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Purposeful Jettison of Petroleum Cargo (1994)

Chapter: Part II Legal Status of Jettisoning

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Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
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Proceedings of the Symposium on the Purposeful Jettison of Cargo

PART II:
LEGAL STATUS OF JETTISONING

Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
×

MARINE SALVAGE: NEW LAWS AFFECTINGTHE JETTISONINGOF OIL

Warren L. Dean and Laurie L. Crick

At the request of the United States Navy, the Marine Board of the National Research Council is examining the status and continuing viability of the intentional discharge of oil (jettisoning) as a means of saving vessels and cargoes during marine salvage operations. The legal standards that govern discharges of oil within waters over which the United States exercises jurisdiction have recently been revised. First, the Oil Pollution Act of 1990 (OPA 90) overhauled federal law concerning oil pollution and encouraged the states to adopt supplemental laws.1 Second, the International Convention on Salvage 1989 placed new emphasis on the salvor's duty to prevent or minimize damage to the environment. Together, these developments have changed the legal regime governing salvage-related discharges of oil in waters over which the United States exercises jurisdiction. This paper will first analyze the new regime's effects, intended and unintended, on salvage operations and will 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 peril 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 peril 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:

  1. A marine peril placing property, vessel and cargo, at risk of loss.

  2.  Salvage services voluntarily rendered.

1  

Pub. L. No. 101-380, 104 Stat. 484 (Aug. 18, 1990), codified primarily at 33 U.S.C. §§2701-2719.

2  

Unless specifically stated otherwise, for purposes of this paper "salvage-related discharges" include only jettisoning, which is the intentional discharge of oil for the purpose of saving the vessel and cargo, and unavoidable, incidental discharges from the imperiled vessel during salvage operations.

3  

Intergovernmental Maritime Consultative Organization, Legal Committee, Coastal State Protection Against Major Maritime Disasters: A Secretariat Study of Certain Legal Aspects of Intervention, Notification, and Salvage in Respect to Incidents Like the Amoco Cadiz (Sept. 15, 1978).

4  

The Blackwall v. Sancelito Water & Steam Tug Co., 77 U.S. (10 Wall.) 1, 12 (1870).

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×
    1.  Success, in whole or in part.

    Traditionally, these elements are the sine qua non of salvage; the salvor is entitled to a salvage award only when all three are present. The salvor's compensation, the salvage award, may be as great as the value of the property salved, including the vessel and cargo. The salvor 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 care.5

    The degree of care required of a salvor varies with the source of the risk. The salvor will be liable for losses caused by the perils 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 salvor 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 Canada and Mexico, vessels from those countries may engage in salvage operations within specified territorial waters.9 The 1910 Brussels Salvage Convention, to which the United States is party, is primarily a codification of the English and American law of salvage at the turn of the century.10 The 1910 convention does not impose any duty to protect the environment or to prevent the owner from incurring liability for environmental harm. Nor does it permit consideration of such matters in determining the size of the salvage award. Because of its failure to address environmental concerns, the 1910 convention is now set to be replaced by the 1989 Salvage Convention, as discussed below.

    The United States is also party to the Convention for the Prevention of Pollution from Ships, 1973 and its 1978 Protocol (MARPOL).11 This treaty generally prohibits pollution of the oceans from seagoing vessels, but recognizes an exception for salvage-related discharges. Prior to OPA 90, this exception prevented salvors (or vessel owners and operators) from incurring liability for discharges of oil during salvage operations at sea, but not for such discharges in the territorial waters of the United

    5  

    The Noah's Ark v. Bently & Felton Corp., 292 F.2d 437, 440-41 (5th Cir. 1961).

    6  

    Id. at 441.

    7  

    Id. at 440-41.

    8  

    46 U.S.C. app. § 316(d), (e). "Only a vessel of the United States, a numbered motorboat owned by a private citizen, or a vessel [permitted to operate by treaty] shall engage in any salvage operation in territorial waters of the United States unless an application addressed to the Commissioner of Customs to use another specified vessel in a completely described operation has been granted." 19 C.F.R. § 4.97(a).

    9  

    Treaty Providing For Reciprocal Rights For United States and Canada in Matters of Conveyance of Prisoners and Wrecking and Salvage, signed at Washington May 18, 1908 (entered into force June 30, 1908), 35 Stat. 2035, T.S. No. 502. See also 46 U.S.C. § 725 (also regarding Canadian salvage in United States waters). Treaty for the Sending of Vessels for Purposes of Assistance and Salvage, signed at Mexico June 13, 1935 (entered into force March 7, 1936), 49 Stat. 3359, T.S. No. 905.

    10  

    1910 Brussels Salvage Convention, signed at Brussels Sept. 23, 1910, 37 Stat. 1658, T.S. No. 576; implemented by the Salvage Act of 1912, 46 U.S.C. app. §§ 727-30.

    11  

    International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, 12 I.L.M. 1319 (MARPOL 73). Protocol of 1978 Relating to the Prevention of Pollution from Ships, 1973 done at London, Feb. 17, 1978, 17 I.L.M. 546 (MARPOL 73/78). MARPOL is implemented by the 1980 Act to Prevent Pollution from Ships. Pub. L. No. 96-478, 94 Stat. 2297 (codified at 33 U.S.C. §§ 1901-1911).

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    States.12 As will be discussed below, however, the MARPOL exception no longer provides protection for discharges of oil into the contiguous zone or exclusive economic zone, because OPA 90 now makes the vessel owner and operator responsible for removal costs and damages for all such discharges without exception.13

    Salvage operations may also be affected by the Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (Intervention Convention) and the Protocol Relating to Intervention on the High Seas in Cases of Marine Pollution by Substances Other Than Oil,14 both of which are implemented by the Intervention On The High Seas Act.15 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.16 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.17 The United States is not liable for damages 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 environment.18

    The law of salvage and responder immunity provisions, which will 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. The implementing regulations for the 1980 Act to Prevent Pollution from Ships, 33 U.S.C. §§ 1901-1911, which itself implements MARPOL, specifically provide that all discharges, including emergency discharges, within the navigable waters continued to be prohibited by the FWPCA. 33 C.F.R. §151.10; 33 U.S.C. § 1321. Although the FWPCA was enacted prior to implementation of MARPOL, it was not superseded by MARPOL. Under general rules of statutory construction, a treaty is given the same force and effect as any other federal law. When a treaty and another federal law conflict, the most recent controls. This last-in-time doctrine does not apply, however, to treaties, such as MARPOL, which require implementing legislation before becoming effective in the United States. In implementing MARPOL, Congress authorized the Coast Guard to prescribe "any necessary or desired regulations to carry out" MARPOL or the Act. 33 U.S.C. § 1903(b). It is those regulations that provide, notwithstanding any permissible discharges under MARPOL, that the FWPCA governs discharges within the navigable waters.

    13  

    33 U.S.C. § 2702(a).

    14  

    Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, done at Brussels Nov. 29, 1969, 26 U.S.T. 765, 970 U.N.T.S. 211. The Protocol Relating to Intervention on the High Sea in Cases of Marine Pollution by Substances Other Than Oil, done at London Nov. 2, 1973, T.I.A.S. 10561. The Protocol is discussed under Annex II of this paper regarding hazardous substances.

    15  

    Pub. L. No. 93-248, 88 Stat. 8 (Feb. 5, 1974) (codified at 33 U.S.C. §§ 1471-1487).

    16  

    33 U.S.C. § 1472. The FWPCA provides similar authority with respect to U.S.-flag vessels in all waters subject to the jurisdiction of the United States and with respect to foreign flag vessels in such waters other than the high seas. 33 U.S.C. §1321(c)(2).

    17  

    33 U.S.C. § 1477. Such measures, however, may not be taken against a warship or any vessel owned or operated by a government and used at the time for non-commercial service. Id. § 1483.

    18  

    Id. § 1477(a). In this situation, the principle of no cure-no pay would prevent the salvor from recovering a salvage award. Under the 1989 Salvage Convention, however, the salvor may recover expenses for performing salvage services to a vessel or its cargo that threaten damage to the environment. Even before the 1989 Convention enters into force, the salvor may recover expenses under contracts such as the Lloyd's Open Form of Salvage Agreement 1990. See pages 5 and 6 below.

    19  

    The owner, lessee or operator of a vessel sunk in a navigable waterway must immediately mark and begin removal of the sunken vessel. Such entities are strictly liable for the costs of removing the wreck regardless of fault. 33 U.S.C. §409.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    Although the result of both salvage and wreck removal operations may be the same—recovery of imperiled property-there is a distinction in the intent and purpose of the performance of each. The intent and purpose of wreck removal is to eliminate the sunken vessel as a hazard to navigation. 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.

    Under the general maritime law, the imperiled vessel, unless it is derelict (abandoned without intent to return), remains subject to the possession and control of the vessel's master during salvage operations.20 Upon completion of the salvage operation, however, the salvor may take and retain possession of the salved property (vessel and cargo) to the extent necessary to enforce its right to a salvage award.21 If a vessel is derelict, the salvor has an exclusive right to possession until the salvage award is made, security is posted for the salvage award, or the salvor's rights are determined judicially.22 When salvage is conducted pursuant to a contract, the terms of the contract should be examined to determine the extent to which the salvor may take possession and control of the vessel.

    One such contract is Lloyd's Open Form Of Salvage Agreement 1990 (LOF 90), No Cure-No Pay, which provides that the master of the imperiled vessel must "cooperate fully with the salvor in and about the salvage" while the salvor must "use best endeavors to salve the [vessel] and/or her cargo."23 As a general principle, the shipowner remains in possession of both the vessel and cargo while salvage services are being performed under the LOF.24 Once salvage services are begun, however, the salvor must be given a reasonable opportunity to complete them, and the owner's control is subject to such control as the salvor may need to carry out its obligation to salve the vessel with best endeavors.25 The failure of a party to perform its obligation will result in liability for breach of contract.26

    Even when the salvor takes possession and control of a derelict vessel, it does not become liable as an owner under OPA 90 for a discharge from such vessel. The right of ownership and title remain in the owner; possession alone does not vest ownership in the salvor.27 In addition, OPA 90 expressly states that the responsible

    20  

    The Bark Cleone, 6 F. 517 (C.D. Calif. 1881). See Cromwell v. The Island City, 66 U.S. (1 Black) 121 (1862).

    21  

    The Alcazar, 227 F. 633 (E.D.N.C. 1915), The Hyderabad, 11 F. 749 (E.D. Wis. 1882). The salvor must relinquish possession if the owner provides other security for the award. Id.

    22  

    Crossman v. West, 13 App. Cas. 160 (1887), Merrill v. Fisher, 204 Mass. 600, 91 N.E. 132 (1910).

    23  

    LOF 90, clauses 1(a)(i) & 3. The LOF has been revised periodically since the 1890's. The latest revision, made in 1990, incorporates parts of four Articles of the 1989 Salvage Convention related to definitions, duties of the parties, criteria for fixing the award and special compensation. See LOF 90, clause 2.

    24  

    China Pacific S.A. v. Food Corp. of India (The Winson), 1 L.L.R. 117 (1981) (salvage performed under LOF 72). LOF 90 security provisions provide that the salvor has a maritime lien on the property salved, and that the salved property will not be removed from its place of delivery until security is provided. LOF 90, clause 5(a). The salvor is not to arrest or detain the property salved unless security is not provided within 14 days of termination of salvage services, or there is reason to believe, or any attempt is made, to remove the salved property from its place of delivery. Id. 5(b).

    25  

    The Unique Mariner (No. 2), 1 Lloyd's Rep. 37 (1979) (salvage performed under LOF 72).

    26  

    Id., The Tesaba, 1 Lloyd's Rep. 397 (1982), The Eschersheim, 2 Lloyd's Rep. 188 (1974).

    27  

    Continental Ins. Co. v. Clayton Hardtop Skiff, 367 F.2d 230 (3d Cir. 1966). See The Port Hunter, 6 F. Supp. 1009 (D. Mass. 1934).

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    party immediately prior to abandonment of a vessel remains liable.28 The salvor could, however, become strictly liable as the operator of the vessel under OPA 90 for any discharges that occur while it is in possession and control after salvage operations have been completed.29

    RECENT DEVELOPMENTS IN SALVAGE LAW

    The International Convention on Salvage 1989 (1989 Salvage Convention), which will enter into force upon acceptance by 15 nations,30 modifies the traditional law of salvage by emphasizing the salvor's duty to protect the environment and authorizing a special compensation award to promote that duty.31

    Special compensation under the 1989 convention is separate and distinct from the traditional salvage award. 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 will 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. §§ 2701(32)(A) & 2702(a).

    29  

    Id.

    30  

    International Convention On Salvage 1989, opened for signature July 1, 1989. The Convention is the product of an April 1989 conference conducted under the auspices of the International Maritime Organization (IMO) and attended by representatives from 66 states. It will enter into force one year after 15 states consent to be bound by it. Thus far, six contracting states, including the United States, have so consented through ratification or its equivalent. Seventeen other states have signed but have not yet ratified or otherwise agreed to be bound. The United States signed the 1989 Salvage Convention on March 29, 1990. This was subsequently ratified by the Senate on October 29, 1991. 137 Cong. Rec. S15398 (daily ed. Oct. 29, 1991). The United States' documents of ratification were deposited with the IMO March 27, 1992.

    31  

    Sections 729 of Title 46 Appendix of the United States Code was recently amended to reflect Article 16 of the 1989 Salvage Convention. That section now provides that salvors of human life are entitled to share in the special compensation award, as well as in the traditional salvage award. 46 U.S.C. app. § 729. This amendment has little significance until the 1989 Convention enters into force, because until then the property salvor is not entitled to a special compensation award.

    32  

    International Convention on Salvage 1989, Arts. 14(1), 14(3). "Salvor's expenses" include out of pocket expenses reasonably incurred by the salvor in the salvage operation and a fair market rate for equipment and personnel actually and reasonably used in the salvage operation. Id. Art. 14(3).

    33  

    Id. Art. 14(2). Thus the special compensation could be as much as twice the amount of the salvor's expenses. The special compensation is payable only by the owner of the vessel, not by cargo interests, and is not subject to general average. Id. Art. 14(1); York-Antwerp Rules, Rule VI(b), as amended June 29, 1990 (disallowing special compensation as general average).

    34  

    Id. Arts. 8, 14(5) & 18.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    negligent conduct are not limited to the amount of such award. The vessel owner may claim its actual loss notwithstanding the amount of the salvage award.35

    Neither the 1989 convention nor the 1910 convention applies to the salvage of warships or other non-commercial vessels owned or operated by a government.36 They do, however, apply to salvage operations conducted by such public vessels, which qualify for awards for salvage services rendered to a private vessel.37

    The recent changes in oil pollution laws will affect both private and public salvors. 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 PLLUTION 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), the International Convention for the Prevention of Pollution from Ships (MARPOL), general maritime law, and relevant state laws.41

    The Federal Scheme

    Prior to enactment of OPA 90, discharges of oil into waters subject to United States jurisdiction were addressed at the federal level by the FWPCA, MARPOL, and general maritime law. Section 311 of the FWPCA proscribes most discharges of oil

    35  

    The Tojo Maru, 1 Lloyd's Rep. 341 (1971).

    36  

    46 U.S.C. app. § 731.

    37  

    See 10 U.S.C. § 7365 and 32 C.F.R. § 752.5 (related to the settlement and payment of claims to the United States for salvage services rendered by the Navy). See also In Re American Oil Co., 417 F.2d 164 (5th Cir. 1969); United States v. The James L. Richards, 82 F. Supp. 12 (D. Mass. 1949), aff'd, 179 F.2d 530 (1st Cir. 1950); The Impoco, 287 F. 400 (S.D.N.Y. 1922).

    38  

    46 U.S.C. app. §§ 741-752 (Suits in Admiralty); 46 U.S.C. app. §§ 781-790 (Public Vessels). The Public Vessels Act applies to suits involving damages caused by a public vessel; the Suits in Admiralty Act governs all admiralty claims against the United States. Pascua v. Astrocielo Neptunea Armandora, S.A., 614 F. Supp. 984 (S.D. Tex. 1985).

    39  

    See, e.g., Weyerhaeuser S.S. Co. v. United States, 372 U.S. 597 (1963), overruled on other grounds, United States v. Reliable Transfer Co., 421 U.S. 397, on remand, 522 F.2d 1381 (2d Cir. 1975); Tiffany v. United States, 931 F.2d 271 (4th Cir. 1991); Allan v. United States, 338 F.2d 160 (9th Cir. 1964), cert. denied, 380 U.S. 961 (1965); Eastern S.S. Lines, Inc. v. United States, 187 F.2d 956 (1st Cir. 1951).

    40  

    46 U.S.C. app. § 745.

    41  

    This paper focuses on liability for oil pollution. The liability that may result from discharges of "hazardous substances" under either the Federal Water Pollution Control Act (FWPCA) or the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), or of "harmful substances" other than oil under MARPOL will be addressed briefly in Appendix III.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    and imposes civil and criminal penalties for unauthorized discharges.42 Within the navigable waters of the United States, which for these purposes includes all internal waters and the territorial sea,43 the FWPCA prohibits all discharges of oil in quantities sufficient to cause a sheen on the water. Beyond the territorial sea within the exclusive economic zone (EEZ), the FWPCA prohibits such discharges only if they are prohibited by MARPOL.44 MARPOL expressly exempts discharges that are necessary to secure the safety of the ship or to save life at sea (which would include salvage-related discharges) and discharges that result from damage to the vessel or its equipment.

    The FWPCA did not address liability for damages other than removal costs resulting from oil discharges. Under the FWPCA prior to the enactment of OPA 90, the owner and operator of the discharging vessel were liable (to the United States government) for removal costs associated with a prohibited discharge.45 Since salvage-related discharges into the EEZ were not prohibited by the FWPCA, the owner and operator incurred no liability under the FWPCA for such discharges, even for removal costs.

    For purposes of the current subject, the major change resulting from OPA 90 is its imposition of liability for removal costs and damages resulting from jettisoning and other salvage-related discharges within the EEZ. 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.

    42  

    33 U.S.C. § 1321.

    43  

    33 C.F.R. §2.05-25(b). The territorial sea extends seaward three nautical miles from the baseline, which consists of the low water mark along the coast plus closing lines across the mouths of rivers, inlets and bays. See 33 C.F.R. §2.05-10 (Coast Guard regulation) and 33 C.F.R. § 329.12(b) (Corps of Engineers regulation). Internal waters includes all waters inside the baseline. Navigable waters are in general subject to regulation by both the federal government and a state, commonwealth or territory. In 1988, President Reagan issued a Proclamation extending the territorial sea to twelve miles from the baseline for purposes of national security. Proclamation No. 5928, 54 Fed. Reg. 777 (1988). The Proclamation's effect on domestic law is less clear. It states that "[n]othing ... extends or otherwise alters existing Federal or State law or any jurisdiction, rights, legal interests, or obligations derived therefrom." Although the Proclamation clearly does not extend state boundaries or jurisdiction, as the establishment of state boundaries is a function for Congress, its effect on federal law is less clear. The domestic effect of the extension of the territorial sea on federal statutes that refer to the territorial sea must be determined by examining Congress' intent in passing each relevant statute. The ultimate effect of the Proclamation will continue to be uncertain, however, until final judicial resolution. Beyond the territorial sea lies the exclusive economic zone (EEZ), which extends from the outer limit of the territorial sea to 200 nautical miles from the baseline. Proclamation No. 5030, 48 Fed. Reg. 10,605 (March 10, 1983). The EEZ includes the contiguous zone, which extends nine nautical miles from the outer limit of the territorial sea to 12 miles from the baseline. Convention on the Territorial Sea and the Contiguous Zone, 15 U.S.T. 1606.

    44  

    MARPOL Annex I, Reg. 11(a); 33 C.F.R. §151.11(a)(1). Since MARPOL covers discharges "into the sea," it is not applicable to discharges in internal waters. Conversely, since the FWPCA and OPA 90 do not address discharges on the high seas beyond the EEZ, MARPOL alone governs discharges in that area.

    45  

    Owners and operators were liable under the FWPCA to State governments for the costs of restoration or replacement of damaged natural resources. 33 U.S.C. § 1321(f)(4). OPA 90 repealed and superseded subs ections (k) and (p) of section 311, which established a federal fund for paying the costs of removing oil pollution and prescribed financial responsibility standards. Subsection (f) of the FWPCA, which prescribes liability for reimbursing the United States for removal costs, was not repealed but overlaps with OPA 90 to the extent that liability is imposed under that law.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×
    Salvage Operations in Navigable Waters

    Under United States law, a salvor may not discharge oil into the navigable waters during salvage operations. All discharges of oil 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.

    Federal Water Pollution Control Act. The FWPCA specifically prohibits the discharge of oil:

    (i) into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone, or (ii) in connection with activities under the Outer Continental Shelf Lands Act or the Deepwater Port Act of 1974, or which may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States (including resources under the Magnuson Fishery Conservation and Management Act), in such quantities as may be harmful as determined by the President ....47

    A discharge is generally prohibited by the FWPCA if the discharge "violates applicable water quality standards, or causes a film or sheen upon or discoloration of the surface of the water or the adjoining shorelines ..."48 As a general principle, a discharge of oil that does not create a sheen does not violate the FWPCA.

    Any person who negligently or knowingly discharges in violation of the FWPCA is subject to criminal sanction. A salvor may be subject to criminal penalty for discharges within the navigable waters. If a discharge occurs as a result of the salvor's negligent conduct, the salvor is subject to a fine of not less than $2,500 nor more than $25,000 for each day that the sheen remains and imprisonment for one year, or both.49 If the discharge is intentional, as jettisoning would be, the potential fine is increased to not less than $5,000 nor more than $50,000 per day, and imprisonment can extend to six years.50 A salvor is therefore subject to serious criminal sanctions if cargo is jettisoned into the navigable waters during salvage operations, apparently even if the jettison prevents the loss of the entire cargo or additional environmental damage. Such factors may be taken into consideration by a prosecutor, but may not prevent charges from being brought in the aftermath of an incident that causes serious environmental harm. A review of the case law reveals no cases where a salvor has intentionally discharged oil into the navigable waters. Because of the public's increasing concern about the harmful effects of oil pollution, a voluntary discharge that causes damages is unlikely to be ignored, even if it prevents additional pollution.

    Refuse Act. In addition to the FWPCA, the Refuse Act of 1899 makes it unlawful to deposit refuse into navigable waters.51 "Refuse" has been interpreted to

    46  

    40 C.F.R. § 110.1. Sheen is defined as "an iridescent appearance on the surface of the water." Id.

    47  

    33 U.S.C. § 1321(b)(3). "Oil" is defined to mean "oil of any kind or in any form, including, but not limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged spoil." Id. § 1321(a)(1).

    48  

    40 C.F.R. Part 110.

    49  

    33 U.S.C. § 1319(c)(1).

    50  

    Id. § 1319(c)(2).

    51  

    The act provides:

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    include all foreign substances and pollutants apart from those specifically excepted in the statute.52 Oil, oily mixtures, or hazardous substances constitute "refuse" for purposes of the act. Violation of the Refuse Act is a misdemeanor, carrying a penalty of $500 to $2,500 or imprisonment for 30 days to one year, or both.53

    OPA 90. 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. It is important to note, however, that jettisoning of oil into the navigable waters by a salvor, because it is illegal per se, will automatically break the limitation of liability for the responsible party.

    Salvage Operations in the Exclusive Economic Zone

    As noted, the FWPCA does not prohibit discharges into the exclusive economic zone if they are permitted by MARPOL.54 Although MARPOL generally prohibits discharges of oil into the exclusive economic zone, it provides two exceptions. First, the prohibition does not apply to jettisoning and other salvage-related discharges.55 Second, it does not apply to discharges that result from damage to a ship or its equipment if (a) all reasonable precautions have been taken after the occurrence of the damage or discovery of the damage to prevent or minimize the discharge; and (b) the owner or master did not act either with intent to cause damage, or recklessly and with knowledge that damage would probably result.56

    Jettisoning that is necessary to stabilize or prevent the loss of the vessel and cargo qualifies as an emergency discharge under MARPOL. Indeed, it could be argued that any incidental discharge during a salvage operation would qualify as an emergency discharge under MARPOL since the salvage operation is, by definition, undertaken to save a vessel or its cargo.

    Accordingly, a salvor, without risk of criminal penalty, may take advantage of the authority under MARPOL to jettison oil for the purpose of saving life or property if the discharge occurs outside of the navigable waters, even if the discharged oil drifts

       

    It shall not be lawful to throw, discharge, or deposit, or cause, suffer or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft of any kind ... any refuse matter of any kind or description whatever ... into any navigable water of the United States or into any tributary of any navigable water from which the same shall float or be washed into such navigable water.

    33 U.S.C. § 407.

    52  

    United States v. Standard Oil Co., 384 U.S. 224 (1966).

    53  

    33 U.S.C. § 411.

    54  

    The FWPCA speaks in terms of discharges into the contiguous zone or "which may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States." For practical purposes, this means the exclusive economic zone.

    55  

    Annex I, Reg. 11, MARPOL; 33 C.F.R. §157.41(a).

    56  

    Annex I, Reg. 11, MARPOL; 33 C.F.R. §157.41. The standard is generally comparable to willful misconduct, which United States courts have consistently defined as the intentional performance of an act, or the failure to act, with knowledge that injury or damage would probably result, or in such a manner as to imply reckless disregard of the probable consequences. See, e.g., Tug Ocean Prince, Inc. v. United States, 584 F.2d 1151 (2d Cir.), cert. denied, 440 U.S. 959 (1978). MARPOL also permits operational discharges from vessels other than tank vessels and from the machinery space bilges of tank vessels if the oil content of the discharge is monitored and is less than a certain proportion of the effluent discharged, 33 C.F.R. § 151.10(a),(b); and cargo-related oily mixtures from tank vessels proceeding en route more than 50 nautical miles from land if the discharge is monitored and does not exceed 60 liters per nautical mile, 33 C.F.R. §157.37(a).

