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A Reassessment of the Marine Salvage Posture of the United States
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.
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 general maritime 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 the occasion arises.