embodied in "open form" salvage agreements. Furthermore, the award may be reduced to compensate the vessel owner for losses caused by the salvor's failure to exercise due care. The degree of care required varies with the source of the risk. The salvor is liable for losses due to the salvor's gross negligence or willful misconduct; the salvor also is liable for "distinguishable and separate"1 damage to property caused by failure to exercise ordinary care.

The United States is a party to the International Convention for the Prevention of Pollution from Ships, 1973, and its 1978 Protocol (MARPOL), which generally prohibit pollution of the oceans from seagoing vessels but make exceptions for salvage-related discharges. Discharges that are necessary to secure the safety of the ship or to save lives at sea, or that result from damage to a ship or its equipment are exempted from the treaty provisions.2 Until recently, this exception immunized salvors from liability for discharges at sea, but not for discharges within the three-mile U.S. territorial sea, where the purposeful jettisoning of oil is prohibited under the Federal Water Pollution Control Act (FWPCA). The FWPCA prohibits discharges of oil in quantities sufficient to cause a sheen on the water and imposes civil and criminal penalties for unauthorized discharges, including those into waters under state jurisdiction. However, the FWPCA does not prohibit discharges into the Exclusive Economic Zone (EEZ)3 if they are permitted by MARPOL.

The Oil Pollution Act of 1990 (OPA 90) conflicts with MARPOL protection for discharges within the EEZ because OPA 90 makes the vessel owner and operator responsible for removal costs and damages for all discharges into U.S. navigable waters and the EEZ. Consequently, the owner's and operator's liability must be taken into account when conducting salvage activities. Outside the territorial sea and within the EEZ, OPA 90 does not actually prohibit salvage-related discharges, so the salvor, owner, and operator of a vessel are not subject to civil or criminal penalties. Under OPA 90, however, liability for damages and removal costs would be incurred even if the discharge were permitted by MARPOL.

Anyone who negligently or knowingly discharges oil in violation of the FWPCA is subject to criminal penalties. Therefore, a salvor may be subject to prosecution if cargo is jettisoned, even if this action prevents loss of the entire cargo and additional environmental damage. As of February 1993, there had been no legal cases involving a salvor who jettisoned oil into the navigable waters of the United States.

OPA 90 provides limited immunity ("responder immunity") to persons "rendering care, assistance, or advice consistent with the National Contingency Plan [NCP] or as otherwise directed by the President." It is unclear whether a salvage-related discharge can be consistent with the NCP, which is supposed to "minimize damage from oil and hazardous substances discharge." A salvor should be eligible for conditional immunity under this provision, Mr. Dean and Ms. Crick said. To ensure responder immunity, the salvor may need to obtain permission to discharge from the President (whose authority devolves to the federal on-scene coordinator [FOSC]). But obtaining such permission may be difficult and impractical in a salvage situation. As

1  

This term refers to damage distinct from that caused by the original peril.

2  

Citations for these exemptions and for the various laws mentioned in the summary report may be found in the authored papers.

3  

The EEZ, created by a 1983 presidential proclamation, is a belt of jurisdiction over seabed resources adjacent to the United States and its island territories, extending 200 nautical miles from shore. The proclamation extends U.S. sovereign rights in this region for exploration, utilization, conservation, and management of natural resources.



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