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    into the navigable waters. The owner and operator of the imperiled vessel, and hence the salvor indirectly, however, will incur liability for removal costs and damages under OPA 90 or under state law (if resources within state jurisdiction are affected). Jettisoning beyond the exclusive economic zone will not result in the imposition of liability under OPA 90 even if the discharge causes damage to resources within the exclusive economic zone. Such a discharge may, however, result in liability under the FWPCA to the United States for removal costs if the discharge damages resources within the exclusive economic zone.57 For example, if a discharge into waters beyond the exclusive economic zone drifts into the exclusive economic zone and damages resources, the discharger would not be liable under OPA 90. Section 1002 imposes liability upon the responsible party for a vessel from which oil 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 oil 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.61 Liability for damages and removal costs resulting from a discharge of oil will be incurred even when the discharge is permitted by MARPOL and the FWPCA.62 Under OPA 90, a responsible party for a tank vessel (i.e., the vessel owner, operator, and demise charterer) is liable for removal costs and damages in an amount not to exceed the greater of $1,200 per gross ton or $10 million ($2 million for a vessel of less than 3,000 gross tons). For any other vessel, the responsible party's liability is limited to the greater of $600 per gross ton or $500,000.63 The liability limit may not apply if the incident was the result of gross negligence or willful misconduct, or the violation of an applicable federal safety, construction, or operating regulation by the responsible party, its agent, or employee, or a person acting pursuant to a contractual relationship with the responsible party.64 This includes a salvor and, therefore, any action by the salvor that violates any of these

    57  

    33 U.S.C. § 1321(f). The FWPCA imposes liability upon the owner or operator of a vessel that discharges oil in violation of that Act, but for which there is no liability under OPA 90, for the actual costs of removal not to exceed $125 per gross ton. No limitation is available if the discharge was the result of gross negligence or willful misconduct within the privity and knowledge of the owner or operator.

    58  

    33 U.S.C. § 2702(a).

    59  

    Id. § 1321(b)(3). To the extent that a discharge into the high seas is not allowed by MARPOL and affects the natural resources of the exclusive economic zone, the United States could impose liability upon the responsible person for removal costs under section 311 of the FWPCA. Id. § 1321(f); see supra note 55.

    60  

    Id. § 2701(7).

    61  

    Id. § 2702(a).

    62  

    Under OPA 90, damages include (1) injury to, destruction of, or loss of use of, natural resources, including the reasonable costs of assessing the damage; (2) injury to or economic losses resulting from destruction of real or personal property; (3) loss of subsistence use of natural resources; (4) loss of taxes, royalties, rents, fees, or net profit shares due to the injury, destruction, or loss of real property, personal property, or natural resources; (5) loss of profits or impairment of earning capacity due to the injury, destruction, or loss of use of real property, personal property, or natural resources; and (6) costs of providing increased or additional public services during or after removal activities, including protection from fire, safety, or health hazards, caused by a discharge of oil. 33 U.S.C. §2702(b)(2).

    63  

    Id. § 2704(a).

    64  

    Id. § 2704(c)(1).

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    standards can result in unlimited liability for the responsible party. The limit may also be broken if the responsible party fails to report the incident or to provide all reasonable cooperation and assistance requested by a responsible official in connection with removal activities.65

    Although a salvor would not be a responsible party subject to direct liability under OPA 90, the responsible party may otherwise recover from the salvor, public or private, by way of contribution and subrogation. Further, OPA 90 does not preempt state or general maritime law contribution against private contractors. A state law contribution action could be maintained, however, only if the discharge occurred within, or affected resources within, state jurisdiction. 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 damage was caused by a vessel owned by the salvor, be subject to the Limitation of Liability Act of 1851 (Limitation Act).67 That act provides a means by which a shipowner may petition the court for exoneration from, or limitation of, liability for certain damages.68 A vessel owner not exonerated from liability may be able to limit liability under the Limitation Act for damages or losses that occur without the vessel owner's privity or knowledge.69 If limitation is applicable, the vessel owner's liability is limited to the post-accident value of the vessel and freight pending.70 In the case of salvage-related damages, the salvor's limitation fund amount would be the value of the salvor's vessel following the incident.71

    65  

    Id. § 2704(c)(2).

    66  

    46 U.S.C. app. §§ 742, 781.

    67  

    The Limitation of Liability Act, 46 U.S.C. app. §§ 181-191. The Public Vessels Act and the Suits in Admiralty Act both preserve for the United States the right to limit its liability under the Limitation Act. 46 U.S.C. app. §§ 746, 789. Because only a vessel owner may petition for limitation of liability, a salvor that is not a vessel owner, bareboat or demise charterer of the vessels engaged in the salvage operation could not limit liability.

    68  

    Id. § 183. Only a vessel owner may petition for limitation of liability. A ''vessel owner'' includes a charterer who mans, victuals and navigates the vessel at his own expense and therefore includes a bareboat or demise charterer. Id. § 186. In Re Barracuda Tanker Corp. (The Torrey Canyon), 281 F. Supp. 229, reversed on other grounds, 409 F.2d 1013 (2d Cir. 1969), Complaint of Amoco Transport Co. (The Amoco Cadiz), 1979 A.M.C. 1017 (N.D. Ill. 1979).

    69  

    46 U.S.C. App. § 183(a). The same privity and knowledge standards that apply to private corporations are applicable to the United States when it seeks to limit liability. Empresa Lineas Maritimas Argentinas S.A. v. United States, 730 F.2d 153, 155 (4th Cir. 1984) (citing United States v. Standard Oil of California, 495 F.2d 911, 917 (9th Cir. 1974). Liability may not be limited under section 183(a) where the negligence is that of an executive officer, manager, or superintendent, whose scope of authority includes supervision over the phase of the business out of which the injury occurred. If a decision to jettison is made by the captain of a public salvage vessel, the United States could limit liability unless it was proven that the cause of the incident was within supervisory personnel's privity and knowledge.

    70  

    Id.; see, e.g., Place v. Norwich & New York Transp. Co., 118 U.S. 468 (1886).

    71  

    Under the flotilla doctrine, the limitation is computed by combining the value of all commonly-owned vessels contractually engaged in a common enterprise. In Re Drill Barge No. 2, 454 F.2d 408 (5th Cir.), cert. denied, 406 U.S. 906 (1972), CENAC Towing Co. v. Terra Resources, 734 F.2d 251 (5th Cir. 1984), Brown & Root Marine v. Zapata Offshore Co., 377 F.2d 724 (5th Cir. 1967). The doctrine evolved from a line of decisions related to property damage involving tug, towage and affreightment. Liverpool, Brazil & River Plate Navigation Co. v. Brooklyn Eastern Terminal, 251 U.S. 48 (1919), Sacramento Navigation Co. v. Salz, 273 U.S. 326 (1927). The doctrine was subsequently applied to cases involving personal injury. Standard Dredging Co. v. Kristensen, 67 F.2d 548 (2nd

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    The determination that the Limitation Act is available to limit liability for oil pollution damages under general maritime law is not conclusive. Although this question is addressed more fully below, it should be noted that OPA 90 provides that nothing in it or in the Limitation Act "shall in any way affect, or be construed to affect, the authority of the United States ... to impose additional liability" relating to the discharge of oil.72 This language could be construed to prevent the applicability of the Limitation Act to any action, including one under common law, for oil pollution damages and costs.

    If an action is brought under state law, including an action for contribution or subrogation, the salvor 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. In addition, the immunity is unavailable for damages caused by gross negligence or willful misconduct.75

    OPA 90 does not define the terms "willful misconduct" and "gross negligence." The term ''willful misconduct" was originally derived from Article 25 of the Warsaw Convention, which governs liability for carriers in international air transportation. ''Willful misconduct" has been defined to mean the intentional performance of an act, or the failure to act, with knowledge that injury or damage probably would result, or in such a manner as to imply reckless disregard of the probable consequences.76 This definition was also recently applied to find willful misconduct by the crew in the 1983 Korean Air Lines tragedy.77

    The same precedents have been applied to the definition of "willful misconduct" under the FWPCA. In Tug Ocean Prince, Inc. v. United States the owner of a tug was found to have engaged in willful misconduct where a barge it was towing struck a charted rock outside the navigation channel in the Hudson River.78 The collision occurred because of the pilot's unfamiliarity with the river. The court found

       

    Cir. 1933). The flotilla doctrine could therefore increase the salvor's liability by increasing the amount of the salvor's limitation fund where more than one vessel owned by the salvor is engaged in the salvage operation.

    72  

    33 U.S.C. § 2718(c).

    73  

    Although the United States government has generally waived sovereign immunity under the Federal Tort Claims Act, 26 U.S.C. §§ 2671-2680, for torts of its employees, there is a specific exception to that general waiver of immunity for claims for which a remedy is available under the Suits in Admiralty Act and the Public Vessel Act. 26 U.S.C. § 2680(d). Since recovery from the United States is available through admiralty actions brought pursuant to the Suits in Admiralty Act and Public Vessel Act, the general waiver of immunity is not applicable to state oil pollution liability laws.

    74  

    33 U.S.C. § 1321(c)(4)(A).

    75  

    Id. § 1321(c)(4)(B)(iv).

    76  

    See Pikelis v. Transcontinental & Western Air, 187 F.2d 122 (2d Cir.), cert. denied, 341 U.S. 951 (1951); Tuller v. KLM Royal Dutch Airlines, 292 F.2d 775 (D.C. Cir.), cert. denied, 368 U.S. 921 (1961); Berner v. British Commonwealth Pacific Airlines Ltd., 346 F.2d 532 (2d Cir. 1965); Wing Haug Bank v. Japan Air Lines Co., Ltd., 357 F. Supp. 94 (S.D.N.Y. 1973).

    77  

    In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475, 1479 (D.C. Cir. 1991).

    78  

    584 F.2d 1151 (2d Cir.), cert. denied, 440 U.S. 959 (1978).

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    that the owner's omissions, specifically its failure to inform an experienced pilot onboard of the other pilot's unfamiliarity with the river, its failure to appoint a captain, and its failure to require a lookout under the circumstances, were done intentionally and constituted a reckless disregard of the probable consequences.79

    There is no generally accepted meaning of the term "gross negligence." "Gross negligence" has been defined as the "intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another.''80 The Supreme Court in Conway v. O'Brien held that gross negligence means something substantially more than simple negligence, but falls short of being such reckless disregard of the probable consequences as is equivalent to a willful and intentional wrong.81

    In recognition of this similarity, other courts have held that the terms "gross negligence" and "willful misconduct" have been used interchangeably to describe conduct that, "while still embraced by the general term negligence, may be sufficiently opprobrious or culpable to warrant ... invoking the legal consequences of an intentional tort."82 One court has concluded that the terms "gross negligence'' and "willful and wanton misconduct" as used in automobile guest statutes are synonymous.83 One factor that may explain the varying interpretations of the difference, if any, between gross negligence and willful 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. The very specific requirements imposed by regulation relating to oil spill prevention and removal make every omission serious and potentially intentional or reckless. If jettisoning would otherwise be considered to be willful misconduct, but is undertaken at the direction of the federal on-scene coordinator, immunity would apply. OPA 90 specifically provides immunity to persons other than the responsible party for actions taken at the direction of the federal on-scene coordinator.

    Salvage Operations Involving Hazardous Substances

    The laws governing discharges of hazardous substances other than oil impose liabilities comparable to those for oil pollution upon the owners and operators of vessels, as well as salvors. Because the specific requirements for the discharge of hazardous substances may vary according to the particular properties of the specific substance discharged, Addundum C will briefly address the general provisions of those laws governing the discharge of such substances.

    79  

    Id. at 1151.

    80  

    Black's Law Dictionary 932 (5th ed. 1979).

    81  

    Conway v. O'Brien, 312 U.S. 492, 495 (1941).

    82  

    Mahoney v. Corralejo, 112 Cal. Rptr. 61 (1974); Carraway v. Revell, 112 So. 2d 71 (1959).

    83  

    Carraway, 112 So. 2d at 72

    84  

    Mahoney, 112 Cal. Rptr. 61 (1974); Carraway, 112 So.2d 71 (1959)

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×
    State Laws

    The federal scheme is not exclusive; OPA 90 rejects federal preemption and expressly preserves the right of individual states to impose liabilities and obligations in addition to federal requirements with respect to oil pollution within their boundaries.85 The issue of state authority to impose liability and obligations in this area is not foreclosed although the act clearly envisions the states' ability to so regulate. As a matter of Constitutional law, however, the ability of states to regulate in this traditionally federal area of maritime law is unclear. Most coastal states have enacted oil pollution liability regimes.

    In general, these state laws impose liability—many without limitation—upon any person responsible for discharges of oil 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. If the discharged oil drifts into state waters and harms state resources or property within the state, the state may not exercise jurisdiction. The FWPCA preserves the states' rights to impose liability and requirements with respect to a discharge into state waters.86 Although OPA 90 specifically allows states to impose additional requirements, it does not expand a state's authority to impose additional liability and obligations for discharges that affect state resources and property but that occur outside of state jurisdiction. The discharger may be liable, therefore, for damages and removal costs incurred in a state when the discharge itself occurs within state jurisdiction.87

    States may generally assert jurisdiction over coastal waters out to a limit of three miles, the limit of the territorial sea. The power of an individual state to enact and enforce laws relating to vessels extends only to waters within its territorial limits, that is, its internal waters and that portion of the territorial sea over which it may claim authority under federal law. The Submerged Lands Act of 1953 granted all states a right to claim a boundary out to three miles.88 The act granted to the states the right to manage, administer, lease, and develop the submerged lands and natural resources beneath the navigable waters out to three miles.89 The act further granted states bordering the Gulf of Mexico a right to claim a boundary beyond three miles (to a maximum of three marine leagues, approximately nine miles) based on the extent of their marine boundary at the time they were admitted into the Union. Based on this latter provision, the marine boundaries of Texas and Florida (in the Gulf of Mexico) have been set at three marine leagues.90 Within these boundaries, states are granted "the right and power to manage, administer, lease, develop and use" the land and natural resources (both living and nonliving) "in accordance with state law," subject to the United States' ''powers of regulation and control ... for the constitutional purposes of commerce, navigation, national defense, and international affairs."91

    85  

    33 U.S.C. § 2718.

    86  

    33 U.S.C. § 1321(o)(2).

    87  

    See Appendices I and II.

    88  

    67 Stat. 29, 43 U.S.C. §§ 1301-1315.

    89  

    43 U.S.C. § 1311(a).

    90  

    United States v. Florida, 363 U.S. 121 (1960); United States v. Louisiana, 363 U.S. 1 (1960) and 389 U.S. 155 (1967).

    91  

    43 U.S.C. §§ 1301-1315. The extent of the states' authority within these boundaries has not been completely resolved by the judiciary.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    Some states (e.g., Maine) have attempted to claim jurisdiction over waters extending as far as 12 miles from the coastline.92 Under federal law, however, states other than Florida and Texas, as discussed above, may assert jurisdiction only over waters that extend three miles from the coastline.93

    Many states impose unlimited liability upon any person who is responsible for a discharge of oil or hazardous substances. This may include a salvor that jettisons cargo or is responsible for other discharges of pollutants during salvage operations. A salvor may have limited immunity, however, through a state responder-immunity law if the salvor is responding to a discharge or threatened discharge at the time the incident occurs.94

    An emergency discharge is not allowed under federal law in any water over which the states may exercise jurisdiction (except those waters beyond three miles over which the states of Florida and Texas exercise jurisdiction). 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 oil pollution laws, along with the impending entry into force of the 1989 Salvage Convention, have changed the salvor's position relative to potential liability. Under the provisions of the convention, the salvor owes "a duty to the owner of the vessel or other property in danger to carry out salvage operations with due care."95 The salvor's award will, in general, be reduced if the salvor is negligent, and may be denied where salvage operations become more difficult because of the salvor's fault, neglect or misconduct.96 The salvor must now focus not only on saving the vessel but also on the prevention or mitigation of pollution damage. Knowing that the owner and operator will be liable for pollution damage and removal costs, the salvor must take that liability into consideration before discharging any oil, even if the discharge is helpful in saving the vessel.

    The salvor's own potential liability is a further consideration. If a salvor's actions increase the liability of the vessel owner and operator, the salvage award may be reduced, or the vessel owner and operator may have a right of contribution against the salvor. Because the United States has waived sovereign immunity for damages caused by public vessels and for actions in admiralty that could be maintained against the owner of a private vessel, the liability of the United States for actions of the Navy or Coast Guard in salvage actions is also affected. As stated above, the liability of the salvor under general maritime law, however, may be subject to the limits provided by the Limitation Act.97

    Contribution is an equitable doctrine under which a party against whom a claim has been asserted may require other wrong-doers, including those not named

    92  

    See Me. Rev. Stat. Ann. tit. 38, § 544 (West 1990).

    93  

    United States v. Maine, et al., 420 U.S. 515 (1975); United States v. Louisiana, 363 U.S. 1 (1960).

    94  

    See Appendices I and III regarding individual state law provisions.

    95  

    International Convention On Salvage 1989, Art. 8(1)(a).

    96  

    Id. Art. 18.

    97  

    46 U.S.C. App. §§ 181-196.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    in a claim, to contribute proportionally toward satisfaction of the claim. Section 1009 of OPA 90 sets forth a party's right to contribution as follows: "A person may bring a civil action for contribution against any other person who is liable or potentially liable under [OPA 90] or another law."98

    According to the House Conference Report, this section was designed to "allow actions for contribution against any person who is liable or may be liable under any law."99 The report notes that this section might apply in an instance where more than one party is involved with a discharge of oil. As an example, the report refers to a discharge that might occur when oil is being transferred between a vessel and an onshore facility: "If the discharge comes from the vessel, it is the vessel that will be the responsible party .... Nevertheless, if action or omission of the onshore facility contributed to the discharge, the operation of this section or section 1015 on subrogation could result in the facility being held accountable financially in part or in whole."100 If the salvor is partially responsible for the discharge, the responsible party could have a right of contribution from the salvor for that portion of the removal costs and dam ages that may be attributed to the salvor.

    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 salvor who is partially responsible for liability, because partially-responsible third parties have no liability under OPA 90.101 The contribution actions against a salvor must therefore be based on general maritime law or state law (if the discharge occurs within or affects resources within state jurisdiction).

    General maritime law has long recognized a right of contribution among parties that share responsibility for maritime torts.102 Oil pollution on navigable waters is recognized as a maritime tort that is subject to the doctrine of contribution.103 Generally, liability is apportioned according to fault.104 The party seeking contribution may proceed in personam against the owner of the third party vessel and in rem against the vessel itself.105 A party may not proceed in rem against a vessel that is owned by the United States or that is a public vessel.106 If the vessel is a public vessel or is owned by the United States, the party seeking contribution may proceed in personam against the United States under the Suits in Admiralty Act or the Public Vessel Act. These two acts are to be construed together to give private owners and operators the same right of recovery from the government for damages

    98  

    33 U.S.C. § 2709.

    99  

    H.R. Conf. Rep. No. 653, 101st Cong., 2d Sess. 110-111, reprinted in 1990 U.S. Code, Cong. & Admin. News 788-789.

    100  

    Id.

    101  

    See 33 U.S.C. § 2702(a). When a third party is involved in a discharge, the responsible party has a defense only when it can prove that the third party was solely responsible for the discharge. Id. § 2703(a).

    102  

    Cooper Stevedoring Co. v. Kopke, 417 U.S. 106, 110-11 (1974).

    103  

    Matter of Oswego Barge Corp., 664 F.2d 327 (2d Cir. 1981); United States v. City of Redwood City, 640 F.2d 963 (9th Cir. 1981).

    104  

    United States v. Reliable Transfer Co., Inc., 421 U.S. 397 (1975).

    105  

    United States v. M/V Big Sam, 681 F.2d 432 (5th Cir.), reh'g denied (en banc), 693 F.2d 451 (5th Cir. 1982), cert. denied, 462 U.S. 1132 (1983).

    106  

    See 46 U.S.C. App. §§ 741, 782.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    caused by its vessels that they would have against each other.107 As discussed above, if there is a cause of action against the government under the Suits in Admiralty Act or the Public Vessel Act, there is no right of recovery against the individual whose actions or omissions gave rise to the liability. The Suits in Admiralty Act provides an exclusive remedy and specifically provides that where a cause of action is available under that act, no other action may be brought against the agent or employee of the United States whose act or omission gave rise to the claim.108 The individual Navy or Coast Guard personnel involved in a salvage action would not therefore be subject to an action for contribution.

    OPA 90 further provides that any person, including the owner, operator, or the federal Oil Spill Liability Trust Fund (the Fund), who pays compensation pursuant to OPA 90 to any claimant for removal costs or damages is subrogated to all rights, claims, and causes of action that the claimant has under any other law.109 Subrogation is the substitution of one party in the place of another, so that the substituted party succeeds to the rights and remedies of the original party in relation to the claim. If the claimant would have had a claim under state or common law, therefore, the responsible person, the Fund or any other person who paid the claim will have a cause of action under state or common law against the salvor.

    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 oil pollution laws.110 Since the liability of a partially responsible salvor does not derive from OPA 90 or state oil pollution laws, however, the vessel owner's contribution and subrogation claims against the salvor may be subject to the Limitation Act if they are based on general maritime law.111 The availability of the Limitation Act to general maritime law claims for oil pollution damages and removal costs will depend upon the court's interpretation of the preemption language in OPA 90. Section 1018 of OPA 90 sets forth preemption of the Limitation Act for purposes of oil pollution as follows:

    Nothing in this Act, the [Limitation Act], or section 9509 of the Internal Revenue Code of 1986 (26 U.S.C. 9509), shall in any way affect, or be construed to affect, the authority of the United States of any State or political subdivision thereof (1) to impose additional liability or additional requirements; or (2) to impose, or to determine the amount of, any fine or penalty (whether criminal or civil in nature) for any violation of law; relating to the discharge, or substantial threat of a discharge, of oil.112

    107  

    See e.g., United States v. Caffey, 141 F.2d 69 (2d Cir. 1944), cert. denied, 323 U.S. 750, reh. denied, 323 U.S. 815; Olaravia & Co. v. United States, 56 F. Supp. 758 (D. Ala. 1944).

    108  

    46 U.S.C. app. § 745.

    109  

    33 U.S.C. § 2715(a). The federal Oil Spill Liability Trust Fund was established to pay removal costs and damages resulting from a discharge of oil. See 26 U.S.C. § 9509, 33 U.S.C. § 2712.

    110  

    33 U.S.C. §§ 2702(a), 2718(a).

    111  

    The United States preserved its right to limitation of liability that would otherwise be available to a private vessel owner in both the Suits in Admiralty Act and the Public Vessel Act. See 46 U.S.C. App. §§ 746, 789. See also McMahon v. Pan American World Airways, Inc., 297 F.2d 268 (5th Cir. 1962); Dick v. United States, 671 F.2d 724 (2d Cir. 1982).

    112  

    33 U.S.C. § 2718(c).

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    This provision preserves the authority of the United States to enact legislation or adopt regulations that impose additional liability for oil pollution without regard to the Limitation Act. Its effect on the common law is less clear. One interpretation of this provision, however, is that nothing in the provision indicates that the common law is to be affected. As a result, the Limitation Act would apply to actions brought under the common law, including the general maritime law. A final determination as to the applicability of the Limitation Act to causes of action for oil pollution damages and removal costs under general maritime law will, however, be left to the courts.113

    OPA 90 was founded upon the body of law already established under Section 311 of the FWPCA, which was the United States' principal oil pollution legislation before the passage of OPA 90.114 Therefore, to the extent that OPA 90 remains consistent with Section 311, judicial decisions concerning that section provide guidance concerning OPA 90.

    The seminal decision regarding the liability of a third party partially responsible for a discharge under section 311 is United States v. Bear Marine Services.115 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.116 The court further concluded that such a claim must be based on fault, since strict liability did not apply, and that the claim would be subject to general maritime law defenses, including the Limitation Act.117 Nothing in OPA 90 should change the result reached in Bear Marine.

    In addition, OPA 90 does not preempt states from enacting more stringent oil pollution laws applicable to discharges into or affecting state waters. A private salvor may therefore be liable under state law to an injured party or any other person who has paid a claim for contribution or reimbursement, but damages are limited to damage to property or resources within the state. As mentioned above, the United States would not be liable under a state oil pollution law since it has not specifically consented to liability. A salvor's liability for contribution, if based on state law (where the discharge is into or affects resources within state jurisdiction), may be limited by the salvor's limitation of liability under state law, if any. Recovery is likely to exceed the amount the salvor could have limited its liability to under the Limitation Act, which, as noted above, applies to contribution actions under general maritime law.

    113  

    Insofar as state law is concerned, however, OPA 90 expressly addresses the effect of the Limitation Act on the common law. "Nothing in ... [the Limitation Act] shall ... affect, or be construed or interpreted to affect or modify in any way the obligations or liabilities of any person ... State law, including common law." 33 U.S.C. § 2718(a)(2). And the Conference Report proclaims, "The subsection [33 U.S.C § 2718(a)] also makes it clear that nothing in this substitute or in the Limitation of Liability Act shall affect in any way the obligations of any person under ... State or common law." H.R. Conf. Rep. No. 653, 101st Cong., 2d Sess. 121, reprinted in 1990 U.S. Code, Cong. & Admin. News 800. This slight difference in the wording of the legislative history, however, is unlikely to change the result of the statutory language itself. The Congress did not expressly repeal the application of the Limitation Act to claims brought under the federal common law.

    114  

    S. Rep. No. 94, 101st Cong., 2d Sess. 4-5, reprinted in 1990 U.S. Code, Cong. & Admin. News 726.

    115  

    509 F. Supp. 710 (E.D. La. 1980), rev'd on other grounds, 696 F.2d 1117 (5th Cir. 1983).

    116  

    509 F. Supp. at 718.

    117  

    Id. at 719.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    Limited immunity may be available to a salvor responding to the threat of or discharge of oil. Under OPA 90 a person responding to a discharge is not liable for the removal costs or damages resulting from an act or omission during the course of rendering assistance consistent with the National Contingency Plan (NCP) or under the direction of the federal on-scene coordinator,118 unless the act or omission is one of gross negligence or willful misconduct.119 An intentional discharge into the navigable waters such as jettisoning, for example, would not be protected under this immunity. Since such intentional discharge is a crime under the FWPCA, it would likely be considered willful misconduct.120 As discussed above, willful misconduct has been interpreted to mean the intentional performance of an act with the knowledge that injury or damage would probably result. If, however, the act is undertaken at the direction of the federal on-scene coordinator, limited immunity would apply. The responsible party for the vessel remains liable, however, for any removal costs or damages caused by a responder protected by immunity. The salvor may also be subject to direct liability under state law, because a discharge within the navigable waters is also within state jurisdiction.

