As a child I rarely spent time on the water, but I knew a thing or two about boats.
Boats were little. Imaginary boats made of paper or leaves were small enough to skim down rain-filled gutters in the streets. Plastic boats fitted nicely into bathtubs or backyard wading pools. Even real boats were small. Fabricated from metal or wood, they plied their way up and down the Raccoon River or across the vast expanse of Red Rock Lake in tiny, buzzing swarms. You could fish from a boat, or go water skiing, but sometimes you just filled it with people and drove it around, like a family taking a Sunday outing in the car.
On the other hand, ships were big. Ships lived on the ocean. They carried things, or fought wars. My great-aunt Fannie, who adopted Louisiana as her home, hung a tire swing under her moss-draped oak and happened to be walking through the State Capitol the day Huey Long was assassinated, traveled to Europe on ships. So did great-aunt Sigrid, whose accounts of her travels we kids only could imagine, since she wrote her postcards in Swedish.
Eventually I grew more sophisticated in ways of the water and added “yacht” to my vocabulary. Bigger than a boat but not utilitarian in the same way as ships, yachts could cross oceans, too, and in a style fully as impressive as the great passenger liners. Later, when I began sailing and varnishing boats for a living, I expanded my vocabulary with another boat-related word. The abbreviations M/V and S/V should have been clear, but they weren’t. Eventually I queried someone and was embarassed by the obviousness of the answer: the abbreviations stood for Motor Vessel and Sailing Vessel.
In time I discovered a whole variety of “vessels” plying the waters, a variety far larger than I’d ever imagined. Afternoons spent lazing along the edge of the Houston Ship Channel turned up car carriers, petroleum tankers, container ships, LNG barges, and Coast Guard buoy tenders as well as the familiar shrimpers and fishing boats.
Despite their differences, these boats, ships, tankers and carriers had one thing in common. They moved by their own power. The source of the power might vary – the sails on pleasure craft hardly would do for a tanker – but still, they propelled themselves. There were other interesting sights on the waterways – barges, jackup rigs and such – but when they moved, they needed assistance.
When Bullwinkle, a remarkable offshore platform originally belonging to Shell Oil and now the property of Superior Energy Services, was fabricated in Ingleside, Texas, it served for months as a landmark for offshore sailors because of its size. Watching the completed Bullwinkle move seaward through the Port Aransas jetties, pulled along by some of the snazziest ocean-going tugs ever, I knew two things with certainty: the tugs were vessels, and Bullwinkle was not.
My long-standing and somewhat lazy assumption that all vessels move by their own power finally was called into question last Thursday. On May 13, when Transocean filed suit in Houston federal court to limit liability in the explosion and sinking of their semi-submersible Deepwater Horizon drilling rig, the basis for the filing was an old and somewhat arcane law known as the Limitation of Liability Act of 1851. Under that law, a vessel owner is liable only for the post-accident value of the vessel and cargo, provided the owner can show he or she had no knowledge of negligence in the accident.
I was somewhat startled to find Deepwater Horizon, a semi-submersible drilling platform, listed as a “vessel”. And yet, according to Maritime law, that’s precisely what it is. In fact, the list of “vessels” covered by maritime law includes a host of platforms, pontoons, barges, dredges, rigs and docks that aren’t going anywhere unless Tubby the Tugboat comes along to help them out. David Robertson of the University of Texas at Austin School of Law, points out that the definition of “vessel” as including “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water” has been on the books since 1873. In 2005, in Stewart v. Dutra Construction Company, the Supreme Court held that the 1873 statute “codified the meaning that the term ‘vessel’ had acquired in general maritime law” and it became the default definition of “vessel”.
Prior to the sinking of Deepwater Horizon, the most widely known use of the Limitation of Liability Act of 1851 involved the Oceanic Steam Navigation Company, owner of the ill-fated Titanic. In an article entitled Legal Consequences of R.M.S. Titanic, Jeffrey A. Weiss, Professor of Maritime Law at SUNY Maritime College, makes several points about the statute.
First, the law provides that all persons having claims in connection with the casualty must pursue those claims in the court in which limitation proceedings were filed, or risk a default. In other words, the petitioner (Oceanic Steam Navigation Company in the case of the Titanic, Transocean in the case of Deepwater Horizon) gets to determine where the case will be heard.
Secondly, court proceedings take place before a Federal judge rather than a jury.
Finally, the law allows a ship owner to limit liability arising out of a marine casualty to “the value of the vessel and her pending freight”. In the case of the Titanic, the owners alleged the loss was incurred “without the privity or knowledge of the vessel’s owners”. Going further, they argued that, even if they were at fault, their liability should be limited to the Titanic’s post-catastrophe valuation. That figure totaled around $95,000, the value of the ship’s surviving lifeboats and related equipment. Obviously, $95,000 was far less than claims brought by survivors and the families of those who perished.
In the press release which accompanied last week’s court filing, the points raised by Weiss in regard to the Titanic case were obvious to anyone familiar with the law. In the following citations taken from that press release, I’ve highlighted points of Titanic/Transocean similarity:
(Transocean notes) that one of the primary goals of this filing is to consolidate in a single court many of the lawsuits that have been filed following the Deepwater Horizon casualty to initiate an orderly process for these lawsuits and claims before a single, impartial federal judge. The filing also would establish a single fund from which legitimate claims may be paid. Transocean believes this type of orderly process is in the best interests of all parties involved…
Among other things, the complaint asks that the Court issue an injunction restraining certain lawsuits underway against these companies in any jurisdiction other than the Southern District of Texas. The petitioners noted in the complaint that more than 100 lawsuits have been filed against the companies in multiple states and courts…
As set forth under Federal Law, the complaint also asks that the companies be judged not liable on claims for certain, defined losses or damages relating to the casualty or, if they are judged to be liable, that the liability for such claims be limited to the value of their interest in the Deepwater Horizon rig and its freight including the accounts receivable and accrued accounts receivable as of April 28, 2010. The petitioners assert in the filing that the entire value of their interest does not exceed $26,764,083. (NB: Before the accident, the rig was worth around $650 million.)
It is a desperate irony that despite all our knowledge, all our experience and all our technological advancements recent events so closely resemble a tragedy from 1912 and will be litigated in the context of an 1851 law.
Whatever Transocean, British Petroleum, Halliburton and their lawyers think, of course, the first order of business must be stemming the tide of oil gushing from the uncapped well in order to prevent further environmental and economic damage. Once that is accomplished, the process of sorting out responsibility, compensating individuals, restoring communities and demanding future accountability can begin in earnest.
Just as in the years following the sinking of the Titanic, there certainly will be changes in procedures, changes in equipment, changes in sensitivities and perhaps even changes in the law before this is finished. As with the Titanic, there is little question complexities of maritime and corporate law will be used as much to delay justice as to ensure justice. Certainly the application of American law to foreign companies, the natural inclination of corporations to limit their liability and the needs of victims will confront one another in the courtroom, as they always have.
But in the end, seen from the perspective of history, the explosion and sinking of Deepwater Horizon bears a far more striking resemblance to events surrounding the sinking of the Titanic than simple law. It stands as a reminder that no matter the nature of the vessel, when disaster strikes, the views from the boardroom, the courtroom and the lifeboat are rarely the same.