RESPONSIBLE FOR WHAT: DOES THE OIL POLLUTION ACT OF 1990 PRECLUDE RECOVERY OF PUNITIVE DAMAGES?

• Author: Welch, Austin

1. Introduction 45 II. Punitive Damages 46 A. Punitive Damages in Admiralty 47 1. Pre-Miles Era 48 2. Miles Era 48 3. Exxon Era 49 4. Batterton Era 51 III. EXXON VALDEZ Spill 54 A. Resulting Concerns 54 B. OPA Adoption 55 IV. OPA Substance 55 A. Damages 57 B. Savings Clauses 58 V. Damage Availability 60 A. Marine Pollution Claims for "Covered Damages" 60 B. Marine Pollution Claims for "Un-Covered Damages" 62 VI. Damage Availability by Claimant Status 68 A. OPA Claimants 69 B. GML Claimants 69 VII. Damage Availability by Defendant Status 71 VIII. Conclusion 72 I. Introduction

   Punitive damages have a long yet complicated history within general maritime law (GML). Decade-to-decade, court-to-court, GML punitive damages have seen eras of support and condemnation. Unfortunately, its relationship with marine pollution has only produced even murkier waters. Following four successive oil spills in 1989, initiated by the devastating Exxon Valdez oil spill, public and political outcry came to a head. Congress quickly realized that existing oil pollution laws were wholly inadequate. To help expedite clean-up responses and prevent future oil pollution, Congress enacted the Oil Pollution Act of 1990 (OPA).

   OPA fulfilled many of its desired results; it expanded the scope of recoverable claimants, accelerated oil removal efforts, and in large part created a comprehensible liability scheme. However, some questions regarding the OPA liability provisions continue to loom. A provision that saves state law "except as otherwise provided" raises questions as to what exactly is saved? (1) A damages provision that is silent on punitive damages has left courts unsure of whether the provision is entirely exclusive. (2) These questions, compiled with an unclear punitive damage history, have created a hurricane of uncertainty.

   In 2008, the tide again turned in favor of GML punitive damages in Exxon Shipping Co. v. Baker. (3) Nearly twenty years after the Exxon Valdez spill that catalyzed the enactment of OPA, its resulting litigation concluded in the Supreme Court. The Court granted punitive damages to the claimants and revitalized its availability in GML. (4) This holding seemed to be strengthened the following year when the Supreme Court concluded that punitive damages are available for maintenance and cure in Atlantic Sounding Co. v. Townsend. (5) However, just as quickly as punitive damages seemed to return to GML, they were stripped from unseaworthiness claims in Batterton v. Dutra Group. (6) With Batterton as the current precedent, what is left of punitive damage availability under OPA?

   This comment will first examine the purpose of punitive damages and its complicated history within GML. It will follow with a review of the adoption, purpose, and substance of the Oil Pollution Act of 1990. The next section will analyze the OPA damages provision and the arguments for and against the supplementation of punitive damages. The punitive damages question is further analyzed in the following section by considering how a claimant's status may transform the question of availability. The penultimate section will explore how this question may be similarly altered but by the defendant's status. Finally, logical and illogical challenges are considered, and a prediction is made about the current availability of punitive damages under OPA.

2. Punitive Damages

   Punitive damages, or exemplary damages, have been in existence "since the Code of Hammurabi in 2000 B.C." (7) These damages do not compensate, but instead punish an individual for outrageous conduct and deter wrongdoers from similar conduct in the future. (8) Since the late eighteenth century, American courts have awarded punitive damages "for examples sake." (9) Due to its penal nature, punitive damages are awarded infrequently and are reserved for truly egregious behavior. The United States Supreme Court noted: "It should be presumed a plaintiff has been made whole for her or his injuries by compensatory damages, so punitive damages should only be awarded if the defendant's culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve retribution or deterrence." (10)

   1. Punitive Damages in Admiralty

   Admiralty courts have recognized the punitive damage doctrine since the early nineteenth century. (11) "Although rarely imposed, punitive damages have long been recognized as available under GML where a defendant's intentional or wanton and reckless conduct amount to a conscious disregard for the rights of others." (12) In 1818, the crew of an American vessel named THE AMIABLE NANCY, boarded and plundered a Haitian schooner. (13) While mindful of the crew's lawless misconduct, the United States Supreme Court refused to hold the vessel's owners liable for punitive damages. (14) Since the owners neither participated in nor authorized the misconduct, Justice Story observed: "if deterrence is the goal of punitive damages, then the original wrongdoer shall pay the punitive damages award." (15) Although punitive damages were declined in its first instance, they have continued to be a highly debated subject in GML. However complex, it is helpful to reduce the history of exemplary damages in GML to four important ideological periods: Pre-Miles Era, the Miles Era, the Exxon Era, and the current Batteron Era.

