Immunity Coalition Actions In 2013The Responder Immunity Coalition

  • Putting to rest the fears and misconceptions about what responder immunity means and what it will eventually do. It’s all good.

    As many in the response industry, and in many cases the marine industry in general appreciate, there has been an extended effort to enact an enhanced responder immunity regime following the lessons learned from the Deepwater Horizon incident. It is hard to believe that we only recently observed the fourth anniversary of this unfortunate incident. And, ironically, some of the responders sued after the incident, remain in the litigation even though BP was able to settle its claims with plaintiffs. This article will not only provide a status update of the effort to enact an enhanced responder immunity regime, but it will address the key concerns that often have been raised by those stakeholders who have expressed skepticism as to the need or desire for such legislation.

    Why the Response Industry Needs Responder Immunity
    In way of background, following lessons learned from the Deepwater Horizon incident, specifically the extensive lawsuits filed against all segments of the response industry involved in the response, a Responder Immunity Coalition (the “Coalition”) was formed, which is represented by all response interests including the salvage industry, oil clean-up industry, spill management industry, the offshore vessel support industry, and the well containment industry to work with Congress to enact enhancements to the current responder immunity provisions enacted by the Oil Pollution Act of 1990 (“OPA 90”).
    Based on lessons learned, the two main concerns following the incident were that (1) plaintiffs sued responders under general maritime law due to personal injury caused by the exposure to the spilled oil and the dispersants which were approved for use on a daily basis by the Federal On-Scene Coordinator (“FOSC”) pursuant to the National Contingency Plan (“NCP”); and (2) bare allegations by plaintiffs of gross negligence and willful misconduct related to the response actions without having to provide any underlying facts to support such allegations.
    To address these concerns, the proposed legislation would:
     

    • Extend the immunity under the law to a full range of response activities by explicitly defining the response activities covered under the immunity.
    • Provide immunity to a responder with regard to exposure claims related to the oil and dispersants but otherwise maintain the current regime of responder employer liability for slips, trips, and fall type injuries (seaman Jones Act remedies) that commonly occur in marine operations.
    • Establish a presumption that response actions do not constitute gross negligence and would require claimants to pay attorney fees and court costs for meritless claims to disincentivize frivolous lawsuits.


    Why a Responsible Party (RP) Should Support or not Object to Enhanced Responder Immunity
    As the Coalition moved forward with this effort it received numerous comments and concerns with regard to the specific language of the proposal. As a result, the Coalition took action to fix those deficiencies to make sure the immunity was not unnecessarily broad and would not have unintended consequences.
    In particular, to address these comments, the current proposal includes new language to make it explicitly clear that no new liability is transferred to an RP. Under the law today, an RP is strictly liable for damages and removal costs and would be liable for an exposure claim as discussed above if found negligent under general maritime law. This proposal would not change that liability. And in all cases, an injured party will always have a remedy which will be backed up by the Oil Spill Liability Trust Fund even if an RP is unable or unwilling to pay compensation.
    In addition, concerns have been raised that “opening up OPA 90 to amendments” would result in numerous other OPA 90 amendments that could be attached to the Coalition’s proposal which would have severe negative effects on the marine industry such as increased limits to liability that were proposed shortly after the Deepwater Horizon incident. It has been four years since the incident and the constant barrage of OPA 90 related to proposed legislation has died down completely. This is simply not a valid reason today not to move forward with this proposal. The Coalition is committed to work with industry to make sure that does not happen.
    Moreover, there are real tangible benefits that will inure to an RP as a result of this legislation if enacted. That is because ultimately, it is the RP and others requiring the services of responders that pay the cost of any frivolous litigation against a Responder. This is because if a robust responder immunity protection is not available through statute, then the RP will still have to bear this liability and cost.
    Specifically, under the usual response contract between an RP and responders, the RP will have agreed to provide enhanced contractual indemnity provisions to their contracted responders. And, as a result of this indemnification the RP will have to pay in the future the increased time and material services costs as their contracted Responders are forced to pay for increased insurance premiums to insure against these risks because the current regime of responder immunity is not providing the protection from lawsuits that was envisioned.
    In addition, once a responder is sued, the RP will not only have to pay for its own defense costs as the RP, but it also will have to pay the defense costs of the responder as a result of its indemnification provision. Thus, the RP is paying double defense costs if adequate responder immunity is not available and will ultimately pay for the responder’s increased insurance rates through higher costs for response services which will be passed along to the RP. This is exactly what happened as a result of the Deepwater Horizon incident due to the claims against responders which are still pending in court. Accordingly, the Coalition proposal benefits potential RPs by avoiding unnecessary additional defense costs and increased rates for services.

