A REGIONAL RESPONSE TEAM DECISION-MAKING EXERCISE
Moderator, John A. Witte
The second panel of speakers discussed information needs to make a decision about the potential use of jettisoning. To dramatize the complexity involved in making such a decision, participants role-played an actual decision-making exercise based on Captain Fullwood's grounding scenario (page 152).
The following people comprised the mock Regional Response Team:
Captain Don Jensen, captain of the port
Captain Ken Fullwood, tanker owner's operating representative
Warren Dean, owner's legal representative
Philip Berns, representative of the U.S. Department of Justice
Fred Burgess, representative of the P&I Club
Captain Richard Fiske represents the United States Navy Supervisor of Salvage
Mick Leitz, salvage master
Nina Sankovitch, Natural Resources Defense Council (a public interest environmental organization)
Peter Bontadelli, state official
Jerry Galt, scientific support
Michael Ellis, marine surveyor
Mark Miller, Office of the National Response Corporation
MR. WITTE: With the approval of Captain Jensen, I am going to act as the Regional Response Team's executive officer. For purposes of this exercise, the Regional Response Team must stick with the Fullwood scenario. The team has had since 8:30 this morning to consider this casualty. It is now time to make a decision. I would like to start with you, Mick Leitz. You have been out on this ship, you have looked at everything. You see that the hurricane is coming. You have got a serious situation here. You are the salvage master.
MR. LEITZ: First, you need to find out what the circumstances are, which requires you to take a look at the scenario. When a ship goes aground you have got 20-knot winds onshore; four hours later you have 25-knot winds; eight hours later, 30-knot winds; 16 hours later, 45-knot winds; and 25 hours later, 65-knot winds. You can have a tug on scene in 13 hours, which would put the wind velocity somewhere around 40 knots. The ship is in excess of 800 feet long. It is an 80,000-ton ship, 80 percent aground, with a draft of 40 feet. Therefore, she is aground about 38 feet. There
is no mention in the scenario of tide, which would have an effect on the situation. The ship would be subjected to end scour on a soft sand bottom.
I wouldn't attempt to jettison anything off this ship and reftoat it without a tug attached to it. Therefore, the first opportunity to act would be when the tug could get there because I don't know any way that you are going to back an 800-foot ship out to sea. In considering WHAT the legal profession has to say about liability, as salvage master I would probably decline to accept any responsibility for making the decision.
MR. WITTE: Mick, are you suggesting that the ship should not be jettisoned as a consequence of the legal considerations, or are you saying that, as a practical matter, you don't want to jettison.
MR. LEITZ: I am saying two things. One, as a practical matter, it should be ballasted down and left there and pray that it will ride the storm out because I don't think you can back this ship out of there without a tug. You are going to make the situation worse, not better. I am also talking from a technical point of view about this particular scenario. However, as a salvage master, I would decline to make a decision under the current legal situation.
MR. WITTE: Captain Fiske, you are part of the Regional Response Team. We are looking for your opinion.
CAPTAIN FISKE: First, I would mobilize a salvage engineering project manager out of my office in case it did become federalized, to assist in assessing the stability and provide a recommendation. I would alert my east coast salvage contractor. I would also alert the commander-in-chief, Atlantic Fleet, and see about getting tugs underway from Norfolk. I would also alert the Navy Command Center that we had a problem. I would confirm the commitment from the on-scene coordinator for compensation and mobilize my pollution response capabilities out of Cheatham Annex near Norfolk.
As far as recommendation, based on technical input I would say that a jettison is appropriate to get the ship off. That is a technical input. That is not made with any legal considerations. The on-scene coordinator is going to have to accept the legal consequences.
MR. WITTE: Maybe we ought to get the federal government in here right now. Phil Berns, advise Captain Fiske. He is very concerned about the legal considerations.
MR. BERNS: The best I can make out from your scenario is that you have to consider what damage it will do to the environment. What it comes down to is, I am going to look to Captain Fiske and Captain Jensen as professionals to make a recommendation. I am here if you need me.
MR. WITTE: Okay, Jerry, how can you help?
DR. GALT: The following types of information would be available in this scenario. The hurricane is going to cause a surge between two and six feet. What that is going to mean is an overflow of whatever tidal prediction we have. If the ship is bunkered down or loaded down, it is going to have at least that much rise on it. If that hops into shallower water, it is going to be harder aground later. Those things should be considered. That maximum surge will occur somewhat before maximum wind, but not a lot, so it is going to be building throughout the next few hours.
MR. WITTE: Given the wind speed, what kind of a surge do you expect?
DR. GALT: We would have to run a specific model, but typically, this is a relatively slow-moving storm. It is coming more or less perpendicular to the shore, not up the shore, so it is going to be a smaller, not larger, surge.
MR. WITTE: So, Mick Leitz is going to ballast that ship down in light of your thoughts.
DR. GALT: At this point, I would say two to six feet. We could get more accurate, but that is what we are talking about now.
MR. WITTE: What is it going to be? He has got to know what it is going to be.
DR. GALT: That would take another couple of hours. The Weather Service has detailed models that they can run on Hatteras, because I called up. I am talking about an immediate response.
MR. WITTE: Can you help them out, David?
DAVID KENNEDY, NOAA: My guess—I am not a Weather Service person—is three feet.
DR. GALT: Okay, the next point to consider is that with the winds we are forecasting, we are going to be looking at extremely high dispersion. After the storm, particularly if we are talking about a grounding event or a broken ship, we are looking for dispersion in the next two weeks. If the spill occurs over the next couple of weeks, we are not going to have that much dispersion because of the larger spill that would ensue.
The next thing is that with the speed and the distance to shore, we could expect major hits almost immediately, meaning within the first 24 hours, probably the first 12 hours. Most of those hits will occur on the outer bank of Hatteras which is a sandy beach. It would be relatively easy to cleanup and there is some possibility of overwash and movement through the cuts.
MR. WITTE: Michael, you are here on behalf of the owner. He has a vessel aground. You represent hull and machinery. You are the surveyor. You heard what the salvage master has to say, you heard what Jerry has to say. Do you have any input to your owner?
