Immediately following the explosion on the Deepwater Horizon, emergency response vessels rushed to the rig to save lives and render assistance to those in peril. In the ensuing months, responder companies worked to clean up the oil that was pouring into the gulf in an effort to mitigate the spill. As a consequence of these efforts to help in the worst environmental disaster in U.S. history, these emergency and cleanup responders now fi nd themselves entwined in complex and protracted specialized multi-district litigation (“MDL”), despite the fact that protections were put in place following lessons learned from the Exxon Valdez specifi cally to prevent such occurrences.

Background on the Good Samaritan Law under the Oil Pollution Act of 1990 (“OPA 90”)

Following the Exxon Valdez incident in 1989, Congress included a responder immunity provision in OPA 90 to protect from liability those individuals or corporations who provide care, assistance, or advice in mitigating the effects of an oil spill. As detailed in the OPA 90 Conference Report, Congress intended that responses to oil spills be immediate and effective, and noted that, without such a provision, the substantial fi nancial risks and liability exposures associated with spill response could deter a prompt, aggressive response.

This immunity does not prevent any injured party from recovering its full damages resulting from the spill incident, as OPA 90 provides that the responsible party (“RP”) is liable for any of the removal costs or damages that a responder is relieved of pursuant to this immunity consistent with the OPA 90 “polluter pays” principle. This immunity does not apply if a responder acts with gross negligence or willful misconduct, or in cases involving personal injury or wrongful death.

Litigation against Good Samaritans as a Result of the Deepwater Horizon Incident

Following the Deepwater Horizon incident on April 20, 2010—which resulted in 11 deaths, injuries to 17 men working on the platform, the discharge of approximately fi ve million barrels of oil, and required thousands of responders to work several months to contain and clean up under the challenging conditions—numerous claims and lawsuits were fi led. Unfortunately, the OPA 90 standard specifi c to responders has proven inadequate to protect responders from becoming entwined in such suits. In these cases, plaintiffs have thus far been successful in maintaining their actions simply by alleging gross negligence (without providing any supporting facts), and by asserting “exposure” claims resulting from alleged exposure to released oil or from approved dispersants used to treat that oil as personal injury claims falling outside the scope of the specifi c responder immunity provisions.

Following the fi ling of hundreds of law suits, it was decided to consolidate all of the complaints under a special MDL procedure designed to speed the process of handling complex cases, such as air disaster litigation or complex product liability suits. MDL cases are civil actions involving one or more common questions of fact pending in different districts. With a goal to effi ciently process cases that could involve an extremely large number of plaintiffs in many different federal courts which all share common issues, a Judicial Panel on Multidistrict Litigation decides whether cases should be consolidated under MDL and where to transfer the cases. The Deepwater Horizon litigation was consolidated in the Eastern District Court of Louisiana before Judge Barbier.

For the Deepwater Horizon MDL, the cases have been catalogued into pleading bundles called Master Complaints under various categories. One of the Master Complaint bundles named as defendants all the parties involved in the postexplosion response actions, which includes the manufacturer of the dispersants used, the companies providing the aircraft spraying dispersants, the contractors leading the incident command for BP, as well as the nation’s two leading oil spill response contractors. This complaint alleges various torts causing personal injury as a result of exposure to oil and/or dispersants and damages to personal and real property as a result of dispersants or oil coming into contact with such property. A separate Master Complaint bundle named as defendants all the owners and/or operators of the rescue vessels that answered the Deepwater Horizon distress call and responded to the fi re emergency after the explosion.

Due to the complexity of the MDL, the litigation is expected to last for years. Substantial time is being spent in discovery and motions, and the priority of the litigation is mainly and naturally focused on the complaints directly against the RPs. Court activity related to the responders is for the most part being deferred in order to deal with the direct actions against the RPs. As a result, the responders will incur millions of dollars in attorneys’ fees and other costs in defending these suits—money that could otherwise have been spent on new equipment or in enhancing the nation’s ability to respond to oil spills.

These actions against the Good Samaritans are troubling because the OPA 90 immunity regime is intended to protect responders from extensive and costly litigation and potential liability. Although the responders have argued for immunity and preemption against liability as it relates to the Deepwater Horizon claims asserted against them in the current litigation, these defenses are proving to be time consuming and expensive to assert, and there is no consequence to the plaintiffs for bringing claims against the responders, even when they have full recourse against the RP.

Formation of Coalition to Improve Good Samaritan Protections

Absent enhanced liability protections, it is unlikely that responders will again take such immediate and bold response actions at the time of spill incidents. Indeed, as a result of this incident, responders are requiring extra layers of indemnifi cation as well as seeking detailed directions and approvals from government offi cials before taking any response actions. These types of action are not in the overall public interest and are inconsistent with the overall intent of OPA to encourage a prompt and aggressive response to minimize damage to the greatest extent practicable.

Currently, there is a strong initiative underway to represent the overall common interests of the response industry through the formation of a coalition to seek enhanced legislation to fi ll the immunity gaps identifi ed as a result of the Deepwater Horizon incident. This coalition broadly represents interests related to emergency lifesaving and fi refi ghting, salvage, oil well containment, spill response, dispersants, and spill management. A legislative solution is particularly important as these entities constitute the fi rst responders to both the casualty itself and the resulting oil spill, and their response must be immediate and without hesitation for fear of liability.

Proposed legislation is being crafted and will be introduced in Congress in the near future following the return of Congress from the summer recess. Of course, Congress will have a number of priorities to combat when it returns, including war related issues, the economy, and the nation’s defi cit. As a result, it is unclear when Congress will turn to maritime, including spill related, legislation. When it does, however, it is imperative that the maritime industry rallies around this response industry coalition initiative to ensure enactment of “Good Samaritan” enhancements as quickly as possible. Hopefully, based on lessons learned from Deepwater Horizon, we can make sure our nation’s response industry has the necessary tools in its tool kit, including a liability regime with a properly enhanced immunity protection necessary to foster the aggressive and immediate response we will need for the next major spill incident.