JETTISON REPORTAND RECOMMENDATIONS
The Symposium on the Purposeful Jettison of Petroleum Cargo was convened on February 23, 1993, by the Committee on Marine Salvage Issues of the National Research Council, as the first phase of the committee's assessment of marine salvage in the United States. Participants represented federal and state agencies and the fields of marine environmental protection, salvage, vessel operations, admiralty law, and marine insurance. Their purposes were to:
Assess the significance of the jettison issue and its implications for shipping and marine environmental protection.
Document the need to clarify U.S. 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-critical operational decisions about stranded tankers.
Make recommendations concerning the feasibility of developing guidelines for deciding whether to discharge oil intentionally, including consideration of other options.
This report has three parts. The first is a summary of the symposium proceedings, including presented papers, audience question-and-answer sessions with the speakers, and two panel discussions that focused on jettisoning as an option for response to an accident scenario. The second section of the report outlines the committee's analysis of the major issues emerging from the symposium. The third section presents the conclusions and recommendations the committee derived from its analysis. In developing its analysis, conclusions, and recommendations, the committee received some input from sources other than the papers and discussion in symposium.
SUMMARY OF SYMPOSIUM PROCEEDINGS
History and Technical Background
Michael Ellis, general manager of the Salvage Association, noted that the practice of jettisoning cargo to lighten a ship dates back to Biblical times. In 900 B.C., the laws of the island of Rhodes prescribed that cargo jettisoned for reasons of common safety would be made good in General Average (i.e., the interests benefited by the jettison would be obliged to share the loss), a rule that persists today. Jettison has continued to play a role in salvage in the twentieth century, but the cargo involved usually has been dry bulk. No classic cases of jettison of part of an oil cargo, with
successful salvage of the remainder, have been identified in the last thirty years or so, although tankers often are lightened for refloating.
The only purposeful jettison of oil cargo identified in recent years was from the Zoe Colocotronis. After grounding off Puerto Rico in 1973, some 5,000 tons of crude oil were jettisoned and the ship was refloated. The case is notorious, Ellis said, because such drastic action now appears to have been unnecessary. When the Arrow grounded off Nova Scotia in 1970, jettisoning was authorized, but part of the vessel sank before action could be taken. After the Argo Merchant ran aground on Nantucket Shoals in 1976, jettisoning was suggested but rejected. The vessel eventually was lost.
According to Ellis, salvors are reluctant to jettison even when it may be more expedient than waiting for proper equipment and weather to lighten the ship. He cited three reasons:
Salvors are concerned about the environment and want official approval to jettison.
Discharge of valuable oil cargo means a reduction in the salved values and perhaps in the salvage award.
Circumstances of groundings rarely support a clear-cut decision to jettison.
Nonetheless, in cases where tugs cannot refloat a tanker and lightering is not possible, it may be "better to jettison and accept that sometimes sacrifice is necessary for the common good," Ellis said.
F.R. Engelhardt, vice president for research and development for the Marine Spill Response Corporation, discussed environmental risk as a function of oil 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. These variables interact to drive weathering rates and persistence, spread of the spill, direction of slick movement, effectiveness of response measures, size of the impact zone, extent and duration of biological effect, and degree and rate of recovery. Thus, large spills do not necessarily have greater potential for environmental impact than do smaller spills. Engelhardt said the spill size influence should be analyzed in depth based on the global record for marine spills, perhaps using a proposed marine oil spill scale similar to the Richter scale for earthquakes.
Jerry Galt, a physical oceanographer at the National Oceanic and Atmospheric Administration (NOAA), described oil spill trajectory modeling. He outlined how these models work, the types of models available, factors that limit model accuracy, how models are used, the technology available to support models, and needed improvements. Models can be used to estimate some aspects of currents and the projected distribution of jettisoned oil. Models are not a tool for arriving at a definitive recommendation to jettison, Galt said, but they can establish that a situation will deteriorate if such action is not taken. "It is an exploration of the situation—to find out the worst downside and then plan for that scenario," Galt said.
