Oil Pollution Act Liabilities During Hurricane Season

Related Techniques & Jurisdictions Thursday, September 16, 2021 A important variety of oil spills have

A important variety of oil spills have been described in the wake of Hurricane Ida’s passage around the Gulf of Mexico and south Louisiana. Does a important hurricane like Ida qualify as an “act of God” less than the Oil Air pollution Act so as to offer a protection to spill legal responsibility? This publish examines the act of God protection below the Oil Pollution Act.

The act of God protection underneath OPA is narrowly defined.

The Oil Pollution Act of 1990 (OPA) established stringent liability for entrepreneurs and operators of facilities and vessels that discharge oil into or upon the navigable waters and adjoining shorelines of the United States. Underneath OPA, a accountable celebration — commonly the proprietor or operator of a facility or vessel — is liable for all elimination fees and damages ensuing from the spill. 33 U.S.C. § 2702(a).

Less than 33 U.S.C. § 2703(1), even so, a responsible occasion is not liable for removal prices or damages under OPA if the dependable celebration establishes by a preponderance of the proof that the spill was caused solely by “an act of God.” The phrase “act of God” is defined by OPA as “an unanticipated grave purely natural disaster or other purely natural phenomenon of an extraordinary, inescapable, and irresistible character the effects of which could not have been prevented or prevented by the physical exercise of owing treatment or foresight.” 33 U.S.C. § 2701(1). Importantly, if a possibly dependable occasion can build the act of God defense, it is also entitled to recuperate its individual reaction expenses from the Oil Spill Legal responsibility Rely on Fund (OSLTF). 33 U.S.C. § 2708(a).

Would Hurricane Ida be viewed as an unanticipated grave all-natural disaster of an extraordinary, inevitable, and irresistible character?

Under the case regulation, the OPA act of God protection is construed very narrowly. Even though a important hurricane could be an act of God, unless of course it takes place in an place wherever and at a time when a hurricane ought to not be envisioned, it would not qualify as a phenomenon of excellent character. See Apex Oil Co. v. United States, 208 F. Supp. 2d 642, 652-54. In other text, the act of God defense underneath OPA was not supposed to encompass every single pure disaster that may perhaps happen.

Even though Hurricane Ida was a big hurricane, it happened in the Gulf of Mexico throughout hurricane season and consequently would not qualify as an act of God under OPA.

Is there any other defense that could be available in link with Hurricane Ida?

On the other hand, even though Hurricane Ida by itself is unlikely to qualify as a defense to legal responsibility under OPA, if the spill was caused not by Hurricane Ida but by a third party’s failure to prepare for Ida, that third party’s fault may possibly provide a likely accountable social gathering equally with a protection to legal responsibility and with value restoration from the OSLTF. For illustration, if a 3rd bash unsuccessful to secure a vessel and the vessel broke unfastened in the hurricane and then collided with a facility leading to an oil spill, the potentially liable occasion could be entitled to relief. Because the points and conditions of every single spill may perhaps be various, it is critical to contain seasoned counsel in pinpointing no matter whether a defense underneath OPA or a assert under the OSLTF could be obtainable.

© 2021 Jones Walker LLP
National Law Review, Volume XI, Selection 259