    Current Status & Looking Ahead
    Although there has been mostly great support from key Congressional offices to move this project along, there have been objections expressed by certain insurance interests and a key industry organization opposing this effort. I truly believe that the concerns addressed by these interests are misplaced as addressed in this article. As the result of a Coalition effort to better educate industry, we have recently seen a turn within industry to support this effort as more stakeholders begin to fully understand how this enhanced responder immunity will not only help the response industry but also provide tangible benefits to an RP that has a future incident.
    However, this turn-around has to happen quickly so that objections from these interests are at least changed to neutral if not in support of the proposal. This is because the House passed its version of the Coast Guard Authorization bill earlier this year and the Senate is now in the process of finalizing its version. Senate action could happen soon but in any event is expected before the summer recess in August 2014. It is critical that the Coalition’s proposal be included in the Senate version of the bill because it was not included in the House version. In order for there to be any realistic chance for enactment, a responder immunity provision needs to be included in either the House or Senate passed bill in order to be germane for consideration when the bill goes to Conference and is finalized later this year.
    In conclusion, litigation following the Deepwater Horizon incident demonstrated that the current responder immunity provisions of OPA 90 are inadequate to fully protect responders from lawsuits and exposure to liability. As discussed herein, not only will the Coalition’s proposal help the response industry, it will also provide real benefits in terms of costs to RPs due to increased litigation defense costs due to indemnification of response contractors as well as the increased cost of response services in order to pay for higher insurance premiums. This will provide responders with the necessary confidence that it can continue to respond expeditiously without the fear of unfounded lawsuits in order to minimize the damages to the greatest extent possible which will have the added benefit to lower the RP’s liability for additional damages that would result from a slow response effort.
    Thus, it is time for the entire marine industry to get on board with this proposal so it is enacted by Congress this year as the response industry is losing its appetite for continuing the fight much longer. Indeed, there is a need for urgency here before we forget key lessons learned from history in our world of oil spills.



    (As published in the 2Q 2014 edition of Maritime Professional - www.maritimeprofessional.com)
     

  • The Benefits to the Scope of Coverage in an Expanded Responder Immunity Regime are many. The response industry has been extremely supportive of a coalition effort to work with Congress to enact enhancements to the current responder immunity provisions enacted by the Oil Pollution Act of 1990 (“OPA 90”).

  • than most would normally expect. Perhaps not surprisingly, we have a similar dynamic occurring with the Oil Pollution Act of 1990’s (OPA 90) responder immunity provisions.   As most in the industry are aware, immediately following the explosion on the Deepwater Horizon in April 2010, emergency response

  • , specifically ordered the various actions, including use of chemical dispersants, involved in plaintiffs’ complaints.   Clean Water Act Derivative Immunity The court then turned to the application of law to the facts of this spill response.  Parties acting under the direction and control of the federal

  • . Federal regulations: which emerging rules will affect the spill response community the most? Without a doubt, the issue of Limited Responder immunity is the single biggest issue that is affecting the response community as a whole and could have a drastic effect on the Nation’s ability to respond

  • success and failure. The second key challenge faced by all ASA members, and indeed the response community at large, is the incorporation of a Responder Immunity clause into the Oil Pollution Act of 1990 (OPA90).  If a responder must worry that its every (responsible) action could be litigated in court later

  • response to spills roughly the size of the Alaska spill. Mr. Duca pointed out that under U.S. federal law, the responder to an oil spill has limited immunity. Under some state laws, however, the responder is not provided this limited immunity. He said that MSRC is currently seeking state liability standards

  • better industry-wide understanding of what it is meant to do. Another important element the ASA has been actively advocating is the concept of Responder Immunity. If salvors have to worry that reasonable and measured actions may subject themselves to a lawsuit if something goes amiss through some unforeseen