MR. ELLIS: As the hull and machinery underwriters, I have a secondary role. We are dealing with a pollution problem and I think most hull and machinery underwriters would say you have got to do what you can to prevent pollution and not worry too much about the ship. Having said that, I am confused because of the salvage master's recommendation to ballast down. There is a conflict of advice already and I don't find that easy at all. In real life I am not a technical man, so I must be careful.
My concern would be, could she safely refloat? I would be worried about jettisoning and coming off and not exacerbating the problem. But if I could satisfy myself that there is a good chance of coming off, then I would certainly indicate to the master that I would support any decision to jettison. But I hope that he would get the approval of the on-scene commander. If the on-scene commander's approval is not forthcoming, then we should just sit where we are and ballast down.
MR. WITTE: Let's assume you have Rodney Sambrook from the Salvage Association with you and Rodney says ''I think it is going to come off." Would it change your opinion, or is the salvage master going to have the last say in this?
MR. ELLIS: Certainly not. One would be talking with the master of the vessel and it would depend on his experience. His experience for grounding is probably not particularly great. If there was a second opinion, I would be listening carefully and trying to form my own correct conclusion. I think the conclusion would be let's try to get her off and avoid the bigger spill.
MR. WITTE: Ken, you have heard what your surveyor said. You have a salvage master with one opinion. But it is going to be your decision. What do you have to say?
CAPTAIN FULLWOOD: I have listened to all the people and I would rely on my own experience as well. I would realize there is a risk that, when we try to back the ship off in this wind, which would be on the quarter, we will not have much control—no control really—in those first few minutes. It is a risk, but I would recommend that we take it. You say we shouldn't be worried about the legal aspects, but we are. I think we have adequate insurance, whether we pollute with 2,000 tons or 80,000 tons. The insurance is there and hopefully the people who get harmed would be fairly compensated. What we are really concerned about is criminal prosecution. I have been in this business all my life trying to do it right. I want to retire soon, and I don't want to go to jail.
JOHN DRISCOLL, SMIT INTERNATIONAL AMERICAS: May I interject? OPA 90 made provisions for the area committee? Could you appoint somebody, say, from the area committee?
MR. WITTE: We will get to that. In the meantime, Ken has a problem with his liability so he now says to Warren Dean, "What do I do here? I have a salvage master who says, "I don't think I want to take it off." My hull and machinery underwriter says he and his expert think it is a very distinct possibility. Captain Fiske says, "I don't know, I want to talk to my engineer." In the meantime, Ken says, "I think I want to try to take this thing off—I want to jettison—if the Coast Guard agrees.'' He wants your opinion.
MR. DEAN: At the outset I would have to say people all like to complain about lawyers not being able to make up their minds. I would have to say that we are dealing with a different statute here called Murphy's Law. You have to consider two things. If this is a foreign-flag operator without an office in the United States—
MR. WITTE: It is not. It is a major U.S. oil company.
MR. DEAN: It is a major U.S. oil company. I would like to point out one thing. If you are a foreign-flag operator without an office in the United States, your principal concern at that point becomes your criminal liability. You have a vessel in distress. You have crew that you have to remove. One thing you might want to consider is what is at stake. What is at stake is your financial responsibility, currently set at $14 million for the vessel and its cargo. Beyond that, you may be judgment-proof, as a practical matter, short of criminal liability. I know that people don't like this but we decided not to sign up for the treaties and these are the consequences that fall from being part of a purely domestic regime. The master may say, my concern is—
MR. WITTE: We don't want to hear what the master has to say. He is waiting for you to answer him. He is saying, "counselor, what do you want to do?"
MR. DEAN: I am saying one of the things the master should consider is notifying the Coast Guard and the on-scene coordinator and the local state coordinator. Without a direction to jettison the vessel, the master will take his crew off the vessel and the Coast Guard will have no choice but to federalize it, to order him to stay on the vessel. At that point the Coast Guard is in charge and he can do what the Coast Guard orders him to do. That will be the principal deterrent.
If you are a U.S. flag company, if you are a major oil company and you own and operate this vessel, there is a completely different chain of legal factors to consider. You have unlimited liability under state law, period; strict and unlimited liability under the law of North Carolina. You are going to be subject to that law. When you
are making these decisions, you are betting the entire corporation, with or without the coordination of the on-scene coordinator.
MR. WITTE: But doesn't he have unlimited liability whether he spills 80,000 tons or whether he spills 2,000 tons? What is the difference?
MR. DEAN: Unlimited liability for 80,000 tons in North Carolina is a completely different proposition from unlimited liability for 2,000 tons. You are betting the company with 80,000 tons.
MR. WITTE: So, what are you going to recommend to him?
MR. DEAN: You are betting the equity of the shareholders. I would say, in both cases, get all of your response resources and both contingency plans. I would seriously suggest that you bring a decision maker to the vessel that is indemnified to replace the captain to make the decision making, so that that person can make a decision free of personal liability. He can make the tough decisions that he has to make.
MR. WITTE: That is Captain Fullwood. He is not the master of the vessel. He is there on behalf of the owner.
MR. DEAN: That is fine. Captain Fullwood takes over the vessel under the indemnification agreement with this company. That is important. You do not want personal liability getting in the way of this decision. The second thing you would do is weigh his potential criminal liability for making a decision to jettison the vessel against the liability of betting the entire company and the equity of its shareholders. Furthermore, there is potential criminal liability if he spills the entire cargo of the vessel anyway. You have to advise him literally of the consequences on both sides. In this particular case I would recommend that he seriously consider jettisoning the vessel, in spite of the ambiguities under state law and in spite of the ambiguities under federal water pollution policy.
MR. WITTE: Okay, Ken, your counsel says you have to consider jettisoning. It might be a very good alternative, assuming you can get the captain of the port. But now Nina walks in. What do you say about this, Nina?
MS. SANKOVITCH: First, I have to say that we must be completely suspending reality, because no one would ever ask my organization what we have to say.
MR. WITTE: Take advantage of this special privilege, Nina.