    Although the statute does not define what is meant by "consistent with" the NCP, the legislative history shows that the provision was intended to "take into account the fact that the NCP ... may not cover every detail or eventuality of spill response and that actions that are in keeping with the overall objectives of the NCP ... are deemed to be within the scope" of the responder-immunity provision.121 The NCP is supposed to provide for ''efficient, coordinated, and effective action to minimize damage from oil and hazardous substance discharge[s]."122 It is arguable that any discharge associated with salvage activities is consistent with the NCP's goal of minimizing damage from oil and hazardous substance discharges. Salvage activities are, by their nature, undertaken to save a ship in distress. Potential oil pollution damages can be minimized when oil is jettisoned to prevent the loss of a greater amount of oil. Absent an interpretation by the Coast Guard or Environmental Protection Agency of what actions will be considered to be consistent with the NCP, the issue will be left to the courts.

    The question becomes, therefore, whether a salvor qualifies as a responder for purposes of OPA 90. OPA 90 provides immunity for actions or omissions taken in the course of "rendering care, assistance, or advice consistent with the National Contingency Plan or as otherwise directed by the President."123 Whether salvors, public or private, are subject to immunity depends on whether the salvor's actions are

    118  

    33 U.S.C. § 1321(c)(4). The National Contingency Plan is designed to provide a comprehensive scheme for efficient and effective means of minimizing damage from oil and hazardous substance discharges, including the containment, dispersal and removal of oil and hazardous substances. 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.

    119  

    33 U.S.C. § 1321(c)(4)(B)(iv).

    120  

    See supra pp. 27-29.

    121  

    H.R. Conf. Rep. No. 653, 101st Cong., 2d Sess. 146 (1990).

    122  

    33 U.S.C. § 1321(d)(2).

    123  

    Id. § 1321(c)(4).

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    consistent with the NCP or pursuant to the direction of the President.124 Due to the nature of salvage operations, a salvor should be eligible for conditional immunity under this provision. In addition, salvage resources are considered to be response resources for the purposes of OPA 90. In fact, the Coast Guard's interim guidelines as well as the interim final regulations for vessel response plans require the identification of salvage resources available to respond to a worst case discharge.125 The guidelines and interim final rule for vessel response plans do not require that the responsible party contract for salvage resources; those available to provide such services merely need to be identified. The guidelines and interim final rule, therefore, do not change the traditional voluntary nature of salvage. Responder immunity does not apply, however, to discharges caused by the responder's gross negligence or willful misconduct.126 It is therefore unlikely that responder immunity would be available for jettisons of oil into the navigable waters, since, as discussed above, a jettison of oil into the navigable waters in violation of the FWPCA would likely be considered "willful misconduct."

    A review of the case law has not revealed any cases in which a salvor has been held directly responsible for a jettison or in which the vessel owner has been held responsible for a jettison by a salvor. In the case of Com. of Puerto Rico v. SS Zoe Colocotronis, the master of the vessel unilaterally decided to jettison 1.5 million gallons of oil in an attempt to free the vessel following a grounding.127 The owner of the vessel was assessed the maximum civil penalty possible under the FWPCA ($5,000) and was held responsible for resulting environmental damage and removal costs. Although the vessel owner was not allowed to limit its liability under the Limitation Act, this was not based solely upon the fact of the intentional discharge. The court found substantial evidence of privity and knowledge based upon the unseaworthiness of the vessel, in that the vessel's charts, navigation equipment and crew "were unfit to meet the perils reasonably to be anticipated in the voyage and where the unseaworthy conditions had existed for some time before the [voyage]."128

    Responder immunity will not prevent a salvor from receiving a reduced salvage award for negligent conduct. 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.129 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 willful misconduct, but will be available regardless of the salvor's simple negligence.130

    124  

    The responder immunity provision, 33 U.S.C. § 1321(c)(4), uses the term "person," which is defined to mean an individual, firm, corporation, association, or a partnership. 33 U.S.C. § 1321(a)(7). Although the definition does not include the United States or other governmental entity, the response provision of OPA 90 indicates that for response purposes, Federal agencies and States are persons. 33 U.S.C. § 1321(c)(3)(A).

    125  

    Navigation and Vessel Inspection Circular 8-92, Encl. 1, Sec. 7(i)(6); 33 C.F.R. §§155.1035(i)(9), 155.1050(1)(1)(i).

    126  

    33 U.S.C. § 1321(c)(4)(B)(iv).

    127  

    456 F. Supp. 1327, 1350 (D.P.R. 1978). The captain of the S.S. Zoe Colocotroni was tried, found guilty and sentenced in the United States District Court for the District of Puerto Rico for violation of 33 U.S.C. §§ 1321(b)(5) and 1321(n). Id. n. 9.

    128  

    456 F. Supp. at 1333.

    129  

    See 33 U.S.C. § 2712(a)(4).

    130  

    Id. § 2712(b).

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    Finally, the salvor may be directly liable under state law for removal costs, damages, and civil or criminal penalties for discharges that occur within or affect resources within state jurisdiction.131 If the salvor qualifies as a responder under OPA 90 and state law, it may be protected to some extent from liability to third parties by the "responder-immunity" provisions of those laws. Whether protection under a state responder-immunity provision is available to a salvor will depend on whether a salvor is directly liable under state law. If the salvor is directly liable under state law, responder immunity would not apply. For some state responder-immunity provisions, which provide immunity only to persons acting voluntarily, the nature of the salvor's actions, whether voluntary or under contract, may affect whether immunity is available to the salvor. Regardless of the availability of responder immunity, however, the prospect of civil liability for the vessel owner and operator will affect the salvor's decisions regarding a salvage operation.

    As mentioned, knowledge that the vessel owner and operator may incur civil liability for a discharge may affect the salvor's due care responsibilities under general maritime law.

    MAJOR ISSUES FOR SALVORS

    As the foregoing discussion indicates, OPA 90 and other recent developments in United States law have made salvors vulnerable to liability for oil pollution damages and removal costs resulting from jettisoning and other salvage-related discharges. Although the decision in Bear Marine implied that salvors could be held liable under general maritime law as partially-responsible third parties, salvor liability has become more of a possibility with these recent developments. Major issues for salvors include:

    1. Compensation available for services.

    2. Responsibility to the owner or operator of the vessel in distress.

    3.  Direct liability for oil pollution damages and removal costs.

    Compensation

    Although recent developments have increased the salvor's potential liability, they have also added to the salvor's potential sources of compensation. The salvor retains its ability to receive a salvage award for its efforts in saving the vessel. The 1989 Salvage Convention may increase compensation for a genera] maritime or contract salvage award or in the form of special compensation for efforts to prevent injury to the environment, if applicable. 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.132 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.133 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. See Addendum A regarding individual state laws.

    132  

    33 U.S.C. § 2712.

    133  

    33 U.S.C. §§ 2712(a)(4), 2713(d).

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    commence an action in court against the responsible party or present the claim to the Fund. If the salvor chooses to bring an action in court against the responsible party, however, the salvor is prohibited from presenting its claim to the Fund during the pendency of that action.

    Salvor's Responsibility to Vessel Owner

    The responsible party may be held accountable under OPA 90 for actions taken by the salvor. For example, if a salvor contracts with the responsible party for salvage services and acts with gross negligence or willful misconduct, or violates a federal safety or operating regulation, the responsible party will not be able to limit its liability under the act.134

    The responsible party will have a right of contribution against the salvor for damages in proportion to the salvor's fault. In addition, a responsible party that pays a claim will become subrogated to the rights that the claimant had against the salvor. The responsible party may, through contribution or subrogation, bring a claim against a private salvor under general maritime law or, if the discharge occurs within state jurisdiction, applicable state law.

    Because the United States has not waived sovereign immunity for state oil pollution claims, a public salvor will not be subject to state law claims, but will 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.

    The salvor may be able to qualify for responder immunity under OPA 90 or state law. If the salvor qualifies as a responder, the salvor would be immune from contribution and subrogation claims unless the salvor acted with gross negligence or willful misconduct. If the salvor does not qualify for responder immunity, it may be able to limit its liability under the Limitation Act. If the Limitation Act is available and limitation is granted, the salvor would be able to limit liability for the removal costs and damages caused by the salvor to the salvor's limitation fund amount.

    Because the salvor may increase the responsible party's liability, the salvor must take precautions to avoid oil pollution. Saving the vessel can no longer be the sole focus of the salvor; the salvor must also focus on the prevention and mitigation of pollution damage. To protect itself from potential contribution claims, the salvor may include in its contract with the vessel owner a clause whereby the vessel owner would waive any claims against the salvor. There is a possibility, however, that such a clause would be held to be against public policy if made while the vessel owner is under duress and particularly if the clause waived claims for the gross negligence or willful misconduct of the salvor.

    Third Party Liability of Salvors

    The third major issue for salvors is direct liability for oil pollution. Although OPA 90 imposes liability only upon the responsible party for the discharging vessel, it does not preempt state or common law. As a result, private salvors may be subject to liability under the general maritime law and, if the discharge causes damage within

    134  

    33 U.S.C. § 2704(c)(1).

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    state jurisdiction, state law. Public salvors, as discussed above, may be subject to direct liability only under general maritime law. A salvor may be able to avoid liability through the responder-immunity provisions of OPA 90 or state law. Responder immunity under OPA 90 would protect salvors from actions for contribution and subrogation. Responder immunity will not apply to the salvor's willful misconduct. To qualify for responder immunity, the salvor's actions must be determined to be within the course of rendering care, assistance or advice in accordance with the National Contingency Plan or at the direction of the federal on-scene coordinator. To ensure that responder immunity is available, the salvor may need to obtain the permission of the federal on-scene coordinator prior to a discharge. Obtaining permission of the coordinator may be difficult and not practical in a salvage situation.

    The private salvor may also face direct and unlimited liability under state law for removal costs and damages incurred within the state. Some states do provide limitations of liability and others provide responder immunity provisions similar to OPA 90. The private salvor has three options to avoid liability under state laws that impose direct liability upon the salvor. One is to seek a change in the law to provide an exception from liability for salvors responding to a discharge or threat of discharge of oil. The second is to approach the state regulatory agencies that administer the state oil spill laws to try to work out a regulatory solution. The third is to challenge any imposition of liability in court on the theory that the responder-immunity provision was designed to encourage persons to respond to an oil spill.

    Although public and private salvors may be liable under general maritime law, that liability may be limited. As discussed above, the Limitation Act is available to both public and private salvors in actions commenced under general maritime law, whether directly or by contribution or subrogation. The United States may only be allowed to limit its liability if it is determined that any negligence on the part of the Navy or Coast Guard during salvage operations is not that of a supervisory or managing officer or employee.

    Salvors 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.135 An indemnification agreement should ensure that the salvor 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 salvor, however, where the vessel owner is forced into insolvency because of its liability for removal costs and damages.

    As a result of the liability that may arise during contract salvage of a loaded or partially loaded tanker, a salvor may require the vessel owner to enter into an indemnification agreement underwritten by the vessel owner's P&I Club, known as a P&I Oil Pollution Indemnity Clause (PIOPIC). Under the terms of a PIOPIC, the vessel owner agrees to ''indemnify the salvor, unless guilty of personal willful misconduct, in respect of all claims for oil pollution damages, including preventative measures, howsoever arising (including contractual liabilities to sub-contractors) out of the services performed." The amount of PIOPIC indemnification is limited to $15 million dollars, and the terms of the agreement are subject to interpretation in accordance with English law.

    135  

    OPA 90 does not prohibit any agreement to insure, hold harmless, or indemnify a party for OPA 90 liability. 33 U.S.C. § 2710(a). An indemnification or similar agreement cannot, however, transfer liability from a responsible party, or any other person who may be liable under OPA 90, to any other person. Id. § 2710(b).

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    Potential criminal liability for discharges into the navigable waters is also a major concern for private salvors. The only way to avoid liability for criminal penalties under the FWPCA for discharges into the navigable waters will involve a regulatory fix. The Coast Guard may be encouraged to promulgate a regulation specifying the conditions under which a salvage discharge into the navigable waters is permitted using its authority under 33 U.S.C. §1321(b)(3) to allow discharges into the navigable waters under such circumstances or conditions that the Coast Guard determines are not harmful.

    Finally, salvors must focus on pollution prevention and mitigation. OPA 90 requires vessel owners and operators to identify in their response plans companies available in each geographic area to provide lightering services.136 By mandating the identification of lightering capabilities, the Coast Guard's guidance for response planning may have the effect of stimulating investment in such resources and provide salvors with an alternative to jettisoning.

    CONCLUSION

    Recently enacted environmental laws, particularly the Oil Pollution Act of 1990, will have complex and far-reaching implications on salvage operations in waters adjacent to the United States. Since there was no discussion of salvage in the legislative history of OPA 90, it is apparent that these implications were not considered fully during the Congressional consideration of the Oil Pollution Act, and therefore many of those implications cannot be assessed fully until judicial and regulatory interpretations of the act are forthcoming. What is clear, however, is that salvors must now consider carefully their environmental responsibilities under both U.S. and international law in performing salvage operations, particularly for tank vessels. It will be necessary for salvors and the rest of the marine community 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.

    ADDENDUM A: EXAMPLES OF STATE OIL POLLUTION LAW

    Following the enactment of OPA 90 many states enacted stringent oil pollution liability laws. Many of these laws impose liability upon any person responsible for a discharge that causes oil pollution within the state's jurisdiction. Under such laws, a salvor may be subject to liability for removal costs, damages and civil and criminal penalties for a jettisoning during a salvage operation. 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 will most likely be resolved through litigation. The following are representative examples only of the oil spill liability and responder-immunity laws of states on each coast, the Gulf of Mexico and the Great Lakes.

    136  

    NVIC 8-93, Encl. 1, Sec. 7(h)(6).

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×
    West Coast
    Alaska

    Under the laws of Alaska, a person causing or permitting a discharge of oil must immediately contain and cleanup the discharge in a manner approved by the state.137 The owner and operator of a vessel or facility from which oil 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.138

    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 oil 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.141 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.142

    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. An unauthorized jettison of oil may, however, subject the salvor to civil and criminal penalties, attorney fees and costs, removal costs and damages.143

    137  

    Alaska Star. § 46.04.020(a),(b) (Michie 1992).

    138  

    Id. § 46.03.822(a),(k). "Having control over the oil" is defined as producing, handling, storing, transporting, or refining a hazardous substance for commercial purposes immediately before entry of the hazardous substance into the atmosphere or in or upon the water, surface or subsurface land of the state, and specifically includes bailees and carriers of a hazardous substance. Id. § 46.03.826(4). It is unlikely that a salvor would be considered as "having control over the oil."

    139  

    Id. § 46.03.822(h).

    140  

    Id.

    141  

    Id. § 46.03.825(a).

    142  

    Id. § 46.03.825(g)(4).

    143  

    Id. §§ 46.03.758, 46.03.759, 46.03.760 & 46.03.790.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×
    California

    California law defines a responsible party as the owner or transporter of oil, a person or entity accepting responsibility for the oil, the owner, operator, lessee or demise charterer of any vessel or marine facility, or a person or entity accepting responsibility for the vessel or marine facility.144 Any person who causes or permits any oil to be discharged in or on the marine waters of the state must immediately contain, cleanup, and remove the oil in the most effective manner to minimize environmental damage.145 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. Any person who knowingly fails to follow the directions or orders of an oil spill administrator, or causes an unauthorized discharge of oil into marine waters is subject to a fine up to $500,000 for each day of violation and imprisonment of not more than one year.147 In addition, any person who knowingly violates any provision of the California Public Resource Code, or any permit, rule, regulation, standard, or requirement imposed by state oil pollution laws is subject to a fine of not more than $50,000 or imprisonment up to one year, or both.148 A salvor may be subject to a fine, imprisonment, or both, for a jettison of oil not authorized by the appropriate federal or state official.

    Any person who intentionally or negligently fails to follow orders of an oil spill administrator, or discharges or spills oil into marine waters that is not authorized by the appropriate coordinator or agency, may be subject to a fine up to $500,000 for each day of violation.149 Also, any person who causes or permits a discharge of oil is strictly liable for civil penalties up to $10 per gallon of oil discharged, although this may be reduced for each gallon recovered.150

    California law provides limited liability to responders for costs, damages, or other claims or expenses associated with actions taken or omitted in "good faith" in the course of rendering care, assistance, or advice in accordance with the national or state contingency plan, or at the direction of the state oil spill administrator, the federal on-site coordinator or Coast Guard.151 This immunity does not apply to acts of

    144  

    Cal. Gov. Code, ch. 7.4, § 8670.3(n) (Deering 1992).

    145  

    Id. § 8670.25.

    146  

    The damages provision under California law states that "any responsible party, as defined in subdivision (n) of Section 8670.3, shall be absolutely liable without regard to fault for any damages incurred by any injured party which arise out of, or are caused by, the discharge or leaking of oil into or onto marine waters." Id. § 8670.56.5(a). Damages to natural resources also appear to be limited to recovery from the responsible party. Id. § 8670.61.5.

    147  

    Id. § 8670.64(a)(1),(3),(b).

    148  

    Id. § 8670.65.

    149  

    Id. § 8670.66(a)(1), (3).

    150  

    Id. § 8670.67.5.

    151  

    Id. § 8670.56.6.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    gross negligence or willful misconduct in connection with the cleanup of a spill or to any action for personal injury or death.152

    Under California law, a salvor may not be liable for removal costs or damages resulting from a jettison made in "good faith" and "in accordance" with the national or state contingency plan, or at the direction of a federal on-scene coordinator, state oil spill administrator or Coast Guard. The salvor may otherwise be liable for removal costs; criminal, civil, and administrative penalties; civil liability; and imprisonment for an unauthorized jettison of oil.

    Oregon

    Under Oregon law, any person owning oil or having control over oil that enters the waters of the state is strictly liable for damages to persons or property, public or private, including damages to natural resources caused by a discharge.153 The person owning or having control over the oil has an obligation to immediately remove the oil or is otherwise liable to the state for any removal expenses.154

    Civil and criminal penalties may be imposed upon any person who willfully or negligently causes or permits a discharge of oil into the waters of the state.155 Civil penalties are determined by the Department of Environmental Quality commensurate with the amount of damage incurred by the discharge. Criminal penalties for violations are punishable by a fine or imprisonment, or both.156

    Oregon law provides limited immunity to persons responding to a discharge. 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 oil spill response.157 Limited responder liability does not apply to a responsible party, for personal injury or death, or to acts of gross negligence or willful misconduct.158

    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. Although the salvor may not be strictly liable for jettisoning as a "person owning or having control over oil" for removal costs or damages, the salvor could be subject to civil and criminal penalties.

    Washington

    Washington law provides that any person owning or having control over oil is strictly liable for damages to persons or property, public or private, caused by a

    152  

    Id.

    153  

    Or. Rev. Stat. §§ 468B.310 & 468B.060 (1) (Butterworth 1992). The person "having control over oil" includes, but is not limited to, any person using, storing or transporting oil immediately prior to entry of such oil into the navigable waters of the state, and specifically includes carriers and bailees. Id. § 468B.300(21). It is unlikely that a salvor would be considered as "having control over oil."

    154  

    Id. § 468B.320.

    155  

    Id. § 468B.450.

    156  

    Id. § 468B.990.

    157  

    Id. § 468B.425(1).

    158  

    Id. § 468B.425(2).

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    discharge of oil.159 Any person who unlawfully discharges or poses a substantial threat of discharging oil or hazardous substances into the waters of the state is responsible for all necessary removal expenses, including response costs incurred by the state to protect natural resources.160 In addition, any person who negligently, intentionally or recklessly discharges, or causes or permits a discharge of oil, is subject to civil penalties.161 Accordingly, a salvor jettisoning without authorization may be liable for removal costs and civil penalties. By definition, it is unlikely that the salvor would be liable for damages, however, as the person owning or having control over oil.

    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.163

    A salvor would not be liable for removal costs and damages resulting from a jettison of oil 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. The salvor may be strictly liable for removal costs and civil penalties as a result of an unauthorized jettison.

    Gulf Coast
    Florida

    The Florida Pollutant Spill Prevention and Control Act imposes liability on any vessel transporting pollutants as cargo, or its agents or servants, that permit a prohibited discharge or other polluting condition to take place within state boundaries.164 A prohibited discharge includes liability for removal costs, damages and civil penalties.165

    The act provides limited immunity to persons who take actions in response to pollutant discharges. Certified cleanup contractors, or any other person who voluntarily or at the request of the Department of Natural Resources, that render assistance in containing or removing pollutants are not liable for damages resulting from acts or omissions in rendering assistance, except for acts of gross negligence or willful misconduct.166 Likewise, any person authorized by the department, the

    159  

    Wash. Rev. Code Ann. § 90.56.370(1) (West 1992). A person "having control over oil" includes any person using, storing, or transporting oil immediately prior to the discharge, and specifically includes carriers and bailees. Id. 90.56.010(14).

    160  

    Id. §§ 90.56.340, 90.56.350 & 90.56.360.

    161  

    Id. § 90.56.330.

    162  

    Id. § 90.56.390.

    163  

    Id.

    164  

    Fl. Stat. Ann. § 376.12(1) (West 1992).

    165  

    Id. §§ 376.12, 376.121, 376.16 & 376.205.

    166  

    Id. § 376.09(4).

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    federal government, or the person responsible for the discharge to render assistance in containing or removing pollutants is not liable for costs, expenses or damages.167

    Under Florida law, a salvor has limited immunity, absent gross negligence or willful misconduct, for a jettison made at the direction of the federal or state oil spill official, or person responsible for the discharge. A salvor who otherwise jettisons may become liable as an ''agent" or "servant" of the vessel owner for removal costs, damages and civil penalties.

    Louisiana

    Louisiana law prohibits the unauthorized discharge of oil into the coastal waters of the state.168 Any person responsible for a discharge of oil or the person in charge of any vessel from which an unauthorized discharge of oil occurs must take all reasonable actions to abate, contain and remove the discharge.169 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.170 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.171 Persons entitled to limited immunity are not liable for damages, removal costs or civil penalties. However, responder immunity is not available for personal injury, wrongful death, or acts or omissions that are the result of gross negligence or willful misconduct.172

    Under Louisiana law, a salvor is not strictly liable by definition as a responsible person for a jettison of oil. In addition, the salvor would not be liable for a jettison that is consistent with the federal or state contingency plan, or at the direction of an authorized federal or state oil spill official, or the responsible party. Limited immunity does not apply to personal injury, wrongful death, or acts or omissions resulting from gross or willful misconduct.

    167  

    Id. § 376.09(5).

    168  

    La. Rev. Stat. § 30:2454(7) & (28) (West 1992). An unauthorized discharge includes any discharge without a federal or state permit or any intentional or unintentional act or omission by which harmful quantities of oil are spilled, leaked, pumped, poured, emitted or dumped into or on the coastal waters of the state. Id.

    169  

    Id. § 30:2463.

    170  

    Id. §§ 30:2454(22) & 30:2479.

    171  

    Id. § 30:2466.

    172  

    Id.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×
    Texas

    Under Texas law, the responsible person is defined as the owner or operator of a vessel or terminal facility from which an unauthorized discharge of oil emanates or threatens to emanate, and any person who causes, allows or permits an unauthorized or threatened unauthorized discharge of oil.173 A responsible person is liable for response costs, and damages to third parties and natural resources resulting from an actual or threatened discharge of oil.174 By definition, a salvor may be considered a responsible person and subject to liability for a jettison of oil.

    Texas law provides limited immunity to any person or discharge cleanup organization that voluntarily, or pursuant to the national or state contingency plan, or request of an authorized federal or state official or responsible person, renders assistance or advice in abating, containing, or removing pollution from an unauthorized discharge of oil.175 A person entitled to immunity is not liable for response costs, damages, or civil penalties resulting from acts or omissions committed in rendering such assistance or advice, absent gross negligence or willful misconduct.176

    A salvor has limited immunity for a jettison of oil that is consistent with the national or state contingency plan, or by direction of the federal or state on-scene coordinator, or responsible person. A salvor may be liable for removal costs, damages and civil and administrative penalties for an unauthorized jettison as a responsible party.177

    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.178 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.179 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.180 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.

    173  

    Tex. Nat. Res. Code Ann. § 40.003(19)(A),(C) (West 1992).

    174  

    Id. § 40.202.

    175  

    Id. § 40.104(b).

    176  

    Id.

    177  

    Id. §§ 40.251 & 40.252.

    178  

    Ill. Ann. Stat. ch. 85 para. 1704 (Smith-Hurd 1992).

    179  

    Ill. Ann. Star. ch. 85 para. 1705 (Smith-Hurd 1992).

    180  

    Ill. Ann. Star. ch. 85 para. 1706 (Smith-Herd 1992).

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×
    Michigan

    The Michigan Watercraft Pollution Control Act prohibits the discharge of oil from watercraft into or onto the waters of the state.181 The owner or operator of a watercraft, whether directly or through any person concerned in the operation, navigation, or management of the watercraft, that discharges or permits, causes or contributes to the discharge of oil into or upon state waters, adjoining shorelines or beaches, must immediately remove the oil or is otherwise liable to the state for its removal.182 In addition to removal costs, a fine or imprisonment, or both, may be imposed for a violation of Michigan oil pollution laws.183

    Although the Michigan Watercraft Pollution Control Act does not provide responder immunity, the salvor does not appear to be subject to liability since the law only specifies liability for the owner or operator of the vessel.

