Purposeful Jettison of Petroleum Cargo (1994) / Chapter Skim
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Part II Legal Status of Jettisoning
Part II Legal Status of Jettisoning
Pages 57-142
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From page 57... ...
Proceedings of the Symposium on the Purposeful Jettison of Cargo PART 11: LEGAL STATUS OF JETTISONING
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From page 58... ...
This paper wall first analyze the new regimens effects, intended and unintended, on salvage operations and wall 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 pent 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 pent 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: I
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From page 59... ...
The salver 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 cared The degree of care required of a salver varies with the source of the risk. The salver will be liable for losses caused by the penls 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 salver 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 Cnnndn and MP1r;rr)
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From page 60... ...
and the Protocol Relating to Intervention on the High Seas in Cases of Marine Pollution by Substances Other Than Oil,~4 both of which are implemented by the Intervention On The High Seas Acted 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. 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.~7 The United States is not liable for dam ages 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 env~ronment.~8 The law of salvage and responder immunity provisions, which wall 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.
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From page 61... ...
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.
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From page 62... ...
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 wait 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.
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From page 63... ...
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 POLLUTION 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)
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From page 64... ...
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.
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From page 65... ...
All discharges of of! 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.
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From page 66... ...
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.
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From page 67... ...
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 of! 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.6i Liability for damages and removal costs resulting from a discharge of of!
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From page 68... ...
The salvor may also be directly liable under general maritime law for negligent conduct. If the salvor is the United States, an admiralty action against the United States for negligent or tortious conduct would be cognizable under the Suits in Admiralty Act or the Public Vessels Act.66 In actions for contribution, the liability of the salvor would, to the extent that the plumage was caused by a vessel owned by the salvor, be subject to the Limitation of Liability Act of IS51 (Limitation Act)
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From page 69... ...
If an action is brought under state law, including an action for contribution or subrogation, the salver may be subject to unlimited liability, but those actions would be limited to discharges occurring within, or that affect resources within, state jurisdiction. Unlimited liability would apply to a private salvor only, since the United States has not waived its sovereign immunity for state oil pollution liability.73 OPA 90 does provide limited immunity to persons rendering care, assistance, or advice in response to a discharge.74 As discussed further below, this so-called responder immunity is available only to persons acting in a manner consistent with the National Contingency Plan or at the direction of the federal on-scene coordinator.
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From page 70... ...
misconduct is the degree of risk inherent in the activity to which the terms apply. Courts in cases involving airlines and automobiles, which may be considered inherently dangerous activities, have tended to find that the two terms are synonymous.84 In the context of hazardous regulated conduct, such as navigation of a tanker or the handling of oil, including salvage operations involving a tanker, willful misconduct and gross negligence become nearly indistinguishable.
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From page 71... ...
that cause removal costs to be incurred or cause damage to natural resources and property within the state. Discharges within the navigable waters of the United States may also violate state law.
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From page 72... ...
Since there is no federal law to preempt a state prohibition on discharges, a salvor may therefore be directly liable under state law for discharges into the territorial sea, inland waters or for discharges that affect state waters, absent state responder immunity. EFFECT OF UNITED STATES OIL POLLUTION LAWS ON SALVAGE OPA 90 and new state of!
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From page 73... ...
Although OPA 90 authorizes contribution actions against persons who may be liable under OPA 90 or another law, there is in fact no possibility that contribution may be obtained under OPA 90 from a salver who is partially responsible for liability, because partially-responsible third parties have no liability under OPA 9o.l°l The contribution actions against a salver must therefore be based on general maritime law or state law (if the discharge occurs within or affects resources within state jurisdiction)
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From page 74... ...
Although the Limitation Act may provide a means by which a shipowner may petition the court for exoneration from, or limitation of, liability, it is inapplicable to the responsible party's liability for removal costs or damages under OPA 90 or state of! pollution laws.li° Since the liability of a partially responsible salvor does not derive from OPA 90 or state oil pollution laws, however, the ves se!
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From page 75... ...
Bear Marine Services.~5 There, the United States sued a partially responsible third party to recover removal costs in excess of the discharging vessel owner's limit of liability under the FWPCA. Reviewing section 311 and its legislative history, the court found that a partially responsible party had no liability under the FWPCA, but that the United States could assert a claim against such a party under general maritime law.
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From page 76... ...