MS. SANKOVITCH: If we accept this scenario (just as a footnote what was interesting about the panel discussion about the scenario is that, in reality, we will never have a scenario where we can take everything as the truth) we will not know if the hull is intact, if the vessel will definitely break up, if the hurricane is definitely coming. If we knew all those things for certain, the decision to jettison would be clear. But if I have a salvage master telling me that maybe it is not such a good idea—
MR. WITTE: You do. You have a salvage master saying it is not such a good idea. You have got Michael Ellis saying it is okay. You have Ken Fullwood saying ''my lawyer says we ought to jettison because 2,000 tons, from either a liability standpoint or any other standpoint, makes more sense than 80,000 tons." Tell us your position.
MS. SANKOVITCH: I think what Mick Leitz had to say was a lot more persuasive. From the point of view of avoiding pollution absolutely, he says we can hang onto the bottom and we have a good chance of weathering this thing. I would say, let's go for that and not jettison.
MR. WITTE: Okay, Peter, now it's the state's chance. We are almost ready to decide and someone says, "wait, we have to look at the state. What is their position on this matter?"
MR BONTADELLI: I think it gets down to weighing factors the same way we do for the use of dispersants. I have heard Mick and I have heard the other offsets. From the technical expert side, I am hearing about a three or four to one, the odds are in our favor that we can significantly reduce the damage by jettisoning, relative to a total break up.
Mick feels it could ride out the storm. At that point, the issue for me would be the environmental consequences. I have to consider Jerry's data on dispersion, the relative sand beach, as opposed to an almost guarantee with 80,000 tons hitting and wiping out significant amounts of marsh, the almost certain washover with the larger volume. Considering these factors, I would say, "go for it," [jettison] recognizing that we may have a state liability potential afterwards.
My advice is precisely that—advice. OPA 90 has made clear that the final call is federal. My advice would probably create a problem for our attorney general in terms of criminal prosecution. Therefore, I think the prosecutorial discretion would probably vest with those of us who have made the decision. I would recommend jettison compared to the relative risk. What still bothers me is I am not 100 percent sure about Mick's advice. But given the four to one count, I think I would take the chance.
MR. WITTE: Mark Miller, what are you going to do to protect the beach front on this hurricane. Can you do anything? Are you going to tell them, "forget about it, I can't help you"?
MR. MILLER: I am going to tell them, "forget about it, I can't help you for a while," because this is a coastal barrier beach. I am not going to put my people at risk to get to the beach area, which I am convinced will be in the process of being evacuated. We just had a great northeaster up on Long Island and Fire Island was wiped out. This would be a similar situation and I am not about to strand response personnel on this beach, given the storm surge we are facing. The oil is going to be in Pamlico Bay and I am going to stage people as close to the area that I expect it to impact as possible and hunker down. I am not going to have a place to put people because all the hotels are going to be booked up from people being evacuated. Wherever I can keep people put up—the nearest area would be about 50 miles—I would see if I could preposition them there until things subside.
My offshore vessels wouldn't be able to do anything. I am not about to get them underway. My nearest one would be Wilmington. I am going to have a problem with my own vessel and I am concerned about its weathering the storm, never mind the problem for this tanker. I have a problem worrying about my own situation for the offshore vessels. So, my best approach now is to marshall as many resources as I can for the beach assault and start to put in place statistical people, my operations department, communications, so that when the storm subsides, I can go to work.
MR. WITTE: But initially, you don't think you can do anything?
MR. MILLER: No, sir.
MR. WITTE: Okay. Finally, somebody says, "wait a minute, this oil coming ashore, it is a P&I problem." You have heard it all, Fred. What are you going to do about it. You represent the club. You are the deep pockets guy.
MR. BURGESS: Yes, I am going to be concerned about money.
MR. WITTE: Yes, 2,000 tons versus 80,000 tons.
MR. BURGESS: At the end of the day I am going to be paying some money. I want to do things that will avoid breaking the limitation of liability, so I want to cooperate as much as I can with the Coast Guard. As to whether or not they should jettison, while the decision is going to be made by professionals, I am going to push hard for the Coast Guard to direct. I am going to be sure that the response plans and all those sorts of things are energized. I am also going to be concerned about state action and will discuss the situation with some state representatives.
MR. WITTE: You have got the state's opinion, Fred. You also heard from the salvage master and from the ship owner.
MR. BURGESS: He already told me what I want to hear, and I want to see if I can verify that.
MR. WITTE: All right, you have done that. You have heard from Michael Ellis. What are you going to do?
MR. BURGESS: I am just going to pay the money at the end of the day. I am going to say, whatever the decision, if it is jettison, do it under direction of the Coast Guard.
MR. WITTE: All right, so on behalf of the club you are saying, it is pretty much hands off. You will pay the bill, the decision is not yours.
MR. BURGESS: Yes. But the other thing I would be concerned about is penalties. I probably want to get a public relations guy in there because a lot of what happens is PR and I would want to work closely with the vessel owner to get somebody to give our spin on this situation.
MR. WITTE: Okay, the captain is about ready to make his decision and he realizes we haven't asked the salvage engineer yet. Jack Kalro has been doing his calculations. What is your input on this casualty? Can it come off? What is your recommendation with regard to jettison?
MR. KALRO: Given the scenario, I would recommend that you jettison the cargo.
MR. WITTE: Okay, so we have a salvage engineer who is at variance with his salvage master. We have a ship owner who has consulted with his lawyer and his salvage association surveyor. They want to jettison. It seems to be turning out just about the way it might very well happen. Captain Jensen, it is time for you to make a decision. Perhaps you might give us some reasons for it.
CAPTAIN JENSEN: First, I would not be at this Regional Response Team meeting, I would instead be back in my office. I would be dealing with two people: the state OSC and the qualified individual, but I haven't heard from the qualified individual et. That is the key person I would want to deal with. It is a foreign vessel and that is the person the plan requires we deal with. Ken, I want your advice. What are you recommending to me?
CAPTAIN FULLWOOD: After weighing everything, I recommend that we jettison the cargo, 2,000 tons. But I am not the person to make the decision.
