Page 10: of Maritime Reporter Magazine (November 2022)

Legal Beat

Responder Immunity he Federal Water Pollution Control Act (FWPCA – also lative change that might transfer liability elsewhere.

known as the Clean Water Act), as amended by the Oil

Pollution Act of 1990 (OPA 90), contains a responder Federal Contractor Immunity

T immunity provision. That provision states, in pertinent part: The U.S. Supreme Court ? rst recognized the concept of federal contractor immunity, at least by that name, in Boyle (A) A person is not liable for removal costs or damages v. United Technologies Corp. Plaintiff sued the designer and which result from actions taken or omitted to be taken in the builder of a military helicopter. Plaintiff’s decedent died when course of rendering care, assistance, or advice consistent with the helicopter in which he was co-pilot crashed at sea and he the National Contingency Plan or as otherwise directed by the was unable to egress because the door opened out and he was

President relating to a discharge or a substantial threat of a unable to overcome the water pressure that was keeping the discharge of oil or a hazardous substance. door closed. The court held that in areas involving uniquely (B) Subparagraph (A) does not apply – federal interests, state civil liability laws may be replaced by (i) To a responsible party; federal law. State law is displaced where there is a signi? - (ii) To a response under the Comprehensive cant con? ict between an identi? able federal policy or inter- Environmental Response, Compensation, and est and the operation of state law or the application of state Liability Act of 1980 (42 U.S.C. 9601 et seqq.); law would frustrate objectives of federal legislation. In this (iii) With respect to personal injury or case, state law which imposed liability for design defects in wrongful death; or military equipment was displaced where (a) the United States (iv) If the person is grossly negligent or engages approved reasonably precise speci? cations; (b) the equipment in willful misconduct. conformed to those speci? cations; and (c) the supplier warned the federal government about dangers in the use of equipment

While there is no recorded instance of a responder being known to the supplier but not to the federal government.

found liable under this provision, there have been a number The court held in Yearsley v. W.A. Ross Construction Corp., of instances where a responder have been sued civilly with decided 48 years previously, that if authorization to carry out the plaintiff alleging personal injury or wrongful death and speci? c work was validly conferred by a federal agency to a that the responder was grossly negligent or engaged in willful private party, that is, if what was done was within the Con- misconduct. Such allegation requires the responder to spend stitutional power of the Congress, there is no liability on the time and money hiring an attorney and mounting a defense. part of the contractor for executing the federal agency’s will.

Responders have contended for years that the immunity pro- The remedy, if at all, lies with the federal government through vision should be broader, but without success to date. Some the Court of Claims. In the instant case, defendant contractor individuals were concerned that reopening OPA 90 might lead had been hired by the U.S. Army Corps of Engineers to make to other, less desirable changes, while others wanted to ensure improvements on the Missouri River for the purposes of navi- that the right to receive compensation by persons suffering gation. The work involved construction of dikes to produce actual damages from gross negligence or willful misconduct arti? cial erosion. Some of that arti? cial erosion removed parts was not impaired. of plaintiff’s land. The federal government, not the contractor,

This memorandum will attempt to review currently avail- was responsible for damages.

able legal defenses to responder liability and propose a legis- These decisions created two different avenues for potential 10 Maritime Reporter & Engineering News • November 2022

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