The nation's spill-response and maritime salvage contractors are organizing a campaign to win additional legal protection for vessel crews who respond to disasters.
Lawsuits resulting from the Deepwater Horizon spill in the Gulf of Mexico have revealed an unintended gap in the law that grants immunity to responders who act under the direction of the U.S. government. When it enacted the Oil Pollution Act of 1990, Congress wanted to prevent responders from being the target of liability lawsuits if something were to go wrong during a rescue or cleanup.
After the 2010 Gulf spill, however, plaintiffs' lawyers have found ways to include responders among their list of defendants in personal injury cases. Even if the responder can claim immunity, judges sometimes allow the lawsuit to proceed, at "substantial cost" to the responder, said Mike Sample, vice president and chief counsel at Marine Spill Response Corp.
A wide range of response and salvage vessels is visible in this June 8, 2010, photo of the scene of the Deepwater Horizon oil spill in the Gulf of Mexico. Many of the companies who responded to the call for help after the accident now face lawsuits. (Photo courtesy U.S. Coast Guard)
The industry is worried about the legal vulnerability, which already has resulted in higher insurance premiums. Sample warns that some companies may hesitate to contribute vessels in the next emergency.
"We need to resolve this before the next big response so the oil spill contractors respond, and the firefighters who are out in the middle of the night respond instead of calling lawyers," Sample said. "You want responders responding (and) immediately flying aircraft and sailing ships."
The effort is spearheaded by admiralty lawyer Jonathan Waldron, who is part of Blank Rome LLP's maritime emergency response team, and by the American Salvage Association. They are attempting to have language inserted into the wide-ranging post-Deepwater Horizon bill reforming oil drilling safety currently being debated in Congress.
The issue of responder immunity was the topic of a daylong seminar in New York organized by the North American Marine Environment Protection Association in October.
The U.S. government enjoys immunity from liability in emergency response. Waldron said private responders since 1990 have been covered by â€œderivative immunity" whenever they act at the direction of a response plan from a government agency such as the U.S. Coast Guard.
"The contractor gets the same immunity that the government does, as long as there were reasonably precise parameters from the government for the response," Waldron said.
The 1990 law doesn't grant responders clear immunity in cases involving gross negligence or willful misconduct in wrongful death or personal injury lawsuits. When filing lawsuits, plaintiffs' lawyers in Deepwater Horizon cases have attempted to allege gross negligence, even when there is no evidence supporting such claims, according to the proponents of the liability legislation.
While the responder eventually may be successful in defending the accusation, the legal fight can be costly.
"This is the first example of this kind of widespread litigation against the response community," said Steven Candito, president of National Response Corp (NRC).
One example is in the use of controversial chemical dispersants that were approved to help scatter and dissolve the spilled oil. Some lawsuits allege that contractors spread dispersants in amounts that were beyond the scope of the government's instructions, Candito said.
The dispersants issue became even more costly for the NRC when its insurance coverage for chemical liability expired this past summer. At first, the insurer refused to renew the policy, but eventually agreed to continue it with only $500,000 of coverage for a whopping $100,000 premium.
The problem will force responders to modify their contracts with future disasters' responsible parties, Candito said.
The responders' lawyers are asking Congress to bolster the immunity regime to define protections for responders in negligence and misconduct cases. They want rules to force plaintiffs' lawyers to cover the responders' legal fees and court costs if the lawsuit is deemed frivolous. Waldron said they will request language to apply the new protections retroactively from the day before the Deepwater Horizon rig exploded.
The Coast Guard leadership agrees with the idea, at least in principle. In November 2011, at a hearing of the House Coast Guard and Maritime Transportation Subcommittee, the panel's chairman, U.S. Rep. Frank LoBiondo (R-N.J.), lamented that Deepwater Horizon responders and manufacturers of dispersants and equipment were facing such lawsuits. LoBiondo urged Coast Guard Rear Adm. Paul Zukunft, assistant commandant for marine safety, security and stewardship, to persuade the top brass to stand with the responders.
Zukunft supported the idea of protecting responders from liability suits. "In the urgency of a response, there needs to be a provision for indemnification of these oil response organizations that are responding in accordance with our interagency action plans," Zukunft told the subcommittee. "So that would be a needed change if, in fact, these responsible organizations are being held liable."
Waldron expects Congress to formally consider his proposal when the Deepwater Horizon debate heats up later in 2012. He said the legislation would likely be opposed by lawyers who represent plaintiffs.
Richard Fredricks, executive director of the American Salvage Association, urged mariners to voice their support for the amendment once it's formally drafted.
"The Deepwater Horizon incident has made us all aware that we don't have adequate protection," Fredricks said. "If the company does not have responder immunity … it may not be so quick to go offshore if there is a problem."
The proposed legislation, Fredricks said, "is taking the problem off of our shoulders and putting it where it belongs — with the responsible party."