CAPTAIN JENSEN: The federal government is advocating a unified command. The three folks on the unified command are myself (the federal on-scene coordinator and all the forces he brings to bear), the state on-scene coordinator, and the qualified individual. Hopefully, we would be working in a quiet command center where we could ponder this grave situation and come up with a decision.
I was very fortunate to be a flower on the wall to this Regional Response Team meeting. It provided good additional information. I have a couple of observations. Regarding the term "federalized," every spill is federalized. We open the Oil Spill
Liability Trust Fund on every spill we hear about. So every spill is federalized. It is the degree of oversight, whether it is directed or just some monitoring oversight that takes place that may differ. In a potential spill of this nature, we would provide direct supervision. We would look to the qualified individual, however, to make as many decisions as possible. As long as the unified command triumverate agreed, we would go along with him.
In this case, after listening to all the divergent opinions, what I hear is that you would recommend jettisoning the cargo. I was very interested to hear that the state would back that decision. The only other folks that were not heard here are the natural resource trustees and I assume my scientific support coordinator, Jerry Galt, would canvas them to get their input. Jerry, what are you getting back from them? Do they support this decision?
DR. GALT: Again, the idea would be trying to control the threat we have and that would have to be discussed. There would be a lot of discussion back and forth.
CAPTAIN JENSEN: What is your gut feeling? What are you getting back from them?
DR. GALT: What I am getting back is that there are sensitive resources. The most sensitive ones are inside Pamlico Sound. The question is, are we threatening those resources in a serious way? There are two other things I didn't mention before. After the storm passes the winds will reverse, so there will be offshore winds that will help relax the pressure in the back marshes. The second thing is that every hurricane dumps two to four inches of rain. We are going to have a major freshet, which will be a coldwater flush for the sensitive areas. Both of those conditions are good. We can use them. If you are convinced that the larger spill could be averted by the smaller one, I would say go, jettison.
MR. DEAN: As the owner's lawyer, I have to ask what piece of paper are you going to issue? Are you going to say, "I direct," "I agree," "I monitor,'' "I am aware"? What are you going to say?
CAPTAIN JENSEN: First of all, you are not in the room, so I haven't heard what you are saying yet.
MR. DEAN: Well, I need to have a piece of paper some time.
CAPTAIN JENSEN: I am still making the decision and going through my thought process. The decision we desire to make is consensus on whether or not to go for a jettison of cargo. I would be prepared as the federal on-scene coordinator to advocate that position on behalf of the three parties in the room. This is a very controversial issue. In my paper I talked about the Intervention Convention. It is similar in that we are taking a drastic measure and it gives me the provision to go to the Commandant for approval.
MR. DEAN: I will take an order under the Intervention Convention.
CAPTAIN JENSEN: Then I would go to my boss, the district commander, and the Commandant via Admiral Henn and recommend that we jettison 2,000 tons. I would urge that time is of the essence and a decision is needed within several hours. I would ask that we direct that jettison take place. I am not taking the full burden on my shoulders, but realistically I would not do that anyway. I would go to the Commandant and ask for this authority.
MR. DEAN: I think we would take comfort in an order directing us to do that.
CAPTAIN JENSEN: In this situation, I realistically doubt we would get an answer in sufficient time to accomplish the jettison. I would need to determine a time when I should get the crew off the vessel for their own safety. Certainly the safety of
the vessel crew and Coast Guard crew and salvage master is paramount. We would make sure we had a Coast Guard helicopter that could get people off before the helicopters were moved out of Elizabeth City and sent inland for their own protection. There would not be much time to accomplish the jettison before the helicopter evaluation order was given so the jettison order would have to e made very quickly.
MR. WITTE: Having finished the jettison exercise, what is particularly interesting is that most of us, when we arrived at this symposium thought that there was no possibility that a decision to jettison could be rendered under existing law. But it was just accomplished.
MR. DRISCOLL: I have to take exception. I don't think it was accomplished.
MR. WITTE: He recommends jettison.
MR. DRISCOLL: He recommends jettison but then he steps back and goes to the commandant and says he doubts he will get an answer back in time.
MR. WITTE: We don't have the commandant here. I am quite surprised we got as far as we got.
CAPTAIN JENSEN: Let me clarify that. I did not mean to say that just the Commandant would delay this process. I am saying this entire process, up to the Commandant making his decision and issuing the order might take that time.
MR. DRISCOLL: What bothers me about this whole scenario is that we have gone to all this trouble and dragged it out and everybody has looked at it. We finally came to a consensus and then we can't get the answer in time.
CAPTAIN JENSEN: I don't know that we can't.
DISCUSSION: QUESTIONSAND COMMENTSONTHE DECISION-MAKING EXERCISE
JOHN WITTE: The last issue remaining is whether there is good reason to recommend a legislative or regulatory solution to simplify the process of deciding to jettison.
CHAIRMAN PAULSEN: Before we continue, I would like to thank the panel and all the participants. This was a real drama, I thought. It was excellent. I was interested, absorbed. I had no idea how it was going to come out. There is a question. Would you state who you are, please?
DAVID USHER, SPILL CONTROL ASSOCIATION OF AMERICA: I would like to commend my colleagues today. You have taken a very good step, a bold step. Beyond that, we look at legislation.
FRED BURGESS, LE BOEUF, LAMB, LEIBY, AND MACRAE: We talked here today about some situations where it is advisable to jettison and we just went through one here. What we find in many of the oil spills is driven by public opinion. What needs to be done is to come up with some vehicle to educate. The education has to go to state and federal people, but it has to go broader than that—it has to educate the public at large. There needs to be some organization which isn't perceived to be biased. I know the National Research Council will put out a book, but maybe something more could be done, something that says "these are the concerns" and "these are the possibilities."
CHAIRMAN PAULSEN: We all have a lot to think about as a result of today, but there has been thought given to this before today. There has been an exchange of correspondence between George Waddell, who is here, and Hilliard Lubin of Maine, who is not here. George has asked to have the floor for a few minutes.