Although the National Contingency Plan is being revised, the statutory deadline for revision has not been met and the Environmental Protection Agency has stated in a recent hearing held by the House Subcommittee on Coast Guard and Navigation that the earliest the National Contingency Plan could expect to be released would be the Spring of 1993.
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From page 77... ...
As a responder, however, a salvor may recover all of its response costs under OPA 90 from the vessel owner or from the federal Fund.~29 The Fund will not be available to pay for removal costs or damages incurred by the salvor to the extent that the incident, removal costs, or damages were caused by the salvor's gross negligence or w~Iful misconduct, but watt be available regardless of the salvor's simple negligence.~30 124 The responder immunity provision, 33 U.S.C.
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From page 78... ...
In addition, the salvor may receive compensation under OPA 90 for all expenses incurred during the course of the salvage operation from the federal Oil Spill Liability Trust Fund.~32 The Oil Spill Liability Trust Fund is available to pay all uncompensated removal costs and damages, if the claim is submitted in accordance with procedures set out by the act.~33 The salvor must first present its claim to the responsible party. If the claim is not settled within 90 days after the claim is presented, the claimant may elect to 131 OPA 90 does not preempt states from enacting more stringent oil pollution laws, and many states have imposed liability upon "any person" who causes or is responsible for a discharge.
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From page 79... ...
Because the United States has not waived sovereign immunity for state oil pollution claims, a public salvor wall not be subject to state law claims, but wall be subject to contribution or subrogation claims in admiralty brought pursuant to the Suits in Admiralty Act or Public Vessel Act for oil pollution damages and removal costs. If there is a cause of action against the government under the Suits in Admiralty Act or Public Vessel Act, individual Navy or Coast Guard personnel are not subject to personal liability.
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From page 80... ...
Salvers may be able to protect themselves from direct liability for actions taken during the course of salvage operations by requiring an indemnification provision to be included in their contracts with vessel owners.~35 An indemnification agreement should ensure that the salver is reimbursed for expenses it occurs in defending itself and for any costs or damages that it is ordered to pay under common law or applicable state law. An indemnification agreement may not fully protect the salver, however, where the vessel owner is forced into insolvency because of its liability for removal costs and damages.
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From page 81... ...
With regard to immunity under OPA 90 and many state laws, whether an action such as jettisoning is considered to be "consistent with" the National Contingency Plan or "in accordance" with an applicable state contingency plan is an issue that wait most likely be resolved through litigation. The following are representative examples only of the of!
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From page 82... ...
is released or from which there is a threatened release that causes response costs to be incurred, and the owner and person having control over the oil at the time of a release or threatened release, are strictly liable, jointly and severally, for any removal costs and (damages to persons, public or private property, the natural resources of the state, and any damage caused by an act or omission of a response action contractor for which the response action contractor is not liable.~38 Alaska law provides that a person acting as a volunteer, and a vessel of opportunity, engaged in a response action under the direction of a federal or state on scene coordinator is not liable for costs or damages that result from a release or threatened release of oil from a facility or vessel owned by another person.139 There is no immunity for acts of gross negligence or intentional misconduct.140 Alaska law also provides that a response action contractor who responds to a release or threatened release of of! is not civilly liable for removal costs or damages that result from an act or omission in the course of providing care, assistance, or advice consistent with an approved state or federal contingency plan, or as otherwise directed by the federal or state on-scene coordinator.~4i A "response action" is defined as an action taken to a release or threatened release of oil, including mitigation, clean up, marine salvage, or removal of a release or threatened release.~42 A salvor performing marine salvage would have limited responder immunity for actions, including jettisoning, that are consistent with an approved federal or state contingency plan or taken at the direction of the federal or state on-scene coordinator, absent gross negligence or intentional misconduct.
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From page 83... ...
in the most elective manner to minimize environmental damage.~45 Accordingly, a salvor may be strictly liable for removal costs associated with a jettison as "any person" who causes a discharge of oil. The liability for damages appears to be limited to a responsible party defined by California law.146 California law imposes criminal, civil and administrative penalties and civil liability for various prohibited acts and violations of state laws or regulations relating to a discharge of oil.
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From page 84... ...
A responder is not liable for removal costs or damages that result from actions taken or omitted in the course of rendering care, assistance, or advice consistent with the National Contingency Plan, or as otherwise directed by the federal on-scene coordinator or state official responsible for of! spill response.~57 Limited responder liability does not apply to a responsible party, for personal injury or death, or to acts of gross negligence or willful misconduct.~58 Oregon law provides a salvor with limited immunity for a jettison during salvage operations if the jettison is consistent with the federal contingency plan, or by the direction of a federal on-scene coordinator or authorized state oil spill official.