    Wisconsin

    Wisconsin law provides that a discharge of any pollutant, including oil, into any waters of Wisconsin is unlawful unless a permit is issued by the Wisconsin Department of Natural Resources.184 The department may recover from any person violating various pollution statutes in the state, the cost of removing, terminating, or remedying the adverse effects upon natural resources resulting from the unlawful discharge of pollutants into state waters, including the cost of replacing fish or other wildlife destroyed by the discharge.185 Civil and criminal penalties may also be imposed upon any person violating Wisconsin oil pollution laws.186

    Limited immunity is provided to any person who mitigates or attempts to mitigate, prevents or cleans up an actual or threatened discharge of a hazardous substance.187 This immunity does not extend to any person who receives or expects to receive compensation other than reimbursement for out-of-pocket expenses for rendering advice or assistance in response to a spill, or whose act or omission caused in whole or in part the discharge and who would otherwise be liable for the act or omission.188

    Because limited immunity is unavailable to a person who expects to receive compensation for their services, a commercial salvor would have no responder

    181  

    Mich. Comp. Laws Ann. § 323.337 (West 1992).

    182  

    Id.

    183  

    Id. § 323.341.

    184  

    Wisc. Stat. Ann. §§ 147.02(1) & 147.015(13) (West 1991).

    185  

    Id. § 147.23(1).

    186  

    Id. d. § 147.21.

    187  

    Wisc. Stat. Ann. § 895.48 (West 1991). § 895.48 does not specifically define "oil" as a "hazardous substance" but the definition appears to broad enough to include ''oil" as a "hazardous substance.'' A "hazardous substance" has the meaning given under section 144.01(4)(m): "any substance or combination of substances including any waste of a solid, semisolid, liquid or gaseous form which may cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness or which may pose a substantial present or potential hazard to human health or the environment because of its quantity, concentration or physical, chemical or infectious characteristics. This term includes, but is not limited to, substances which are toxic, corrosive, flammable, irritants, strong sensitizers or explosives as determined by the [Department of Natural Resources]."

    188  

    Id.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    immunity. Further, because any person is liable for a discharge, the salvor may be liable for removal costs, damages, civil and criminal penalties for a jettison of oil without a permit.

    East Coast
    Maine

    Maine law prohibits the discharge of oil into or upon waters of the state.189 The person responsible for the discharge is wholly responsible for reimbursing the Maine Coastal and Inland Surface Oil Cleanup Fund for all disbursements for cleanup costs and damages, including all third party damage claims paid by the Fund.190 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.191

    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.194

    A salvor 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 salvor may otherwise become liable for removal costs, damages, civil liabilities, or penalties for jettisoning in violation of state law.

    Massachusetts

    Massachusetts law provides that the owner or operator of a vessel, or any person that releases oil or a hazardous material into the state's waters are strictly liable to the state for all removal costs and damages for injury, destruction, or loss of natural resources, and to any person for damages to real or personal property, incurred, or suffered as a result of the release.195 Accordingly, a salvor may be strictly liable for removal costs and damages for a jettison of oil under this law.

    Massachusetts law provides limited immunity to persons who respond to a discharge of oil. Volunteer responders have immunity when responding to a discharge of oil or a hazardous substance when, rendering assistance at the request of

    189  

    Me. Rev. Stat. Ann. tit. 38, § 543 (West 1992).

    190  

    Id. § 552.

    191  

    Id. § 551(2).

    192  

    Id. § 542(4).

    193  

    Id.

    194  

    Id. § 552(4)(B).

    195  

    Mass. Gen. Laws Ann., ch. 21E, § 5(a) (West 1992).

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    an authorized representative of the department. Volunteer responders are not liable for civil damages as a result of an act or omission, except for acts or omission of gross negligence or willful misconduct.196

    Massachusetts law also provides responder immunity to persons who render care, assistance, or advice in response to a release or threatened release of oil that is consistent with the national or state contingency plan, or directed by the federal coordinator or state oil spill response administrator.197 A responder has immunity for actions taken or omitted during a response, except for acts of gross negligence, willful misconduct, personal injury or death.198

    Response action contractors who respond to a discharge pursuant to a contract with the state also have limited immunity.199 Response action contractors responding to a discharge of oil are not strictly liable to any person for injuries, costs, damages, expenses, or other liability including claims by third parties.200 Although a response action contractor is not strictly liable, a response action contractor may be liable for negligence. The responder may enter into an indemnification agreement with the state, but the amount of indemnification is limited to $2,000,000, and does not apply to acts of gross negligence or willful misconduct.201

    A salvor may be strictly liable for removal costs and damages for an unauthorized jettison of oil. 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.

    197  

    Id. § 4.

    198  

    Id. § 4.

    199  

    Id. § 16. A "response action contractor" is defined as an individual, partnership, corporation or other commercial organization that enters into a contract with the state regarding services to contain, remove and clean up a discharge of oil or hazardous material. Id. § 2.

    200  

    Id. § 16 (a).

    201  

    Id. § 17.

    202  

    N.J. Star. Ann. § 58:10-23.11g(c)(1) (West 1992).

    203  

    Id. § 58:10-11g(b).

    204  

    Id. § 58:10-32.11g3.

    205  

    Id.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    A salvor has limited immunity for a jettison in accordance with the National Contingency Plan, or at the direction of the federal on-scene coordinator or appropriate state official. A salvor may otherwise be directly liable for removal costs resulting from an unauthorized jettison. Damages are limited to the owner or operator of the vessel.

    Rhode Island

    Rhode Island law prohibits any person from discharging or permitting the discharge of oil into state waters, except by permit issued by the director of the department of environmental management.206 A person who discharges is strictly liable to the state for costs, damages to natural resources, and to the state and private parties under a civil action in common law for any additional damages or penalties.207 Civil and criminal penalties, including imprisonment, may also be imposed for violations of Rhode Island oil pollution laws and regulations.208

    Limited immunity is provided to persons, other than those responsible for the discharge, who render care, assistance, or advice regarding a discharge of a pollutant in the waters of the state.209 A person responding to a discharge under the limited immunity provision is not held strictly liable for their acts or omissions.210 Although a responder may not be strictly liable for their acts or omissions, a responder may be liable for negligence. A salvor could therefore be liable for a jettison that is determined to be a negligent act.

    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 oil pollution laws and regulations.

    206  

    R.I. Gen. Laws § 46-12.5-3 (West 1991). Contaminated ballast water may be discharged by the master of the vessel only if it is necessary for the safety of the vessel and no other action is feasible. Id. § 46.12.5.4

    207  

    Id. § 46.12.5-7.

    208  

    Id. §§ 46.12.5-6 & 46.12.5-10.

    209  

    Id. § 46-12.3.8.

    210  

    Id.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    ADDENDUM B: COMPILATION OF IL SPILL LIABILITY STATUTES OF THE COASTAL STATES

    The following is a brief outline of state statutes pertaining to oil pollution. It should be used as a research guide only. The reader should refer to statutory and case law in each jurisdiction to determine its liabilities and obligations under state laws.

    STATE LAW

    LIABILITY

     

     

     

     

    RESPONDER IMMUNITY

     

    PERSONS LIABLE

    REMOVAL

    COSTS

     

    DAMAGES

     

     

     

     

    STANDARD

    LIMIT

    STANDARD

    LIMIT

     

    ALABAMA

    § 22.22.9

    Any person who discharges

    Negl.

    No

    Negl.

    NO

    Yes

    ALASKA

    § 46.03.822; §46.03.758(2)(b); § 46.03.780; § 46.08.020; § 43.55.011

    Cargo owners and vessel

    owners/operators

    Strict

    No

    Strict

    3rd p: $100 M

    Natural

    Resource: No

    Yes

    CALIFORNIA

    Gov't Code § 8670.56.5

    Vessel operator, owner or lessee.

    Person accepting responsibility for vessel.

    Strict

    NO

    Strict

    No

    Yes

    CONNECTICUT

    § 22a.451

    Any person, firm or corporation which directly or indirectly causes

    Strict

    No

    No

    provision

    -------

    Yes

    DELAWARE

    23 §§6201 et seq.

    Owner and operator of vessel

    Strict

    Vessel: $30 M

    Facility: $50 M

    Strict

    Vessel: $30 M Facility: $50 M

    Yes

    FLORIDA

    28 § 376, §377, §206

    Vessel owner and operator

    Strict

    Vessel: $10 M

    Facility: $25 M

    Strict

    No

    Yes

    GEORGIA

    § 12.5.51, § 12.14.1, § 12.5.500, § 12.5.501

    Any person who causes

    discharge

    Negl.

    No

    Strict

    No

    Yes

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    HAWAII

    §§342 et seq.

    Any person who violates

    Strict

    No

    Strict

    No

    Yes

    LOUISIANA

    § 30:2025(E); § 30:2077; § 30:3025; § 30:2034

    Any person who causes or threatens or allows discharges found to be in violation

    Strict

    Vessel: $10 M

    Offshore Facility: $75 M + all removal costs

    Onshore Facility: $350 M

    Strict

    Vessel: $10 M

    Offshore Facility: $75 M + all removal costs

    Onshore Facility: $350 M

    Yes

    MAINE

    38 §§ 541 et seq.

    Any person, vessel, licensee, agent or servant responsible for discharge

    Strict

    No

    Strict

    No

    Yes

    MARYLAND

    Env't § 4-401 et seq.

    Any person discharging or permitting the discharge

    Strict

    No

    For 3rd party only: Strict

    For 3rd party only:

    No

    Yes

    MASSACHUSETTS

    Ch. 21E, § 5; Ch. 91, § 59A; Ch. 130, § 24; Ch. 131, § 42

    Any person who caused or is responsible for discharge; plus Oil-Carrier

    Hazardous Material-Carrier and vessel owner

    Strict

    No

    3rd P: Negl.

    Natural Resource:

    Strict

    Double damages (both)

    Yes

    MISSISSIPPI

    §49.17.29; § 49.17.43; § 49.17.68

    Any person ... violating

    Strict (Public Nuisance)

    No

    Natural Resource:

    Strict

    Natural Resource:

    No

    Yes

    NEW HAMPSHIRE

    §146.A:3; §146.A:10; § 146.A:11 § 146.A:14

    Operator or other person who causes

    Strict

    No

    3rd P:

    Negl.

    Natural Resource:

    Strict

    No

    (Both)

    Yes

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    NEW JERSEY

    §§58:10.23.11 et seq.; §58:10A.10 §58:10A.6

    Persons who discharge

    Strict

    Vessel:

    $150/gross

    ton

    Facility:

    $50 M

    Strict

    3rd P:

    Vessel: $150/g.t.

    Facility: $50 M

    Natural Resource: No

    Yes

    NEW YORK

    Nav §§170 et seq.

    Person who discharged

    Strict

    $300/gross ton

    Strict

     

    Yes

    NORTH CAROLINA §§143.215.75 et seq..

    Any person who discharges or causes to be discharged

    Strict

    No

    Strict

    No

    Yes

    OREGON

    § 465.200; § 465.255; § 468B.300

    Cargo and vessel owner; any

    person owning or having control

    Strict

    No

    3rd P: Strict

    Natural Resource:

    Negl. or willful

    No

    Yes

    PENNSYLVANIA

    33 Pa. Cons. Stat.; §§691.1-691.1001

    Any person

    Nuisance

    No

    Nuisance

    No

    Yes

    PHODE ISLAND

    § 46.12.1

    Any person

    Strict

    No

    Strict

    No

    Yes

    SOUTH CAROLINA

    §48.1.90(a); § 48.43.560

    § 48.43.600

    Any person who discharges

    Strict

    No

    3rd P: Arb

    Natural Resource:

    Strict

    No

    (both)

    Yes

    TEXAS

    Natural Resources

    §§40.1 13 et seq.; §§40.201 et seq.; § 40.251 et seq.

    Responsible person

    Strict

    $50 M

    Strict

    No

    Yes

    VIRGINIA

    V62.1.44.34:3

    Vessel owner, discharger or operator

    Strict

    $10 M in absence of negligence

    Strict

    $5 M

    Yes

    WASHINGTON

    $90.48.335; § 90.48.336; § 90.48.142

    Cargo and vessel owner any person who discharges

    Strict

    No

    Strict

    No

    Yes

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    ADDENDUM C: SALVAGE OF HAZARDOUS SUBSTANCES OTHER THAN OIL

    Emergency discharges of substances categorized as "noxious liquid substances" are allowed by MARPOL.211 Annex H of MARPOL governs discharges of noxious liquid substances carried in bulk as cargo. The discharge into the sea of noxious liquid substances is generally prohibited, but an exception is made for discharges of noxious liquid substances or mixtures containing such substances necessary to secure the safety of a ship or to save a life at sea.212

    The United States is a party to the Protocol Relating to Intervention On the High Seas in Cases of Pollution by Substances Other Than Oil.213 Under that protocol, a party government may take measures on the high seas necessary to prevent, mitigate or eliminate grave and imminent danger to its coastline or related interest from actual or threatened pollution by substances other than oil resulting from a maritime casualty.214 The protocol otherwise adopts and follows the same guidelines as the International Convention regarding intervention in cases of oil pollution on the high seas.

    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.215 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.218 EPA has compiled a list of FWPCA and CERCLA hazardous substances in 40 C.F.R. Part 302. The term "pollutant or contaminant" generally includes substances that are harmful to human life or health, but does not include petroleum,

    211  

    The substances designated as noxious liquid substances under Appendix II to MARPOL Annex II are substantially the same as those substances identified as "hazardous substances" under CERCLA and the FWPCA, as discussed below.

    212  

    Annex II, Reg. 6(1), MARPOL.

    213  

    Convention Relating to Intervention on the High Seas in Cases of Pollution by Substances Other Than Oil, done in London Nov. 2, 1973 (entered into force March 30, 1983), T.I.A.S. No. 10561.

    214  

    Id. Art. 1. In addition to a list of substances other than oil annexed by the Convention, those substances which are liable to create hazards to human health, living resources, and otherwise cause damage to the sea are included. Id. Art. 1(2).

    215  

    33 U.S.C. § 1321(b)(3); 42 U.S.C. § 9607(a); see also supra note 44.

    216  

    33 U.S.C. § 1321(b)(3).

    217  

    Id. § 1321(b)(2).

    218  

    42 U.S.C. § 9601(14). A hazardous substance includes: (1) any substance designated pursuant to the FWPCA; (2) any element, compound, mixture, solution, or substance designated pursuant CERCLA; (3) any hazardous waste having the characteristics identified under or listed pursuant to the Solid Waste Disposal Act; (4) any toxic pollutant listed under 33 U.S.C. § 1317(a); (5) any hazardous air pollutant listed under the Clean Air Act; and (6) any imminently hazardous chemical substance or mixture with regard to which the Administrator of EPA has taken action pursuant to 15 U.S.C. § 2606.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    meaning crude oil or any fraction thereof, unless specifically listed or designated as a hazardous substance under CERCLA.219

    FWPCA

    As with oil, the FWPCA prohibits the discharge of hazardous substances into the navigable waters, adjoining shorelines, contiguous zone, or that may affect natural resources under the exclusive management authority of the United States (including resources under the Magnuson Fishery Conservation and Management Act), in such quantities as may be harmful as determined by the President.220 An emergency discharge under Annex II of MARPOL is not allowed within the internal waters. Any such discharge made within the territorial sea could subject the salvor and the vessel owner and operator to penalties under the FWPCA. 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 carried on board the salved vessel. CERCLA imposes liability upon (1) the owner and operator of a vessel, (2) any person who, by contract, agreement, or otherwise, arranged to dispose of, treat, or transport for disposal or treatment hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and (3) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, from which there is a release, or a threatened release which results in response costs, of a hazardous substance.221 Liability is imposed where there is a release of hazardous substances into the environment222 in such quantities as may be harmful as determined by the President.223 CERCLA makes no exception for MARPOL discharges into the navigable waters or contiguous zone.

    219  

    See 42 U.S.C. § 9601(33).

    220  

    33 U.S.C. § 1321(b)(3). A discharge "in such quantities as may be harmful as determined by the President" has been determined to be a discharge that either (1) violates applicable water quality standards or (2) causes a film or sheen upon or discoloration of the surface of the water or adjoining shorelines or causes a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines. 40 C.F.R. Part 110. It should be noted that the provisions of the FWPCA that govern discharges of oil are also applicable to discharges of hazardous substances, but that there is no liability under OPA 90 for discharges of hazardous substances. See 33 U.S.C. § 2702.

    221  

    42 U.S.C. § 9607(a).

    222  

    The term "environment" includes the navigable waters, contiguous zone, and the ocean waters for which the natural resources are under the exclusive management authority of the United States under the Magnuson Fishery Conservation and Management Act, 16 U.S.C. §§ 1801 et seq., and any other surface water, ground water, drinking water supply ... within the United States or subject to the jurisdiction of the United States. 42 U.S.C. § 9601(6).

    223  

    42 U.S.C. § 9607(a). Although EPA has determined specific harmful quantities for many hazardous substances, the reportable quantity is generally equal to one gallon.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    Warren L. Dean is a senior partner in the Washington, DC. law firm of Dyer, Ellis, Joseph & Mills. His practice includes environmental, transportation, and general corporate law. He also is an Adjunct Professor of Law at Georgetown University Law Center, where he teaches International Transportation Law in the graduate program.

    Laurie L. Crick is an associate in the maritime and environmental law practice of the Washington D.C. law firm of Dyer, Ellis, Joseph & Mills. 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.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    COMMENTARYONTHE DELIBERATE DISCHARGEOF OIL DURING MARINE SALVAGE OPERATIONS

    Philip A. Berns

    The disclaimer I usually assert at lectures and in accompanying papers,1 along with the warning that in addition to the Department of Justice, my views are not necessarily that of agencies I represent and courts before which I have appeared. This may take on more meaning in this instance due to the relative newness of specific oil pollution laws being applied to maritime spills. I 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) will have to undergo a sort of ''trial and error'' evolution. The issue presented here may be one of those parts.

    JETTISONING UNDER DIRECTION OF THE UNITED STATES

    If a cargo is jettisoned by a salvor in accordance with directions of the United States, subject to certain exceptions that will be discussed below, it appears there may be situations where there would be no liability on the part of the salvor under OPA, FWPCA, or other applicable statutes. Thus, if human life is at stake; the only alternative is to jettison. If the United States directs that such action be taken, it would not appear there is anything in any statute that mandates liability on the part of the salvor or attaches penalties thereto.

    At the same time, the "responsible party" could still be liable for having created the situation which required this extraordinary activity. Depending on the circumstances, if the salvor's action also created the necessity of this jettisoning, then the latter would be liable for damages and an appropriate penalty. Thus, the mere order being issued by the United States will not necessarily provide immunity to the salvor.

    LIABILITY OF THE UNITED STATES

    In addition to apparent protection from liability of the United States when acting in its official capacity in an oil spill cleanup situation—including when it may be performing in this capacity as a salvor—it is not clear that the standard triggering of the waiver of immunity under the Public Vessels Act and/or Suits in Admiralty Act will take place. It will be necessary in those instances to determine whether the government is acting merely as a private person or in a governmental aspect. Further, there will be issues of discretionary function and the fact that, at the least,

    1  

    The comments herein do not necessarily represent the official position of the United States Department of Justice.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    the United States is the trustee/"owner" of certain environmental elements and cannot sue itself. Therefore, it is not enough to simply state that the Public Vessels Act and Suits in Admiralty Act will automatically place the United States in the same status as a private party would be in admiralty matters.

    "INTO OR UPON," "A THREAT OF DISCHARGE," AND LIABILITY

    Although OPA did not incorporate the word "affect" with the words "into or upon" in terms of discharges that are prohibited, it is respectfully submitted that an interpretation requiring the oil be spilled directly from a vessel that is located within the territorial confines of the exclusive economic zone, the territorial sea, or the contiguous waters is too limited an interpretation. 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. The more restrictive interpretation explored by the discussion paper by Dean and Crick (pages 58-97) would preclude any finding of liability and prevent any recovery for oil that flowed into the EEZ from a land-based facility. Further, it would be inconsistent with the federal government's authority to take action and recover for the costs of taking preventive action against a vessel outside the EEZ that presents "a threat of discharge" into the EEZ or the other covered waters.

    Although Dean and Crick conclude that the definition of "discharge" in OPA 90 does not include the drifting of oil from beyond the EEZ, a broad interpretation and the clear purpose of the act show it does not exclude it.

    OPA AND THE LIMITATION OF LIABILITY ACT

    The issue is raised whether the Limitation of Liability Act was done away with, in toto, by OPA including defining which parties that contributed to the spill would not be considered "responsible parties" under OPA. Again, the intent of Congress was to preclude such a defense to claims that would otherwise be covered by OPA. Under the Trans-Alaska Pipeline Authorization Act (TAPAA), a statute containing a less clear preclusion of the Limitation of Liability Act, the Ninth Circuit Court in In Re Glacier Bay held that, at the least, limitation was done away with in relation to subrogated claims asserted against the shipowner/operator.

    The broad intent of OPA could preclude the application of limitation of liability to all claims arising out of an OPA spill. (At present, the Ninth Circuit Court is considering part of this issue in Sammi Superstars.) Additionally, under OPA, the Federal Oil Spill Liability Fund (the Fund) is subrogated to the rights of claimants under OPA. In a mathematical progression:

    1. Limitation of liability may not be asserted against such a claimant under OPA.

    2. The fund would then be subrogated to the same rights and protections against the "guilty" party.

    3.  The "guilty" party, whether a "solely at fault" party or a partially at fault allegedly "non-responsible party" may not assert limitation. Otherwise, at least as to the Fund's claims, "it doesn't add up!"

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    STATE LAWS AND LIMITATION OF LIABILITY

    Even if it is assumed that the Limitation of Liability Act may be applied in some instances, it will still be necessary to arrive at a court determination of its application as against certain state statutes, particularly those initiated under their respective police powers. The confusing language contained toward the end of the Askew decision—is it admiralty or is it not, and whatever happened to the Admiralty Extension Act—will probably have to be conformed to the concept of admiralty jurisdiction and the Limitation of Liability Act proclaimed under Sisson.2

    PREEMPTION, LIMITATION OF LIABILITY, AND THE IMPOSITION OF ADDITIONAL LIABILITY

    As to the discussion of the life or death of the Limitation of Liability Act, Dean and Crick take the stance that the phrase "impose additional liability" is an equivalent to "enact legislation." Again, that result comes from a restrictive reading of the word "imposed." "Imposed" also means to assert additional liability that could include presently existent statutes and maritime law. 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). The subsection does not necessarily mandate that new laws will have to be enacted to preclude the application of the Limitation of Liability Act.

    CONCLUSION

    It is clear that many of the questions raised at this symposium will not be firmly decided until court decisions ensue. Although there is a paucity of convincing legislative history as to certain of the aspects, the outcome would seem to lie with whether the approach to interpretation of OPA and its application is a restrictive or a liberal interpretation.

    PhilipA. Berns is Attorney in Charge, West Coast Office, Torts Branch, Civil Division, United States Department of Justice

    2  

    See Askew v. American Waterways Operators, 411N.S.325 (1973); Sisson V. Ruby, 497N.S.358 (1990).

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    NEW LAWS AFFECTINGTHE JETTISONINGOF OIL: PRESIDENTIAL DIRECTIONAND A SALVOR'S STANDARDOF CARE

    Frederick F. Burgess, Jr.

    The Dean and Crick paper concludes that it is not currently lawful to jettison oil within territorial waters,1 although jettisoning for MARPOL-approved purposes in the contiguous zone and beyond is lawful, with the responsible party liable for removal costs and damages (see pages 65, 66, and 77).

    The main text of Dean and Crick makes several statements about the illegality of an intentional discharge and application of federal and state immunity to such discharges.2 No rationale is provided to support the principle that a federal on-scene coordinator's direction to jettison is not illegal per se and why such a direction can provide a basis for federal and state immunity.

    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 Guard.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 Contingency Plan requirements must be carefully reviewed.

    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. The salvor's standard of care is initially acknowledged to be gross negligence for nondistinguishable losses and ordinary care for distinguishable injury (see page 59), but only the negligence standard is considered later. In particular, the United States, as salvor, is said to be liable for negligence, perhaps without limitation (see pages 63,

    1  

    Dean and Crick also states the only way to avoid liability for FWPCA criminal penalties is through a regulatory fix under 33 U.S.C. § 1321(b)(3). As discussed infra (pages 63-67) a jettison directed by the President is subject to neither criminal nor civil penalties.

    2  

    Dean and Crick conclude that a jettison is "illegal per se" (page 66), that it is a crime and thus willful misconduct (page 76), that if done at the direction of the federal on-scene coordinator, limited immunity would apply (page 76); that it is unlikely that responder immunity would be available for such jettisons violating the Federal Water Pollution Control Act (page 77) and that both OPA 90 and state immunity may protect a salvor "to some extent" from liability to third parties (page 78). In addition, the paper postulates that direct and unlimited state liability can only be avoided by one of three options: a change in state law, seek a state regulatory solution, or challenge liability by asserting responder immunity (page 80).

    3  

    As noted in Dean and Crick, the table and summary of state laws should be reviewed by the user to ensure that the legislative provisions cited are up to date, e.g., Rhode Island Immunity Statute and Compilation of Oil Spill Statutes of the Coastal States, Addendum B.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    68, and 81). In contrast, I conclude that under certain circumstances, current law permits a jettison within territorial waters with no penal or civil violation and no liability to the salvor under federal or state law. I also conclude that, in order to encourage rescue efforts, the general standard of care for a salvor may be less than negligence.

    My comments will concentrate on two issues. The first issue is under what circumstances oil can be jettisoned, especially in territorial waters, and with what consequences. I will concentrate on the importance of Presidential direction and the revision of the National Contingency Plan and provide recommendations within current law. Second, I will address a salvor's standard of care under various circumstances.

    SUMMARY CONCLUSION

    OPA 90 and the Intervention on the High Seas Act4 provide authority for the government to "direct" the jettison of oil. Indeed, OPA 90 mandates that procedures and standards be set up by the President in the National Contingency Plan, area contingency plans and within the national response units to promptly mitigate/prevent the substantial threat of an oil spill and to coordinate resource use to accomplish this goal. Included should be expeditious procedures to consider and decide upon destruction or jettison as an option. A "directed jettison" is not a "discharge," at least not an unlawful one. For "directed jettisons" under OPA 90, neither the federal government nor the salvor is liable for penalties or for removal costs and damages under OPA 90, other federal maritime law or state law.

    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.