Legal Problems Concerning Jettison
Warren L. Dean and Laurie L. Crick, a senior partner and an associate, respectively, in the law firm of Dyer, Ellis, Joseph & Mills, summarized laws affecting the jettisoning of oil. Under current laws, a salvor does not qualify for any award unless some property is saved—thus the "no cure, no pay" principle traditionally
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
of February 1993, there had been no legal cases where a salvor or vessel owner had been held directly responsible for a jettison directed by a salvor. In the aforementioned case of the Zoe Colocotronis, the vessel owner was fined $5,000 under the FWPCA and was held responsible for the resulting environmental damage and removal costs. (The master had made a unilateral decision to jettison.)
OPA 90 preserves the right of states to impose liabilities and obligations above federal requirements, and most coastal states have enacted oil pollution liability statutes. In general, these laws impose liability—often unlimited—on anyone who discharges oil. Thus, discharges into U.S. navigable waters may violate state law.
The International Convention on Salvage 1989, which will take effect when ratified by fifteen nations (six had done so as of the time of the symposium), emphasizes the salvor's duty to protect the environment and authorizes special compensation to promote that duty. This special award may be added to conventional awards that are insufficient to cover expenses, or it may be used to reward actions that prevent or minimize damage to the environment.
In conclusion, Mr. Dean and Ms. Crick said that because salvage was not discussed in the legislative history of OPA 90, the Congress apparently did not consider fully the implications for salvage, and that full assessment of these implications awaits judicial and regulatory interpretations of the Act. "What is clear, however, is that salvors must now consider carefully their environmental responsibilities... [and] salvors and the rest of the maritime community [will have] to monitor the implementation of these new laws so that the new environmental obligations of salvors do not undermine the certainty of the legal regime upon which salvage operations necessarily rely."
Philip A. Berns, U.S. attorney in charge of the West Coast office of the Torts Branch, Civil Division, commented on various aspects of liability. He agreed with Dean and Crick that the courts must resolve many of the relevant issues. He said the decision of the FOSC is a significant factor in whether a salvor is liable for jettisoning.
Frederick F. Burgess, Jr., an attorney specializing in maritime and environmental law with Leboeuf, Lomb, Leiby and MacRae, reviewed the authority of the FOSC and the requirements of the NCP as well as a salvor's standard of care under various circumstances. For a jettison "directed" by the FOSC (as distinct from an unlawful discharge) under 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.
Jettison of cargo to prevent an even greater spill is not authorized explicitly by either OPA 90 or the NCP, nor has the U.S. Coast Guard given any additional significant direction on this matter through commandant's directives or other instructions. However, under OPA 90 the President has the authority to destroy a vessel discharging or threatening to discharge oil; such destruction, of course, probably would result in discharge of oil into the sea, yet it is not an unlawful discharge. Therefore, jettisoning cargo to prevent the loss of a ship or to prevent the loss of a much larger amount of cargo also must be authorized. Consequently, if "directed jettisoning" is part of "removal" to prevent a substantial threat, it is authorized under OPA 90. Burgess also emphasized that, under OPA 90, actions to minimize damage from off need be consistent with the NCP only "to the greatest extent possible."
OPA 90 requires the President to revise the NCP to meet the new objectives of the law. The revised NCP must include criteria and procedures for identifying and responding to a substantial threat of discharge, as well as procedures and standards for mitigating, preventing, or cleaning up an actual discharge. Mr. Burgess suggested that if the jettison tool is to be made available, the NCP be revised to "ensure that criteria, standards, and procedures are in place and exercised by the National Response Team, regional response teams, [the commandant], and [FOSC] 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 will 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. According to this doctrine, a state statute is void when it impedes the accomplishment and execution of the full purposes and objectives of the Congress.