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From page 85... ...
Washington law provides limited immunity to third party responders for removal costs and damages resulting from actions taken or omitted to be taken in the course of rendering care, assistance, or advice in accordance with the National Contingency Plan, or as otherwise directed by the federal on-scene coordinator or state official in charge of oil spill response.162 Limited immunity is not available for removal costs and damages resulting from the gross negligence or willful misconduct of the responder.~63 A salvor would not be liable for removal costs and damages resulting from a jettison of of! in accordance with the National Contingency Plan or as otherwise directed by the federal on-scene coordinator or state official in charge of the response.
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From page 86... ...
or the person in charge of any vessel from which an unauthorized discharge of oil occurs must take ah reasonable actions to abate, contain and remove the discharge.~69 A responsible person or party, defined as any person other than a person who is rendering care, assistance or advice in response to a discharge or threatened discharge, is strictly liable for removal costs and damages.~70 Accordingly, a salvor is not strictly liable for jettisoning as the responsible person. Limited immunity is provided to a person or any discharge cleanup organization, other than the responsible person, that renders care, assistance or advice regarding a spill consistent with the federal or state oil spill contingency plan, Or at the direction of an authorized federal or state official or responsible party.~7i Persons entitled to limited immunity are not liable for damages, removal costs or civil penalties.
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From page 87... ...
A salvor may be liable for removal costs, damages and civil and administrative penalties for an unauthorized jettison as a responsible party.~77 Great Lakes Illinois The state of Illinois or local government may act to remove or arrange for removal oil that is discharged into state waters in quantities that exceed the standards adopted by the Illinois Pollution Control Board.~78 The owner or operator of the facility, including a vessel, from which the oil is discharged is liable to the governmental body for the costs incurred for the removal of the oil or other pollutants.~79 The Illinois act does not otherwise affect or modify the liabilities of an owner or operator for damages to public or private property resulting from a discharge of oil.~° The Illinois Water Pollution Discharge Act does not contain a responder immunity provision; however, liability for removal costs are limited to the owner or operator of the vessel.
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From page 88... ...
~ . remedying the adverse ettects upon natural resources resulting trom the unlawful discharge of pollutants into state waters, including the cost of replacing fish or other wildlife destroyed by the discharge.~85 Civil and criminal penalties may also be imposed upon any person violating Wisconsin oil pollution laws.
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From page 89... ...
East Coast Maine Maine law prohibits the discharge of oil into or upon waters of the state.l89 The person responsible for the discharge is wholly responsible for reimbursing the Maine Coastal and Inland Surface Oil Clean-up Fund for all disbursements for cleanup costs and damages, including all third party damage claims paid by the Fund.~90 These disbursements include payment of third party damage claims to real or personal property and for the direct or indirect loss of income as a result of the discharge of oil.~9i Limited responder immunity is available to any person who provides assistance or advice in mitigating or attempting to mitigate the effects of an actual or threatened discharge of oil, or in preventing, containing, cleaning up, removing, or disposing of any prohibited discharge of oil.192 A responder is not liable for removal costs, damages, civil liabilities, or penalties that result from actions taken or omitted in the course of rendering care, assistance or advice consistent with the national or state contingency plan, or as otherwise directed by the federal or state oil spill coordinator.193 Responder immunity does not apply to any person who caused or is otherwise responsible for the actual or threatened discharge, or to acts of gross negligence or willful misconduct.~94 A salver would have immunity for a jettison of oil that is consistent with the national or state contingency plan, or made at the direction of the federal or state oil spill coordinator. The salver may otherwise become liable for removal costs, damages, civil liabilities, or penalties for jettisoning in violation of state law.
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From page 90... ...
However, a salvor would have immunity for a jettison authorized by the federal or state oil spill official, or in accordance with the national or state oil spill contingency plan. New Jersey New Jersey law provides that any person who unlawfully discharges any hazardous substance, including petroleum or petroleum products, into state waters is strictly liable, jointly and severally, for all cleanup and removal costs incurred.202 The owner or operator of a major facility or vessel are liable, jointly and severally, for damages resulting from a discharge of oil.203 New Jersey law provides limited immunity to persons who render assistance, care, or advice in response to a discharge that is consistent with the National Contingency Plan, or otherwise directed by the federal on-scene coordinator or appropriate state official.204 This immunity does not apply to persons responsible for the initial discharge, personal injury or death, gross negligence or willful misconduct.205 196 Id.