  • A group of 41 members of Congress have banded together to form a bipartisan Congressional Shipyard Coalition that will direct its efforts toward the promotion of federal policies which will expand American shipbuilding and repairing. At a news conference, Lindy Boggs (Dem.-La.) and Paul S. Trible

  • only act when this infrastructure does not have sufficient resources for larger spills. Under federal law, the responder to an oil spill has limited immunity. He is not liable for removal costs or damages unless he acts with gross negligence or willful misconduct. This limited immunity does not involve case

  • with whom it has agreements, training and drilling with them. Liability Of The Responder Under federal law, the responder to an oil spill has limited immunity. He is not liable for damages or removal costs when he acts in accordance with the National Contingency Plan or as otherwise directed by the

  • Coast Guard to consider it to be one event, whereas from an insurance perspective it’s multiple events. And now there are some issues regarding responder immunity. I won’t name names, but there are three different groups: one group is in favor of the responder immunity; one group is opposed to responder immunity

  • MN Dec-19#47 FIREBOATS
Metal Shark on the Move
De?  ant-class pilothouse)
    December 2019 - Marine News page: 47

    FIREBOATS Metal Shark on the Move De? ant-class pilothouse ? reboats currently in production. The impressive new Canaveral ? reboat is a 70’ x 22’ Signi? cantly, the new Miami-Dade ? reboats are being welded aluminum monohull pilothouse vessel designed by built alongside a diverse assortment of

  • MN Dec-19#24 COLUMN WASHINGTON WATCH
The Good, Bad, 
and the Undeniably)
    December 2019 - Marine News page: 24

    COLUMN WASHINGTON WATCH The Good, Bad, and the Undeniably Ugly By Jeff Vogel The end of 2019 promises to be a U.S. shipyards, the Senate bill received a less enthusiastic busy, and potentially discordant, legisla- response from U.S. port stakeholders. While the House of tive and regulatory period for

  • MN Dec-19#8 Authors   Contributors
&
MarineNews 
December 2019
Volume)
    December 2019 - Marine News page: 8

    Authors Contributors & MarineNews December 2019 Volume 30 Number 12 Larry DeMarcay is a partner Chad Fuhrmann is the Di- in the law ? rm of Baldwin Has- rector of Regulatory Affairs pel Burke & Mayer. His areas for the Offshore Marine Ser- of practice include Commer- vice Association (OMSA). As

  • MN Dec-19#4 MarineNews
MarineNews  December 2019  Volume 30   Number)
    December 2019 - Marine News page: 4

    MarineNews MarineNews December 2019 Volume 30 Number 12 (ISSN#1087-3864) (USPS#013-952) Florida: 215 NW 3rd St., Boynton Beach, FL 33435 tel: (561) 732-4368; fax: (561) 732-6984 Departments Analysis New York: 118 E. 25th St., New York, NY 10010 & tel: (212) 477-6700; fax: (212) 254-6271 www.marinelink.

  • MR Dec-19#34 GREAT SHIPS OF 2019
RV Atair: A (new) Star is Born
The new)
    December 2019 - Maritime Reporter and Engineering News page: 34

    GREAT SHIPS OF 2019 RV Atair: A (new) Star is Born The new research vessel received its While it is a medium-sized research tally friendly natural gas or diesel fuel. quirements for the “Blue Angel” eco- name on the occasion of its traditional vessels, it is the largest ship in the BSH In addition

  • MR Dec-19#25 GREAT SHIPS OF 2019
©Pospiech
Potsdam: German Federal)
    December 2019 - Maritime Reporter and Engineering News page: 25

    GREAT SHIPS OF 2019 ©Pospiech Potsdam: German Federal Police On December 14, 2018, the ? rst of continuing its journey. ment, such as a marine radio, a radio for phase motor is used in this speci? c case, three new police mission ships was The diesel-electric propulsion system BOS, a chart plotter

  • MR Dec-19#8 I
INSIGHTS: TRAINING TIPS FOR SHIPS
Murray Goldberg is CEO)
    December 2019 - Maritime Reporter and Engineering News page: 8

