Page 4th Cover: of Maritime Reporter Magazine (October 1996)

MARINE ENVIRONMENTAL — FEATURE STORY

Marine Spill Response Corp. vessel Caribbean Responder is pictured conducting oil containment operations during an incident off the coast of San Juan in 1994. On September 25, 1996, a judge in Federal District Court in Puerto Rico levied the largest criminal fine in the history of environmental law — $75 million — against the corporations of a New York shipping family found responsible for this spill.

Environmental mandates provide courtroom stumbling blocks while setting the stage for a newly proactive maritime era.

Six years after the tenets of environmental- ism splashed onto the high seas in the form of oil pollution legislation, the industry is charting a straighter and narrower course toward clean- er oceans, but not without navigating its share of stormy waters. With an eye on company bot- tom lines, maritime interests today are assum- ing increasingly proactive roles in hammering out environmental statutes. This newfound involvement is perhaps most clearly illustrated by challenges to the Oil Pollution Act of 1990 (OPA 90) that have erupted in both congres- sional and judicial arenas.

A Jones Act trader has singlehandedly filed suit against the U.S. federal government, attempting to recover significant assets to be forfeited in the wake of mandatory OPA 90 com- pliance.

A contingent of marine underwriters has peti- tioned the U.S. Circuit Court of Appeals, claim- ing that the National Oceanic & Atmospheric

Administration's (NOAA) natural resource damage assessment (NRDA) regulations need serious revision. On Capitol Hill, efforts to amend OPA 90 have also been initiated in a

U.S. Senate Committee, championed by several legislators with Rhode Island Senator John

Chafee taking a leading role, in the aftermath of a major spill in his state. by Bridget Murphy, associate editor

Lone Operator Initiates Litigation

On August 22, U.S.-flagged fleet owner and operator Maritrans Inc. announced that it had filed suit against the U.S. government, seeking compensation in excess of $200 million for being "deprived of its reasonable investment- backed expectation in the continued use of its barges by Section 4115 of OPA90". According to

OPA, tank barges must be retrofitted with dou- ble hulls or retired by 2003 — a requirement that was not imminent in 1987 when Maritrans financed 37 single-hulled tank barges. The company contends that the legislation effective- ly "seizes" the barges by preventing their oper- ation, violating the Fifth Amendment to the

Constitution, which prohibits the federal gov- ernment from taking private property for pub- lic use without just compensation.

According to Maritrans' Associate General

Counsel Skip Volkle, "We undertook litigation because we believe(d) it was the right thing to do ... The government is taking our whole asset base and expecting us to survive. If they're going to take our property, they can take it, but they have to pay us for it," Mr. Volkle told

MR/EN.

While a plaintiff's decision in this case would seemingly open the floodgates for other similar lawsuits, the Maritrans counselor explained that according to his company's calculations, the statute of limitations for filing claims against OPA 90 has expired since six years have elapsed since the legislation was enacted in

August 1990. "We filed just a few days before the statute expired," said Mr. Volkle, adding, "We are hopeful that our claim will prevail and that our argument on the statute of limitations will also prevail so that we will be the only ones to recover. "We don't quibble with the government's objectives ... The government does have an obligation to protect natural resources. We believe that there are many extremely benefi- cial parts of OPA. We support statutory provi- sions and the goals they attempt to meet. We don't believe that double hull provisions are adequate means of meeting this goal," said the attorney.

According to the Maritrans rep, the fact that other challenges to OPA 90 are pending did not influence his company's decision to file suit, although he said that Maritrans does support

NRDA challenges being made by industry. "My own belief is that the industry is behind us and everyone hopes we win," concluded Mr. Volkle. (continued on page 90) 96 Maritime Reporter & Engineering News