Under the current NCP, a salvor who independently jettisons oil runs the risk of authorities disagreeing with that action, and the salvor therefore should seek direction or explicit agreement from the FOSC, Burgess said. If the revised NCP set forth circumstances when a vessel could be destroyed or cargo jettisoned, such actions more clearly could be considered "directed" by the President and would invoke full protection from liability for the salvor. Actions merely "consistent" with the NCP may not be as well protected. Mr. Burgess also proposed that The Commandant Instruction regarding intervention be revised to address more explicitly the jettison option; that the "harmful quantity" definition in the FWPCA be amended to permit jettisoning or other pumping of small quantities of oil under carefully prescribed circumstances, to achieve OPA 90 mitigation and prevention goals; and that a review be conducted of past casualties where the Coast Guard has intervened, to determine circumstances when jettisoning has or might have been used, and the consequences.
The standard of care for salvors depends on the type of injury, the injured party, and the applicable law. Under current U.S. law, only gross negligence or willful misconduct will make a salvor directly liable to third parties for removal costs and damages, according to Burgess. The most recent notable demonstration of this principle was the case of the Amoco Cadiz, where claimants damaged by discharged oil were denied any recovery against the salvor because no gross negligence or willful misconduct was found.
Robert H. Nicholas, Jr., general counsel of Exxon Shipping Co., addressed the need for and reasoning behind the 1989 Salvage Convention. Under current U.S. law, a salvor does not receive an award for preserving the property of third parties (e.g., the environment). Instead, the courts base awards on the degree of danger, the value of property saved, the risk incurred by the salvor, the skill and energy displayed, the value of the salvor's property, and the time and labor expended. If the focus of a salvor's efforts is to be redirected toward pollution prevention and mitigation, then the law must be changed to provide for adequate compensation to salvors who assume such risks, Mr. Nicholas said. The U.S. ratification Of the 1989 Salvage Convention appears to be a step in this direction.
The 1989 convention also incorporates the concept of "liability Salvage," under which the salvor may recover expenses from the tanker owner if the salvor prevents or mitigates pollution, even if the vessel is lost or only partially saved. Even though the
1989 convention is not yet in force, liability salvage has gained limited acceptance in the maritime community, in that it has been incorporated into open form contracts and marine insurance policies, Mr. Nicholas said.
V. Lee Okarma Rees, an attorney with Graham & Dunn, commented on the relationship between federal and state oil pollution laws and legal issues regarding the jettison of cargo. State laws may be preempted if they conflict with federal law, but Ms. Rees found no actual conflict with regard to jettison. States apparently may impose liability on the salvor for jettisoning and are not preempted by federal law, although there appear to be limits on that authority. Most states provide limited immunity for response contractors, but usually certain conditions must be met.
If a salvor jettisoning oil thereby prevents an even greater oil spill, then that salvor arguably should be entitled to an award in proportion to the potential liability avoided by the shipowner, Ms. Rees said. 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 oil and greater harm to the environment."
William Peck, supervisor of salvage, Admiralty, U.S. Navy, said the FOSC is unlikely to authorize a jettison unless laws or regulations provide specific provisions for doing so. Peck said he personally would not authorize a jettison, because "the law is so vague on this point and the potential liability so overwhelming."
Rear Admiral A.E. Henn, U.S. Coast Guard, concurred. "The chances of [the FOSC] making a decision to jettison are extremely slim, for all the reasons that we have stated so far."
Considerations in Making Time-Critical Decisions
Captain Kenneth J. Fullwood, manager of Maritime Relations, Environmental Affairs, Safety, and Nautical Services for Mobil Shipping and Transportation Co., outlined an accident scenario for two panels to discuss. An 80,000-deadweight-ton tanker was enroute from Mexico to the Delaware River with a cargo of 78,500 tons of crude oil. The captain has been plotting the track of a hurricane centered 430 miles away, just forward of the starboard beam and heading west at 12 knots. The storm was expected to cross the coast near Wilmington, North Carolina.