    The standard of care of a salvor depends on the type of injury, by whom it is sustained and which body of law applies. Under current U.S. law, only when a salvor is grossly negligent or engaged in willful misconduct is that salvor liable directly to third parties for removal costs and damages due to jettisoned oil and, through contribution and subrogation, to a vessel owner/operator. If the salvor worsens the victim's position or the injury is distinguishable from the salvage attempt, a negligence standard would apply although OPA 90 responder immunity may change the standard to gross negligence/willful misconduct. If Lloyd's Open Form 1990 (LOF 90) is used, under English law, a negligence standard would apply to claims of the vessel owner and possibly to third parties. When the Salvage Convention comes into force, salvage awards may be affected by a salvor's negligent conduct, but rights of third parties may still be governed by the gross negligence/willful misconduct standard.

    4  

    33 U.S.C. §§ 1471-87.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    JETTISON DIRECTED BY THE FEDERAL ON-SCENE COORDINATOR IS PERMITTED

    I generally agree with Dean's and Crick's conclusion that a salvor runs the risk of becoming liable for penal or civil sanctions for jettisoning cargo in territorial waters if done without proper government direction/approval and for removal costs and damages which may vary according to the location of the jettison and salvor's level of performance. In addition, a salvor jettisoning independently currently may provide a basis for breaking the responsible party's limits of liability.

    However, as more fully explained below, if a salvor's jettison is "directed" by the federal on-scene coordinator, exercising OPA 90 and/or the Intervention on the High Seas Act "removal" authority, neither the federal government nor the salvor is subject to any penal or civil sanctions or civil liability for jettisoning oil into the exclusive economic zone (EEZ)5 or into territorial waters. The responsible party will be responsible for any removal costs and damages.6

    Any analysis of the lawfulness of jettisoning oil must first focus closely on the President's removal authority which is treated in a separate subtitle of OPA 90 and in the Intervention on the High Seas Act.

    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.

    OPA 90 Removal Provisions—
    Responsibility and Authority to "Direct" Efforts

    OPA 90 amended the Federal Water Pollution Control Act removal authority by specifying two authorities given to the President: first, the general removal authority and, second, authority where a discharge poses a substantial threat to public health and welfare.7 In both provisions, explicit authority is given to "remove and, if

    5  

    Proclamation No. 5030, 48 Fed. Reg. 10,605 (Mar. 10, 1983).

    6  

    OPA 90, § 1002, 33 U.S.C. § 2702(a).

    7  

    33 U.S.C. §§ 1321(c)(1) and (2). Section 4201(a) of OPA amends the FWPCA's removal authority to read as follows:

    (c) FEDERAL REMOVAL AUTHORITY.—

    "(1) FEDERAL REMOVAL AUTHORITY REQUIREMENT.—(A) The President shall , in accordance with the National Contingency Plan and any appropriate Area Contingency Plan, ensure effective and immediate removal of a discharge, and mitigation or prevention of a substantial threat of a discharge, of oil or a hazardous substance—

    "(i) into or on the navigable waters;

    "(ii) on the adjoining shorelines to the navigable waters;

    "(ii) into or on the waters of the exclusive economic zone;

    "(iv) that may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States.

    (B) In carrying out this paragraph, the President may—

    "(i) remove or arrange for the removal of a discharge, and mitigate or prevent a substantial threat of a discharge, at any time;

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    necessary, destroy a vessel discharging, or threatening to discharge, by whatever means are available." The first authority permits the President to "ensure" proper action and "monitor" actions to remove the discharge or to mitigate or prevent the threat of the discharge, whereas the second authority requires that the President "shall direct all Federal, State, and private actions" to achieve those objectives without regard to federal contracting and personnel employment laws.8

    The amended subsection (Section 1321(c)) is designed "to eliminate the confusion evident in recent spills where a lack of clear delineation of command and management responsibility impeded prompt and effective response"; the exemptions "to facilitate emergency response."9

    OPA 90 requires that "affected trustees" must be consulted on the appropriate removal action to be taken10 and that federal, state, and local officials are to be heavily involved in the extensive planning preparation process.11 Nevertheless, the OPA 90 "Removal" subtitle, and its legislative history, distinguishing as it does the President's responsibility for substantial threats from other threats, makes it abundantly clear that the President<12 has the authority, and, for substantial threats, the clear mandatory responsibility to direct all actions, even those of a state and private parties, to mitigate or prevent a threat of discharge, including the authority to destroy a vessel.13 In addition, legislative history makes it clear that Congress expects the Coast Guard to act promptly and effectively in directing all efforts to prevent a discharge.

       

    "(ii) direct or monitor all Federal, State, and private actions to remove a discharge; and

    "(iii) remove and, if necessary, destroy a vessel discharging, or threatening to discharge, by whatever means are available. (Emphasis added.)

    8  

    OPA 90, § 4201(a), 33 U.S.C. § 1321(c)(2). Contrast the former 33 U.S.C. § 1321(d)—for marine disasters creating a substantial threat because of a discharge, or an imminent discharge of large quantities of oil, the President has discretion, i.e., "may" coordinate all "public and private efforts directed at the removal or elimination of such threat." The President also had summary vessel removal and destruction authority. States were not specifically mentioned.

    9  

    H.R. Conf. Rep. No. 653, 101st Cong., 2d Sess. 146 (1990).

    10  

    OPA 90, § 1011, 33 U.S.C. § 2711.

    11  

    See OPA 90, § 4201, 33 U.S.C. § 1321 (c) and § 4202, 33 U.S.C. 1321(j)

    12  

    This authority has been delegated to the Coast Guard. Exec. Order No. 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. Reg. 54757 (1991); 49 C.F.R. § 1.46(m)(1992). The Coast Guard's authority has been further redelegated to various staff and command levels, see 33 C.F.R. §§ 1.01-70 and 153.105(e); see also Delegation of Authority Under the Oil Pollution Act of 1990, 33 U.S.C. § 2701, et seq., USCG Commandant (LCL) letter of March 19, 1992.

    13  

    This destruction authority was retained by the Commandant. See 33 C.F.R. §§ 1.01-70 and 153.105(e). See also ltr supra note 13 and Policy Guidance for Intervention and Ship Related Marine Pollution Incidents on the High Seas and Navigable Waters of the United States, COMD'T INST 16451.5A of 1 Feb 1988. This Commandant Instruction, now expired, included, as a possible intervention action, the "disposal or destruction of the cargo on board (e.g., burning)" but did not set forth specific steps to be taken regarding a jettison option. No successor instruction has been promulgated.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×
    Intervention on the High Seas Act

    The Intervention on the High Seas Act implements the 1969 Intervention on the High Seas Convention.14 The 1969 convention clarified a nation's right to direct removal of pollution damage threats from vessels on the high seas. The act made it clear that any reasonable measures could be taken, even the destruction of ship and cargo, without any liability to the owner, operator and other similar interests.15 A 1973 protocol regarding substances other than oil entered into force in 1983.

    The 1969 convention and its 1974 implementing legislation were driven by the Torrey Canyon. The British government, unsure of its authority to destroy a vessel and its oil cargo on the high seas off England, delayed action. The objective of both the convention and legislation was to ensure the clear authority of the coastal state to take action against such vessels and cargo on the high seas.16 The Secretary of Transportation in his legislative transmission letter noted that neither the Convention nor the bill articulated the types of actions which could be taken because not all possible incidents could be defined. Consequently, he noted that the full exercise of "Executive Branch discretion should be available."17 This authority has been exercised by the Coast Guard on a number of occasions.18

    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 Plan19 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. If a vessel containing oil were destroyed, it is virtually certain that additional oil would be lost into the sea. Given the purpose of the Intervention on the High Seas Act, enacted prior to OPA 90, which authorizes destruction of tankers like the Torrey Canyon, Congress must have been aware that such a loss would occur. Such destruction action is not "discharge" or, at least, not an unlawful discharge. If the entire cargo could be lost to the sea, pumping some cargo off the vessel to mitigate/prevent the substantial threat of the loss of a much larger amount must also

    14  

    The Intervention on the High Seas Act, 33 U.S.C. §§ 1471-87 (1974), was amended in 1978 to include the 1973 Protocol regarding substances other than oil.

    15  

    33 U.S.C. § 1472. Claims for excessive measures can be brought against the United States in the Court of Claims, district courts, and certain other courts. 33 U.S.C. § 1479.

    16  

    Senate Report No. 93-482, 93rd Cong., 1st Sess. 2773 (1973).

    17  

    Id. at 2776.

    18  

    See submission of the United States to the IMO Legal Committee during consideration of the Salvage Convention. LEG 54/4/4 of 27 February 1985.

    19  

    The current National Contingency Plan states that the Secretary (of Transportation) is "authorized" to initiate appropriate "response activities" (not defined for the Clean Water Act, i.e., FWPCA) when a marine disaster has created a substantial threat of a pollution hazard because of a discharge or imminent discharge of large quantities of oil or hazardous substances. Under such circumstances, the Secretary "may" Coordinate and direct all public and private efforts to abate the threat"; and "summarily remove and, if necessary, destroy the vessel by whatever means are available.'' 40 C.F.R. § 300.130 (b) and (c).

    20  

    See supra note 14.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    be authorized.21 Consequently, if jettisoning "directed" by the President is part of "removal" action to prevent the substantial threat, it should not be considered an "unlawful discharge" and is authorized under OPA 90.

    National and Area Contingency Plans— Incorporation of Jettisoning as a Mitigation or Prevention Measure

    OPA 90 requires the President to revise the National Contingency Plan to meet the new objectives set out in OPA 90. New objectives include establishing criteria and procedures for identifying and responding to a substantial threat as required by Section 1321(c)(2) and establishing procedures and standards for removing a worst case discharge of oil and for mitigating or preventing a substantial threat thereof.22 The pre-OPA 90 National Contingency Plan has not yet been revised.

    In addition to the designation of federal on-scene coordinator's, OPA 90 requires procedures for area committees and area contingency plans, a national response unit, cistrict response groups, federal on-scene coordinators, and strike teams to be established as part of the new national planning and response system.23 Area committees, composed of members appointed by the President from federal, state, and local agencies, prepare the area contingency plan. The plan, to be approved by the President, must also be adequate to not only remove but also to mitigate or prevent the threat of a substantial discharge.24

    After the National Contingency Plan has been published, removal and "actions to minimize damage from oil or hazardous substance discharges shall to the greatest extent possible, be in accordance with the National Contingency Plan." (Emphasis added.)25

    Jettisoning oil cargo is clearly not a first choice. Though undesirable, in most situations under certain emergency conditions, it may be a necessary choice to minimize or prevent a large discharge or a threat thereof. Weather, bottom characteristics, availability and ability to get lightering vessels alongside a stranded vessel, and other conditions could combine to create a realistic threat that, but for lightening a vessel by jettisoning oil and removing it from its strand, the vessel, and

    21  

    As noted above, the Intervention on the High Seas Act legitimized the high seas reasonable destruction of threatening vessels without government liability to vessel interests. OPA 90's trust fund is available for intervention actions. OPA 90, § 2001, 33 U.S.C. § 1486. Intervention on the High Seas Act penalties were also enhanced. OPA 90, § 4302(1), 33 U.S.C. § 1481(a).

    22  

    OPA 90, § 4201(b), 33 U.S.C. § 1321(d)(2)(I) and (J), amending former 33 U.S.C. § 1321(c). The Implementing Executive Order directs that the National Contingency Plan provide for a National Response Team (NRT) and Regional Response Teams (RRT's) as included in the present National Contingency Plan. Sec. 1, Executive Order No. 1277, 56 F.R. 54757, (1991). The NRT, composed of representatives of a number of departments and agencies, is responsible for national planning and coordination of preparedness and coordination of preparedness and response actions. RRTs are regional counterparts. The latter may include representatives of state, local and Indian tribal governments.

    23  

    OPA 90, § 4201(b), 33 U.S.C. § 1321(d)(2)(K) and (L) and OPA 90, § 4202(a), 33 U.S.C. § 1321(j)(2) and (3). See also H.R. Conf. Rep. No. 653, 101st Cong., 2d Sess. 148 (1990).

    24  

    OPA 90, § 4202(a), 33 U.S.C., §1321(j)(4)(C)(i) and (iii).

    25  

    OPA 90, § 4202(b), 33 U.S.C. § 1321(d)(4). OPA 90 duties regarding removal are not fully consistent: OPA 90, § 4201(a), 33 U.S.C. § 1321(c)(3)(A) requires those participating in efforts under the federal removal authority subsection to "act in accordance with the National Contingency Plan or as directed by the President"; OPA 90, § 4201(a), 33 U.S.C. §1321(c)(4)(A), makes responder immunity available to a person whose actions are "consistent with the National Contingency Plan or as otherwise directed by the President."

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    its entire cargo are likely to be lost to the sea. Total loss could cause greater environmental damage than the loss of part of the oil aboard.

    If this symposium or other experience identifies the need to have the jettison tool available, since Congress expects prompt and effective action, the National Contingency Plan and area contingency plans must ensure that criteria, standards, and procedures are in place and exercised by the national response team, regional response teams, COMD'T, and federal on-scene coordinator 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.26

    President's Authority to Amend Definition of Harmful Quantity Under 33 U.S.C. § (b)(3) and (4)

    Another way to authorize the jettison of oil under certain specialized circumstances is for the President to amend the definition of "harmful quantity" so that such jettison action, even without "direction" of the President, would not be an unlawful discharge.27 The President thus has authority to determine that jettisoning oil under certain circumstances and other operations, which might create a sheen, may not be a discharge of a harmful quantity.28 In addition to helping to mitigate/prevent oil discharges, such actions, if authorized, would remove one of the current bases for breaking OPA 90 liability limits, i.e., violation of a federal operating regulation, a provision which has an inhibiting effect on salvors.29 Any such authorizing would, of course, have to be carefully circumscribed to ensure that the OPA 90 mitigation/prevention goals are met.

    26  

    The Environmental Protection Agency (EPA) has been delegated responsibility to revise the National Contingency Plan. In the Coastal Zone, the Coast Guard has been delegated the responsibility to establish criteria for the development of coastal, local and regional oil and hazardous substance removal contingency plans. Sec. 1(b)(1) & 2(a), Executive Order 1277, 56 Fed. Reg. 54757 (1991).

    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. managed resources in the Exclusive Economic Zone (EEZ), except where "permitted" under certain circumstances. MARPOL, as implemented, permits jettisoning oil outside territorial waters to save a ship or life or as a result of damage to a ship provided certain precautions are taken. 33 C.F.R. § 151.11. Under 33 U.S.C. § 1321(b)(3)(A), the President (delegated to EPA) may permit other non-harmful discharges "in quantities and at times and locations or under such circumstances or conditions" by regulations consistent with maritime safety and with marine and navigation laws and regulations and applicable water quality standards. The current harmful quantity "sheen test" contains two exceptions: MARPOL-permitted discharges in the contiguous zone and seaward and oil from properly functioning vessel engines. 40 C.F.R. § 110.9 (sic, misnumbered, should be 110.6) and 110.7.

    OPA 90 amended 33 U.S.C. § 1321(b)(4) by adding ''the environment" as a factor to be considered when determining a harmful quantity.

    28  

    Other examples of such non-harmful quantities might include: a salvor's pumping out a damaged compartment which might contain a small but yet sufficient quantity of oil to create a sheen; "decanting" action by a cleanup contractor (i.e., pumping off excess water from oil vacuum operations on-scene) where the excess water may have traces of oil in situations where barge capacity is limited and stopping pickup operations could reduce recovery.

    29  

    Prevention of Pollution from Ships, 33 U.S.C. § 1908 and OPA 90, § 1004(c)(1)(B), 33 U.S.C. § 2704(c)(1)(B).

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×
    Potential Penalties And Civil Liability For ''Directed" Removal Action
    Criminal Or Civil Penalties And Civil Liability Under Federal Law

    As noted above, certain "discharges" into the EEZ, which could include jettisoning of oil, are not violations of law calling for penalties under MARPOL as implemented, or the Federal Water Pollution Control Act.30 However, even if jettisoned into territorial waters, a "directed" jettison is not an unlawful "discharge" under federal law. Accordingly, there is again no violation of federal law and no penalties, either criminal or civil.31

    If a jettison is "directed" by the Coast Guard, it is unlikely that the vessel owner/operator, and related interests, damaged third parties and states, including local jurisdictions, have any right of recovery for removal costs and damages against the federal government or the salvor, either under OPA 90 or another theory of recovery, including contribution and subrogation. Exceptions include measures deemed to be "excessive" under the Intervention on the High Seas Act,32 or other salvage/response actions which are in the "grossly negligent/willful misconduct" category.33

    Admiralty jurisdiction and suits against the federal government. If damages are sustained by a party on navigable waters or on the high seas and bear a significant relationship to maritime activity, admiralty jurisdiction applies.34 Under the Suits in Admiralty Act (SIAA), the federal government has waived its sovereign immunity for suits where, if a private party or person were involved, "a proceeding in admiralty could be maintained."35 The act generally applies to federal actions injuring a party. But since a federal on-scene coordinator decision to destroy a vessel or jettison cargo would involve balancing economic, social, and political concerns, the act's discretionary function exception granting federal immunity would likely apply.36 Consequently, it is unlikely that a federal court would have jurisdiction

    30  

    33 U.S.C. § 1321(b)(3). See supra note 8. See also 33 U.S.C. § 1319(c)—criminal penalties and § 1321(b)(6)—civil penalties. Criminal penalties are based upon a violation event, i.e., a discharge, not existence of a "sheen" (Dean and Crick, page 65). See 33 U.S.C. § 1321(b)(3).

    31  

    For both criminal and civil penalties, there must be a violation of 33 U.S.C. § 1321(b)(3).

    32  

    See supra note 15.

    33  

    OPA 90's responder immunity does not protect gross negligence/willful misconduct. In addition, for a nondistinguishable injury, a salvor is liable for gross negligence. See infra pp. (26-29). See also infra note 52.

    34  

    Sisson v. Ruby, 497 U.S. 358 (1990); Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 253-254 (1972).

    35  

    46 U.S.C. § 742. Dean and Crick concluded that the federal government has not waived its immunity for state oil pollution liability (pages 69 and 79). I question the basis for this conclusion, since state-created vessel oil pollution liability statute can be pursued in admiralty, Stewart Transportation Co. v. Allied Towing Corp., 596 F.2d 609, 620 (4th Cir. 1979). See also Maritime Overseas Corp. v. United States, 433 F. Supp. 419 (D. Cal. 1977) remanded on other grounds, 608 F.2d 1260 (9th Cir. 1979) where the court said in actions where, if a private person were involved, an admiralty proceeding can be maintained, a SIAA action may be brought against the United States. But for the discretionary act immunity, the federal government may have waived its immunity for state-created oil pollution liability.

    36  

    In describing the scope of discretionary function immunity under the Federal Tort Claims Act (FTCA), (28 U.S.C. § 2680(a)), United States v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 813, reh. denied, 468 U.S. 1226, remanded, 744 F.2d 1387 (9th Cir. 1984), the Supreme Court held the test is whether the challenged acts of a government employee, of whatever rank, are of the nature and quality that Congress intended to shield from tort liability.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    against the United States under OPA 90, or under a maritime tort theory or recourse action.

    Liability of salvor. With regard to salvor liability, "acts of subordinates in carrying out operations of government in accordance with official directions cannot be actionable,"37 especially in those cases where the President has a specific mandatory duty to direct all removal, mitigation, and prevention actions, including those of private parties. The government's direction to a salvor to jettison should be no different from a direction to an employee.38 Consequently, the salvor should have the same protection as a governmental subordinate. Any recovery would be against the "responsible party."39

    Criminal or civil penalties and civil liability under state law. Even though OPA 90 amended the Federal Water Pollution Control Act to extend the non-preemption 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. While Corps of Engineers' (COE) inspection and maintenance of installed navigational systems may be operational, not policy, decisions, Arkansas River Co. v. CSX Transp. and United States, 1992 A.M.C. 1108 (W.D. Ky. 1991), actions in failing to restrict water flow, not coordinating ice passing activities, and not compensating for immobilized submergible gates were policy decisions and immune. In re Ohio River Disaster Litigation, 862 F.2d 1237 (6th Cir. 1988), cert. denied, 493 U.S. 813 (1989).

    The federal on-scene coordinator's decision in deciding when to schedule venting of a tank posing a major threat of fire, explosion, and release of pollutants, left room for and, indeed, required "the exercise of policy judgment based upon the resources available and the relative risks to the public health and safety from alternative actions." U.S. Fidelity & Guaranty Co. v. United States, 837 F.2d 116, 122 (3rd Cir.) Cert. denied, 487 U.S. 1235 (1988). Finding immunity, the court found irrelevant whether the government employee actually balanced the Varig factors of economic, social, and political concerns in reaching a decision and also found that "operational acts mandated by orders of planning level superiors are protected by the exception even though the actual actor does not exercise discretion." Id. at 120 & 121. The judicial characterization of these decisions as policy is consistent with the Secretary of Transportation's characterization of vessel destruction decisions under Intervention on the High Seas Act. See discussion supra p. 9. Since a federal on-scene coordinator decision to destroy a vessel or jettison oil under either OPA 90 or Intervention on the High Seas Act involves a similar policy judgment, such decision should also be within SIAA's discretionary function immunity. The federal on-scene coordinator who acts within the scope of employment is immune from any personal actions. OPA 90, § 1018(d).

    37  

    Dalehite v. United States, 346 U.S. 15, 36 (1953), but cited in Varig, 467 U.S. 797, 820 (1988) and in U.S. Fidelity, 837 F.2d at 121.

    38  

    To receive protection, the party need not be a government employee. Outside agents of the federal government acting under government direction have been held to be immune from damage suits for actions within official duties. Bradley v. Computer Sciences Corp., 643 F.2d 1029 (4th Cir. 1981), cert. denied, 454 U.S. 940 (1981); Peterson v. Weinberger, 508 F.2d 45 (5th Cir. 1975), cert. denied, 423 U.S. 830, reh. denied 423 U.S. 991 (1975); Central Claims Service, Inc. v. Computer Science Corp., 706 F. Supp. 463 (E.D. La. 1989).

    39  

    OPA 90, § 1002(a) and (b). It is unlikely that a salvor can be considered a "responsible party", i.e., an "owner, operator or demise charterer", (OPA 90, § 1001(32)). While the salvor is clearly not the owner or the demise charterer, neither the FWPCA definition of "operator" i.e., a person "operating'' a vessel nor the similar Coast Guard definition adopted for Certificate of Financial Responsibility purposes, 33 C.F.R. § 130.2, is a model of clarity.

    While a salvor will make certain decisions regarding the distressed vessel, a salvor should not be considered an "operator" under OPA 90, since doing so will result in strict liability for removal costs and damages. Such an outcome would create substantial financial risks and liability exposures to those rendering care and assistance thereby running directly contrary to the OPA 90 Conferees' objective of encouraging prompt and effective response and contrary to the Supremacy Clause, See discussion infra pp. 19-20. Any salvor's contract should minimize salvor's operational control factors.

    40  

    OPA 90, § 4202(c), 33 U.S.C. § 1321(o)(2). For National Contingency Plan purposes, "removal is complete when determined by the President (federal on-scene coordinator) in consultation with the affected Governor(s)."

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    sanctions upon a salvor who jettisons oil under federal on-scene coordinator "direction."41

    If a state law has no destruction authority parallel to OPA 90, an argument can be made that if the federally directed discharge causes damage to the state or third parties, that state law could make the federal government and, perhaps, the salvor liable for damages because of the non-preemption clause. Upon further review, however, such a state law would probably be invalid under the Supremacy Clause, Article IV, Cl. 2 of the U.S. Constitution.

    The federal supremacy doctrine set forth in Ray v. Atlantic Richfield Co.,42 was made applicable to OPA 90, explicitly with respect to section 1018's statutory history and, implicitly, to 33 U.S.C. § 1321(o).43 A state statute is void to the extent that it "actually conflicts with a valid federal statute," i.e., where a state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.44 Finding that both federal and state statutes had the same purpose but the state statute was more stringent, Ray held that the federal judgment as to standards took precedence over a contrary state judgment which, if upheld, would frustrate the congressional intention for uniform standards.45 Recently, the Alaska Court of Appeals found that a state's inevitable discovery exception to the federal grant of

       

    However, the determination does not preclude additional removal actions under state law see OPA 90, § 1011, 33 U.S.C. § 2711.

    41  

    Dean and Crick are not clear on a state's authority to create liability and impose penalties for a discharge occurring outside state waters but affecting state resources (possibly by drifting into state waters). 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); liability may exist for discharges within the state since OPA 90 does not expand state authority for discharges outside the state but affecting state resources (page 1).

    The non-preemption authority in OPA 90, § 1018(a)(1), 33 U.S.C. § 2718(a)(1), addresses "the discharge of oil or other pollution by oil within such state." (Emphasis added) "Discharge" is a broad term associated with "spilling." "Other pollution by oil" must mean a different concept and may include oil drifting on the surface into state waters, a concept which is probably not included within the parameters of ''discharge." See 33 U.S.C. § 1001(7) and § 1321(a)(1). Thus, a state may not be precluded from establishing liability for discharges which affect state resources but occur outside. The issue of penalties for such a discharge is more difficult. As noted, this liability and potential penalties will not apply to a ''directed discharge".

    42  

    435 U.S. 151 (1978).

    43  

    OPA 90, § 1018(a), 33 U.S.C. § 2718(a), states that nothing in OPA 90 or the Act of 1851 (Limitation Act) is to be preemptive of any state additional liability or requirements with respect to the discharge of oil or other pollution by oil within such state or any "removal activities in connection with such a discharge." This provision mirrors the amendment to the FWPCA, 33 U.S.C. § 1321(o). The statutory history of § 1018 states that: "The Conference substitute does not disturb the Supreme Court's decision in Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978)." H.R. Conf. Rep. No. 653, 101st Cong., 2d Sess. 122 (1990).

    Ray addressed the validity of a Washington state law governing tanker design, size and movement. The state statute, among other requirements, attempted to more stringently regulate design and size and impose tug escort and pilotage requirements for tankers entering Puget Sound. Since under the Port and Tanker Safety Act, Congress had demonstrated its desire for uniform regulation by the Coast Guard and size was part of a traffic control scheme created by the Coast Guard, both the state design and size limitations were preempted. Because the Coast Guard had not decided upon tug escort requirements, the state tug escort requirements were upheld. Id. at 165, 166 and 172.

