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WWW.MARINELINK.COM 15and the NCP, to use Corexit and/or present an obstacle to accomplish-ment of the objectives of the FWPCA. The court determined that a funda-mental objective of the FWPCA, as amended by OPA 90, was to elimi- nate confusion that had impeded past oil spill responses by establishing a clear chain of command and respon-sibility. States and private parties may not deviate from this direction. When directing a response, the FOSC is more than managing the response. He or she has specific legal author- ity to guide the activities of all par- ties responding to the discharge and all actions have to be authorized or approved by the FOSC. Use of dis-persants is one of the activities spe-cifically contemplated by the FWPCA and the NCP. Its use represents a trade-off between known effective- ness and known toxicity. The FOSC is specifically authorized to consider the relevant issues and make the op-erational decision regarding use of the chemical dispersant. The court then states: ?It would be extraordinary for Congress, after devising an elaborate permit system that sets clear standards, to tolerate common-law suits that have the po-tential to undermine this [statutory and] regulatory structure.? If the court were to permit these claims to go forward, then, during the next ma-jor spill response, the threat of liabil-ity might cause the manufacturer or supplier of a dispersant or other mate-rial or equipment to refuse to provide its product, despite the determination by the FOSC that such material or equipment should be utilized. Such a refusal, or perhaps even a hesitation, by a manufacturer or supplier would conflict with the statutory and regu-latory design of placing the FOSC in charge of all levels of the oil spill re- sponse and empowering him or her to determine if, when, where, and how the material or equipment should be used. This refusal would deprive the re-sponse of a tool expressly contemplat-ed by federal law and, consequently, impede the FOSC?s ability to ensure effective and immediate removal and the efficient, coordinated, and effec- tive response intended by law and regulation. Given the responsibility and authority of the FOSC to act in these circumstances, the court ruled that it would be improper for it to sec-ond guess the FOSC?s decisions and actions. Because resolution of the pre-emption issue was dispositive of the motion for summary judgment, the court declined to address the issue of derivative immunity. This decision is important for rea-sons well beyond its impact on the manufacturer of a chemical disper- sant and the various plaintiffs here. The reasoning so carefully laid out by the court extends to all those involved in oil spill response efforts under the direction of a FOSC, providing them with vitally needed assurance that third-party lawsuits will be brought directly against the Responsible Party and not against responders, be they Good Samaritans or OSROs, or, al- though not specifically mentioned by name, salvors or marine fire fighters. The decision also supports the large measure of authority of the FOSC as spelled out in OPA 90, eliminating much of the uncertainty about his or her decision-making power. These impacts clearly further the important national interests identified in the de-cision of ensuring that spill responses are efficient, coordinated, and effec- tive.Talleres Navales del Golfo Islote San Juan de Ulúa s/n91800, Veracruz, Ver. México. Tel: (52) 229 9892500 Fax: (52) 229 9892510tng@tnghph.com.mxwww.tnghph.com.mx A WORLDWIDE EXPERIENCED SHIPYARD WITH INTEGRAL SERVICES ? ?Repair and maintenance of ships, machinery, equipment and engines ? ?Repair and maintenance of jack-up and semisubmersible platforms ? ?Fabrication of offshore modules and components, fabrication and assembly of all types of light and heavy steel structures ? ?Conversion, upgrading and life extension of ships and offshore unitsServicesTALLERES NAVALES ! " ) ¿ $ , ) # , ¿? 1 + $? ¿ & 0 ¿ A GLOBAL COMPANY WHICH BEGAN ITS OPERATIONS IN 1995. CURRENTLY OFFERS INTEGRAL FABRICATION AND SHIP REPAIR SERVICES. MR #1 (10-17).indd 15MR #1 (10-17).indd 151/3/2013 3:18:17 PM1/3/2013 3:18:17 PM
