Purposeful Jettison of Petroleum Cargo (1994) / Chapter Skim
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Jettison Report and Recommendations
Jettison Report and Recommendations
Pages 1-16
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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-cr~tical operational decisions about stranded tankers.
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spill size. Variables that can influence risk include 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.
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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.
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uncler OPA 90, neither the salvor nor the federal government is liable, either for penalties or for removal costs and damages. Furthermore, jettisons consistent with the NCP invoke responder immunity and possibly the same immunity as "directed jettisons," at least under federal law.
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, and EFOSC] to consider the jettisoning possibility expeditiously and make a prompt decision to direct this action if, in the judgment of the President's delegate, it wait mitigate or prevent substantial threats of discharge." According to Burgess, "Government paralysis can cause far more serious consequences than a wise jettison decision." State laws probably cannot impose criminal or civil sanctions on a salvor who jettisons oil at the direction of the FOSC because of the federal supremacy doctrine established by the courts, Burgess said.
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Given the new emphasis on avoidance of environmental damage in the 1989 convention, the courts could acknowledge liability salvage as a legitimate part of a salvage award. In conclusion, Ms Rees noted that "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 greater discharge of of!
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She also questioned the need to develop standard criteria for decision making, in that salvage situations vary so widely. She argued for retaining the current civil liability provisions in OPA 90, on the grounds they provide an effective prevention mechanism, but she added that responder immunity from criminal liability might be acceptable.
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Smit Americas salvors probably would not jettison unless ordered to do so by the FOSC, Duscoll said, adding that the key issue then becomes who actually makes the Anal · c .eclslon. Roger Gale, manager of Shipping and Logistics for BP Oil Co., questioned whether sufficient tools and information are available in the scenario to make a jettison decision.
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Captain Richard Fiske of the Navy said that based on technical input, jettison is an appropriate option to refloat the ship, legal concerns notwithstanding. Philip Berns, representing the Justice Department, emphasized the need to consider possible environmental damage due to the discharge, adding that he would defer to technical experts.
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Jettisoning has been rare in recent years. 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 effects of jettisoning.
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This change would not 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.7 In any case, clarification of oil pollution laws undoubtedly wall require further judicial or regulatory interpretations and, at least in some instances, further legislation. Participants Mitered as to whether a jettison is an appropriate response to Captain Fullwood's scenario.
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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 to press out damaged tanks, displacing oily water with buoyant material, and operating many on-water skimmers (which, in separating of! and water, may discharge small quantities of oil)
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A related issue concerns certain common salvage practices that also could be considered forms of jettisoning, in that some of} 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 on-water skimmers.
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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 IS51 Limitation of Liability Act applies in light of OPA 90.
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