Maritime Law and the Deepwater Horizon Incident

CNN had this caption up earlier the other day:

It's interesting to follow the media allusions to maritime law in the Deepwater Horizon incident.  Most are rather tangential and some are downright incorrect.  I'll take a cursory look at some of the mentions myself, just to provide a better surface level understanding - not a full legal treatment by any means.

In the screenshot above, CNN was seemingly referring to the provisions of DOHSA, the Death on the High Seas Act.  Here's a concise summary of why family members of deceased victims would likely be barred from what would otherwise be considered "full" recovery on land.  But it's not even clear if DOHSA would be in play - it all depends on the status of the workers killed.

Whether a wrongful death action is available depends on whether the workers killed were nonmaritime workers covered by the general maritime law, longshore or harbor workers covered by the LHWCA, or seamen with a connection to the vessel covered by the Jones Act.  Some divergent results may stem from any differing legal statuses of the workers killed.  And another anomaly, as pointed out by my friend Ian T, may show its face: an injured worker (someone, say, unloading goods onto the rig that day) could pursue punitive damages - which likely wouldn't be available for any of the 11 workers that died.

There's also been discussion of BP's move to limit its liability in Houston - as opposed to New Orleans - under the 1851 Limitation of Liablity Act (U.S. shipowner limitation law differs from limitation law in the rest of the world - but I don't think it's the Times-Picayune reporter's place to call it "outmoded").  When a party moves to limit, the judge can form a "concursus" which brings together all the claims related to the underlying incident.  That's the danger, in the eyes of the New Orleans legal community, of filing for limitation in Houston - almost every legal claim involved would then, likely, go to Houston.

It's interesting to see one of the lead plaintiff's attorneys making forum non conveniens-like moves to remove the litigation to New Orleans:

For now, Bickford is arguing in court that the limitation of liability proceeding should be moved to Louisiana, because that's where all of the environmental and economic damage, witnesses, injured parties and evidence are.

The Tulane Maritime Law Journal just published a piece by my colleague Han Deng on the intersection of limitation of liability and forum non conveniens in its most recent edition, the final issue of my tenure, the Summer 2010 issue.  I'm not sure, however, if Bickford's arguments are based in venue or forum non conveniens (the latter usually involves different countries...but we are talking about Texas here).

Finally, the Times-Pic article is also inaccurate when it states "In maritime law, a rig is considered a vessel."  That's too unequivocal a statement.  An offshore oil rig can be considered a vessel - and it seems the Deepwater Horizon, as a "dynamically positioned" rig was one - but the determination is highly dependent upon the nature of the rig.  If the rig is completely stationary, attached to the sea-floor, then it is considered "land" in effect and is not a maritime situs.  So there's a gradient based on the characteristics of a particular rig apparatus - a jack up rig, for example, is mobile like a vessel...but can put down "legs."

It will be interesting to see how this plays out legally - and if the incident spurs any action by congress to change existing maritime law, whether in the areas of marine pollution, personal injury, or limitation of liability.