The BP Spill and the Meaning of “Gross Negligence or
Patrick H. Martin
The blowout of the Macondo well on April 20, 2010 and the
resulting escape of oil into the waters of the Gulf of Mexico and
onto the shores of coastal states set in motion numerous lawsuits
that will take years to resolve. A significant amount of the liability
and penalties arising from the Gulf oil spill will turn on the
treatment given to the terms ―gross negligence‖ and ―willful
misconduct.‖ Should the United States decide to bring a criminal
complaint for manslaughter for the lives lost in the accident, ―gross
negligence‖ may also be an element in defining the crime. The
terms involve interpretation as statutory, contractual, and common
law standards. The undertaking is more complex than it might first
appear; it will involve courts, arbitrators, and federal agencies.
Because of the complexity, some framework for interpretation of
the terms may be useful. The aspiration of this Article is to provide
a framework for the interpretative process without analysis or
application of facts within the framework.
No attempt will be
made to assess whether the facts establish ―gross negligence‖ or
―willful misconduct‖ by any party, defendant or plaintiff. As will
be seen, under the Oil Pollution Act (OPA)
as well as other
statutes and common law doctrines, the determination that an
injured party‘s own ―gross negligence‖ or ―willful misconduct‖
contributed to the injury may be used to defeat liability to that
Copyright 2011, by PATRICK H. MARTIN.
J.D., Duke University Sc hool of Law (197 4); Ph.D., Louisiana State
University (1974); Campanile Professor of Mineral Law, Paul M. Hebert Law
Center, Louisiana State University; Director, Louisiana Mineral Law Institute.
. In full disclosure, the author has been employed for so me aspects of
work concerning contract issues in the matter o f the BP oil spill. T his
engagement was do ne after th e bulk of the work was completed on this Article.
This Article arose from the author‘s years of teaching in interpretive technique
in legal philosophy, in contract law, and in administrative law. Parts of this
Article are derived from t he author‘s work-in-progress on cognitive aspects in
interpretation of language, particularly legal usages. This Article does not
attempt to cover interpretation of ―gross negligence‖ and ―willful misconduct‖
. Oil Pollution Act of 1990, 33 U.S.C. §§ 2701–2762 (2006).
958 LOUISIANA LAW REVIEW [Vol. 71
With respect to the OPA and the Clean Water Act,
―gross negligence‖ and ―willful misconduct‖ are very old terms in
a new context. Their usage and adoption by Congress carry with
them their uses from the past. As said by John L. Austin, the
Oxford philosopher of language, words come to us ―trailing clouds
In one sense, this Article is a ―grammatical
investigation,‖ a phrase used by one well-known linguist, and it is
in keeping with the recognition by many linguists that ―words do
not ha ve meanings, they invite them.‖
involves both cognitive linguistics or neurolinguistics (how
language operates) and historical inquiry. Most meanings of terms
are characterized by family resemblances rather than a precise
categorical identity. The meaning of a word or term is its use. Use
necessarily involves purpose and context.
Congress has chosen to link substantial levels of liability to
inquiries and determinations of ―gross negligence.‖ It may be
thought of as a striking choice in light of recent treatment of ―gross
negligence‖ by courts and scholars. Reflective of skepticism about
―gross negligence‖ are the observations of Prosser and Keeton, a
standard text on tort law:
Although the idea of ―degrees of negligence‖ has not been
without its advocates, it has been condemned by most
writers, and, except in bailment cases, rejected at common
law by most courts, as a distinction ―vague and
impracticable in [its] nature, so unfounded in principle,‖
that it adds only difficulty and confusion to the already
nebulous and uncertain standards which must be given to
the jury. The prevailing rule in most situations is that there
are no ―degrees‖ of care or negligence, as a matter of law;
there are only different amounts of care, as a matter of fact.
. . . [T]he difficulty of classification, because of the very
real difficulty of drawing satisfactory lines of demarcation,
together with the unhappy history, justifies the rejection of
the distinctions in most situations.
The skepticism of Prosser and Keeton about the ability of
judges, juries, and commentators to intelligibly apply different
. Clean Water Act, 33 U.S.C. §§ 1251–1387 (2006 & Supp. 2009).
. J.L. Austin, A Plea for Excuses, in PHILOSOPHICAL PAPERS 175, 201 (3d
. Michael G. Johnson, Language and Cognition in Pr oducts Liability, in
LANGUAGE IN THE JUDICIAL PROCESS 291, 296 (Judith N. Levi & Anne Graffam
Walker eds., 1990).
. W. PAGE KEETON ET AL., PROSSER AND KEETON ON TORTS § 34, at 210–
11 (5th ed. 1984) (footnotes omitted).
2011] GROSS NEGLIGENCE AND THE OPA 959
degrees of negligence was preceded a century and a half ago by the
United States Supreme Court. In the 1853 admiralty personal
injury case (arising from an exploding boiler on a vessel) The
Steamboat New World v. King, the Court complained about the
distinctions claimed for classifying negligence into categories:
The theory that there are three degrees of negligence,
described by the terms slight, ordinary, and gross, has been
introduced into the common law from some of the
commentators on the Roman law. It may be doubted if
these terms can be usefully applied in practice. Their
meaning is not fixed, or capable of being so. One degree,
thus described, not only may be confounded with another,
but it is quite impracticable exactly to distinguish them.
Their signification necessarily varies according to
circumstances, to whose influence the courts have been
forced to yield, until there are so many real exceptions that
the rules themselves can scarcely be said to have a general
The Court commented that if the law furnished no practically
applicable definition of the terms ―gross negligence‖ or ―ordinary
negligence,‖ but left it to the jury to determine in each case what
the duty was, and what omissions amount to a breach of it, ―it
would seem that imperfect and confessedly unsuccessful attempts
to define that duty, had better be abandoned.‖ Whatever test might
be used, the Court said there was gross negligence in the failure to
use proper skill in the management of the boilers on the vessel.
Despite the long history of judicial and scholarly dissatisfaction
with distinguishing between types of negligence, Congress has
chosen to make such a distinction and has required decisionmakers
to attempt to draw ―satisfactory lines of demarcation.‖
congressional choice of terms and the terms themselves are
instances of the qualities of ―linguistic density‖ and ―resonance.‖
With the former, a multiplicity of ideas are expressed in a single
word or phrase, and with the latter, a verbal theme or image is
echoed from one text to another, so that meaning is enriched when
the texts (such as judicial opinions and statutes) are understood
As will be developed, gross negligence and willful misconduct
are concepts that derive from tort law (including its intersection
. The Steamboat New World v. King, 57 U.S. (16 How.) 469, 474 (1853).
. Id. at 476.
. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 74 (1938).
. CHARLES KAHN, THE ART AND THOUGHT OF HERACLITUS 89 (1979).