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From page 91... ...
Under Rhode Island law, a salvor may be directly liable for removal costs and damages for jettisoning as "any person" causing a discharge. Rhode Island law also imposes civil and criminal penalties, including imprisonment for violations of Rhode Island of!
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From page 92... ...
The reader should refer to statutory and case law in each jur~sdiction to determine its liabilities and obligations under state laws.
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From page 93... ...
Addendum B Continued ~ ~> ~ ~1> 1~ | I ~ | E | .
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From page 94... ...
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From page 95... ...
Both FWPCA and CERCLA prohibit discharges of "hazardous substances" into the navigable waters, contiguous zone, and ocean waters whose natural resources are under the exclusive management authority of the United States.2l5 As with discharges of oil, however, the FWPCA allows discharges of hazardous substances into the contiguous zone or exclusive economic zone if the discharge is allowed by MARPOL.216 The FWPCA directs the Administrator of the Environmental Protection Agency (EPA) to designate as hazardous substances such elements and compounds that present an imminent and substantial danger to the public health or welfare.217 CERCLA defines "hazardous substance" as a substance falling within any of six categories of substances regulated under other environmental statutes, including the FWPCA.2~8 EPA has compiled a list of FWPCA and CERCLA hazardous substances in 40 C.F.R.
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From page 96... ...
It is unlikely that a salvor would be held directly liable under the FWPCA for damages or removal costs resulting from a discharge of hazardous substances during salvage operations. CERCLA A salvor is potentially liable under CERCLA for any discharges of hazardous substances if, as part of the salvage operation, the salvor arranges for disposal, or accepts for transport or disposal, any hazardous substances cawed on board the salved vessel.
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From page 97... ...
Ms. Crick served through April 1993 as a contributing editor to the Oil Spill Law Information Service, which provides a summary of OPA 90 and the relevant oil pollution laws of several key coastal states.
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From page 98... ...
~ am even more wary of placing an official tone on some aspects of the meaning and application of the new Oil Pollution Act of 1990 (OPA 90~. It is clear that certain parts of the statute and the amended Federal Water Pollution Control Act (FWPCA)
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From page 99... ...
Based upon the broad intent of Congress in prohibiting discharges, it is more than reasonable to conclude that oil spilled outside the exclusive economic zone (EEZ) but which flows into it would be a violation of OPA.
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From page 100... ...
Basically, it is the assertion of more than one cause of action against a party, namely OPA, the FWPCA (if otherwise applicable) , and general maritime law (e.g., torts)
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From page 101... ...
Addendum A of Dean and Crick shows that a number of state laws provide some form of immunity for actions taken in accordance with the National Contingency Plan or a state contingency plan or as directed by the federal on-scene coordinator, state administrator, or Coast Guarct.3 Since the direction of the federal on-scene coordinator and compliance with the National Contingency Plan play such a prominent role in determining the availability of immunity, federal on-scene coordinator direction authority and National Contin~enev Plan r=.~irPmPnt.~ midst he carefully reviewed. ~= ~J ~1 In addition, Dean and Crick discuss the standard of care to which salvors would be subjected in determining their liability for a jettison of oil.
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From page 102... ...
Jettisons consistent with the National Contingency Plan but not specifically "directed" are at least entitled to OPA responder immunity and possibly the same immunity as "directed jettisons" but may not always be subject to similar immunity under state law. Recommendations have been made to ensure that this possible option can be expeditiously considered as a vehicle to mitigate or prevent the threat of a substantial spill.
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From page 103... ...
~~ _ ~ wit o ~ Presidential Authority to "Direct" a Jettison As Dean and Crick shows, OPA 90 contains many provisions regarding the lawfulness of discharges, liability of the "responsible party" for penal and civil sanctions and for recovery of removal costs and damages arising out of jettisoning. Both OPA 90 and the Intervention on the High Seas Act contain explicit authority for the President and Secretary to remove oil, which includes authority to destroy a vessel.
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From page 104... ...
12,777, Implementation of Section 311 of the Federal Water Pollution Control Act of October 18, 1972, as Amended, and the Oil Pollution Act of 1990, 56 Fed.
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From page 105... ...