GEORGE WADDELL, HANCOCK, ROTHERT & BUNSHOFT: Thank you, Mr. Chairman. When I came to this meeting, I assumed the problem was going to be whether jettisoning under the present legal regime would ever be a viable alternative, and, if it is, who could make it. Hilly Lubin, who advises ship owners and operators on training and instruction of their masters, sent me the text of what he proposes to put in instructions to masters for his owners in some sort of bridge instructions or underway manual.
I am going to read it and comment on it. (Let me preface this reading by saying, I am of the old school, having been in the admiralty practice more than 40 years. Very little has been said about the role of the ship master. We have been talking about a high level of technology, but the master's role has only been touched on occasionally. I am uncertain what the master's role is when there is an OSC appointed. But I know when there is none appointed, he is the final decider.) The language is:
In any case where human life is in peril, or whether the vessel or cargo is threatened with damage or loss, or where there is a danger of pollution, the master is to take all proper precautions immediately, without hesitation, for the safety of all on board, the vessel, or its cargo. One of the possible actions is jettisoning the cargo. Jettisoning is the last resort to be considered, but it is to be considered. In order to jettison cargo by order given by the master—the order to jettison cargo is to be given by the master when, in his ship's considered judgment, it is the only way to reasonably ensure that less cargo will be lost than not to jettison, and endanger the ship, all of its cargo, and possibly lives. Before action to jettison is taken, appropriate calculations are made so as to minimize intentional pollution.
Those are the instructions he recommends to masters. He is giving the master a certain discretion. The question is, what master will have the courage to jettison if he does not get instruction or advice from the OSC? I suggest that no master will have the courage to make that decision, even though he receives Mr. Hilliard's instructions. I don't know how that is to be corrected, but I suggest, as others have suggested today, that it probably can only be done by something in writing, possibly legislation. I rather hurriedly drafted up the following, which I would like this group to consider:
The federal on-scene coordinator, if there be. one, or if there be none, any person in actual charge of a vessel which constitutes a substantial threat of a discharge of oil or hazardous substances, may cause jettison of such oil or hazardous substance, if he believes, reasonably and in good faith, that such jettison will prevent a discharge of greater amounts, or more serious consequences than the jetrison itself.
I follow that up with even more dangerous and controversial language:
And any such jettison shall not constitute a basis for civil or criminal liability on the part of the person ordering or causing it.
That language is not engraved in metal. I just drafted it a short time ago. But I think it may have a kernel of a possibility that will help resolve the issue that has troubled us all day long, especially in situations where there is no time to get the on-scene coordinator on the job and no time to go through the complex procedures that have been outlined today. The ship is on the reef and the captain has to make a decision now. If he makes it reasonably and in good faith, I think he should be protected. I suggest that something along these lines might do the trick.
Whether that could be put into the National Contingency Plan or whether it be considered a statute, I don't know. But I believe it should be considered and it will direct attention to what I consider the most critical issue that this body has to face—whether anyone will have the courage to make the decision to jettison in a proper case. Thank you very much.
CHAIRMAN PAULSEN: Your suggestion, George, is that this language be a statute or that OPA 90 be amended to have some clause like that.
MR. WADDELL: You have asked too hard a question, Gordon. I am not well informed on legislation. My impression is that it would be the best thing in the world to put that in the United States Code, under those sections that constitute OPA or some other appropriate place. If that is not practical, consideration should be given to having it introduced into the National Contingency Plan. I am not politically astute enough to know how one goes about doing that.
PARTICIPANT (UNIDENTIFIED): With all due respect, I could not agree to that kind of language. A master who runs a ship aground probably has a flaw in some decision making. In the middle of all this, we are going to ask him to make the decision to jettison or not jettison? I think we are asking a lot of an individual who has some difficulty. We spend lots of time trying to decide what makes good decision makers, and I would be afraid that there are some people who sail as masters who
would jettison, contrary to all advice not to. Therefore, as a ship owner, employer of people who go to sea, I would not support such a proposition.
CHAIRMAN PAULSEN: We have another divergence of opinion. Nina?
NINA SANKOVITCH, NATURAL RESOURCES DEFENSE COUNCIL: The question is, do we need a legislative fix to this problem? I think we don't need it because the National Contingency Plan can be used now to address the decision-making process that has to be gone through to make a jettison decision. There is no need for legislation. OPA gives the authority to develop guidelines for responding to a spill, and that can include jettisoning.
We have to be very careful about not discouraging improvements in lightering and other salvage activities by giving too easy a way toward jettison. We also don't want to create the perception that, if you have a grounding, don't worry about it, you can jettison and get off. We are not going to have fewer groundings that way—we may end up with more.
In addition, liability under OPA cannot be altered. That would be supported by any environmentalist unless you wanted to open up OPA and make it unlimited liability. Finally, the real issue that has come out today is that salvage capability is the problem, not whether a scenario where you may have to jettison is going to happen once every 100 years. Discussing jettison can work as a red herring, whether intentionally or not, to divert attention away from the real issue, which is salvage capability in this country. That is something I know the committee is going to be addressing, but everyone at this symposium should think about that also.
WILLIAM GRAY, SKAARUP TANKERS, INC.: I hope this question that has been posed is one that your committee will make a rather explicit recommendation about. I would like to introduce the factor that not all groundings happen because of mistakes of masters. This was one scenario that we heard today. I feel very strongly that we have, since the days of the sailing ship, little by little by little, cut the responsibility right out of the master of the ship, but he or she is the person on the scene who, when they can't get all the fine advice we have in this room, may have to make a decision very quickly. If we haven't employed the right person to do that and are not prepared to give them that power, we should get somebody else. We do need to make a change legislatively in OPA which will, in some way, not make the decision that person is likely to make be one to keep themselves out of jail. I don't want to go to jail either, but they should be motivated to do what, in their judgment, they believe to be the right thing. As I understand it, that is the guts of the Intervention Convention, that it reserves to governments the right to do nearly anything they can justify to the court of public opinion or the rest of the world. Why do governments reserve that right for themselves, but not grant it to industry?
