As a child, I rarely spent time on the water, but I knew a thing or two about boats.
In my child’s mind, boats were child-sized. Imaginary boats made of paper or leaves skimmed 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 crossed our rivers and lakes in tiny, buzzing swarms. You could fish from a boat, or go water skiing. Sometimes, you just filled it with people and drove it around, for all the world like 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 adopted Louisiana as her home, hung tire swings from her moss-draped oaks, rocked on her gallery until she became bored and then traveled to Europe on ships. So did great-aunt Sigrid, a mysterious woman whose accounts of her travels were equally mysterious; she wrote her postcards in Swedish.
In time, I added “yacht” to my vocabulary. Bigger than a boat but not utilitarian in the same way as ships, yachts crossed oceans in a style fully as impressive as the great passenger liners. After I began sailing, I expanded my vocabulary with the abbreviations M/V and S/V. I learned to distinguish between Motor Vessel and Sailing Vessel, and discovered a whole variety of “vessels” plying the waters.
Lazing along the edge of the Houston Ship Channel I saw car carriers, petroleum tankers, container ships, LNG barges and Coast Guard buoy tenders mixed in among the more 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 varied – the sails on pleasure craft hardly would do for a tanker – but still, they propelled themselves. Barges and jackup rigs were interesting, but they weren’t vessels. They needed assistance to move.
When Bullwinkle, a remarkable offshore platform originally belonging to Shell Oil and now the property of Superior Energy Services, was fabricated in Ingleside, Texas, offshore sailors used it for months as a landmark because of its size. When a completed Bullwinkle moved 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 assumption that all vessels move by their own power finally was called into question on May 13, 2010 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 startled to discover Deepwater Horizon, a semi-submersible drilling platform, listed in the filing 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, faculty specialist in Admiralty and Maritime Law at the University of Texas at Austin, points out the definition of “vessel” as that which includes “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 a 2005 case known as Stewart v. Dutra Construction Company, the Supreme Court held the 1873 statute “codified the meaning that the term ‘vessel’ had acquired in general maritime law” and it became the default definition.
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 Transocean’s original court filing, the points raised by Weiss regarding the Titanic 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’s no small irony that despite all our knowledge, experience and technological advancement, recent events with clear parallels to a 1912 tragedy are being litigated in the context of an 1851 law.
Whatever Transocean, British Petroleum, Halliburton and their lawyers intended, of course, the first order of business was stemming the tide of oil gushing from the uncapped well in order to stem further environmental and economic damage. That accomplished, the process of sorting out responsibility, compensating individuals, restoring communities and demanding future accountability began in earnest.
As happened after the sinking of the Titanic, there certainly will be changes in procedures, advances in equipment, shifts in sensitivities and perhaps even revisions to the law before the case is closed. As with the Titanic, there is little question complexities of maritime and corporate law have been 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 continue to confront one another in the courtroom, as they always have.
Nevertheless, from the perspective of history, the explosion and sinking of Deepwater Horizon and the sinking of the Titanic bear a striking resemblance to one another. Beyond the legal issues involved, both stand as reminders that no matter the nature of the vessel, when disaster strikes, the view from the boardroom, the courtroom and the lifeboat rarely are the same.