Consequently, he noted that the full exercise of "Executive Branch discretion should be ava~lable."~7 This authority has been exercised by the Coast Guard on a number of occasions. Jettisoning of Oil Cargo is within OPA and Intervention Act Removal Authority Jettisoning cargo to prevent an even greater spill is not explicitly authorized by OPA 90, nor by the current National Contingency Plani9 nor was any significant treatment given in the last effective Commandant's directive.20 However, within the range of permissible "removal" actions, which the President can exercise, is the ultimate authority - to destroy a vessel discharging or threatening to discharge oil.
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From page 106... ...
(A) , makes responder immunity available to a person whose actions are "consistent with the National Contingency Plan or as otherwise directed by the President." 106
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From page 107... ...
. 27 The Federal Water Pollution Control Act prohibits discharges of harmful quantities of oil and hazardous substances into or upon navigable waters, waters of the contiguous zone, or which affect U.S.
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From page 108... ...
33 OPA 90's responder immunity does not protect gross negligence/willful misconduct. In addition, for a nondistinguishable injury, a salver is liable for gross negligence.
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From page 109... ...
Even though OPA 90 amended the Federal Water Pollution Control Act to extend the nonpreemption clause to include "any removal activities related to such discharge" (i.e., into any waters within such state) ,40 State law will not operate to impose penal or civil The FTCA's discretionary function exception has been engrafted onto the SIAA giving the government immunity for policy decisions in admiralty cases.
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From page 110... ...
. Several statements are made: liability may exist under a state law contribution action or for removal costs, damages and penalties for discharges that occur within or affect state resources (pages 68, 76, and 78)
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From page 111... ...
§ 1321(c) , provides an exemption from removal costs and damages to a person who takes actions in the course of rendering care, assistance and advice consistent with the National Contingency Plan as long as those actions are not grossly negligent or a result of willful misconduct.
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From page 112... ...
Whether a salvor's responder immunity for actions consistent with the National Contingency Plan extends to causes of action created under state law is presently unclear. This issue is clearly most critical in territorial waters where MARPOL's protection of safety related and damaged vessel discharges is not extended.
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From page 113... ...
salvage law, there are generally four situations governed by essentially two different standards of care: a nondistinguishable injury to salved vessel; a nondistinguishable injury with the salver worsening the position of victim; a distinguishable injury to salved vessel; and an injury to a third party arising out of the salvage. The two standards are gross negligence or willful misconduct (more recently, reckless and wanton conduct)
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From page 114... ...
misconduct. There is no basis for holding the Coast Guard or Navy to a higher standard of care.56 OPA 90 is consistent with this standard since it too grants immunity to persons rendering care, assistance or advice if the person is not grossly negligent or engaged in willful misconduct.57 the care and skill exercised by persons of ordinary skill and prudence in the operation undertaken." Salvors may be affirmatively liable for a distinct injury.
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From page 115... ...
That article then contained the general duty. By making a salvor's recovery from the vessel owner dependent on neglect, the Salvage Convention may generate more careful, environmentallyconscious action may result, thereby benefitting, but, giving no rights of recovery, based on negligence, to third parties.
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From page 116... ...
If the basis for a third party's suit is OPA 90, responder immunity would apply to salvor's actions consistent with the National Contingency Plan and thus the standard of care wall be gross negligence/wilIfuT misconduct. Summary of Duty of Care The duty of care of a salvor wall thus depend on the governing law, the type of injury, whether distinguishable or nondistinguishable, and the identity of the claimant.
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From page 117... ...
only indirectly benefit from any increased standard of care exercised by the salvor. Especially given OPA 90's responder immunity, for actions consistent with the National Contingency Plan or otherwise directed by the President, in order to encourage salvage efforts, the general standard of care owed to third parties by a salvor jettisoning of!
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From page 118... ...
This paper is divided into two sections: the first is a discussion of the law of salvage as part of the existing general maritime law of the United States. The remaining part is directed at responses to specific parts of the paper by Warren Dean and Laurie Crick (pages 58-971.
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From page 119... ...
(2) If, in the circumstances set out in paragraph 1, the salvor by his salvage operations has prevented or minimized damage to the environment, the special compensation payable by the owner to the salvor under paragraph 1 may be increased up to a maximum of 30% of the expenses incurred by the salvor.
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From page 120... ...
* International Salvage Convention 1989, Article 14, "Special Compensation." 6 Convention for the Unification of Certain Rules of Law Respecting Assistance and Salvage at Sea, Signed at Brussels, September 23, 1910.
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From page 121... ...