Due to a series of course changes and human errors, the ship ran aground off Cape Hatteras at 15 knots and came to rest with 80 percent of her length resting on soft sand. The bottom was not leaking and the power plant was not damaged, but the ship could not be backed off the shoal. It would take 16 hours to obtain a tug and barge from Norfolk to offload cargo, and 13 hours to get a light tug. The owner's technical experts and the classification society's naval architects determined that the vessel could not be refloated by internal cargo transfer. They also determined that discharging 2,000 tons of cargo would enable the vessel to back off the shoal, and furthermore, that unless the cargo was jettisoned within the next few hours, the ship would be driven further onto the shoal and break up as the winds and waves increased with the approaching storm.
Mr. Fullwood offered a decision tree diagram to assist in the decision-making process:
Panel #1: Decision-Making Criteria
In the first panel, each participant explained his or her personal views regarding decisions whether or not to jettison oil.
Captain Donald S. Jensen, commanding officer of the National Strike Force Coordination Center based in Elizabeth City, North Carolina, described jettisoning as ''a last resort to be employed only after all conventional alternatives have been carefully considered.'' If he were the FOSC in the scenario outlined, he would recommend a jettison of 2,000 tons of cargo to permit the vessel to refloat and get underway to escape the full impact of the hurricane. Jensen would recommend to his superior, the district commander, that the commandant authorize the master to jettison.
In making his decision, Jensen would consider the following criteria:
The time available for decision making.
Environmental forecasts, including tide and current patterns and projected weather.
Other response alternatives, such as lightering.
The trajectory of the 2,000-ton spill, based on a NOAA analysis.
Crude oil characteristics (the cargo is a light crude oil, much of which would evaporate quickly or be dispersed into the water column in the storm).
Shoreline impact and resources at risk, based on spill trajectory and vulnerability index maps.
Verification of vessel condition.
Verification of ship stability, in both damaged and intact condition, to confirm the amount of cargo to jettison.
Consultation of the area contingency plan.
Anne Rothe, the Alaska regional representative of the National Wildlife Federation, emphasized that the scenario reflects a failure of prevention and response mechanisms. She said the grounding occurred in "probably one of the most productive biological systems on the East Coast" and questioned why tankers were even allowed in that area. Furthermore, because Cape Hatteras is well known for its hazardous waters, she questioned why salvage and lightering equipment was not based nearby. More generally, Rothe expressed concern that any effort to facilitate jettisoning might discourage shipowners from securing lightering and salvage services. 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.
John Jay Driscoll, Jr., executive vice president of Smit Americas, said he doubted that 2,000 tons of jettisoned oil would be enough to free a vessel that grounded at 15 knots. He also observed that current liability risks almost prohibit jettisoning. Criteria used by Smit Americas salvage masters in assessing a casualty include:
Circumstances of the stranding.
Current situation of the vessel.
External factors (e.g., tides, winds, current, traffic).
Additional concerns regarding jettisoning, including trajectory of the spill and the character of the beach, water systems, and other impact areas.
The hurricane is the unpredictable factor in the scenario, thus meteorological information should be gathered quickly. In deciding whether to jettison, naval architects, the vessel's master, and the salvor should agree on whether the vessel is more likely to break up and spill the entire cargo than she is to survive, and whether the discharge of 2,000 tons of cargo would be enough to refloat the vessel. Smit Americas salvors probably would not jettison unless ordered to do so by the FOSC, Driscoll said, adding that the key issue then becomes who actually makes the final decision.
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. Perhaps, for example, the ship's bottom is damaged more severely than it appears and would not hold up if the vessel were refloated. As it is not certain the ship would break up in the hurricane, which appears likely to veer north, Gale would not be prepared to jettison.
Jack Kalro, a naval architect with Diversified Technologies, outlined four conditions that should exist before jettison is recommended:
The vessel must be in imminent danger of breaking up. Given that the vessel in the scenario is on sandy bottom and grounded over 45 percent of her length, she appears to be fairly safe.
There is no other way of discharging cargo in the time available.
The jettison of a small amount of cargo would save the remaining cargo. In all likelihood, about 4,000 tons of oil would have to be discharged to save the 80,000-ton tanker.
All other possible solutions, however remote, must have been exhausted. More information would be needed before jettisoning in the scenario; a key factor is the liability involved.