This brings up another question. Peter Bontadelli said it may be a couple of years yet before we get the national plan and area plans to address these questions. Yet ship owners have to make those decisions under OPA 90's contingency planning requirements. In the meantime, between now and then they are subject to the law. Why don't the governments get their act in gear before they decide that industry is going to be hung for what they did wrong, when they may not have done something wrong in the first place? I hope your committee will take some of those thoughts into consideration.
ANDREAS UGLAND, INTERNATIONAL ASSOCIATION OF INDEPENDENT TANKER OWNERS: I represent one of the people from abroad. I was one of the people listening to this discussion who was glad that the decision at the end of the
scenario was to jettison. I think that was a good decision. The reason is because we mustn't forget admiralty law. I am not a lawyer, but admiralty law—hundreds of years of customs of how to behave at sea—applies to everybody in this room. Whatever happens, you should act as if you are not insured. If I were an owner and I was denied the opportunity to jettison and I lost a $100 million ship and a $50 million cargo, I think somebody should be sued for that. So, whatever the aspect is, don't let us forget the admiralty law.
KLAAS REINIGERT, INTERNATIONAL SALVAGE UNION, SMIT INTERNATIONAL: In a normal career of a captain or a master of a ship, he will be in those circumstances, let's say, once in his lifetime or maybe never. So, for him it is very hard to make that judgment. What I would like to ask is, what is the role of the salvage master? I have been involved in 60 tanker casualties. Jettison was not at all relevant in any of those cases. This means that after 60 tanker casualties, I have some experience where very quickly I can judge jettison is necessary or not required. I am asking you all, what is the role of the salvage master here in the United States, especially when you have the Lloyd's Open Form, not a contract incentive by the salvors but by the insurance industry. Under contract on the Lloyd's Open Form, we prevented a spill south of Galveston three years ago, because there was a ship owner who made a very quick decision and a salvage master in control from the very beginning. That is why there was hardly any pollution. I see that the role of the salvage master is totally underestimated here.
MARK COHEN, ROYSTON, RAYZOR, VICKERY & WILLIAMS: In light of what I understand to be the future plans of the committee, I recommend that the attempt to create a jettison option be created through a regulatory exercise as opposed to an attempt to create a new piece of legislation. That is a specific suggestion and I will put my partners and my money where my mouth is. If you want us to try to draft the appropriate regulation, we will try to do that and give it to the committee.
CHAIRMAN PAULSEN: Thank you very much. The committee would be glad to hear from all of you as to any suggestions you have. I think Nina's comment that OPA 90 is here to stay is pretty much the consensus. We have to learn to live with it, but maybe some of its provisions have to be interpreted a little bit differently than they have been.
MR. DRISCOLL: To follow-up on the role of the salvor, it is to keep the oil in the ship and that is prevention. I am asking that, if anything comes out of this, allow the salvor some specific responder immunity so there is no question about it.
MR. BURGESS: I think Mark Cohen's suggestion that any fix be done through the regulatory mode, is a good suggestion. In two of the papers submitted, we pointed out that 1321 and B-3 allow the President to decide when and where releases of certain quantities at certain times and locations the President may determine not to be harmful. It seems to me that if you put that together—that is a regulatory fix. If you were to do that and tie it in with changes to the National Contingency Plan that would put the President, the Coast Guard, into the position of being able to direct. Perhaps it might take care of some of the concern that people raised about my presentation this morning. It would provide one additional piece of ammunition to say, I think that it can be directed and that, under those circumstances, the salvor would not be liable.
WARREN DEAN, DYER, ELLIS, JOSEPH AND MILLS: I want to make one final point. We talked about the east coast in connection with the scenario. The state liability laws in the east apply to the discharger or the vessel owner/operator. On the west coast of the United States, state liability laws also impose strict and unlimited
liability on the cargo owner. When you talk about the decision-making process and who ought to be in a position to make a decision on jettisoning—whether it be the master of the vessel or the person in charge of salving, or some other individual—one thing has changed. One reason the decision-making processes are more complicated and why we may not want to vest this authority in masters any longer, is that they are playing with other people's money in a way that they have never played before because state laws may impose unlimited liability on the cargo owner for the decision of the master. That is something we didn't focus on in the scenario discussion because it was an east coast spill. But on the west coast, that is something you will want to consider carefully.
WILLIAM PECK, OFFICE OF U.S. NAVY SUPERVISOR OF SALVAGE: Mr. Chairman, I agree completely that some express provision needs to be incorporated, probably in regulation because I think statutory amendment at this point is too difficult for a number of reasons. I urge the committee to work toward a strong, unequivocal statement, including definite language. I ask it for this reason. Last July, I sent two paragraphs to the Coast Guard for their consideration, a specific provision to be incorporated in the National Contingency Plan. I offered it as a draft, as a starting point of discussion. I have heard absolutely nothing from the Coast Guard since July 17th and I have followed up a couple of times since. I think it is important that if this is truly the course we want to take, that it be clear, strong, and unequivocal, or we won't get any action at all.
CHAIRMAN PAULSEN: If we can't get it by your writing a letter, we wouldn't get it by my writing a letter. So how do we get it?
MR. PECK: If it was the product of the Marine Board, a policy recommendation.
PHILIP BERNS, U.S. DEPARTMENT OF JUSTICE: I seem to get lost here. Is somebody saying that by a regulation we can provide some sort of protection or coverage? Then obviously that means the statute itself allows that, because there is no regulation that is going to amend the statute if the statute doesn't give you the protection. Obviously when the existing statute provides such protection, the regulation is only clarifying it.
If there were an amendment or regulation, assuming that otherwise your regulation is viable and legal, are you going to allow that there is a coverage that the mere calling of a person a salvor is going to give that person total immunity. Is it going to be a negligent salvor who would or would not be liable, or do you have to have willful misconduct? Is it going to be a strict liability. I think Hilly Lubin's recommendation is deficient. He is missing the point that pollution has jumped from the bottom of the list ahead of cargo. Hilly's instructions are, you look at life (which we all say comes first), then cargo, then maybe pollution. But it comes out to be life, pollution, and cargo. Again, if you are going to make any sort of change, you have to consider the level of liability.
