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Responders were successful in obtaining a dismissal from the lawsuit on October 12, 2011. However, although the Cleanup Responders have argued for immunity and preemption against liability as it relates to the Deepwater Horizon claims asserted against them in the current litigation, these defenses are proving to be time-consuming and expensive to assert, and there is (under the current regime) no consequence to plaintiffs for bringing claims against Cleanup Responders, even when they have full recourse against the RP. As a result, the Cleanup Responders continue to defend against these claims for an incident that occurred over 2 ½ years ago. Thus, the current MDL demonstrates the need for enhanced legislative protections for the responders relating to all oil spills, including the Deepwater Horizon spill, to eliminate and avoid the use of unnecessary litigation against responders. Absent some enhancement to the responder immunity protections, it is doubtful that Cleanup Responders or Emergency Responders will again take such immediate and bold response actions at the time of spill incidents absent special indemnities or other protections. A legislative solution is particularly important as these entities constitute the rst responders to both the casualty itself and the resulting oil spill and their response must be immediate and without hesitation for fear of liability. If Deepwater Horizon Emergency Responders can be sued for responding to a mayday distress call and lending assistance as directed by the Coast Guard and representatives of the RPs, and if Cleanup Responders can be sued for applying dispersants when: (i) they were applying a dispersant that was (and remains) approved by the EPA for use, and (ii) each day?s application was consistent with Incident Action Plans approved by the Coast Guard (i.e., the Federal On- Scene Coordinator), then when future responders are asked to respond to a disaster, they will likely not respond so quickly, if at all, thus exacerbating the effects of the spill. For all of these reasons, it is important that the RP, not the responders, bear the costs of litigation and ultimately the liability related to the spill incident. RESPONDER IMMUNITY COALITION AND LEGISLATIVE ENHANCEMENTS As a result of the above described situation, the response industry formed a coalition to propose to Congress enhancements that would address the identi ed gaps in the current responder immunity regime. The current coalition includes representatives from the salvage industry, response industry, spill management industry, and marine well containment industry. The coalition has been working with key members of Congress to sponsor this effort. Enhancements currently under consideration by Congress include the following measures: Expand the scope of the current version of responder immunity to provide immunity for personal injury or wrongful death and immunity from civil or criminal penalties. Provide that a responder shall share derivatively in the Government?s immunity with respect to a response. The immunity would not apply to a land-based hazardous substance spill, or if the person is grossly negligent or knowingly engages in misconduct. De ne with speci city the term ?responder? and the types of response actions covered by the immunity. Provide a ?presumption? that any response action or omission does not constitute gross negligence or knowing misconduct. Provide that a person ling a claim against a responder must pay court costs and attorneys? fees if the court determines that the responder was not grossly negligent or engaged in willful misconduct. STATUS OF LEGISLATIVE EFFORT The House passed its version of the Coast Guard and Maritime Transportation Act of 2011 (H.R. 2838) on November 15, 2011 and the Senate passed its version of H.R. 2838 on September 22, 2012. Currently there is not speci c language included in either the House or Senate versions of H.R. 2838 but there are oil spill-related provisions in both the Senate-passed and House-passed versions. Thus, the coalition working with Congress to include these responder immunity enhancements in H.R. 2838 or some other bill that will be enacted by the end of 2012 or early in 2013.Jonathan Waldron is Chairman of the ASA Legal Committee. He concentrates his practice in maritime, international, and environmental law, including maritime security. Mr. Waldron is a visiting professor at the Massachusetts Maritime Academy where he teaches on legal issues related to pollution response and spill management teams. He is a member of the Maritime Law Association and frequently speaks and writes on maritime issues. www.marinelink.com MN 17