Peter Bontadelli, administrator of California's Office of Oil Spill Prevention & Response and state on-scene coordinator for large spills, stressed that the common salvage practice of pumping water from flooded tanks raises the same issues as jettisoning. The biggest problem in a casualty situation is the availability of reliable information for decision making. Any vessel operating within U.S. waters must have a contingency plan that includes stability data and identifies nearby salvage capabilities and lightering vessels. Information also is needed concerning environmental risks to the area; unfortunately, most existing information is based on NOAA surveys that are at least 10 years old. A checklist should be available for use by on-scene coordinators in considering a possible jettison; a decision must be reached quickly, the needed information must be clearly available, and there must be a reasonable likelihood of refloating the vessel after the discharge. Bontadelli would not jettison under the scenario, because the likelihood of success is uncertain, and as a state official he has no clear-cut legal authority to do so. The NCP could be amended, with the consent of the Environmental Protection Agency and Coast Guard, to create the potential for such authorization, he said.
Barry Chambers of Clean America Inc. said all the decision-making criteria offered by participants were used in the Argo Merchant case, in which he was the salvage officer. According to Chambers, responders felt comfortable with the technical
decision to jettison in that case, but the final decision was determined by social, economic, and political considerations. A pre-planned mechanism is needed for making jettison decisions.
Panel #2: A Regional Response Team's Decision-Making Exercise
The second panel discussed the information needed to make a decision about jettisoning and, as members of a mock regional response team, role-played a decision-making exercise for Captain Fullwood's scenario.
Mick Leitz, acting as salvage master, said he would not attempt to jettison without a tug attached, so the ship should be ballasted down and left to ride out the storm. Due to liability concerns, he would decline to accept any responsibility for the decision to jettison.
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.
Jerry Galt, providing scientific support, said the hurricane would cause a surge of two to six feet, resulting in a higher tide than predicted. Several hours would be needed to come up with a more precise figure. The high winds forecast would disperse the oil rapidly. The oil would reach shore probably within 12 hours and the sandy beach would be relatively easy to clean. In addition, the rain would help flush sensitive areas, and the reversal of the storm winds would help relax pressure from the oil in back marshes. If salvage experts were convinced the larger spill could be averted by the smaller one, then he would recommend a jettison.
Michael Ellis, representing the hull and machinery underwriters, said he would support a decision to jettison if the FOSC approved and if chances were good the discharge would permit the ship to be refloated.
Captain Fullwood, acting as the tanker owner's operating representative, said he would recommend a jettison, despite the risk of losing control over the refloated ship in strong winds. He emphasized that insurance would adequately cover the costs of pollution in the jettison case. Criminal prosecution was his main concern.
Warren Dean, as an attorney, said a foreign-flag operator without a U.S. office would be concerned principally with criminal liability for a spill. A U.S.-flag operator, on the other hand, would have unlimited liability under North Carolina law, even if a jettison were approved by the FOSC. The liability would be much greater for the full cargo than for the 2,000 tons. In any event, Dean said the decision maker should be indemnified against personal liability. He would recommend serious consideration of jettisoning, in spite of the ambiguities in state law and federal water pollution policy.
Nina Sankovitch, representing an environmental organization, emphasized the uncertainties in the scenario, including the condition of the hull, prospects for the vessel breaking up, and the path of the hurricane. Based on the salvage master's advice and the chance for averting any pollution, she advocated ballasting the ship and attempting to weather the storm. She questioned whether any legislation is needed to improve decision making.
Peter Bontadelli, representing the state, said all factors must be weighed, as they are before the use of oil dispersants. He gave odds of 3 or 4 to I that the damage could be reduced significantly by jettisoning. He would advise a jettison, despite the potential for liability under state law.
Mark Miller, of the National Response Corporation, said he could not respond to a spill immediately because the storm would place his crew and vessels in jeopardy.
