal government will take on duties and obligations that private salvors would take on, including potential liability. It may be that the principal effect of this potential liability is increased exposure of the owner-operator to pollution damages. The changes in the duty of salvors under the new convention, to consider and respond to pollution damage and to mitigate pollution damage, may result in owners being able to claim or being able to pay reduced compensation awards (special compensation awards or regular compensation awards) to the federal government as a salvor or to bring claims against the United States for aggravated fault or simple negligence on the basis of acts and omissions performed by the United States in the context of performing its responsibilities as a salvor. Those are two inherently different barriers of U.S. intervention with two very different legal consequences. MR. BURGESS: In answer to your question, Bill [Peck], if I were an on-scene coordinator now, under the current directives, I wouldn't jump out there and do it. That is the point I tried to make-that I think what Congress said was, the ball game has changed with respect to cases that will give rise to a substantial threat, and that you had better prepare for them. The National Contingency Plan, right now, doesn't have much in it. The commandant's instruction has a little comment about disposal which has expired and probably needs to be deleted, but my suggestion is that these aspects need to be looked at. With regard to the question of whether it is mandatory that the federal government direct a disposal, I am not saying it is. It is mandatory that they take control over what happens, and decide the right thing to do. If that decision is made and that direction is given to the salvor, there is protection provided by the statute. MR. NICHOLAS: Even if you consider changing the law to make it clearer with respect to jettison, there is another major problem. If you have a major oil spill, by the time it is aired in the press you have a political situation that any state or federal public official is going to be very sensitive to. That political atmosphere may, in the long run, be the deciding factor as to whether anybody considers authorizing jettison as a viable means of saving the vessel or preventing environmental harm. There will always be competing political interests. That is a factor that needs to be considered in the decision-making process. MS. REES: If we are talking about a circumstance in which there is a substantial threat, then the statute basically says, the President shall direct all federal, state, and private operations, and that is really crucial. If we are going to jettison cargo, we are talking about a duty, a duty to direct. But I would also draw your attention to another part of OPA, which says the President shall consult with the affected trustee, which includes the states and the tribes. I am not so sure this is a singular decision.

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Purposeful Jettison of Petroleum Cargo WILLIAM GRAY, SKAARUP OIL CORPORATION: I would like to ask each of the panelists, looking at Ken Fullwood's scenario [page ref tk], it seems to me to have about all the information that many people will have in the short time period in which that vessel was aground, if you were the counsel for the ship owner, or his qualified individual, what would you advise them to do and why? MR. DEAN: I understand that vessel to have been within territorial waters, so I would not jettison under any circumstances unless I was ordered to do so by the United States Coast Guard. MS. REES: I am here not representing the states, but I am attempting to give their perspective. I think you would have to have state and federal concurrence before you would discharge, if you wanted to do so without facing the potential of some real liability from the state. MR. BURGESS: I think the consultation requirement is there and it has to be done. I agree with Warren Dean, that the Coast Guard would have to direct. But before this, people need to educate the populace in the states, much the way we have been educated this morning. That is a very important aspect. Bob Nicholas talked about the practical political problem. I fully agree with that, but people need to focus their interests on convincing those in state governments to consider the alternatives. ''If we don't do it [jettison], here is what happens." Otherwise, you are going to get a knee-jerk reaction. MR. NICHOLAS: I would like to throw in another ingredient that has always been a problem in the decision-making process, a tremendous lack of trust between all the parties involved because of the litigiousness and the competing interests that are always involved. Unless somehow we can figure out a way to get around that, we are never going to solve the problem. MR. BERNS: One of the first things you do if you have time is to go to the regional response team, which takes in the state, the local, the federal, everyone else. They will probably say, if you are going to drop 2,000 gallons in the ocean to prevent spilling 80,000 gallons, and that is going to present a greater damage, we are going to tell you to jettison. The second thing, even if the regional response team did not come forward with a decision, but I look at the situation and tell my client that if you don't do it and it breaks up, you are going to be liable for all the damages that come out of spilling 80,000 versus 2,000 gallons, then there is a fair chance the regional response team is going to say "you had better jettison." I think there is a time-and I think the on-scene coordinator, contrary to some of the comments-that the Coast Guard officer or Navy salvage officer who is on the scene is probably not going to pull out the statute books and say, "this exposes me." He is going to say, "I am a professional and this is what I have to do as a professional and this is the best way to do it." MR. NICHOLAS: Let me add one brief comment. In terms of giving practical legal advice, any time you tell a client that somebody is going to potentially go to jail, that is the key point they want to hear. That scares the client more than anything else. MR. GRAY: I agree with what Fred [Burgess] said about getting everybody educated in the states and everywhere else. I think within the beltway here, some education would be helpful, too. There won't be time, with that ship aground, to get a consultation and decision before events determine what is eventually going to happen.

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Purposeful Jettison of Petroleum Cargo Looking back at the Exxon Valdez, Exxon tried very hard to get everybody to agree to use dispersants and the whole weekend was wasted. MR. BERNS: As I understand it after 15,000 pages of transcript of testimony, there were 55 barrels of dispersants available in that area, with one helicopter that had a dump tank that didn't work properly. A DC-3 was brought up to Alaska, but it wasn't until late Sunday that it was determined whether there would be enough dispersants in the area where the planes were brought in. Sure, it took that long, but the dispersants weren't there. PAUL PREUS, MACKINNON SEARLE CONSORTIUM LTD.: With regards to responder immunity, in the 1940s and the 1950s, even into the 1960s, ''soaps, detergents, emulsifiers" were utilized in flooded engine rooms, and the mixture went over the side as emulsified oil. Ms. Rees, you mentioned the three-mile limit. In the state of Texas, it is a little over nine miles and the state of Florida is over nine miles. MS. REES: You are correct. MR. PREUS: So, for the people in the salvage and oil pollution control business, one thing has to be settled. If, in conjunction with jettisoning and with getting rid of dirty ballast water and container ships, in using chemicals what needs to be fully understood is that people involved with the use of detergents must be under responder immunity, in getting permission under the Presidential Order or the Coast Guard. MR. BERNS: The statute seems to provide that responder immunity. If they are acting in accordance with the statute. Remember, however, that it doesn't protect you for personal injury. MR. PREUS: But does it protect the use of dispersants if so ordered? MR. BERNS: You have got an on-scene coordinator on the scene who is responding. They are using aa approved dispersant in an area that everyone (let's say the regional response team) has said, "go ahead." I think you have immunity. THOMAS DALY, MCCARTER & ENGLISH, ESQUIRES: I am an attorney who has made a reasonably comfortable living over the years litigating because of the ambiguities in statutes and regulations. I put this question to Admiral Henn. Is the Coast Guard prepared to make recommendations to Congress or to pass legislation that will remove these problems we have addressed this morning? For instance, if the on-scene coordinator approves jettison, can we have legislation that will immunize the Coast Guard as well as the salvor. ADM. HENN: [Portion of answer off microphone] Obviously it is up to the Coast Guard federal on-scene coordinator to weigh the options-jettison or not jettison. The chances of his making a decision to jettison are extremely slim, for all the reasons that we have stated so far.

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