    44  

    Id. at 158, citing Hines v. Davidowitz, 312 U.S. 52, 67 (1941) and Jones v. Rath Packing Co., 430 U.S. 519, 526, 540-541, reh. denied, 431 U.S. 519 (1977).

    45  

    Id. At 166.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    immunity for reporting oil discharges would frustrate the Congressional purpose of encouraging prompt notice in all cases.46

    The clear purpose of the "removal" authority, in particular regarding discharges/threats "posing substantial threat to public health or welfare," is that the President (Coast Guard) should direct ''all efforts" in an expeditious manner. Just as in Hazelwood v. State of Alaska, the OPA Congressional intention could be frustrated by any salvor hesitation in carrying out federal on-scene coordinator directions, especially in the critical early stages. Such hesitation could be caused by the spectre of a state penalty or liability against the salvor.47 The non-preemptive language set forth in OPA, § 1018 and 33 U.S.C. § 1321(o) appears directed toward giving states authority to continue state removal after federal removal is completed under OPA, § 1011.48Ray supremacy principles, as recently applied in Hazelwood , preclude any such state action which could clearly deter a salvor from a prompt, effective, and aggressive response. Discretionary immunity principles for "directed" actions also apply. Thus, state law imposing penal or civil sanctions and liability against a salvor making a directed jettison would seem to be contrary to Ray.

    Potential Liability For Salvor Actions Taken Consistent With The National Contingency Plan

    Under the current National Contingency Plan, a salvor independently jettisoning oil on its own runs the risk that authorities will not agree that the action was a mitigation/prevention initiative. Thus, a salvor should seek federal on-scene coordinator direction or at least explicit agreement that the jettison is acceptable. OPA 90 responder immunity should then be available and, very arguably, "directed jettison" immunity to the extent that the salvor does not engage in grossly negligent/willful misconduct.

    If, when revised, the National Contingency Plan specifies circumstances or sets forth firm parameters when a vessel could be destroyed or cargo jettisoned, such actions taken by a salvor would be more clearly the equivalent of a "direction" by the President and therefore should be fully protected. If the National Contingency Plan

    46  

    The master of the Exxon Valdez immediately reported the grounding and discharge of oil under 33 U.S.C. § 1321(b)(5), which grants use and derivative use immunity for such reports. After the independent source rule and inevitable discovery doctrines were invoked, the master was convicted, under Alaskan law, of negligent discharge of oil. Overturning the conviction on appeal, the court found that, a state inevitable discovery exception to the federal immunity doctrine would frustrate the Congressional purpose of encouraging prompt notice in all cases, by discouraging compliance by persons where, because of the size of the discharge, immunity could not subsequently be claimed. Hazelwood v. State of Alaska, 1992 A.M.C. 2423, 836 P. 2d 943 (Ct. App. 1992).

    47  

    33 U.S.C. 92711. OPA 90, § 4201(a), amending 33 U.S.C. § 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. This immunity reflects the intention that "responses to oil spills be immediate and effective." The conferees recognized that without such a provision, "the substantial financial risks and liability exposures associated with spill response could deter vessel operators, cleanup contractors, and cleanup cooperatives from prompt, aggressive response." H.R. Conf. Rep. No. 653, 101st Cong., 2d Sess. 146 (1990). While a salvor is not explicitly mentioned in the statutory history, the interim final rules on vessel response plans require that a response plan must identify and ensure the availability of, through contract or other approved means, "a salvage company with expertise and equipment." Vessel Response Plans, 58 Fed. Reg. 7436 (1993) to be codified at 33 C.F.R. § 155.1050(1). Thus, salvage actions consistent with the National Contingency Plan, or "as otherwise directed" by the federal on-scene coordinator, should come within the responder immunity envelope.

    48  

    See also OPA 90, § 1018, 33 U.S.C. § 2718, which preserves state authority to maintain a state pollution fund.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    only acknowledges that such action could be taken, the salvor so acting should maintain its OPA 90 responder immunity but may not have the full directed discharge immunity. If, however, the federal on-scene coordinator is made aware of the jettison plan but voices no objection thereto, a good argument can be made that the Coast Guard's acceptance of such action should also be considered an implicit "direction" with all the protections described above.

    Whether a court would consider the lack of a specific federal on-scene coordinator "direction" a factor significant enough to change the result remains to be seen. Even if full "direction immunity" is not available, responder immunity should be. 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.

    Summary And Recommendations
    Summary

    Because the Congressional direction and intention regarding the President's prompt and effective direction of all efforts to mitigate/prevent as well as to remove a substantial threat of an oil spill are so explicit, both the possibility of destroying a vessel and possibly jettisoning its cargo will have to be given serious consideration. Such "directed" action can be taken with little fear of penal sanctions and liability to the government or the salvor. Actions merely "consistent with the National Contingency Plan" may not be as well protected.

    Recommendations For The Federal Government

    In order to maximize its ability to mitigate and prevent a substantial threat of an oil spill, the following actions by the Environmental Protection Agency and the Secretary of Transportation/Coast Guard are recommended:

    • Revise the National Contingency Plan to specifically address the possibility of not only destroying a vessel but the possibility of a lesser measure, jettisoning oil.

    • Conduct a review of past casualties where the Coast Guard has intervened or considered intervention to determine circumstances when the lesser measure has been used or might have been used and the consequences thereof.49

    • Include criteria, standards, and procedures in the National Contingency Plan and area contingency plans so that these possibilities can be expeditiously considered and carried out.

    • Ensure that the procedures of the national and regional response teams allow for rapid decision making so that the Congressional mandate can be carried out.

    • Revise and reissue the Commandant Instruction50 regarding intervention, regarding ship-related marine pollution incidents to more explicitly deal with the jettison option, including, for example,

    49  

    See supra note 19.

    50  

    See supra note 13.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    ascertaining availability of lightering resources, expected weather, currents, bottom character, vessel condition, etc.

    • Amend the harmful quantity definition to permit jettisoning or other pumping of small quantities of oil under carefully circumscribed circumstances to achieve OPA 90 mitigation/prevention goals.

    • Work closely with states to ensure advance understanding of the limited circumstances when these measures will be utilized to minimize factors which could delay prompt decision making in emergencies.

    Recommendations to Salvors

    Through the salvage community, conduct a review of past casualties to determine when jettisoning could have been utilized to mitigate damage under the following circumstances:

    • When engaged in salvage activities, consistent with accomplishing the salvage mission, reduce the exercise of operational control factors.

    • When contemplating jettison of oil or destruction of a vessel, establish early communications with the federal on-scene coordinator and obtain a "direction" to jettison cargo, preferably in writing.

    • When considering an indemnity hold harmless clause to cover liabilities arising out of actions to which full immunity may not apply.

    STANDARD OF CARE FOR SALVORS

    While acknowledging the nondistinguishable injury standard of care for salvors to be gross negligence, Dean and Crick suggest that the standard of care of a salvor is negligence. In particular, the United States is said to be liable for "negligence" (pages 63, 68, and 80). The issue is more complicated and deserving of further discussion. I submit that there are several standards of care which need to be addressed: the standard of care under U.S. law; under the 1989 Salvage Convention; and, lastly, under Lloyd's Open Form 90 and the applicable English law. In addition, it is important to note to whom the standard of care is owed.

    Current Standard Of Care Under U.S. Law

    Under U.S. 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 salvor 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); and negligence.

    The nondistinguishable injury in the broad sense covers those errors which made the salvage ineffectual. The standard of care is gross negligence/willful misconduct or reckless or wanton conduct.51 For an injury where the salvor's action

    51  

    The Noah's Ark v. Bentley & Felton Corp., 1961 A.M.C. 1641, 1648, 292 F.2d 437 (5th Cir. 1961). Martin J. Norris, Benedict on Admiralty, The Law of Salvage, Vol. 3A, § 121 (Matthew Bender Ed., Times Mirror Books (7th ed. 1992), states: "Generally every salvor is bound to the exercise of ordinary skill and reasonable diligence. He should use

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    worsened the condition of the victim52 and for the distinguishable injury53—meaning damage or a harm distinct from that from which the vessel is being saved—the standard is ordinary care or negligence.54

    Lastly, with respect to injuries to third parties arising out of the salvage, the standard of care is gross negligence/willful misconduct. The most notable recent example of this principle is the Amoco Cadiz, where claimants damaged by discharged oil were denied any recovery against the salvor since no causative gross negligence or willful misconduct was found.55

    Since jettison activity would be undertaken as part of the salvage, damages sustained would be subject to the nondistinguishable and damage to third parties standard—gross negligence/willful 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. Id. §123.

    However, the weight of more recent authority is that a salvor's failure to rescue is only actionable if salvor was grossly negligent or engaged in willful misconduct. See P. Dougherty Co. v. United States, 1953 A.M.C. 1541, 207 F.2d 626 (3d Cir. 1953), cert. denied, 347 U.S. 912 (1954); Johnson v. United States, 1967 A.M.C. 1882, 378 F.2d 732 (9th Cir. 1967); Dorrington v. Detroit, 223 F. 232 (6th Cir. 1915); The S. C. Schenk, 158 F. 54 (6th Cir. 1907); Shupe and Curtis Boat Holders Ltd. v. United States, 1979 A.M.C. 2282 (C.D. Cal. 1979); Basic Boats, Inc. v. United States, 1973 A.M.C. 522, 352 F. Supp. 44 (E.D. Va. 1972); Chesapeake Bay Bridge & Tunnel Dist. v. Oil Screw Prince, 1968 A.M.C. 1427, 298 F. Supp. 881 (E.D. Va. 1968); A.C. Tisdale v. United States, 1963 A.M.C. 2662 (S.D. Fla. 1962); Amoco Cadiz Limitation Proceedings, 1984 A.M.C. 2123, 2189 (N.D. Ill. 1984), aff'd on other grounds, 954 F.2d 1279 (7th Cir. 1992).

    More recent cases have used the terms "reckless or wanton conduct". Furka v. Great Lakes D. & D. Co., 1985 A.M.C. 2914, 2917-19, 755 F.2d 1085, 1089 (4th Cir. 1985), cert. denied, 108 S.Ct. 775 (1987); Berg v. Chevron, 1986 A.M.C. 360, 364, 759 F.2d 1425, 1429 (9th Cir. 1985), appeal after remand, 819 F.2d 256 (9th Cir. 1987), cert. denied, 484 U.S. 914 (1987).

    But see McDonough Marine Serv., Inc. v. M/V Royal St., 465 F. Supp. 928 (E.D. La), aff'd, 608 F.2d 203 (5th Cir.) (1979); Riverway Co. v. Trumbull River Services, Inc., 674 F.2d 1146 (7th Cir. 1982) (held salvor must exercise reasonable care—but improperly relied upon Noah's Ark, supra and The Cape Race, infra, both of which involved "distinguishable injury"); Southern Holdings v. Sandbar II, Inc., 1992 A.M.C. 1706, 1713 (E.D. La. 1992) (also improperly relied on Noah's Ark and Riverway Co. and upon Miss Janel, Inc. v. Elevating Boats, 1989 A.M.C. 1870-1877, 725 F. Supp. 1553-1569, (S.D. Ala. 1989) which held that salvor's negligence must be extraordinary).

    52  

    United States v. Devane, 1963 A.M.C. 1406, 306 F.2d 182 (5th Cir. 1962); Berg v. Chevron, 1986 A.M.C. at 364, 759 F.2d at 1429; Wright v. United States, 1989 A.M.C. 1338, 1343-44, 700 F. Supp. 490 (N.D. Cal. 1988).

    53  

    Noah's Ark, 1961 A.M.C. 1641, at 1648. See also Cape Race, 1927 A.M.C. 628, 631, 18 F.2d 79, 81 (2d Cir. 1927); Jean L. Somerville, 1923 A.M.C. 142, 286 F. 35 (5th Cir. 1923).

    54  

    Acts which might be negligent under other circumstances will ordinarily be found non-negligent during rescues. Johnson, 378 F. 2d at 732, Wright v. United States, 1989 A.M.C. 1338, 700 F. Supp. 490 (N.D. Cal. 1988).

    55  

    Amoco Cadiz, supra note 51 at 2189, citing many cases in that note. While French law was applicable, it was not proved different from U.S. law.

    56  

    Frank v. United States, 1958 A.M.C. 796, 250 F.2d 178 (3d Cir. 1957), cert. denied, 356 U.S. 962 (1958); Basic Boats v. United States, 1973 A.M.C. 522, 352 F. Supp. 44 (E.D. Va. 1972); Wright, 1989 A.M.C. at 1343. Wright v. P.J. St. Pierre, Inc., 1990 A.M.C. 325, 334 (S.D. Tex 1989). It is also unlikely that the "direction" will come from the captain of a Navy or Coast Guard vessel. More likely the Commandant will make that decision; see supra note 13.

    57  

    OPA 90, § 4201(a), 33 U.S.C. § 1321(c)(4). At least with respect to damages from salvage efforts falling within the scope of OPA 90 responder immunity principles, a good argument can be made that the negligence (worsening victim's position and distinguishable injury) standard has been changed to gross negligence/willful misconduct.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×
    Standard Of Care Under The 1989 Salvage Convention

    Under the 1989 Salvage Convention, Article 13(1)(b) as well as Article 14, considers the salvor's actions to prevent or minimize damage to the environment. Article 8 uses the term "due care" in describing the reciprocal duties between the salvor and the owner/master of a vessel; Articles 14 and 18 use the terms "negligent" and "neglect" when describing the effect of salvor shortcomings which would reduce the special compensation or the salvor's payment (reward), respectively. The terms are not defined within the convention, nor do the diplomatic conference documents address the issue. Likewise, there was little discussion of the meaning of those terms during the legal committee's preparation of the draft convention.

    The legal committee's most significant discussion regarding the final Article 8 was its amendment to an article containing reciprocal duties between salvor and owner/master from an article with general duties originally contained in Articles 2-1 and 2-2 of the Comité Maritime International Draft Salvage Convention. The draft was used as the basis for the International Maritime Organization Legal Committee's deliberations.58 Admiral J. William Kime's testimony before the Senate Committee on Foreign Relations noted the private law nature of the convention, that it did not create a basis for legal liability for third party damages and repeated the term "due care" without further elaboration as to its meaning.59

    Articles 14 and 18 address the interrelationship between the salvor and owner/master of the salved vessel using negligence terms, but do not affect any rights which third parties may have against a salvor.60 When the convention enters into force, the standard may come into play should there be recourse actions between vessel owner and salvor.61 The standard of care toward the vessel owner is negligence.

    58  

    Note by the IMO Secretariat, Consideration of the Question of Salvage, in Particular Revision of the 1910 Convention on Salvage and Assistance at Sea, and Related Issues, Legal Committee-52nd Session, (LEG 52/4) of 3 July 1984. The change in content and format was proposed by United Kingdom at the 56th Session of the Legal Committee in 1986. The change was made to emphasize the largely private law nature of the convention; leaving MARPOL and other public law convention provisions to set public law duties. In fact, informal notes of Diplomatic Conference deliberations show that the major action by nations on this Article 8 issue was an unsuccessful attempt to broaden the private law duties into public law obligations.

    59  

    Statement of the Coast Guard Commandant, Admiral J. William Kime, on the International Convention on Salvage, 1989, and the International Convention on Oil Pollution Preparedness, Response and Cooperation, 1990, before the Senate Committee on Foreign Relations, October 2, 1991, p. 18 and 23. See also, The International Convention on Salvage 1989-How It Came To Be, International and Comparative Law Quarterly, July 1990, Vol. 39, 530, 550 and 552, Michael Kerr.

    60  

    CMI's explanation of the predecessor of Article 13(5), (Article 3-7, CMI Draft) was that it was "based on the principle expressed in the 1910 Convention, Art.8, paragraph 3." LEG 52/4, Annex 2, p.32. Art. 8, paragraph 3 of the 1910 Salvage Convention used the expression "by their fault." The CMI explanation also noted that a special and more far-reaching rule concerning "salvor's negligence" with relation to damage to the environment is contained in Article 3-3.5, CMI Draft. 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, environmentally-conscious action may result, thereby benefitting, but, giving no rights of recovery, based on negligence, to third parties.

    61  

    The outcome is not clear since the U.S. as a party to the 1910 Convention has implicitly interpreted "fault" to mean "gross negligence/misconduct." Given the CMI explanation, the paucity of discussion during the Legal Committee's deliberations and the lack of explanatory record of the 1989 Salvage Diplomatic Conference, it is arguable that the convention should make no change in the salvor's standard of care for nondistinguishable injuries under current law, i.e., gross negligence/misconduct.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×
    Standard Of Care Under Lof 90

    The 1989 Salvage Convention itself may not have a significant near-term impact, especially since it is not yet in force.62 Rather, a more significant but related impact will be Lloyd's Open Form 1990 (LOF 90) since the inclusion of several key convention articles, most notably, special compensation, will give current salvors a significant extra incentive to work under a LOF 90 contract.63

    In determining liability to a vessel salved under LOF 90, the House of Lords applied the English rule of negligence. The duty of care is "that care which the circumstances demand and, where he holds himself out as carrying on a business or profession of undertaking services of that kind, using such skill that a person carrying on such business may reasonably be expected to possess."64 Lord Diplock rejected a standard which would be more favorable to a salvor than those providing services on land. He held that negligence can not only be the basis for diminishing an award, but also the basis for affirmative damages by the salved vessel against the salvor.65 It is not clear whether a third party can recover damages on a contractual theory against a negligent salvor working under LOF 90 contract. 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 will be gross negligence/willful misconduct.

    Summary Of Duty Of Care

    The duty of care of a salvor will thus depend on the governing law, the type of injury, whether distinguishable or nondistinguishable, and the identity of the claimant. The U.S. precedent of no recovery for nondistinguishable injuries by either the salved vessel or third parties absent gross negligence or willful misconduct is fully consistent with the rationale underlying the grant of qualified immunity in OPA 90 and should be maintained. Damages caused by a decision to jettison to salve the ship and cargo are nondistinguishable injuries subject to that standard. While the standard of care for an injury caused by a salvor's worsening a victim's condition or for a nondistinguishable injury may be negligence, OPA 90 responder immunity, and any applicable similar state provisions may change that negligence standard into a "gross negligence/willful misconduct" standard.

    62  

    But see the recently decided Trico Marine Operators, Inc. v. Dow Chemical Co., Nos. 91-333, 91-2796, 1992 W.L. 394141 at *3-4 (E.D. La. Dec. 2, 1992), where the court denied liability salvage (recovery for averted salvage considered by Allseas Maritime S.A. v. M/V Mimosa, 812 F.2d 243, 245-46, (5th Cir 1987)), and, though recognizing that the 1989 Salvage Convention is not in force, nevertheless, found it represents an important statement of law by the world's maritime nations and was signed by the President and ratified by the Senate. The court then added the skill and efforts in preventing or minimizing damage to the environment factor (from Article 13, 1989 Salvage Convention) to the list of criteria applied by The Blackwall, 77 U.S. (10 Wall.) 1 (1869) in determining the salvage award.

    63  

    LOF 90 requires the salvor to use "best endeavors" to salve the vessel and, while doing so, to prevent or minimize damage to the environment, clause 1(a). Clause 2 incorporates the following articles from the 1989 Salvage Convention: Article 1 (Definitions), 8 (Duties of Salvor and of the Owner and Master), most of Article 13 (Criteria for fixing the reward), and Article 14 (Special Compensation). By clause 1(g), English law, including English law of salvage, governs the agreement and arbitration.

    64  

    The Tojo Maru, 1 Lloyd's Rep. 341, 364 (1971).

    65  

    Id. at 364 and 366.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    Whether the reciprocal standards of care in the salvage convention will change the current U.S. standards of care as affected by OPA 90 responder immunity is difficult to gauge. Even though LOF 90 incorporates reciprocal duty clauses from the 1989 Salvage Convention, and English law applies a negligence standard to damage to the salved vessel, it is unclear whether the same standard will apply to third party damages against the LOF 90 salvor.

    CONCLUSION

    Dean and Crick set forth a view of the liability consequences to the salvor of jettisoning oil in both the EEZ and territorial waters without focusing on the President's mandatory responsibility and authority to direct all federal, state, and private efforts, including vessel destruction and jettison of oil to mitigate or prevent the threat of a substantial discharge of oil have described the responsibility and authority for, as well as the no-liability consequences to, the government and salvor of a directed destruction/jettison action. Although obtaining direction or "permission" (see page 80) may be difficult, given Congress' explicit instruction, this option should be seriously considered. Accordingly, advance preparations in contingency plans and other planning directives are necessary to ensure expeditious decision making in emergency circumstances. Governmental paralysis can cause far more serious consequences than a wise jettison decision. Recommendations have been provided.

    Regarding a salvor's standard of care, LOF 90 and the 1989 Salvage Convention, use or incorporate "negligence" terms in several articles. Under those regimes, because that standard is likely applicable only between salvor and distressed vessel owner, third parties will 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 oil to refloat a vessel and to minimize or prevent a substantial discharge is more likely gross negligence, willful misconduct or wanton or reckless conduct. That standard also applies to the government as salvor. Nevertheless, because of the increased concentration on environmental considerations, both domestically and internationally, all parties can be expected to exercise increased awareness of the impact of their actions on the environment. Legislative history makes it clear that Congress expects the Coast Guard to act promptly and effectively.

    Frederick Burgess is Of Counsel in the Washington, D.C. office of Leboeuf, Lamb, Leiby and MacRae, specializing in maritime and environmental law. Mr. Burgess (CAPT, USCG Ret.) the former Chief of the Maritime and International Law Division in the USCG's Office of Chief Counsel, represented the United States at the International Maritime Organization Legal Committee during consideration of the Salvage Convention and was Alternate U.S. Representative during the 1989 Salvage Conference.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    NEW LAWS GOVERNING THE JETTISONINGOF OIL

    Robert H. Nicholas, Jr.

    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 58-97).

    THE LAW OF SALVAGE-A NEED FOR CHANGE

    The policy behind the existing law of salvage as practiced in U.S. courts and in other parts of the world is derived from the principle that the law should encourage those who come upon property in peril upon the sea to attempt to rescue and save such property. In the event a would-be volunteer salvor or even a contract salvor is successful in rescuing property from marine peril, they are entitled under the law to an award. The amount of financial remuneration is based on criteria that will be enumerated later in this paper. The maximum salvage award has traditionally been limited to the value of the property salved.

    When successful services in the nature of salvage are rendered, a maritime lien arises by operation of law that creates special rights in the salvor. The salvor is said to have a lien in the property and is entitled to keep possession of the property until such time as the owner provides adequate security to satisfy the salvor's potential claim.1 The fact that a salvor surrenders the salved property to the owner without first obtaining security does not in any way remove the salvage lien. The lien will remain with the property until such time as the property is either destroyed or the lien is foreclosed through an action in rem. The lien can also be lost by the failure of the salvor under U.S. law to bring an action against the property within the required statutory prescriptive period of two years (46 U.S.C. § 730).

    If the salved property is lost or removed from the possession and control of the salvor without the salvor having first obtained security, the salvor under certain circumstances can proceed against the owner of the property (in personam).2 However, once the property salved is lost, there is no (res) property upon which the salvor can foreclose its maritime lien and reduce it to judgment. In the case of a vessel owned outside the United States, the only legal proceeding that may be available to a salvor is an action in rem against the salved property.

    Absent the element of success or partial success, under existing U.S. law a salvor is not entitled to an award. The salvor's traditional rights arise only out of the

    1  

    3A Benedict on Admiralty, The Law of Salvage (6th Ed., 1992), § 143 at 10-8 and 10-9; § 145 at 10-10 and 10-11; § 151 at 11-3 to 11-5.

    2  

    Id. § 143 at 10-8.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    maritime lien it acquires once it has been successful in rescuing property from marine peril. Even in cases where a salvor's success has benefitted the property of others not directly involved in the salvage operations, this fact has to date carried little or no weight with the U.S. courts in assessing a salvage award. Instead, the courts have continued to base their awards upon such traditional criteria as the degree of danger; the value of the property saved; the risk incurred by the salvors; the promptitude, skill, and energy displayed; the value of the property of the salvor; and the time and labor expended by the salvor.3

    Given the current state of the law in the United States, if the focus of the salvor's efforts is to be redirected so that a salvor's primary concern becomes pollution prevention and mitigation as expressed by Dean and Crick, there must be a corresponding change in the law of marine salvage that will allow adequate compensation to salvors who assume such risks. The recent U.S. ratification of the 1989 Salvage Convention appears to be a step in the right direction.4 However, in order to put in perspective the potential impact the ratification of the convention may have on the practice of the law of salvage in the United States, it may be useful to briefly examine the development of this document at the international level. The drafting of the convention took into consideration a number of important factors that impact not only the international salvage industry but also marine underwriting and the marine industry in general.

    In 1980, the Lloyds Open Form of Salvage Agreement (No Cure No Pay) (LOF 80) was amended to provide additional compensation to a contract salvor under certain circumstances involving a laden or partially laden tanker. In particular, the so-called "safety net" provision permitted the salvor to recover from the owner of the tanker, in the event it was successful in preventing or mitigating pollution, its reasonably incurred expenses and an increment not to exceed 15 percent of such expenses in cases in which the salvor's primary efforts were either unsuccessful or only partially successful in salvaging the vessel. This limited concept of "liability salvage" has been incorporated in a modified form into the International Convention on Salvage 1989 (Article 14), which has been submitted for ratification. Under Article 14, "special compensation," a salvor in a salvage operation involving any type of vessel is entitled to recover compensation from the vessel owner in the event its primary efforts at saving the vessel are unsuccessful or only partially successful.5

    3  

    Id. § 237; Ingredients Comprising the Salvage Award at 20-3.

    4  

    The United States Senate gave its advise and consent to the ratification of the 1989 Salvage Convention on October 29, 1991, (Congressional Record—Senate; October 29, 1991, at 15398 and 15399). The instrument of ratification was deposited March 6, 1992. The convention will not come into effect until one year after it has been ratified by fifteen countries (Article 29).