CHAIRMAN PAULSEN: Phil, you asked whether there was any space in OPA 90 for a regulation such as the type we are talking about. Do you think there is?
MR. BERNS: My present approach—again, it is unofficial—is that if somebody has received the Coast Guard's sanctions to go ahead and spill, and with the particular state involved joining in, there is not going to be an action against them. Obviously, if the ship is aground and is going to have to be jettisoned, is everyone going to get out? No. Who put that ship aground? Originally the captain. Now somebody is
saying maybe the captain should also decide since he put it aground, he should tell you how to get it off, including jettison. That is not going to happen.
Who is the party that is protected? Most people here are thinking solely in terms of salvors, that they should be protected. I agree. But suppose those salvors are negligent. Should they be liable? Suppose those salvors create a worse position. Should they be liable? The statute now allows for consideration that you are not liable as long as you act in accordance with the rest of the National Contingency Plan, instructions of the RRT, the OSC, and so on.
MR. WITTE: As a salvor, I have no difficulty with accepting liability for negligence. We carry insurance just like everyone else and the clubs have decided that they will continue to write salvors' liability as long as it is reasonable. We should be held to no lower nor higher a standard than anyone else in business. Keep in mind that we take considerable risk every time we go out there, and the decision-making process in salvage is considerably different than dealing with non-moving objects.
Regarding the writing of a regulation, there is no reason that it couldn't work as in spill response, that a regulation could be written so that the majority view of the regional response group or recommendation of the on-scene commander holds.
MR. BERNS: I am not even sure you need that. As Pete pointed out, the statute presently provides for a coordinated decision, with the state agreeing. If salvage is a preventive tool and if OPA 90 is going to be in force and is going to mean something, it is very difficult to understand why the regulations didn't include salvage and firefighting. Perhaps the only reason they didn't is that the salvage community was not vocal with regard to its participation. Whatever the reason, I can't understand why the Coast Guard has been very specific in certain areas and why it should be such a difficult proposition to write into the regulations something with regard to salvage, something with regard to firefighting, and something with regard to jettison. I don't think it is a major problem because I think it is already in the Act.
MR. WITTE: There is nothing in the regulations that were written by the United States Coast Guard that emphasizes salvage, firefighting, or even lightering, not to mention jettison. There are reams and reams of paper on spill response, but we all know that once it gets out of the vessel, it is a disaster, no matter what happens after that.
MR. BERNS: Frankly, I think this is the lesser of your problems. I agree that whenever you become specific, you are going to risk leaving something by not mentioning it. The more specific you get, the more dangerous it is. Right now, I don't think you run any real risk with the federal government. But if the state has some sort of statute or authority, police power or whatever, and can impose a liability for the same act, you are not going to be doing it by amending OPA 90 unless there is a preemption—and you know this is not going to happen.
That may be your bigger problem, because I don't see the federal government exercising this type of pressure. It could happen, but I don't think it will. What your question has always been is, how is the state going to react to this? As it presently stands, the federal government does not preempt.
MR. WITTE: That is something the salvage community, as well as the spill response community, has to deal with. Whether they like it or not, there will not be preemption and everything is going to be on a case-by-case basis, depending on the state you are in.
MR. BURGESS: It seems to me that you have to look at what the Supreme Court said in Arco v. Ray, the supremacy principles, and OPA Section 1018, which deals with the non-preemption clause. I think it is a defensible argument that, in those situations where the President directs, the salvor is entitled to immunity.
CHAIRMAN PAULSEN: Fred, you would say in those situations ''I think we are really talking about legislation before there is such a situation," so that when a disaster occurs, we don't have this period of uncertainty?
MR. BURGESS: Yes. The question is, would it be better if there were legislation? Many people would say yes but, as Phil pointed out, you have got to be careful in drafting the legislation. It may be better to have some legislation that made the point more clearly. It probably is going to be difficult to get such legislation now, so perhaps we should look at the cards we have and see if there something already there that will effect the purposes that the Congress wanted. They wanted somebody to look at the big picture and take action; they wanted the federal government to direct that action; and they wanted them to prevent or mitigate a threat. If the federal government says to the salvor, "do it," but the state says, "if you do it, I am going to put you in jail," they are working at cross purposes to what Congress intended. If that is the case, then Ray says that the state statute can't interfere. I have cited it a few times but I feel very strongly about it when you put it all together. I think there is a basis.
And what does the B-3 do? The B-3 merely provides the opportunity for the President to be able to say that under certain circumstances, such a discharge is not harmful. If it is not harmful, then it is not a violation.
CHAIRMAN PAULSEN: Can you say that before it happens?
MR. BURGESS: He is supposed to do it by regulation, and all he can do is put out some general parameters. I am not saying that everybody should go out and jettison oil. I think it is an unusual circumstance, but if the advice of knowledgeable people is that it ought to be done (bear in mind the area committees bring together the disparate views—local and state), you shouldn't have a regime that would make the salvor say no.
CHRIS KENDE, HOLTZMAN, WISE & SHEPHERD: An interest that hasn't been mentioned is the cargo interests. Under a lot of state statutes, cargo is directly and strictly liable. There needs to be some consideration for having cargo input and possibly some thinking about what charter parties should say in this kind of situation. In Alaska and California, if there is a jettison, the cargo interests would be strictly liable for those interests, as would the owner/operator. So, they clearly need to be involved. Particularly with independent tanker owners, the likelihood is that the cargo interests, where it is an independent foreign-owned vessel, may have a lot more resources, a lot more ability to provide intelligent input than the independent tanker owner would.
DAVID WOOD, MARINE TRANSPORT MANAGEMENT, INC.: I have two quick points. First, I am not sure what all the anguish is from the salvor side with respect to this particular scenario. Under the facts as given, the question is whether to discharge 2,000 tons of oil. It seems to me it is pretty much a no brainer. You are not betting the company by discharging 2,000 tons of oil; you are betting the company if you don't discharge the 2,000 tons of oil. From the salvors' perspective, if they discharge 2,000 tons of oil and it does not succeed in refloating the vessel, then the vessel stays where it is, it ballasts down, and under the facts given in the scenario, it is likely that the vessel will break up or there will be a large spill. Therefore the 2,000 tons that were discharged aren't really going to matter. If discharging 2,000 tons does
refloat the vessel, then there is a 2,000-ton discharge, but you saved the ship and everyone should be happy.
