SRTMA: Reappraising the BP Well Blowout in Light of Pippen, Theriot, Doiron, and Grubart

• Author: John J. Costonis
• Position: Chancellor-Emeritus, Louisiana State University Law Center
• Pages: 349-405

Louisiana Law Review Louisiana Law Review

Volume 80

Number 2

Winter 2020

Article 10

4-22-2020

SRTMA: Reappraising the BP Well Blowout in Light of Pippen, SRTMA: Reappraising the BP Well Blowout in Light of Pippen,

Theriot, Doiron, and Grubart Theriot, Doiron, and Grubart

John J. Costonis

Louisiana State University Law Center

, jcoston@lsu.edu

Follow this and additional works at: https://digitalcommons.law.lsu.edu/lalrev

Part of the Jurisdiction Commons

Repository Citation Repository Citation

John J. Costonis,

SRTMA: Reappraising the BP Well Blowout in Light of Pippen, Theriot, Doiron, and

Grubart

, 80 La. L. Rev. (2020)

Available at: https://digitalcommons.law.lsu.edu/lalrev/vol80/iss2/10

This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital

Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital

Commons. For more information, please contact kreed25@lsu.edu.

341734-LSU_80-2_Text.indd 69341734-LSU_80-2_Text.indd 69 4/15/20 8:48 AM4/15/20 8:48 AM

SRTMA: Reappraising the BP Well Blowout in Light

of Pippen, Theriot, Doiron, and Grubart

John J. Costonis*

PREFACE

The present Article, along with a recently published companion

piece,1 addresses choice of law and jurisdictional issues posed by tortious

or contractual events associated with the binary terrestrial/aquatic

enterprise of oil and gas drilling operations on the nation’s Outer

Continental Shelf (OCS). Among the circuits, the Fifth Circuit has been

this jurisprudence’s dominant author because the OCS adjacent to the

Gulf states is home to most of the nation’s offshore oil and gas production.

The Circuit has struggled to accommodate general maritime oil pollution

law with pertinent federal statutes and with the United States Supreme

Court’s view of the general maritime law, both independent of or as

modified by these statutes as the Court understands both. No easy task, the

Circuit’s efforts have generated what Professor David W. Robertson has

labeled “an infamously chaotic area of the law,”2 a view undisputed in th e

Circuit’s candid self-assessment of these efforts.3

Featured in both articles is Congress’s Outer Continental Shelf Lands

Act (OCSLA),4 which speaks directly to the choice of federal law, if

available, and for adjacent state law when gaps in federal law require the

adoption of state law as surrogate federal law. Similarly notable is

Congress’s Oil Pollution Act of 1990 (OPA).5 OPA precludes such gaps

by defining a comprehensive federal recovery and damages remedial

scheme featuring substantive, procedural, and limitation of liability

prescriptions. These prescriptions duplicate, and in many instances

surpass and reconfigure, the pre-OPA general maritime law, thereby

Copyright 2020, by JOHN J. COSTONIS.

* Chancellor-Emeritus, Louisiana State University Law Center.

1. John J. Costonis, The BP MDL and Its Aftermath: Whither OPA’s

Displacement Jurisprudence?, 93 TUL. L. REV. 511 (2019).

2. David W. Robertson, The Outer Continental Shelf Lands Act’s Provisions

on Jurisdiction, Remedies, and Choice of Law: Correcting the Fifth Circuit’s

Mistakes, 38 J. MAR. L. & COM. 487, 489 (2007).

3. See infra text accompanying note 168.

4. Pub. L. No. 83-212, 67 Stat. 462 (1953) (codified and amended as 43

U.S.C. §§ 1331–1356(a) (2006 & Supp. III 2009)).

5. Pub. L. No. 101-380, 104 Stat. 484 (1990) (codified and amended as 33

U.S.C. §§ 2701–2762 (2006 & Supp. III 2009)).

341734-LSU_80-2_Text.indd 70341734-LSU_80-2_Text.indd 70 4/15/20 8:48 AM4/15/20 8:48 AM

348 LOUISIANA LAW REVIEW [Vol. 80

furnishing the framework for my prior article’s claim that OPA displaces

the pre-OPA maritime law oil pollution tort.

The Supreme Court’s contributions are twofold. One is its

interpretation of OCSLA’s legislative history as so hostile to admiralty

law’s role in oil discharge governance that it substantiates the Court’s

conclusion that “exploration and development of the Continental Shelf are

not themselves maritime commerce.”6 The second is its redefinition of

admiralty jurisdiction perfected in its 1995 opinion in Jerome B. Grubart

v. Great Lakes Dredge & Dock Co. to include both an event’s location on

navigable waters and its status as having a “substantial relationship to a

traditional maritime activity” (SRTMA).7 These Supreme Court rulings—

the second of which comports with the Fifth Circuit’s many rulings that

activities servicing maritime oil and gas drilling operations are not

inherently maritime in character—mirror a viewpoint confirmed in the

Circuit’s en banc In re Doiron decision addressed at length in this Article.8

The positions favored in a consolidated Limitation of Liability/BP MDL

trial was that OPA does not displace the general maritime law oil pollution

tort and that OCS oil and gas operations conducted from a vessel qualify as

a SRTMA event. This Preface leaves my disagreement with both contentions

to the bodies of the articles themselves and instead briefly explores plausible

linkages between the Circuit’s ad miraltycentrism—framed in one opinion

as the Circuit’s “reflexive invocation of admiralty jurisdiction to cover

contracts involving movable offshore rigs”9—to the “infamous[] chao[s]”

cited by Professor Robertson.

Useful as background for pursuing these linkages are the contrasting

conceptions of the federal admiralty judge’s role advanced, respectively,

by Fifth Circuit Judges John Brown and W. Eugene Davis. Writing in

1992, Judge Brown’s choice of a title, Admiralty Judges: Flotsam on the

Sea of Maritime Law?,10 reflects his thesis that centuries of aggressive,

indeed heroic, American admiralty judges and admiralty opinions have

been replaced in more recent times by Congressional legislation more

invasive of admiralty jurisdiction’s boundaries and a Supreme Court more

deferential to this legislation. Hence, Judge Brown’s plaint that the Court

“has recently abandoned its Constitutional duty of enunciating maritime

law in favor of conforming admiralty law to Congressional enactments

6. Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 425 (1985).

7. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S.

527, 534 (1995) (quoting Sisson v. Ruby, 947 U.S. 358, 462 (1990)).

8. See infra Section I.C.

9. See Lewis v. Glendel Drilling Co., 898 F.2d 1083, 1087 (5th Cir. 1990).

10. Judge John Brown, Admiralty Judges: Flotsam on the Sea of Maritime Law?,

25 HOUS. J. INT’L L. 257 (2003) (reprinted from 24 J. MAR. L. & COM. 249 1993).