    I INSIGHTS: TRAINING TIPS FOR SHIPS Murray Goldberg is CEO of Marine Learning Systems which provides software and services to optimize knowledge, skills and behavior in maritime operators. In his former life he was a computer science faculty member at the University of BC researching online learning and

  • MR Dec-19#4 MARITIME
Authors & Contributors
REPORTER
AND
ENGINEERING)
    December 2019 - Maritime Reporter and Engineering News page: 4

    MARITIME Authors & Contributors REPORTER AND ENGINEERING NEWS M A R I N E L I N K . C O M ISSN-0025-3448 USPS-016-750 No. 12 Vol. 81 Bonvento DiRenzo Bryant DiRenzo Ewing Maritime Reporter/Engineering News (ISSN # 0025-3448) is published monthly (twelve issues) by Maritime Activity Reports, Inc.

  • MT Nov-19#55 THE LATEST  
SOLUTIONS FOR YOUR 
BUSINESS NEEDS:
TH
50
OFFSH)
    November 2019 - Marine Technology Reporter page: 55

    THE LATEST SOLUTIONS FOR YOUR BUSINESS NEEDS: TH 50 OFFSHORE ENERGY DEVELOPMENT ANNIVERSARY ASSET INTEGRITY & MONITORING Register to attend for FREE HYDROGRAPHY, GEOPHYSICS AND GEOTECHNICS oceanologyinternational.com COASTAL ZONE & SHALLOW WATER NAVIGATION AND POSITIONING IMAGING AND METROLOGY

  • MT Nov-19#39 strument also provides ethernet connectivity, helpful in)
    November 2019 - Marine Technology Reporter page: 39

    strument also provides ethernet connectivity, helpful in today’s ever more sophisticated undersea vehicles. Meanwhile at Sonardyne, the Syrinx DVL has been incorporat- ed in an innovative solution - the hybrid acoustic-inertial naviga- tor SPRINT-Nav. Here, the DVL transducers, the inertial motion unit

  • MT Nov-19#34 ADCPs & DVLs
Photo: Hydroid
ADCPs & DVLs
Advancing ADCPs &)
    November 2019 - Marine Technology Reporter page: 34

    ADCPs & DVLs Photo: Hydroid ADCPs & DVLs Advancing ADCPs & Disrupting DVLs, Recent Technical Developments By Justin Manley ll seagoers know the ocean through the water, is a key aspect of You hear the Doppler effect in action moves. Some thrive on rid- many ocean technologies and applica- when a police

  • MT Nov-19#13 IHO is obviously well-known, but for  ences in the ?  eld)
    November 2019 - Marine Technology Reporter page: 13

    IHO is obviously well-known, but for ences in the ? eld of hydrography and together with a small international staff those not in the know, please pro- the techniques employed in descriptive of technical experts in hydrography and vide an overview of the organization oceanography. nautical cartography

  • MT Nov-19#4 Editor’s Note
2020 Vision
 Photo: NORTEK
www.marinetechnolog)
    November 2019 - Marine Technology Reporter page: 4

    Editor’s Note 2020 Vision Photo: NORTEK www.marinetechnologynews.com ersonally I ? nd it hard to believe that yet another NEW YORK year has ? own by and we will soon turn the clock 118 E. 25th St., New York, NY 10010 and enter the year 2020. That said, the end of the Tel: (212) 477-6700; Fax: (212)

  • MR Nov-19#77 M
MARITIME MEDICAL CREW CARE
 “Medical care has to be)
    November 2019 - Maritime Reporter and Engineering News page: 77

    M MARITIME MEDICAL CREW CARE “Medical care has to be managed by medical professional companies to ensure that cases are handled in the most ap- propriate way, crew members get highest quality of medical care at the most reasonable price. Additional requirements of GDPR put even additional pressure to

  • MR Nov-19#36 WORKBOATS SOUTHERN TOWING COMPANY
The Southern Towing)
    November 2019 - Maritime Reporter and Engineering News page: 36

    WORKBOATS SOUTHERN TOWING COMPANY The Southern Towing Company Pillars Every Southern Towing employee has a com- pany challenge coin (and the T-shirt!) embla- zoned with the company’s ‘pillars’. Ed Grimm describes what the pillars mean. • Success Through Commitment: “You have to be 100 percent; 100 percent