Even though the 1989 convention is not yet in force, marine underwriters now provide coverage for awards to be paid under Article 14, "special compensation."~° Liability salvage as it appears in Article 14 of the 1989 convention has gained limited acceptance by the international maritime community in two important areas: incorporation into the LOF 90, and inclusion in policies of marine insurance, both of which give some credence to the argument that the principle of liability salvage should be considered as part of the existing body of customary international law. For the present, its application has been limited to London salvage arbitration conducted under the auspices of Lloyds and to marine underwriting.
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From page 122... ...
The tug Throze Vizier out of Galveston finally succeeded in taking the Mimosa in tow after several heroic attempts to stop the vessel.16 As part of their claim for salvage, the tug argued it was entitled to an enhanced award based on the fact it saved the vessel owners from considerable third-party liability by preventing the Mimosa from colliding with any of the of! and gas production structures located in the area.~7 The Fifth Circuit Court of Appeals, in discussing the trial court's rejection of the salvor's claim, found some merit in the salvor's position that it was entitled to an award based on the concept of liability salvage.
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From page 123... ...
courts begin to consider cases which involve claims based on the concept of liability salvage, it will be important for the courts to take into consideration the realities of present day marine insurance underwriting. To date, hull and P&I underwriters have only accepted the concept of liability salvage in the limited manner in which it is set forth in Article 14 of the 1989 Salvage Convention and the LOF 90 agreement "special compensation." Any attempt to broaden the scope of this principle beyond that set out in the convention could result in a denial of coverage.21 It should be bone in mind that a vessel owner's insurance may be the only asset available for the payment of a salvage award, as well as any other claims, in the event the vessel becomes a total or constructive total loss.
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From page 124... ...
4. Concerning actions that may be brought under state law, see page 6S, salvage claims are subject to the admiralty and maritime jurisdiction of the federal judiciary.
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From page 125... ...
In addition, since the state law is unclear on the subject, no attorney advising a would-be salver could provide adequate assurance that the salver could engage in such an activity as jettisoning in connection with a salvage operation without incurring substantial liability. CONCLUSION Congress, in ratifying the 1989 Salvage Convention, has moved the United States one step closer toward the recognition of liability salvage as set forth in Article 14, special compensation.
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From page 126... ...
has served as General Counsel of Exxon Shipping Company since 1982. He has been actively engaged in the practice of maritime law for over 25 years.
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From page 127... ...
This paper comments on a legal review of international, national and state laws governing of] pollution, and the jettisoning of oil in the course of salvage operations by public or private salvors.i Part ~ focuses on the relationship between federal and state of!
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From page 128... ...
. provided that the state action does not contravene any act of Congress, nor work any prejudice to the characteristic features of the maritime law, nor interfere with its proper harmony and uniformity in its international and interstate relations."7 Given this preemption framework, are state laws, which appear to impose strict unlimited liability on salvers who jettison cargo within or without state waters, valid?
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From page 129... ...
Neither the Federal Water Pollution Control Act, nor OPA 90 allow discharges, even emergency discharges, to the navigable waters of the United States, within which states exercise jurisdiction. Fourth, even where federal and state laws differ, state laws are not necessarily preempted.
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From page 130... ...
(2) 18 OPA acknowledges authority to respond to and impose liability for removal costs and damages that result from a "substantial threat of a discharge of oil, into or upon the navigable waters or adjoining shorelines or the exclusive economic zone." Sec.
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From page 131... ...
If so, then a court could determine that state law so alters maritime law and disrupts the federal admiralty system that state law must be preempted.29 Question: Are there exceptions to potential liability for salvers jettisoning cargo under state law? Answer: Yes, but there may be conditions precedent to obtaining limited immunity.
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From page 132... ...
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.
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From page 133... ...
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.
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From page 134... ...
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.
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From page 135... ...
~2) of the Federal Water Pollution Control Act (33 U.S.C.1321(o)
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From page 136... ...
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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From page 137... ...
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.
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From page 138... ...
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.
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From page 139... ...
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.
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From page 140... ...
MR. DEAN: ~ understand that vessel to have been within territorial waters, so ~ would not jettison under any circumstances unless ~ was ordered to do so by the United States Coast Guard.
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From page 141... ...
If, in conjunction with iettisonin~ and with ~;~ ~ ~e ~ ~ ~11-AL ~ ~ _ _ _ 1 _ · _ 1 · Es,=~111s flu u1 allay ballad waver and conlamer snips, 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.
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Key Terms
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