    5  

    If in connection with a salvor's efforts to prevent or mitigate pollution, the salvor removes cargo or fuel from the vessel, the salvor is entitled to an award for the property salved. Specifically, Article 14 permits a salvor to receive "special compensation" when its salvage efforts have met the following conditions:

    (1) If the salvor has carried out salvage operations in respect of a vessel which by itself or its cargo threatened damage to the environment and has failed to earn a reward under article 13 at least equivalent to the special compensation assessable in accordance with this article, he shall be entitled to special compensation from the owner of that vessel equivalent to his expenses as herein defined.

    (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 I may be increased up to a maximum of 30% of the expenses incurred by the salvor. However, the tribunal, if it deems it fair and just to do so and bearing in mind the relevant criteria set out in article 13,

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    The international efforts previously referred to were specifically directed at revising the 1910 Salvage Convention,6 which does not recognize any form of liability salvage. Meeting in Montreal in 1981, the delegates began consideration of a number of issues dealing with the subject of marine salvage. Included in their discussions were the concept of liability salvage and its impact on the protection of the marine environment. This concept—which was already part of the LOF 80 through the so-called safety net provisions previously discussed—was one of the main topics under consideration. However, the delegates were divided into two groups over the issue of liability salvage. One group was interested in providing for unlimited liability salvage remuneration while the other preferred the limited concept of special compensation similar to that provided for in the LOF 80. In an effort to bring the two factions together it was suggested to the delegates that they give careful consideration to a number of issues before proposing any major changes to the international law of salvage. In a document identified as a Preliminary Report to the International Sub-Committee the following was suggested to the delegates:

    1. when revising the law of salvage one should probably distinguish between cases where only the ship and her cargo are at risk and cases where, by the marine accident, there is created a risk of damage to third party interests. The need for revision is particularly clear with respect to the latter cases. However, the need for a coherent legal framework for salvage must also be kept in mind; (emphasis added)

    2. the concept of salvage should be extended so as to take account of the fact that damage to third party interests has been prevented. Since the ship, which created the danger, will have a duty to take preventive measures in order to avoid such damage, this will mean that the salvage should refer not only to ship and cargo, but also to the ship's interest in avoiding third party liabilities (liability salvage).7

    These suggestions were partially accepted in the sense that the resulting draft convention represents a compromise between the two factions over the issue of liability salvage. The resulting compromise recognizes the concept in a limited way by providing for special compensation8 to a salvor not unlike that contained in the LOF 80. What was rejected was a broader liability salvage regime, which would have provided for an award based upon the concept of liability salvage without restriction to

       

    paragraph 1, may increase such special compensation further, but in no event shall the total increase be more than 100% of the expenses incurred by the salvor.

    (3) Salvor's expenses for the purpose of paragraphs 1 and 2 means the out-of-pocket expenses reasonably incurred by the salvor in the salvage operation and a fair rate for equipment and personnel actually and reasonably used in the salvage operation, taking into consideration the criteria set out in article 13, paragraph 1(h), (i) and (j).

    (4) The total special compensation under this article shall be paid only if and to the extent that such compensation is greater than any reward recoverable by the salvor under article 13.

    (5) If the salvor has been negligent and has thereby failed to prevent or minimize damage to the environment, he may be deprived of the whole or part of any special compensation clue under this article.

    (6) Nothing in this article shall affect any right of recourse on the part of the owner of the vessel.*

    * 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.

    7  

    Vincenzini, E. 1992. International Salvage Law. Londont: Lloyds of London Press, Ltd. At 120.

    8  

    Article 14, International Salvage Convention 1989.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    the amount of remuneration in cases in which the salvor could demonstrate prevention of harm or mitigation of damage to the marine environment.9

    If the delegates had elected to adopt a much broader or unlimited award provision for so-called liability salvage, they would have substantially altered two basic principles upon which both voluntary and contract salvage have been based: first, success that embodies the concept of ''no cure-no pay," and, second, the longstanding role that the award not exceed the value of the property salved. Recognizing this potential problem, the delegates settled on a compromise position that appears to provide a salvor with the financial incentive to perform traditional salvage services aimed at rescuing property from marine peril, while at the same time providing for the payment of limited compensation for efforts directed at pollution prevention or mitigation when no award or only a partial award is payable for the salvor's primary service.

    This compromise position also reflects the impact of the role marine insurance plays in any salvage situation. Without some realistic limits to a potential award of special compensation, it is doubtful the marine underwriting industry would have been willing to accept the principle of recovery under liability salvage. 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."10

    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. As it may apply to voluntary salvors or contract salvors operating under salvage agreements other than the LOF 90, there is no guarantee that the concept will find acceptance by domestic courts in countries that do not ratify the 1989 convention. Even though the United States has recently ratified the convention, no salvage cases involving a claim for liability salvage have been litigated. Until now, no U.S. court has adopted the concept of liability salvage or special compensation, even though these issues have been raised.

    In Westar Marine Services v. Heerema Marine Contractors,11 the salvor claimed an enhanced award for saving the owner the expense of certain third-party liability claims. In rejecting the salvor's contention that it was entitled to a liability salvage award, the court analyzed the existing U.S. and international laws of salvage.12 The court first concluded that this concept was not part of the general maritime law of the United States, nor was it an acceptable principle under the 1910

    9  

    Vincenzini at 120-121.

    10  

    Rules of The Britannia Steam Ship Insurance Association Limited; Rule 19(12)(E)(1991) Salvors Special Compensation [hereinafter Britannia Club Rules]:

    Liability which a member may incur to pay special compensation to a salvor of an Entered Ship in respect of work done or measures taken to prevent or minimise damage to the environment under the provisions of Article 14 of the International Convention on Salvage 1989 or the terms of a standard form salvage agreement equivalent thereto approved by the Association.

    11  

    621 F. Supp 1135 (ND Cal 1985).

    12  

    Id. at P. 1140.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    Salvage Convention, which has been ratified by the United States. The court, in its discussion of the Montreal Draft International Convention on Salvage, which later became the 1989 Salvage Convention, also pointed out that the Draft Convention rejected, as previously mentioned, a broad unrestricted concept of liability salvage and instead accepted the more limited principle of special compensation as an award for prevention or mitigation of pollution.13

    A similar argument was made by the owners of a tug that was instrumental in salvaging a crewless, moving ship that had been involved in a blazing collision with a loaded tanker off the entrance to Bolivar Rhodes near Galveston, Texas, in November 1979.14 Following the collision between the M/V Mimosa and the tanker Burmah Agate, the Mimosa continued to circle in an area populated with offshore oil and gas production platforms.15 With no living crew aboard the vessel, it was an obvious hazard to navigation. 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 oil and gas production structures located in the area.17 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. However, the court rejected the salvor's claim on the basis that the owners of the Mimosa would have been entitled to limit their liability under the 1851 Shipowners Limitation of Liability Act (46 U.S.C. 181-189).18 Whether this language in the court's opinion amounts to acceptance of the concept of liability salvage by the Fifth Circuit remains to be seen. The issue has not been raised again in the Fifth Circuit since that decision.

    However, the issue was presented once again on the west coast in the case of Hendricks v. Tug Gordon Gill.19 In this instance a fishing vessel picked up a tug that had been adrift for some time. Because of the position in which the vessel was located, it was in danger of going ashore on an island in the Aleutian chain. The salvors contended they were entitled to an award for liability salvage for saving the vessel owner the cost of wreck removal and potential oil pollution cleanup costs for the spillage of oil from the tug's fuel tanks. In rejecting the salvors' contention, the District Court for Alaska held that:

    Such an award cannot be made, under the terms of the salvage treaty and the Convention for the Unification of Certain Rules of Law Relating to Assistance and Salvage at Sea, called the Brussels Convention of 1910. Citing Westar Marine Services v. Heerema Marine Contractors. 20

    13  

    Id. at PP. 1141 and 1142.

    14  

    Allseas Maritime S.A. v. M/V Mimosa, 812 F.2d 247 (5th Cir. 1987); 820 F.2d 130 (5th Cir. 1987).

    15  

    Id. at 245.

    16  

    Id. at 247-248.

    17  

    Id. at 247-248.

    18  

    For a more detailed discussion of the liability salvage issue in the Allseas decision, see Texas Tech Law Review, Vol. 19, No. 2, Symposium 1988 Fifth Circuit.

    19  

    737 F. Supp. 1099 (USDC Alaska 1989).

    20  

    Id. At 1104.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    In spite of the fact that the United States has ratified the 1989 Salvage Convention, it is still too early to determine what impact this action will have on U.S. courts in the event they are asked to decide a case involving the issue of liability salvage. The convention was ratified without the passage of enabling legislation addressing liability salvage and, according to Article 29, the convention will not come into force until one year after the date on which fifteen countries have expressed their consent to be bound.

    Whether a U.S. court in the interim will consider the concept of liability salvage as part of the general maritime law remains to be seen. Until this issue is clarified, a salvor who chooses to litigate its claim for salvage in a U.S. court may find its award limited to the traditional elements involved in fixing an award. At such time as the U.S. 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 borne 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. Most vessels that are currently trading in and out of U.S. ports are foreign flag and are owned by companies with little or no assets in the United States.

    SPECIFIC COMMENTS

    1. In connection with the discussion on page 66 (Dean and Crick) of potential vessel owner/salvor's liability for jettisoning of oil into the waters of the U.S. excusive economic zone (EEZ), a damaged party, private or governmental, state or federal, may as a practical matter have no recourse against an offending party (vessel) in the event either the damaged vessel or the salvor's vessel enters U.S. territorial waters where each may be subject to U.S. admiralty jurisdiction (in rem). Unless either party can be brought before a U.S. court, it may be difficult, if not impossible, to commence any type of legal proceedings. This would be true in the case of a vessel not bound for a U.S. port, not possessing a U.S. certificate of financial responsibility, and utilizing the salvage services of a foreign-operated salvage company.

    2.  Concerning the statement made at the top of page 67 that a salvor would not be a responsible party under OPA 90, this may not be the case where a salvor is the party in possession of the vessel after abandonment by the owner or demise charterer. Even though OPA 90 states that the persons who would have been responsible parties prior to abandonment are to remain such, if the salvor takes operational control of the vessel after abandonment or even in the case where the crew is aboard, the salvor may be considered as an "operator" and as such would be in the same liability position as the owner or demise charterer.

    21  

    Britannia Club Rules, Supra, Note 10. to U.S. Admiralty jurisdiction (in rem). Unless either party can be brought before a U.S. court, it may be difficult, if not impossible, to commence any type of legal proceedings. This would be true in the case of a vessel not bound for a U.S. port, not possessing a U.S. certificate of financial responsibility, and utilizing the salvage services of a foreign-operated salvage company.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×
    1. With respect to the discussion on pages 67 and 68 concerning a salvor's right to limit its liability under the 1851 Shipowners' Limitation of Liability Act, such may not be the case if the salvor's operation is not completely controlled by a particular salvage vessel or a salvor utilizes chartered equipment. For example, a salvage company operating under contract (LOF 90) may not own any of the vessels utilized to support its salvage activity. Under these circumstances, the salvage company, as the prime contractor, would not be entitled to invoke the rights accorded by the 1851 Act. However, each individually owned vessel may file a petition for limitation.

    2. Concerning actions that may be brought under state law, see page 68, salvage claims are subject to the admiralty and maritime jurisdiction of the federal judiciary. Any attempt by a state to alter or change the general maritime law as it relates to the law of salvage would be an unconstitutional exercise of state authority in spite of the non-preemption wording of OPA 90. Only Congress, or to a limited extent the federal courts, can alter or change the general maritime law. Additionally, Congress does not have the authority to legislatively delegate to the states the right to change or alter this exclusive body of federal law, Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 Sup. Ct. 438, (1920).

    3. The discussion on page 72 and also at the end of the paper on page 78 concerning the change in focus of the salvor should be read in connection with the reply in the first section of this paper ("The Law of Salvage").

    4. In response to the discussion of contribution actions against third parties on page 72, it should be noted that any action against an offending foreign-flag vessel that has discharged oil in U.S. territorial waters can only be initiated as an in rem action in the federal court within whose jurisdiction the vessel is located. In the event there are numerous pollution claims against the vessel by either private litigants or state, federal, and local governments, as well as a claim for salvage, the general maritime law will recognize the salvage claim as having priority over all other claims; in other words salvage claims are satisfied first. No state law can alter this designation of priority of claims. Any attempt to do so would be a clear violation of the admiralty jurisdiction clause of the U.S. Constitution. Only Congress can change the general maritime law as it relates to the priority of maritime liens. Any proposal by Congress to reconfigure the priority of maritime liens should carefully consider the impact any such change might have on the liberal award policy of the law of salvage. Any such alteration of the priority of salvage liens could substantially reduce the likelihood of a salvor being willing to engage in salvage services in U.S. waters.

    5.  In response to the indemnity discussion on page 77, professional salvors may, in connection with contract salvage services, require a vessel owner (particularly in the case of a laden tanker) to sign what has become known as the P&I Pollution Indemnity Clause (PIOPIC Clause). This clause has been approved by the International Group of P&I Clubs for execution by vessel owners requiring salvage services. However, it is limited in coverage up to the sum of $15 million and is subject to construction in accordance with English law. The wording of the clause is as follows:

    Notice to Shipowners

    The undersigned, members of the International Salvage Union have decided that in view of the claims which may be made against them as a result of pollution which may occur as a consequence of a casualty to a tanker and the salvage operations necessitated by such casualty; they will not be prepared to render salvage services to loaded or partly loaded tankers unless they are given the following indemnity (which shall be countersigned

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    by the P and I Club in which the relevant vessel has been entered) and which shall be known as PIOPIC:

    The Owners shall be responsible for and shall indemnify the Contractor, unless guilty of personal willful misconduct, in respect of all claims for oil pollution damage, including preventive measures, howsoever arising (including contractual liabilities to subcontractors) out of the services performed hereunder provided always that the Owners' total liability arising under this indemnity shall in no circumstances exceed: (AAA) US dollars fifteen million less the aggregate amount of all liabilities, costs, and expenses for or in respect of oil pollution damage, including preventive measures, (otherwise than under this indemnity or similar indemnities given to other persons performing salvage operations in connection with the vessel) incurred or to be incurred by the Owners arising out of or in connection with the casualty to the vessel or the consequence thereof or (BBB) US dollars ten million, whichever is the greater.

    Provided always that if the Owners' total liability arising under this and any other similar indemnities given or to be given to other persons performing salvage operations in connection with the vessel exceeds the amount of the applicable limit of liability referred to above such amount shall be distributed rateably among the Contractor and such other persons and the Owners' liability hereunder shall be reduced accordingly.

    This clause shall be construed in accordance with English law.

    Notwithstanding the foregoing they may require special or general contractual conditions, alternative indemnity arrangements in certain circumstances, or similar or other indemnity arrangements in cases of vessels other than loaded or partly loaded tankers.

    1.  State law considerations. Given the fact that any jettisoning of cargo in most cases will be considered a violation of federal law and, as such, could subject the salvor to basically the same liabilities as the responsible party, it may be purely an academic discussion as to whether a salvor would be liable under the laws of the various states. Because of the potential liability, under federal law, it would not be advisable to even consider the jettisoning of cargo or bunkers even though there might be some basis for doing so legally under the laws of certain states, as pointed out by the authors of the paper. In addition, since the state law is unclear on the subject, no attorney advising a would-be salvor could provide adequate assurance that the salvor 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. Eventually, this principle will be applied by the U.S. courts and will become part of the general maritime law of salvage.

    Concerning the issue of jettisoning, while it is clear that it is a concept recognized by the general maritime law, it is not a viable alternative to a salvor conducting salvage operations off the U.S. Coast. If jettisoning is considered to be a necessary alternative that should be available under certain circumstances, Congress will have to change the Clean Water Act as well as OPA 90. In addition, unless this change in the law preempts state laws—a very unlikely result—the laws of many of the states will also have to be changed in order to legally permit jettisoning as part of a salvage operation.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    Robert H. Nicholas Jr. 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. He is a former Assistant U.S. Attorney of the Eastern District of Texas. In addition to his current duties, Mr. Nicholas teaches admiralty law and marine insurance at Texas A&M University in Galveston.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    SALVAGINGA COHERENT APPROACHTO POLLUTION RESPONSE: NEW FEDERALAND STATE LAWS GOVERNINGTHE JETTISONOF CARGO

    V. Lee Okarma Rees

    If Congress meant what they said, they should have said so

    Anon.

    August 18, 1990, the 101st Congress enacted Public law 101-380, the Oil Pollution Act of 1990 (OPA 90). OPA 90 created a new oil pollution liability and compensation scheme and reaffirmed the direct role of state law in governing oil pollution. As with any new law, issues arise as a result of the practical application of the printed word. Congress seldom addresses every contingency and even when that body does appear to address certain issues, it isn't always clear that they meant what they said. Such appears to be the case with respect to OPA 90 and marine salvage.

    This paper comments on a legal review of international, national and state laws governing oil pollution, and the jettisoning of oil in the course of salvage operations by public or private salvors.1 Part I focuses on the relationship between federal and state oil pollution laws. Within a recognized framework for analyzing the issue of preemption of state law, we assess basic questions raised by legal review regarding potential conflicts with federal oil pollution laws. We also provide some insight as to the nexus of concurrent state versus federal maritime jurisdiction over salvage operations. Part II focuses on some of the other issues raised by the laws governing the jettisoning of cargo during salvage operations including the doctrine of liability salvage.

    PART I: THE RELATIONSHIP BETWEEN FEDERAL AND STATE OIL POLLUTION LAWS

    Question: Given the maritime nature of salvage operations, is a state preempted from imposing liability and other requirements on salvors jettisoning cargo?

    Answer: It appears states can impose liability on salvors for the jettisoning of cargo and are not preempted by federal law.

    Preemption, as the word is used here, means the federal government's supreme authority would leave no room for state regulation.2 Laws enacted by

    1  

    This legal review [Dean and Crick, pages 58-97] was commissioned by the Marine Board of the National Research Council on behalf of the United States Navy and was conducted by the law firm of Dyer, Ellis, Joseph & Mills, Washington, D.C.

    2  

    Article VI of the United States Constitution, the "Supremacy Clause," provides: "This constitution and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made under the authority of the United States shall be the supreme law of the land ..."

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    Congress pursuant to a constitutionally delegated power would take precedence over inconsistent state laws. The U.S. Supreme Court has declared there is no constitutional or statutory impediment to permitting states to establish any "requirement or liability" concerning the impact of oil spillages on state interests or concerns.3 This general rule does not mean state law cannot be preempted.4 Although courts generally have found no preemption as to states regulating oil pollution,5 states do not have absolute power to so regulate, particularly if there is a conflict with an overlapping federal liability scheme.

    Even though OPA 90 expressly disclaims preemption, an express disclaimer of preemption is not conclusive. Courts may still find preemption if an actual conflict with federal law exists. The preemption issue becomes more complicated if maritime law is involved. The general rule on preemption in maritime cases may be summarized as follows:

    States may supplement federal admiralty law as applied to matters of local concern, so long as state law does not actually conflict with federal law or interfere with the uniform working of the maritime legal system.6 "A state may modify or supplement maritime law ... 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 salvors who jettison cargo within or without state waters, valid? For the reasons set out below the answer appears to be yes.

    First, Congress, by way of its non-preemption language, clearly envisioned a state oil spill scheme in addition to that provided by OPA 90.8

    Second, a jettisoning of cargo to save the vessel and minimize risk to the environment in a salvage situation is a "removal" action, as defined by federal law.9 Both the plain language and the legislative history of OPA 90 support a concurrent system of state regulation regarding oil pollution and removal activities.10 Since Congress preserved explicitly a state's authority to impose liability on persons

    3  

    Askew v. American Waterways Operators, 411 U.S. 325,___, 36 L.Ed.2d 280, 284, 93 S.Ct. 1590,___(1973). There, Florida imposed strict liability for any damage incurred by the state or private persons as a result of an oil spill in the state's territorial waters from any waterfront facility used for drilling for oil or handling the transfer or storage of oil ("terminal facility") and from any ship destined for or leaving such facility.

    4  

    This same court subsequently preempted a state law designed to regulate equipment and movements of oil tankers entering Washington State. Ray v. Atlantic Richfield Company, 435 U.S. 151, 98 S.Ct. 988, 55 L.Ed2d 179 (1978).

    5  

    Chevron U.S.A. v. Hammond, 726 F.2d 483, 487-488 (9th Cir. 1984) cert. denied 471 U.S. 1140 (1988). (No preemption of Alaska statute enacted to regulate tanker discharges of oil ballast into state waters—court distinguishes state regulation of oil pollution versus tanker design).

    6  

    Pacific Merchant Shipping Association v. Aubry, 918 F.2d 1409, 1422 (9th Cir. 1990).

    7  

    Slaven v. BP America, Inc., 786 F. Supp 853,862 (C.D. Cal 1992) (citing Askew, 93 S.Ct. at 1598 and quoting Just v. Chambers, 312 U.S. 383, 668, 61 S.Ct. 687, 692, 85 L.Ed. 903 (1941).)

    8  

    See OPA 90 references to state law set out in Addendum A.

    9  

    "Remove" or "removal," as defined in the federal Clean Water Act refers not only to containment and removal of oil, but also to other actions necessary to minimize or mitigate damage to public health or welfare, including, but not limited to, fish, shellfish, wildlife, and public and private property shorelines and beaches. 33 U.S.C. 1321(a)(8)

    10  

    See Addendum B.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    involved in the removal of oil, it follows that a state can impose liability on a salvor who jettisons cargo in state waters.

    Third, state laws do not actually conflict with federal laws as to the jettisoning of cargo. Neither the Federal Water Pollution Control Act, nor UPA 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. For example, certain state laws may impose liability on non-sole-cause third parties, such as salvors who jettison cargo and pollute state waters.11 These state laws would not necessarily be construed to be in conflict with federal law. While it may be true that a state could not impose liability on a partially responsible salvor under the Federal Water Pollution Control Act, it does not follow that a state is preempted from imposing such liability on this partially responsible, non-sole-cause discharger/salvor under state law. The Bear Marine case referred to in the council's legal review merely provides that a partially responsible party has no liability under the Federal Water Pollution Control Act. However, the act only provides a cause of action to the federal government, not to state governments.12 A prohibition on a cause of action arising under the act would only apply to those parties who can bring a cause of action under that statute. Thus, the Bear Marine ruling may not be applicable to causes of action under state law. UPA, which amended the Federal Water Pollution Control Act, provides that states are not precluded from imposing liabilities for removal actions under state law. Congress clearly expressed its intent to preserve explicitly state authority regarding the imposition of liability to persons involved in the removal of oil.13 Thus, a state should still have authority to impose direct liability on responsible salvors, even if they are not the sole cause of the discharge, if their state laws so provide. There should be no conflict with federal law in this regard.

    In order to have preemption, there must be actual conflicts between the federal and state statutory scheme. In coincident federal and state regulation, the court will not seek out conflicts between state and federal regulation where none clearly exist.14

    Question: Are there limits on a state's ability to impose liability and other requirements on salvors under state law?

    Answer: Yes, there appear to be limits on a state's authority to Impose liability and other requirements on salvors as the following scenarios suggest.

    First, there could be a conflict if a state attempted to exercise jurisdiction over and impose liability on a salvor for the jettisoning of cargo outside state waters. The majority rule appears to be that a state has authority to control pollution up to three miles of shore.15 President Reagan's proclamation extending the seaward boundary of the territorial sea of the United States to twelve miles from the coast line does not

    11  

    Some states impose liability on the owner of the oil and the ship operator. Other states impose liability on not only these parties, but also on persons "exercising control over the oil" or persons "accepting responsibility for the vessel." Salvors would likely fall within the scope of this third party liability, which is generally strict, joint, and several. See sample state laws in Dean and Crick, Addendum A.

    12  

    Complaint of Ballard Shipping Co., 772 F. Supp 721, 723-724(D.R.I. 1991).

    13  

    H. R. Conf. Rep. No. 653, 101st Cong., 2d Seas. 146.

    14  

    Beveridge v. Lewis, 939 F.2d 859, 863 (9th Cir. 1991).

    15  

    Beveridge v. Lewis, 939 F.2d 859, 864 (9th Cir. 1991) We have stated that there is congressional intent that there be joint federal-state regulation of ocean waters within three miles of shore.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    appear to have specific language that would extend state jurisdiction beyond the three-mile limit.16

    Does that mean if discharged oil drifts into state waters and harms state resources or property within the state, the state may not impose liability on the salvor who jettisoned the oil outside of state waters? There is no clear answer to this question. From a state's perspective, federal law would not interdict an exercise of state jurisdiction. The Federal Water Pollution Control Act allows states to impose liability with respect to oil pollution or removal activities.17 OPA 90 allows a response to a ''threat of discharge."18 Congress stated that nothing should in any way affect the authority of a state to impose additional liability or other requirements with respect to oil pollution or a discharge of oil.19

    Courts have repeatedly acknowledged a state's strong interest in preventing oil pollution off its coast, noting that state and federal regulation of oil tankers are compatible and there is "no dominant national interest in uniformity in the area of coastal environmental regulation."20 States may thus have a persuasive case that Congress did not intend to restrict a state from imposing liability for discharges outside state waters that threaten or impact state waters or resources. Nonetheless, if a state were to attempt to exercise jurisdiction outside of a generally accepted three-mile state boundary without a clear grant of statutory authority, a conflict with federal jurisdiction may arise. A corollary scenario might occur where a federal on-scene coordinator (OSC), acting pursuant to federal removal authority under the Federal Water Pollution Control Act, authorized a jettisoning of cargo that subsequently impacted state resources.21 Some states' statutes have language that appears to "authorize" a discharge if such an action is taken at the direction of the federal on-scene coordinator. If states were to impose additional requirements or liability on a federally authorized discharge, then a court could conclude that a conflict exists between a federal and state exercise of jurisdiction.

    Second, even though OPA 90 appears to allow states to impose liability in addition to that imposed under federal law, a court could find that the limits of liability under federal law conflicts with the unlimited liability imposed under most state pollution laws.22 One court opined that Congress does not have authority to allow states to impose greater liability than that afforded under federal law.23

    16  

    Although it appears that the territorial seaward boundary could be altered by presidential fiat, it probably would not impact any congressionally limited definition of the Territorial Sea as is the case in the FWPCA, see 33 U.S.C. 1362(8).