The second point is that there is so much concern about whether or not to discharge the 2,000 tons because nobody wants to be seen, in this day and age, as a party who deliberately discharged 2,000 tons of oil into the environment, whether or not it is the right thing to do. I have heard a lot of talk about how it is a legal issue, but it is really a political issue. The main concern this group should address is the comment that the federal government, the on-scene coordinator, may not authorize, agree, advocate—whatever term you want to use—the jettison of the oil. Even in this scenario, that becomes a political issue. Until the political climate changes in this country, this discussion is academic because it will never be agreed by the Coast Guard and no ship owner is going to go against what the Coast Guard is recommending in any given spill.
MR. WITTE: What happens if you take 2,000 tons off, the ship puts through the hurricane, the ship doesn't come off, and the 2,000 tons go on the beach. The ship comes through the hurricane. The ship is sound. Is there no potentially liability for the salvor.
MR. WOOD: That would be the worst case scenario for the salvor. That would be the worst case scenario. But again, given the facts of the scenario, if you don't discharge the 2,000 tons, you are facing a larger spill in the breakup of the ship. Therefore, in this scenario, you ought to go ahead and do it.
WILLIAM SEARLE, MACKINNON SEARLE CONSORTIUM LTD.: In response to the last speaker, that is not the worst case scenario, that is the every case scenario. Any salvor will tell you, that is the first thing he thinks of when a ship is grounded, blow in the tanks. It is bound to happen in every serious stranding. Let me tell you how this all started and I will come back to that bit of technology. This all started in about 1968 or 1969, when the Federal Water Pollution Control Act (FWPCA) was being changed. It was sent around to government departments and came to me as U.S. Navy Supervisor of Salvage. Dick McCarthy, who used to work for Phil Berns and then was the head of the Navy Admiralty Section in SHAG flagged this particular item as dangerous because there was great concern in the salvage community about the possibility of getting sued—becoming liable for anything related to pollution in the day-to-day operation of ship and salvage work. Any ship that punched a hole in the bottom and grounded could have a pollution liability. We flagged this and mentioned jettison as a possibility. These comments critiquing the FWPCA were completely pigeonholed in the Pentagon, and there were no comments made to Congress.
We had a lot of liaison with the British. The Torrey Canyon was the first major case in which oil was jettisoned. It was aground for several days before the abortive action took place that caused the engine room to blow up and killed the salvage master. The big controversy in the Ministry of Defense was that the Navy supervisor of salvage didn't want them to bottom the ship and the government and the Air Force wanted to bomb it. As you know, that's what they did. The engine room blew up and they lost some machinery—most of the air blowers that pump the air system, and the whole thing went to hell in a hand basket. The Navy supervisor of salvage had wanted to proceed with the normal classical salvage work. They had a barge coming. They had a salvage ship alongside, and they were proceeding according to the book. Whether the ship would have succeeded in getting off the rocks or not, we will never know, but it was an in extremis situation. It wasn't a loss situation for several days. So much for that in the sense that the politics and public reaction were rampant.
That nobody learned a lesson from the bombing of the Torrey Canyon was demonstrated by the fact that they bombed the Amoco Cadiz and turned it into a mess. There wasn't anything else that happened to the Amoco Cadiz anyway, but there was no sense in bombing it. I said that it is an every case condition. By that I mean that when using air to lighten a ship, the salvage master and the salvage engineer want to test each tank individually to see how long it takes to get them down and to ascertain how much buoyancy they are getting out of the tank, how much of a bubble they have got in there.
The salvage officer, the salvage engineer would determine how much buoyancy they needed, how many inches without a draft she is. Those inches would relate to the tons for each immersion, which is a good measure of how much barging capacity you need or how much blowing capacity you need to get the ship up. For 350,000-and 400,000-ton tankers the tons for each inch of immersion is about 550, that order of magnitude. That means you have got to take 500-tons of oil off to change the draft one inch. One inch isn't going to do much good. The only hope you have for salvaging these kinds of ships is to blow them. The name of the game is to know each instrument in the orchestra that the salvage officer is directing, know what the total buoyancy capacity of each tank is that you are blowing and pumping, and orchestrate them all in connection with the tide, the currents, and the weather.
But each time the salvage people blow down a tank, you are going to have a little pollution. What we worry about is inhibiting the normal, everyday, nonheroic, nongigantic nature of the problem, but just in our simple bag of tricks of blowing tanks, you are going to get some bubbles of oil and maybe 2,000 tons, if you have got big tanks, such as on the Amoco Cadiz, and much more on the Exxon Valdez.
That is my vision of the problem. We erred in using the term jettison when we tried to explain this weakness in the bill. Since then, we have talked about jettisoning. If, as the representative from the London Salvage Association said in his paper, the jettison business goes back to Biblical times or before, I submit that jettisoning was done by the ship's force itself. I submit or suggest that the lawyers and the historians look at the history of jettisoning and see if salvors jettison. I question whether salvors jettison. Salvors blow tanks, salvors pump tanks, move weights around and shift cargo. But I don't think we call them cargo operations. I don't think we need to call it jettison. If the law prohibits jettisoning, what we are talking about is simply routine mechanics, routine procedures, that were in our bag of tricks all the time. I have taken the position lately that we ought to be talking about heroic measures, jettisoning—big jettisoning—being one of them. There are other heroic measures. If you use a simile to the emergency room at the hospital on Friday or Saturday night and the motorcycle boys are coming in on stretchers. The emergency room has the authority to give IVs to people. If you need heroic measures, they may have to strip down a vein or perform a tracheotomy. That is what we are talking about here, not the routine, everyday procedure of blowing a tank.
CHAIRMAN PAULSEN: It has been a wonderful day. I thank everyone who participated, people who asked questions, people who answered questions, people who arranged this session. The committee is going to meet and will keep in mind the things that have been discussed here.