Fred Burgess, representing the P&I Clubs4, emphasized that any action taken should be directed by the Coast Guard. He would work with the vessel owner to assure positive public relations; response to many oil spills is driven by public opinion. Some mechanism is needed for public education, he said. Improvements in the decision-making framework could be done through regulation and the NCP, he suggested.
Jack Kalro, as the salvage engineer, would recommend a jettison.
Captain Don Jensen, acting as captain of the port and FOSC, noted that the decision would not be his alone, as the federal government advocates use of a Unified Command System (UCS) involving the FOSC, the state on-scene coordinator, and the vessel owner's designee.5 He would be prepared to recommend to his superiors that a jettison be directed. However, Jensen doubted that an answer would be received in time to jettison under the scenario.
ANALYSIS OF KEY ISSUES
A number of themes and findings emerged from the symposium presentations, based on the committee's analysis.
Speakers generally agreed that jettisoning of oil can be a valuable salvage tool and should be considered as an option, to be undertaken only when failure to take such action probably would result in loss of the vessel and release of the entire cargo.6 A deliberate discharge of a small volume of oil may be the only practical alternative in certain time-critical situations. Conventional alternatives such as lightering, or pulling grounded tankers off the shoals with tugs, may prove impossible due to the absence of appropriate assisting vessels.
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. The Congress did not consider implications for salvage in developing OPA 90, and the resulting uncertainty over liability clearly is a factor in the reluctance to jettison.
It is critical to recognize that, under OPA 90, conditional immunity is not available to an individual who is grossly negligent or engages in willful misconduct. An intentional discharge would violate the FWPCA and most likely would be considered an act of "willful misconduct" by the courts, in effect eliminating the salvor's conditional liability and exposing the owner and operator to further liability. Furthermore, state laws may impose additional liabilities.
The most direct means of increasing liability protection for salvors and other responders may be to amend the NCP to clarify the procedure for arriving at a decision to jettison and to place the responsibility solely on the FOSC. Such an approach would obviate the need to persuade the Congress to amend OPA 90, or to await a judicial interpretation following an incident of jettisoning. 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 will require further judicial or regulatory interpretations and, at least in some instances, further legislation.
Participants differed as to whether a jettison is an appropriate response to Captain Fullwood's scenario. This disagreement demonstrates the difficulty and subjective nature of such decisions and suggests a need for standard, objective decision-making criteria. Such criteria could help expedite a process that involves multiple decision makers and special interests. The following criteria were suggested as fundamental conditions that must exist before any oil is jettisoned:
Time pressures demand immediate action.
Deliberate discharge of the proposed amount of oil is likely to save the ship and the remaining cargo.
All other salvage options, such as internal cargo transfer and lightering, have been exhausted or considered and rejected.
Failure to jettison is likely to lead to loss of the ship and release of the remaining cargo. The principal issue is whether the ship will break up in bad weather, so information is needed concerning tides, currents, and approaching storms.
The condition of the stranded vessel—her hull and her intact or damage stability—is adequate so that the ship could be refloated following the jettison, and the remaining cargo saved.
All necessary preparations have been made, including the marshaling of tugs, if available, to refloat the ship quickly after the discharge.
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. Information is needed concerning spill trajectory, 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.
These conditions aside, the committee recognizes that there may be instances when the lives of the crew and passengers (if any) may be endangered by the breaking up or sinking of a vessel. In such a case, if loss of the vessel and the consequent danger of loss of life could be avoided by the discharge of all or part of the cargo, the mariner concerned about survival would order the discharge, no matter where it was
made, even though there might not be time to request and obtain permission from authorities.
Other comments at the symposium indicated that the time-critical information needed when considering a jettison may be provided by computer modeling programs. Current models are capable of estimating currents and the distribution of jettisoned oil over a 24-to-36-hour period. It seems clear that these models can play a useful role in clarifying alternative courses of action in the decision-making process—provided the input data are sound and calculations can be made available to responders in a timely manner.