   1. Pre-Miles Era

      Following The Amiable Nancy, punitive damages did not again emerge under GML until 1969, more than 150 years later. In United States Steel Corp. v. Fuhrman, two vessels collided in heavy fog. (16) The captain of the responsible vessel, which was owned by U.S. Steel, attempted to beach the vessel rather than abandon it, resulting in the death and injury of many of the crew when the vessel capsized. (17) Claimants sought recovery for compensatory and punitive damages for injuries and deaths sustained. (18) The trial court held that U.S. Steel was liable for punitive damages because it failed to countermand the captain's order to beach the vessel, and because it was common practice for U.S. Steel's ships to deviate from the U.S. Coast Guard's recommended courses and proceed full speed ahead in fog. (19) The Sixth Circuit reversed and denied the punitive damage award. (20) Similar to the Amiable Nancy holding, the Sixth Circuit rejected punitive damage awards against the owner of a vessel unless it can be shown that the owner ratifies the acts of the captain. (21) Although punitive damages were denied, the holding maintained that under certain circumstances punitive damages are available for gross negligence. (22)

   2. Miles Era

      In 1990, the United States Supreme Court decided what would emerge to be a watershed decision. In Miles v. Apex Marine, the family of a deceased seaman brought damages against the employer for loss of society and future income. (23) In a unanimous decision, the Court denied recovery and emphasized principles of uniformity in light of applicable legislation. (24) The Court reasoned that "an admiralty court should look primarily to these legislative enactments for policy guidance...[and] must be vigilant not to overstep the well-considered boundaries imposed by federal legislation." (25) Although the case did not discuss punitive damages, subsequent courts used the legislative deference framework to broadly deny exemplary awards in other contexts.

      The Fifth and Ninth Circuits held that the Miles framework barred punitive damage recovery for willful failure to pay maintenance and cure. (26) The First and Sixth Circuits used Miles to preclude punitive damage awards in unseaworthiness claims. (27) The Second Circuit held that Miles inhibited non-pecuniary damage recovery in loss of society claims. (28) Strangely, post-Miles decisions that allowed for punitive damage recovery were not related to any loss of life, but were instead for property damage. The court in CEH v. F/V Seafarer refused to extend Miles "to bar recovery of punitive damages in all general maritime cases," reasoning that Miles does not "signify a call for universal uniformity of maritime tort remedy, but rather emphasizes the importance of uniformity in the face of applicable legislation." (29) Importantly, the First Circuit noted, however, that Miles does not compel a uniform result for every maritime action. (30) Nonetheless, the watershed Miles decision struck a near fatal blow to punitive damage recovery under GML altogether. Until 2008, when faced with a claim or right based on a federal statute, courts refused to proscribe any different measure of damages than provided by statute.

   3. Exxon Era

      After nearly two decades of litigation resulting from the EXXON VALDEZ oil spill in 1989, Exxon Shipping Co. v. Baker thrust maritime punitive damages back into the spotlight. (31) Although the case was litigated and decided long after the enactment of the OPA, Exxon Shipping disputed the availability of punitive damages under the Clean Water Act (CWA). In Exxon, fishermen sought compensatory and punitive claims in response to damaged property. (32) Exxon Shipping argued that the CWA preempted the maritime law remedy of punitive damages. (33) The United States Supreme Court rejected the argument, finding that although CWA's savings clause does not explicitly mention punitive damages, there is no clear indication that Congress intended to occupy the entire field of available remedies. (34) Further, Justice Souter asserted that because the judicial branch traditionally formulates flexible and fair remedies in general maritime law, Congress cannot inhibit these remedies absent clear intention to do so. (35) Importantly however, it should be noted that the CWA is far less comprehensive than the OPA framework. Unlike OPA, the CWA includes a citizen suit provision stating "[n]othing in this section shall restrict any right which any person (or class of persons) under any statute or common law to seek enforcement of any effluent...