Current Law Prevents Oil Rig Victims’ Families from Holding Wrongdoers Fully Accountable

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For Immediate Release: June 8, 2010

Contact: Jamie Hammon
American Association for Justice
202-965-3500 x8369
AAJ Press Room

Current Law Prevents Oil Rig Victims’ Families from Holding Wrongdoers Fully Accountable

Death on the High Seas Act will be subject of today’s Senate Judiciary Committee hearing; Congress must act so families can get justice

Washington, DC—Congress must amend the Death on the High Seas Act (DOHSA) so families of workers who died aboard the BP rig can seek full recourse, said the American Association for Justice (AAJ) today as the Senate Judiciary Committee holds a hearing on liability issues surrounding the Gulf oil spill.

Chris Jones, whose brother Gordon died in the BP rig explosion, will testify on the current inequities in DOHSA and why Congress must act.  Gordon was a 28-year-old mud engineer aboard the Deepwater Horizon, and leaves behind his widow Michelle to care for their two young sons, one born less than a month ago.

Because of DOHSA, the Jones’ and the families of the 10 other workers killed in the explosion face severe limitations on what they can recover.  Passed in 1920, this law limits BP’s liability to economic damages only, which in most cases means burial costs and the loss of support that family member would have provided.  BP is immune from entirely compensating families for the horrible way in which their loved ones died and the relationship they have now lost.

An exception to this immunity was carved out in 2000 after the TWA Flight 800 crash to fully compensate families of victims that die in the sea as a result of a plane crash.  However, this protection was not extended to those who die aboard rigs or other vessels.

“This outdated law lets corporations like BP off the hook, at the expense of families who have lost a loved one,” said AAJ President Anthony Tarricone.  “Congress must amend DOHSA for the sake of these 11 families, and others who perish in maritime incidents, to ensure they have a fair chance to receive justice.”

The Senate Judiciary hearing will begin at 10:00am in 226 Dirksen.  On Wednesday, the Senate Environment and Public Works Committee and House Transportation and Infrastructure Committee will each hold hearings on other liability issues surrounding the BP rig disaster at 10:30am.

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Maritime Laws Protect BP, Not Gulf Coast Residents

Oil Spill Liability Issues

On April 20, 2010, a BP exploration well blew out and set fire to Transocean’s Deepwater Horizon offshore oil rig, spilling millions of gallons of oil into the Gulf of Mexico 50 miles off the Louisiana coast. Of the 126 on board at the time of the disaster, 11 were killed and 17 injured. Since then, attempts to shut off the flow of oil streaming into the Gulf have been unsuccessful, and the full extent of the spill undetermined.

The question of liability is likely to be unsettled for some time. As the holder of the lease for the oil rig, BP is the primary responsible party. Transocean, the Swiss company that owned and operated the rig, also carries responsibility, as well as other companies involved in the drilling or manufacturing of failed components.

While much of the focus has been placed on increasing the Oil Pollution Act’s $75 million liability cap, this situation has revealed other maritime laws to be severely inadequate and antiquated. Summarized below are maritime laws that govern liability for the disaster, and under which BP and Transocean may enjoy significant immunity. Unless these laws are amended, those affected by the spill will face an uphill battle for justice.

Death on the High Seas Act (DOHSA):

  • The Death on the High Seas Act (DOHSA) is the law under which the families of the 11 people killed in the Deepwater Horizon rig explosion can bring wrongful death suits against BP.
  • Passed in 1920, this law limits BP’s liability to economic damages only, which in most cases means burial costs and the loss of financial support that family member would have provided.
  • Under DOHSA, BP is immune from entirely compensating families for the horrible way in which their loved ones died and the relationship they have now lost.
  • An exception to this immunity was carved out in 2000 after the TWA Flight 800 crash to grant non-economic damages to families of victims that die in the sea as a result of a plane crash.
  • DOHSA now needs to be amended to provide fair and equal remedies to victims of oil spills and other maritime disasters on the high seas, starting with the 11 brave men who died on the Deepwater Horizon.

Limitation of Liability Act:

  • The Limitation of Liability Act (LOLA) is the law under which Transocean is seeking to limit its liability to the post-accident value of the Deepwater Horizon: just under $27 million, which is their estimated value of the rig as it sits on the bottom of the ocean.
  • LOLA was passed in 1851 to protect owners who did not have control over their vessels. Limiting an owner’s liability to the post-accident value of the vessel would protect owners if, for instance, pirates overtook and set fire to a ship.
  • The act was intended to protect the value of a ship’s cargo, not human life.
  • With modern insurance and communications technologies now standard, this 160-year-old law is totally antiquated, and is just another procedural obstacle that Transocean is using to deflect accountability for this disaster.

Oil Pollution Act:

  • The Oil Pollution Act (OPA) is the law that caps BP’s liability at $75 million.
  • OPA was passed in 1990 in response to the infamous 1989 Exxon Valdez oil spill in Alaska’s Prince William Sound.
  • OPA also created a new tax on oil producers and a national Oil Spill Liability Trust Fund with a $1 billion cap per incident.
  • Congress is considering raising this $75 million cap, which is severely inadequate. The cap would barely scratch the surface of the catastrophic damage the spill has caused or even begin to hold BP accountable, which made almost that much per day – $62 million – in the first quarter of 2010.  
  • This cap is an example on a grand scale of why arbitrary liability caps are just not reasonable: you cannot decide the expense of a disaster before it happens. Those decisions are for judges and juries after an injury has occurred, and this is as true for tragedies of medical negligence as for those of corporate negligence.
  • Liability caps allow companies like BP to avoid bearing the responsibility for the full cost of the damage they inflict.

Waivers, Releases, and other Limitations:

There are several other necessary legislative fixes to make sure that all who have been unfairly injured are properly compensated:

  • Any releases or liability waivers offered need to be limited to a specific loss period, because there is no way to know how the effects of this disaster will evolve over time. Gulf Coast residents need to be protected if, for instance, re-opened fishing areas need to be closed again as tar balls and other pollution migrates to and from the shore line.
  • There is a minimum 90-day waiting period under OPA for distribution of stipends to cover commercial loss, but these fisherman need relief now. The stipends should be made immediately available, should not preclude later compensation for economic loss, and need to be made available regardless of whether the claimant is represented by counsel. BP has refused stipends to victims represented by attorneys, which deters injured parties from seeking legal representation and risks they will unknowingly sign away their legal rights.
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