And Not a Drop to Drink: Admiralty Law and the BP Well Blowout
| Author | John Costonis |
| Position | Chancellor Emeritus and Professor of Law, Paul M. Hebert Law Center, Louisiana State University. Professor Costonis gratefully acknowledges the support of the LSU Law Center Research Support program and the helpful comments of his colleagues, Professors Martin, Devlin, and Richards. Professor Costonis is not a consultant to or otherwise... |
| Pages | 1-30 |
And Not a Drop to Drink: Admiralty Law and the BP
Well Blowout
John Costonis∗
I. INTRODUCTION
In an earlier Essay, I questioned whether the BP Macondo well
blowout qualifies as an admiralty tort.1 The blowout scenario
features BP’s exploratory oil and gas well and Transocean’s
Deepwater Horizon, a Mobile Offshore Drilling Unit (MODU). I
appreciated then as now that my approach to the question’s
resolution diverges from a framework (Fifth Circuit Model)
employed by commentators and federal courts within the Federal
Fifth Circuit to assess torts occasioned by injuries or deaths of
workers atop Outer Continental Shelf (OCS) oil and gas drilling
platforms.
Confirmation appeared shortly thereafter in Professor David
Robertson’s reply essay2 and in the Federal Eastern District of
Louisiana’s opinion in the BP MDL B-1 Bundle Order and Ruling
(B-1 Bundle).3
Both look to the Fifth Circuit Model to characterize the
blowout as an admiralty event. Paralleling my original and present
essays, both focus on what B-1 Bundle terms “all claims for private
or ‘non-governmental economic loss and property damages.’”4
These claims, which exclude oil-platform-worker personal injury
and death claims, correspond with the inventory of economic–
property losses labeled “covered damages” in section 2702(b) of
the Oil Pollution Act of 1990 (OPA).5
Copyright 2012, by JOHN COSTONIS.
∗ Chancellor Emeritus and Professor of Law, Paul M. Hebert Law Center,
Louisiana State University. Professor Costonis gratefully acknowledges the
support of the LSU Law Center Research Support program and the helpful
comments of his colleagues, Professors Martin, Devlin, and Richards. Professor
Costonis is not a consulta nt to or otherwise compe nsated by any party engage d
in the legal proceedings discussed in this Essay.
1. See John Costonis, The Macondo Well Blowout: An Admiralty Tort?, 59
LA. B. J. 28 (2011).
2. David W. Robertson, Jurisdiction and Choice of Law Issues in OCS Oil
Spill Cases, 59 LA. B. J. 344 (2012).
3. In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico,
4. Id. at 947.
U.S.C. §§ 2701–2761 (2006 & Supp. III 2009)). B-1 Bundle also addresses
claims for punitive damages, which, although allowed under general maritime
law, are not included in OPA section 2702(b).
2 LOUISIANA LAW REVIEW [Vol. 73
Despite the applicability of the Outer Continental Shelf Lands
Act (OCSLA)6 to the Macondo blowout, Professor Robertson
asserts that “a vessel-related oil spill into the waters over the Outer
Continental Shelf (OCS) is [no] less an admiralty matter than a
spill into high seas beyond the OCS or into state waters inshore of
the OCS.”7
B-1 Bundle comes to the same result by employing the Fifth
Circuit Model and, largely, the same precedents as Professor
Robertson.8 The blowout qualifies as an admiralty tort, according
to B-1 Bundle, because it meets the two standards essential to
water-borne status decreed in the United States Supreme Court
decision in Executive Jet Aviation Company v. City of Cleveland9
and its progeny:10 location and a “substantial relation to a
6. Ch. 345, 67 Stat. 462 (1953) (codified as amended at 43 U.S.C. §§
1331–1356a (2006 & Supp. III 2009)) [hereinafter OCSLA].
7. Robertson, supra note 2, at 345.
8. B-1 Bundle, 808 F. Supp. 2d 943, unlike Professor Robertson or my
original essay, also addresses the issue of OPA’s displacement of ge neral
maritime law. It held that, subject to an exception obligating claimants suing
OPA responsible parties to satisfy the procedural requirements of OPA section
2713, OPA and OCSLA do not displace general maritime law. Three
consequences atte nd this stunningl y aggressive holdi ng, which afford s private
claimants a parallel track alongside OCSLA–OPA to press their property- and
economic-loss claims. First, claimants may bring general maritime law actions
seeking the same damages under that law that are defined as “covered damages”
under OPA section 2702(b). Second, OPA’s silence regarding punitive damages
does not bar their pursuit under general maritime law. Finally and by implication
rather than statement, OPA’s express displacement of the Limited Liability Act
of 1851, now codified at 46 U.S.C. §§ 30501–30512 (2006), in OPA section
2718(a) and (c) does not bar consideration of OPA’s “covered damages” under
the Act’s procedures so long as the claims are packaged for assertion via the
parallel track afforded by general maritime law. Subject to the foregoing
exception, these claims may be asserted against all of the blowout’s potentially
liable parties (e.g., Cameron, Halliburton, and others), despite OPA section
2713, which restricts B-1-type claimants to actions against “responsible parties”
alone. The present Essay identifies a variety of problematic outcomes owing to
the Fifth Circuit’s self-confessed appetite for the “reflexive invocation of
admiralty jurisdiction,” which arise in this Essay’s inquiry into Macondo’s
status as an admiralty tort. Lewis v. Glendel Drilling Co., 8 98 F.2d 1083, 1087
(5th Cir. 1990). Admiralty-aggressive outcomes are no less prominent, however,
in B-1 Bundle’s grant of the parallel track to general maritime law. In vie w of
the unwieldiness of addressing both the admiralty jurisdiction and admiralty
displacement issues in a single study, the author is preparing an independent
essay addressing the latter.
10. See, e.g., Foremost Ins. Co. v. Richardson, 457 U.S. 668 (1989); Sisson
v. Ruby, 497 U.S. 358 (1990); Jerome B. Grubart, Inc. v. Great Lakes Dredge &
named of this triad.
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