  • MR Nov-19#26 T
THOUGHT LEADERSHIP: OFFSHORE WIND
Equinor Invests in)
    November 2019 - Maritime Reporter and Engineering News page: 26

    T THOUGHT LEADERSHIP: OFFSHORE WIND Equinor Invests in Solar & Wind Energy in Brazil By Claudio Paschoa Scatec Solar and Equinor have ? rst major solar plant in Brazil in commercial operation. Equinor illustration of Hywind offshore wind farm in shallow waters off Scotland. Photo: Equinor ew technologi

  • MR Nov-19#20 T
THOUGHT LEADERSHIP: OFFSHORE WIND
Joan Bondareff is of)
    November 2019 - Maritime Reporter and Engineering News page: 20

    T THOUGHT LEADERSHIP: OFFSHORE WIND Joan Bondareff is of counsel in Blank Rome’s Washington, D.C., of? ce who focuses her practice on marine trans- portation, environmental, regulatory, renewable energy, and legislative issues. She currently serves as Chair of the Virginia Offshore Wind Development Authority

  • MR Nov-19#4 MARITIME
Authors & Contributors
REPORTER
AND
ENGINEERING)
    November 2019 - Maritime Reporter and Engineering News page: 4

    MARITIME Authors & Contributors REPORTER AND ENGINEERING NEWS M A R I N E L I N K . C O M ISSN-0025-3448 USPS-016-750 No. 11 Vol. 81 Ewing DiRenzo Bryant Bondareff Goldberg Maritime Reporter/Engineering News (ISSN # 0025-3448) is published monthly (twelve issues) by Maritime Activity Reports, Inc.

  • MN Nov-19#85 CAD/CAM SOFTWARE
TrueProp Software, they used man-
ual)
    November 2019 - Marine News page: 85

    CAD/CAM SOFTWARE TrueProp Software, they used man- ual methods to assess and repair their propellers. “We cleaned the prop a bit, assessed whether it was repairable with manual gauges, and beat the propeller with rawhide or brass hammers to get it to lay on a pitch block,” says Dorothy. “Then we beat

  • MN Nov-19#78 TECHNOLOGY
“... there are still maritime companies out)
    November 2019 - Marine News page: 78

    TECHNOLOGY “... there are still maritime companies out there still working within a traditional framework of manual processes which are becoming less relevant, practicable and competitive with every passing day. As the industry moves inexorably towards integration and automation in everything from supply

  • MN Nov-19#67 Cut downtime through 
preventative maintenance
Monitoring)
    November 2019 - Marine News page: 67

    Cut downtime through preventative maintenance Monitoring engines and other criti- cal equipment enables the crew and the vessel operations team to take re- medial action before equipment suf- fers catastrophic failure. This offers many logistical bene? ts. For example, operators can minimize the level

  • MN Nov-19#44 PROPULSION
Robert Allan Ltd. and MTU Friedrichshafen GmbH)
    November 2019 - Marine News page: 44

    PROPULSION Robert Allan Ltd. and MTU Friedrichshafen GmbH recognized these new market opportunities, took action, and developed the ? rst natural gas fuelled shallow draft pushboat design – the RApide 2800-G pushboat. king’s new LifeCraft in

  • MN Nov-19#34 WORKBOAT COMMUNICATIONS
“If the Agile 4Marine does 
not f)
    November 2019 - Marine News page: 34

    WORKBOAT COMMUNICATIONS “If the Agile 4Marine does not f nd any other connection than satellite, only then will it select satellite. But, if a cellular connection is found, it will re- evaluate and switch over from satellite back to cellular.” – Sheryar Wahid, Agile’s Co-Founder and Chief Technical

  • MN Nov-19#30 WORKBOAT COMMUNICATIONS
ISO: Af  ordable & Reliable)
    November 2019 - Marine News page: 30

    WORKBOAT COMMUNICATIONS ISO: Af ordable & Reliable Workboat Comms T e commercial shipping world can benef t from greater range of communications and reduced satel- lite costs. Domestic brown water operators know all too well that’s easier said; than done. Until now. By Joseph Keefe n the fast moving