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It is important to note that the proposed legislation pre- serves the ?polluter pays? principal. In other words, the Re- sponsible Party already bears this liability. Post Deepwater Horizon litigation demonstrates that the Responsible Party is already responsible for the types of exposure claims that the proposed legislation is intended to address. A responder remains liable for all damages and removal costs resulting from the gross negligence or willful miscon- duct of their actions. Responders are not seeking absolute immunity for any and all actions taken by the Responders in a spill response. As under current law, the Coalition proposal would not exempt Responders from liability in situations in- volving gross negligence or willful misconduct. The purpose of this protection today remains the same as when OPA 90 was enacted ? to ensure that the Responders necessary to address future spills will, without hesitation, continue to re- spond immediately and decisively in dif cult circumstances to mitigate spill effects to the greatest extent possible. In addition, the proposal has been revised to make it clear that the immunity discussed above related to personal injury and wrongful death claims, is speci cally limited to exposure claims related to the spilled oil and dispersants ap- proved under the NCP. Responders remain liable for Jones Act seaman?s claims for personal injury or wrongful death under existing law resulting from the operations conducted by the responder not related to such exposure claims. One of the key goals of the proposed legislation is to make it clear which persons are protected under this lim- ited immunity. The public policy goal should be to make sure that any person or type of organization who is needed to respond immediately to mitigate the potential adverse ef- fects of a spill are encouraged to respond without the fear of liability. In the initial stages of a response this would be par- ties such as salvors if a vessel had run aground or sunk, or in case of the Deepwater Horizon, the offshore supply vessels which immediately took action to extinguish the re and, as a result of the quick heroic actions taken that day, saved the lives of those rig personnel who jumped in the water. This could also include the new well control organizations and their personnel in another well blow out case to foster expeditious actions to cap a well and disperse the oil as it ows from a well head until it can be capped. These person- nel would be considered Emergency Responders. It should also include those response organizations and personnel who respond to clean up the spilled oil. The would include the oil spill removal organizations, spill management teams, volunteers including vessels of op- portunity and the crew of such vessels, as occurred in the Deepwater Horizon. The actions covered should include dispersant operators and in-situ burn actions. As another example, often a multitude of volunteers are used to clean- up oily shorelines and beaches following a large spill. The persons ashore in supervisory or oversight positions mak- ing key decisions in dif cult circumstances should also be covered such as shoreline cleanup supervisors and person- nel working in command centers. These personnel would be considered Clean-Up Responders. It is important to note that immunity is only available to any of these personnel when their actions are consistent with the NCP or otherwise directed by the FOSC. Those activities which are too far removed from direct response activities would not be covered by responder immunity such as a truck driver delivering supplies or equipment to support response operations because such activities would not have a close enough nexus to the response efforts. WORK REMAINS TO BE DONEMuch has been done to position this legislation for en- actment. Much more needs to be done this year to ensure that any potential objections to the legislation will be ad-dressed. There is often an initial negative reaction from certain segments of industry when someone mentions im- munity which could result in increased liability for some- one else. However, that is not the case here because the Responsible Party is already strictly liable for all removal costs and damages. And, it is in the interest of all potential Responsible Parties, should they face a future unfortunate incident, that all response resources needed in an incident can and will respond as quickly as possible without the fear of liability. This will minimize to the greatest extent possible the liability of that Responsible Party?s potential liability by minimizing the amount of oil spilled and clean- ing it up as quickly as possible.RESPONSE & SALVAGE Jonathan Waldron is Chairman of the ASA Legal Com- mittee. He concentrates his practice in maritime, inter- national, and environmental law, including maritime security. Mr. Waldron is a visiting professor at the Mas- sachusetts 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 27MN October2013 Layout 18-31.indd 27MN October2013 Layout 18-31.indd 279/30/2013 11:24:50 AM9/30/2013 11:24:50 AM