    17  

    33 U.S.C. 1321(o)(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. 1002 (a), 33 U.S.C. 2702 (a)

    19  

    H.R. Conf. Rep. No. 653, 101st Cong. 2nd Sess. 121 (1990).

    20  

    Pacific Merchant Shipping Ass'n. v. Aubry, 918 F.2d 1409, 1426 (9th cir. 1990).

    21  

    Section 311(c) of the FWPCA, 33 U.S.C.1321(c), as amended by sec. 4201 OPA 90.

    22  

    One court has held an Alaska Act invalid insofar as these limits exceed the $100 million limits of liability under the federal Trans-Alaska Pipeline Authorization Act. In Re Exxon Valdez, 767 F. Supp 1509, 1516 (D. Alaska 1991). (Alaska Act technically not preempted by TAPPA to the extent of TAPPA's $100 million liability because the remedy is uniform whether a claim is brought under either the Alaska Act or TAPAA.

    23  

    Id.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    Third, state laws imposing liability for the jettisoning of cargo cannot interfere with the uniform working of the maritime legal system. Traditional maritime activities such as salvage are governed under the maritime jurisdiction of federal admiralty courts.24 Congress made clear its intent, in passing OPA 90, not to change admiralty or maritime laws and to promote uniformity regarding these laws.25 Uniformity in admiralty law must be considered in determining the validity of state regulation of maritime activities and the question must be asked whether the state statute ''unduly disrupts" harmony in the federal admiralty system, so as to render unconstitutional the state's actions.26 In analyzing this issue, a court may consider whether maritime law in this area is developed or does not require a uniform rule on the issue and how the significance of the local state interest compares to the maritime interest at stake.27

    The Supreme Court and circuit courts have recognized states' significant interest in environmental regulation.28 Salvor's also have a "duty" to prevent or mitigate pollution damage. Nonetheless, enforcement of state oil pollution laws against salvors may impact the characteristic features of continued ownership of the distressed vessel, an incentive for rescue, and the availability of a salvage award. Arguably, imposition of civil and criminal liability and the threat of a contribution action from the shipowner are a disincentive to rescue the vessel. 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 salvors jettisoning cargo under state law?

    Answer: Yes, but there may be conditions precedent to obtaining limited immunity.

    Responder Immunity. Most states have some form of limited immunity for response contractors (see state law analysis). However many states require some sort of pre-registration with or "certification" by the state as a condition precedent to securing response contractor immunity.30

    Good Samaritan Immunity. Most states also have "good samaritan immunity" regarding volunteer response. However, these laws may not apply to limit liability for salvage operations. Most good samaritan laws require a request for

    24  

    See Addendum C.

    25  

    See Addendum D.

    26  

    Pacific Merchant Shipping Ass'n. v Aubry, 918 F.2d 1409, 1424 (9th Cir. 1990).

    27  

    Slaven v. BP America, Inc., 786 F. Supp 853, 863 (C.D. Cal 1992) (citations omitted).

    28  

    Askew v. American Waterways Operators, Inc., 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973) and Chevron U.S.A. v. Hammond, 726 F.2d 483, 488 (9th Cir. 1984).

    29  

    See Jupiter Wreck, Inc. v. Unidentified Sailing Vessel, 691 F. Supp. 1377,1393 (S.D. Fla 1988) (We have found that the state statutes are not pre-empted by salvage law. Specifically, the characteristic features of continued ownership of the distressed vessel, an incentive for rescue, and the availability of a salvage award remain intact.) The court also notes that admiralty's jurisdiction is "exclusive" only as to those maritime causes of action begun and carried on as proceedings in rem ... The jurisdictional act does leave state courts competent to adjudicate maritime causes of action in proceedings in personam ... Id at 1392. (Citing Madruga v. Superior Court, 346 U.S. 556,560-61.74 SCt 298, [?] (Ed 290)(1954))

    30  

    Under Washington State law for example, there is a requirement to pre-register all primary contractors with the state before limited immunity would apply. RCW 90.56.390. Most states responder immunity provisions are conditional and require state approval or a listing in the shipowner's contingency plan.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    services first be made by an incident command agency and require the responder not "profit" from assisting in the response.31

    Sovereign Immunity. The decision of the U.S. Coast Guard or the U.S. Navy to undertake salvage is a discretionary one, which is why sovereign immunity initially applies. 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.

    Nonetheless, there is an argument that the sovereign immunity of the U.S. government is waived for purposes of a state law action. First, the Federal Water Pollution Control Act has a waiver of sovereign immunity for federal facilities. This provision requires each department, agency, or instrumentality of the executive, legislative, and judicial branches of the federal government engaged in any activity resulting, or which may result, in the discharge of pollutants to comply with all state requirements, administrative authority, process, and sanctions in the same manner as any nongovernmental entity, notwithstanding any immunity of such agencies under any law or rule of law.33

    Second, federal agencies are under a directive to comply with environmental laws.34 A court might consider these factors in analyzing whether the United States had waived its sovereign immunity, although the general rule mandates an unequivocal waiver as to imposition of liability under state laws.

    PART II: LIABILITY AND CONSISTENCY UNDER SALVAGE AND POLLUTION LAWS

    Part II focuses on other issues raised by [Dean's and Crick's] review of international salvage, national, and state pollution laws.

    Liability Salvage

    The term "liability salvage" appears to embrace two separate concepts:

    1. Risk of liability to the salvor

    2.  Liability avoided to the shipowner or third parties by the salvor's actions. Both concepts are explored below.

    Risk Of Liability To The Salvor

    It appears a salvor may face increased risk of liability for jettisoning of cargo during salvage operations. In certain circumstances there may be some relief for the salvor's increased risk. Article 8 of the Convention for the Unification of Certain

    31  

    For example, See RCW 70.136.010

    32  

    29 Hood v. U.S., 695 F. Supp 237, 242 (E.D. La 1988)

    33  

    33 U.S.C. 1323(a). This waiver applies to federal facilities. However, the language may be broad enough to apply to vessels.

    34  

    43 Fed. Reg 47707 (1978) Executive Order signed by President Carter October 1979 refers to all of the environmental acts, including the FWPCA. (Each Executive agency is responsible for compliance with applicable pollution control standards.., which means the same substantive, procedural and other requirements that would apply to a private person.)

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    Rules of Law Relating to Assistance and Salvage at Sea (1910) allowed consideration of the "risks of liability and other risks run by the salvors." Article 13(g) of the 1989 International Convention on Salvage provides among its criteria for fixing the salvor's reward, "the risk of liability and other risks run by the salvors or their equipment."

    A salvor may be liable for damage inflicted by property in their care.35 Although the likelihood of being named in a lawsuit from third parties may be too tenuous,36 the threat of arrest may be considered as an element of the risk to salvors in calculating the salvage award.37 Thus, it is arguable that at least a portion of a salvor's increased risk of liability could be recovered by an increased monetary award to the salvor. This may not provide much solace to a salvor who still may face a potential contribution action from the shipowner.

    Liability Avoided

    If a salvor in jettisoning cargo thereby prevents an even greater oil spill, then that salvor arguably should be entitled to all or a portion of the potential liability avoided by the shipowner. Some courts have declined to consider the prevention of liability to third parties, the public interest or "benefits to the shipowner" as part of the salvor's award.38 Under the 1910 Salvage Convention, a private or public salvor was apparently precluded from asserting an avoidance of environmental damage as part of a salvor's claim.39 Given the new emphasis on avoidance of environmental damage in the 1989 convention, it is possible a court could acknowledge liability salvage as a legitimate part of a salvage award, whether to a private or public salvor. Environmental liability avoided by virtue of a public salvor's actions would seem to be a powerful "bargaining chip" to offset claims for damages in any negligence action instituted against the U.S. Navy or U.S. Coast Guard.

    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. Responsible parties or other persons attempting to perform such operations are forewarned that their actions could aggravate, rather than relieve, the situation.

    This language indicates public salvors must seek advice from the Department of Defense, strike teams, and commercial salvors before engaging in any salvage operations. Private salvors would appear to act at their peril if they do not continuously seek advice from the federal on-scene coordinator, particularly as to the jettisoning of cargo.

    35  

    3A M. Norris, Benedict on Admiralty, Sec. 120.

    36  

    Westar Marine Serv. v. Heerema Marine Contractors, 621 F. Supp. 1135, 1145 (D.C. Cal 1985).

    37  

    Cobb Coin Co. v. Unidentified, Wrecked & Abandoned Sailing Vessel, 549 F. Supp 540, 559 (S.D. Fla 1982).

    38  

    Westar Marine Serv. v. Heerema Marine Contractors, 621 F. Supp. 1135, 1144 (D.C. Cal 1985).

    39  

    Hendricks v. Tug Gordon Gill, 737 F. Supp 1099, 1104 (D. Alaska 1989).

    40  

    See 40 cfr 300.145(e), Special teams and other assistance available to OSCs/RPMs.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    CONCLUSION

    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 a greater discharge of oil and greater harm to the environment. While there are still questions as to the extent of state authority, it appears states have "concurrent" jurisdiction with the federal government and can impose direct and possible unlimited liability on salvors who jettison cargo and impact state waters.

    One should not lose sight of the public policy implications of such a liability scheme. States should proceed with caution if, in imposing such liability, their actions unduly impact the characteristic features of salvage. If state liability schemes were construed to alter the salvors' incentive for rescue, impact the salvage award, or unduly interfere with traditional maritime activities, then states could face a preemption challenge. Hopefully, in lieu of a legal challenge, states, the federal government, and public and private salvors will work together to facilitate a clarification in the laws to resolve this issue.

    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. 2718)

    (a) Preservation of State Authorities; Solid Waste Disposal Act.

    Nothing in this Act or the Act of March 3, 1851 shall

    (1) affect, or be construed or interpreted as preempting, the authority of any State or political subdivision thereof from imposing any additional liability or requirements with respect to—

    (A) the discharge of oil or other pollution by oil within such State; or

    (B) any removal activities in connection with such a discharge; or

    (2) affect, or be construed or interpreted to affect or modify in any way the obligations or liabilities of any person under the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.) or State law, including common law.

    (b) Preservation of State funds

    Nothing in this chapter or in section 9509 of Title 26 shall in any way affect, or be construed to affect, the authority of any State—

    (1) to establish, or to continue in effect, a fund any purpose of which is to pay for costs or damages arising out of, or directly resulting from, oil pollution or the substantial threat of oil pollution; or

    (2) to require any person to contribute to such a fund.

    c. Additional requirements and liabilities; penalties

    Nothing in this chapter, the Act of March 3, 1851 (46 U.S.C. 183 et seq.), or section 9509 of Title 26 shall in any way affect, or be construed to affect, the authority of the United States or any State or political subdivision thereof—

    (1) to impose additional liability or additional requirements; or

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    2 to impose, or to determine the amount of, any fine or penalty (whether criminal or civil in nature) for any violation of law; relating to the discharge, or substantial threat of a discharge, of oil.

    * Title IV, Prevention and Removal, Subtitle B-Removal, Section 4202 National Planning and Response System, 33 U.S.C. 1321

    (c) State Law Not Preempted—Section 311(o)(2) of the Federal Water Pollution Control Act (33 U.S.C.1321(o)(2) is amended by inserting before the period the following: "or with respect to any removal activities related to such discharge."

    ADDENDUM B

    OPA 90 amended the Federal Clean Water Act to reflect that a state is not preempted with respect to any removal activities related to discharges of oil. See 33 U.S.C. 1321(o)(2).

    See H. R. Conf. rep. No. 653, 101st Cong., 2nd Sess. 121 (1990) regarding Section 1018 of OPA regarding its relationship to other law. "Nothing in the substitute, or the Act of March 3, 1851 (the Limitation of Liability Act), shall affect in any way the authority of a state or local government to impose additional liability or other requirements with respect to oil pollution or to the discharge of oil within that State or with respect to any removal activities in connection with such a discharge..."

    See also H.R. Conf. Rep. No. 653, 101st Cong., 2d Sess. 146 (1990) (Finally, the conference substitute amends section 311(o) of the FWPCA to preserve explicitly the authority of any state to impose its own requirement or standards with respect to the liability of persons involved in the removal of oil.

    ADDENDUM C

    When a wrong occurs on navigable waters and bears a significant relationship to a traditional maritime activity (operating a vessel and engaging in maritime commerce) then cases arising out of such activities fall within maritime jurisdiction of the courts. Slaven v. BP American, Inc., 786 F. Supp 853, 856 (C.D. Cal 1992). Article III, section 2, clause I of the Constitution contains a specific jurisdictional grant to the federal courts to "all cases of admiralty and maritime jurisdiction." The implementing legislation of that grant, 28 U.S.C. section 1333 provides: The district courts shall have original jurisdiction, exclusive of the courts of the States, of:

    1. Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.

    2.  Any prize brought into the United States and all proceedings for the condemnation of property taken as a prize.

    See Jupiter Wreck, Inc. v. Unidentified Sailing Vessel, 691 F. Supp 1377, 1391 (S.D. Fla 1988).

    ADDENDUM D

    The legislative history of the "Savings Clause" of OPA 90 reflects that, "It is not the intent of the Conferees to change the jurisdiction in incidents that are within the admiralty and maritime laws of the United States. The Conferees-wish to promote uniformity regarding these laws. H.R. Conf. Rep. No. 653, 101st Cong., 2d Sess. 159 (1990). The Conference substitute adopts the House provision with respect to admiralty

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    and maritime laws with an amendment clarifying that the provision was subject to the provisions of the substitute. Section 1002 of the Conference substitute establishes liability notwithstanding any other provision or rule of law, including the Act of March 3, 1851 (46 U.S.C. 183). Therefore, there is no change in current law unless there is a specific provision to the contrary.

    (Section 6001 of the House bill does not affect admiralty and maritime jurisdiction, saving to suitors in all cases other remedies to which they are otherwise entitled. Article III, clause 2 of the Constitution creates the basis for admiralty and maritime law of the United States. This section is intended to clarify that the House bill does not supersede that law, nor does it change the jurisdiction of the District Courts under section 1333 of title 28, United States Code (the codified section of the Judiciary Act of 1789).

    Lee Rees is an attorney with the firm of Graham & Dunn in Seattle. Her practice includes legislative and regulatory environmental compliance in water resources and water quality. Prior to entering private practice, Ms. Rees worked for the Washington State Attorney General's Office, where she helped implement comprehensive federal and state oil spill legislation.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    DISCUSSION: QUESTIONSAND COMMENTS ADDRESSEDTOTHE PANELONTHE LEGAL STATUSOF JETTISONING

    Following the presentation of the papers in Part II, the panel members entertained questions from the symposium attendees. The discussion session was moderated by Gordon Paulsen.

    NINA SANKOVITCH, NATURAL RESOURCES DEFENSE COUNCIL: I have a question for Mr. Berns. I agree with Mr. Berns that this panel-indeed this whole day-cannot get us to a point where we will have a legal certainty as to what will happen if the salvor jettisons cargo. But I wanted to know if you agreed with what Mr. Burgess said, that the federal on-scene coordinator can play a real role in whether or not the salvor will be held liable.

    MR. BERNS: Yes, I sincerely feel that if the on-scene coordinator is going to be making decisions, that will have a major effect on whether there is going to be a liability aspect. 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. The government can't be negligent under OPA or the Clean Water Act because of the sole fault exceptions, and public vessels cannot be found liable or involved under OPA. So if the government couldn't be liable in the first instance, how would it be liable if we do something during a salvage incident and there is a loss? I don`t think we would be liable.

    I also want to point out, in my paper I refer to Sammi Superstars in this issue of limitation of liability. My understanding is that that case may have settled and you may not see a decision on that case. Sometimes, discretion and certified checks are the better part of valor.

    WILLIAM PECK, U.S. NAVY: I am assistant supervisor of salvage, Admiralty, U.S. Navy. The question is for the entire panel and it is a burning question for the salvors in the field. We still don't have-and I think it is reasonable to conclude that by the end of the day` as Nina Sankovitch said, we won t have a definitive answer on the question of whether the on-scene coordinator's blessing, direction, or authorization for a jettison will relieve the salvor of liability in the first instance of liability to third parties

    I understand Mr. Berns to saying that we have to rely on prosecutorial discretion to solve that problem. But I think we need to go back one step and look at

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    what is going to prompt the on-scene coordinator to grant authority to or to direct a jettison, without some specific provision in law or regulation. I think the practicalities are that he or she won't. Yet the law is so vague on this point and the potential liability so overwhelming that without some specific provision, such as appears in MARPOL, it is hard to conceive of an on-scene coordinator determining that a jettison is appropriate and authorizing or directing a salvor to do one.

    MR. PAULSEN: In a way, that could be summarized by asking you, if you were the on-scene coordinator, would you authorize a jettison?

    MR. PECK: At present, certainly not.

    MR. BERNS: There seems to be a skewing here of an approach that we are forgetting. There is no doubt in my mind that if we had a vessel that is on the rocks, fully loaded, and that there was danger to life involved, and jettisoning is needed to protect that life, there is going to be a jettison. If you are talking about a human life and you have to take a risk to protect that human life, so be it. I don't think there is going to be an on-scene coordinator around who is going to say "no, we are not going to do it."

    The damages that result are going to be paid for by the person who was initially responsible for causing the incident. I think it is fair to say that if you are going to have environmental damage versus the saving of a vessel, you are going to lose the vessel. The environmental damage is going to be the top priority. There is a balancing, however. I can't tell you under what circumstances you save the vessel versus sacrificing the environment. I can tell you, when it came down to Prince William Sound versus destruction of the Exxon Valdez, if the environment could have been preserved, I am pretty sure that you know what the answer would have been. That is an attitude, a whole atmosphere that has been created.

    Are there going to be situations where you are going to say jettison? Of course there are. But I don't think we can safely say what they are. Many times, jettisoning is only considered because someone refuses to pay the cost of lightering, because it is too expensive to bring a lighter alongside. I have had cases in which that cost was discussed. That is a circumstance you have to take into account.

    MR. DEAN: When you talk about the responsibilities and the potential liabilities of the United States government and the effect of its actions on other people's liabilities, it is worth keeping in mind that the government performs two separate functions in this area.

    The first is its regulatory function, which Captain Burgess alluded to, as the on-scene coordinator or the delegate of the President, who has the right, but not the duty, to direct a response to the spill. The Oil Pollution Act stopped short of making that function mandatory. The Coast Guard may remove, or arrange for the removal, direct or monitor federal or private actions to remove or destroy a vessel. There is nothing in the statute that says it shall. 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. I am not sure, at this time, that I would expect the Coast Guard or the on-scene coordinator,

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    however, to order a spill or even sanction a spill into the territorial waters without further clarification of the Coast Guard's own regulations in this regard.

    The second major function the United States performs is as a salvor. In performing that function, which is inherently different from directing or coordinating a response, the federal government is entitled to claim compensation for its actions as any private party would do. As any private party, the federal government will take on duties and obligations that private salvors would take on, including potential liability. It may be that the principal effect of this potential liability is increased exposure of the owner-operator to pollution damages. The changes in the duty of salvors under the new convention, to consider and respond to pollution damage and to mitigate pollution damage, may result in owners being able to claim or being able to pay reduced compensation awards (special compensation awards or regular compensation awards) to the federal government as a salvor or to bring claims against the United States for aggravated fault or simple negligence on the basis of acts and omissions performed by the United States in the context of performing its responsibilities as a salvor.

    Those are two inherently different barriers of U.S. intervention with two very different legal consequences.

    MR. BURGESS: In answer to your question, Bill [Peck], if I were an on-scene coordinator now, under the current directives, I wouldn't jump out there and do it. That is the point I tried to make-that I think what Congress said was, the ball game has changed with respect to cases that will give rise to a substantial threat, and that you had better prepare for them. 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. With regard to the question of whether it is mandatory that the federal government direct a disposal, I am not saying it is. It is mandatory that they take control over what happens, and decide the right thing to do. If that decision is made and that direction is given to the salvor, there is protection provided by the statute.

    MR. NICHOLAS: Even if you consider changing the law to make it clearer with respect to jettison, there is another major problem. If you have a major oil spill, by the time it is aired in the press you have a political situation that any state or federal public official is going to be very sensitive to. That political atmosphere may, in the long run, be the deciding factor as to whether anybody considers authorizing jettison as a viable means of saving the vessel or preventing environmental harm. There will always be competing political interests. That is a factor that needs to be considered in the decision-making process.

    MS. REES: If we are talking about a circumstance in which there is a substantial threat, then the statute basically says, the President shall direct all federal, state, and private operations, and that is really crucial. If we are going to jettison cargo, we are talking about a duty, a duty to direct. But I would also draw your attention to another part of OPA, which says the President shall consult with the affected trustee, which includes the states and the tribes. I am not so sure this is a singular decision.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    WILLIAM GRAY, SKAARUP OIL CORPORATION: I would like to ask each of the panelists, looking at Ken Fullwood's scenario [page ref tk], it seems to me to have about all the information that many people will have in the short time period in which that vessel was aground, if you were the counsel for the ship owner, or his qualified individual, what would you advise them to do and why?

    MR. DEAN: I understand that vessel to have been within territorial waters, so I would not jettison under any circumstances unless I was ordered to do so by the United States Coast Guard.

    MS. REES: I am here not representing the states, but I am attempting to give their perspective. I think you would have to have state and federal concurrence before you would discharge, if you wanted to do so without facing the potential of some real liability from the state.

    MR. BURGESS: I think the consultation requirement is there and it has to be done. I agree with Warren Dean, that the Coast Guard would have to direct. But before this, people need to educate the populace in the states, much the way we have been educated this morning. That is a very important aspect. Bob Nicholas talked about the practical political problem. I fully agree with that, but people need to focus their interests on convincing those in state governments to consider the alternatives. ''If we don't do it [jettison], here is what happens." Otherwise, you are going to get a knee-jerk reaction.

    MR. NICHOLAS: I would like to throw in another ingredient that has always been a problem in the decision-making process, a tremendous lack of trust between all the parties involved because of the litigiousness and the competing interests that are always involved. Unless somehow we can figure out a way to get around that, we are never going to solve the problem.

    MR. BERNS: One of the first things you do if you have time is to go to the regional response team, which takes in the state, the local, the federal, everyone else. They will probably say, if you are going to drop 2,000 gallons in the ocean to prevent spilling 80,000 gallons, and that is going to present a greater damage, we are going to tell you to jettison.

    The second thing, even if the regional response team did not come forward with a decision, but I look at the situation and tell my client that if you don't do it and it breaks up, you are going to be liable for all the damages that come out of spilling 80,000 versus 2,000 gallons, then there is a fair chance the regional response team is going to say "you had better jettison." I think there is a time-and I think the on-scene coordinator, contrary to some of the comments-that the Coast Guard officer or Navy salvage officer who is on the scene is probably not going to pull out the statute books and say, "this exposes me." He is going to say, "I am a professional and this is what I have to do as a professional and this is the best way to do it."

    MR. NICHOLAS: Let me add one brief comment. In terms of giving practical legal advice, any time you tell a client that somebody is going to potentially go to jail, that is the key point they want to hear. That scares the client more than anything else.

    MR. GRAY: I agree with what Fred [Burgess] said about getting everybody educated in the states and everywhere else. I think within the beltway here, some education would be helpful, too. There won't be time, with that ship aground, to get a consultation and decision before events determine what is eventually going to happen.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
    ×

    Looking back at the Exxon Valdez, Exxon tried very hard to get everybody to agree to use dispersants and the whole weekend was wasted.

    MR. BERNS: As I understand it after 15,000 pages of transcript of testimony, there were 55 barrels of dispersants available in that area, with one helicopter that had a dump tank that didn't work properly. A DC-3 was brought up to Alaska, but it wasn't until late Sunday that it was determined whether there would be enough dispersants in the area where the planes were brought in. Sure, it took that long, but the dispersants weren't there.

    PAUL PREUS, MACKINNON SEARLE CONSORTIUM LTD.: With regards to responder immunity, in the 1940s and the 1950s, even into the 1960s, ''soaps, detergents, emulsifiers" were utilized in flooded engine rooms, and the mixture went over the side as emulsified oil. Ms. Rees, you mentioned the three-mile limit. In the state of Texas, it is a little over nine miles and the state of Florida is over nine miles.

    MS. REES: You are correct.

    MR. PREUS: So, for the people in the salvage and oil pollution control business, one thing has to be settled. If, in conjunction with jettisoning and with getting rid of dirty ballast water and container ships, 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.

    MR. BERNS: The statute seems to provide that responder immunity. If they are acting in accordance with the statute. Remember, however, that it doesn't protect you for personal injury.

    MR. PREUS: But does it protect the use of dispersants if so ordered?

    MR. BERNS: You have got an on-scene coordinator on the scene who is responding. They are using aa approved dispersant in an area that everyone (let's say the regional response team) has said, "go ahead." I think you have immunity.

    THOMAS DALY, MCCARTER & ENGLISH, ESQUIRES: I am an attorney who has made a reasonably comfortable living over the years litigating because of the ambiguities in statutes and regulations. I put this question to Admiral Henn. Is the Coast Guard prepared to make recommendations to Congress or to pass legislation that will remove these problems we have addressed this morning? For instance, if the on-scene coordinator approves jettison, can we have legislation that will immunize the Coast Guard as well as the salvor.

    ADM. HENN: [Portion of answer off microphone] Obviously it is up to the Coast Guard federal on-scene coordinator to weigh the options-jettison or not jettison. The chances of his making a decision to jettison are extremely slim, for all the reasons that we have stated so far.

    Suggested Citation:"Part II Legal Status of Jettisoning." National Research Council. 1994. Purposeful Jettison of Petroleum Cargo. Washington, DC: The National Academies Press. doi: 10.17226/4549.
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    This book addresses the problem of deliberate discharge of petroleum cargo during salvage operations. It assesses the implications for shipping and marine environmental protection; documents 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; considers the implications of advances in oil spill contingency planning, environmental data acquisition and spill trajectory forecasting; and makes recommendations concerning the feasibility of developing guidelines for deciding whether to discharge oil intentionally.

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