Finally, two general factors that may impede sound salvage practices were mentioned. Several speakers indicated that, even if jettisoning appears to be the correct technical decision, the FOSC in the decision-making exercise only recommends this action to superiors—first the district commander and, ultimately, the commandant. This places the issue in the political arena, as occurred in the Argo Merchant case. Under these circumstances, and without specific criteria on which to base a decision to jettison, public environmental concerns effectively may block action.
The other factor is the uncertain legality of discharges that may occur during the normal course of salvage. A number of tools traditionally employed by salvors could be deemed a form of jettisoning, as they may result in a discernible discharge of oil. 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 oil and water, may discharge small quantities of oil). Such actions result in minimal pollution and likely would be part of an approved plan of action; yet, regardless of their benefit, these incidental discharges may violate the FWPCA.
CONCLUSIONS AND RECOMMENDATIONS OF THE COMMITTEE ON MARINE SALVAGE ISSUES
Jettisoning of petroleum cargo can be a valuable salvage tool and should be considered as an option, to be undertaken only when failure to take such action might, and probably would result in loss of the stranded vessel and release of the entire cargo. However, a number of unresolved issues tend to inhibit the reasoned use of jettison.
In the committee's judgment, these issues should be resolved before a marine casualty occurs where a deliberate discharge of oil may be warranted. Otherwise, in the absence of legal certainty, a salvor may reject the jettison option arbitrarily, even when it may be the only means available to avoid a catastrophic spill.
The committee concludes that some unresolved issues regarding intentional discharges could be clarified expeditiously by amending the NCP, and that so doing might avert serious liability problems without requiring any changes in OPA 90. OPA 90 provides conditional immunity to persons acting in the course of rendering care, assistance, or advice that is consistent with the NCP. The committee concludes that, at present, it is unclear whether a jettison may be considered consistent with the NCP. The committee therefore recommends:
The NCP should be amended to accomplish the following objectives: To give the FOSC explicit authority, in consultation with the appropriate state authority, to approve the jettison of a situation-specific amount of oil under certain limited circumstances, to save a vessel and those on board, as well as
her remaining cargo; and to provide procedures whereby such action may be authorized and undertaken.
Such an amendment would resolve much of the uncertainty as to salvor liability and immunity by making the act of jettisoning an authorized and viable option in response to the threat of a catastrophic oil spill. This change also would limit owner and operator liability for the salvor's actions. Such an amendment probably would not protect a salvor against liability under state laws. However, most state statutes require either consistency with the NCP or at least the absence of conflict. Therefore, if in addition to consulting with the states as required by federal law, the FOSC obtains concurrence from the state incident commander consistent with the NCP, there is a possibility that immunity also could be obtained under state laws.
A related issue concerns certain common salvage practices that also could be considered forms of jettisoning, in that some oil 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. The committee concludes that a salvor should be afforded protection to use these tools under certain limited conditions. The committee therefore recommends:
The NCP should be amended to give the FOSC explicit authority, in consultation with the appropriate state authority, to approve certain common salvage actions that may result in incidental discharges of small quantities of oil. Such 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. The FOSC authority could be contained in approval of the daily work plan, which, if carried out under the UCS, also could be approved by the state.
The committee further concludes that the present lack of official, objective criteria for reaching a technical decision to jettison oil may undermine decision making during salvage situations. Such decision making needs to be logical, timely, reliable, and defensible, and the FOSC needs to be diligent in analyzing the relevant issues. The committee therefore recommends:
The Coast Guard should develop a checklist containing specific conditions that must be met as prerequisites for a decision to jettison oil. The FOSC should follow the checklist in authorizing such action under the NCP. Responder conformance with the checklist and with an FOSC decision authorizing the jettisoning of cargo should ensure full protection against liability for a salvor who jettisons oil.
Such a checklist might include the following criteria:
Time pressures demand immediate action.
Discharge of the proposed amount of oil is likely to save the ship and the remaining cargo.
All other salvage options, such as internal cargo transfer and lightering, have been exhausted.
Failure to jettison is likely to lead to loss of the ship and the remaining cargo.
The condition of the stranded vessel is adequate so that the ship probably can be refloated and the remaining cargo saved.
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.