THE BP OIL SPILL: 

THE NEW ORLEANS JUDGE ASKS: 

WHAT CONSTITUTES GROSS NEGLIGENCE?

U.S. Coast Guard Photo

A Federal District Judge in New Orleans is sorting out claims in the 2010 oil spill by British Petroleum and her drilling contractors in the Gulf of Mexico, so far the largest oil spill of all time. Recently the judge who has to allocate and quantify liabilities has asked lawyers from both sides to give him their views on "gross negligence. Particular interest is being paid to whether or not a series of ordinarily negligent acts can add up to gross negligence. The Justice Department  and plaintiffs attorneys contend that BP PLC acted before the blow out on April 20, 2010 with gross negligence. If Judge Carl Barbier agrees BP is liable for a lot more than the billions paid out already.

 Almost forgotten in the case is the fact that the blow out killed eleven workers on The Deep Water Horizon oil rig. Also forgotten is the fact that the "rig" was actually a semi submersible mobile offshore drilling unit, by law a "vessel", though foreign registered. If there is a finding of gross negligence in the case only the foreign registry presents a legal hurdle to charges of Seaman's Manslaughter possibly being leveled against specific corporate officers or on scene supervisors of BP, or contractors Halliburton, or rig owner Transocean, Ltd. BP plead corporately guilty to manslaughter and paid $4 billion in criminal penalties. British Petroleum says that it has spent $24 billion in spill related expenses all ready. 

 Judge Barbier has set June 21st as the dead line for post trial briefs. Among the questions the judge is seeking to answer in these post trial briefs are:

1. Can a series of ordinarily negligent acts add up to "gross negligence"?

2. Is regulatory compliance a defense against a charge of gross negligence?

3. May a rig employee commit gross negligence or must it be traceable to shore based management?

4. Does the fact that a company acted within "industry standards" preclude a finding of gross negligence.

 We note that similar questions have been responded to by the Forensic Examiners of the American Admiralty Bureau in Federal District Courts many times. We have examined the publications of the American Admiralty Bureau and note the following:

1. A series of ordinarily negligent acts can indeed amount to gross negligence. We base this finding on the "General Duty" "Comment" found at AAB COM. No.3, Vol. 1, (1994) ISBN 1-879778-27-0 the cases cited in that comment, and subsequent up dates which in globo present an argument best simplified for the purpose of this blog as "For want of a shoe the horse was lost, for want of a horse the battle was lost, for want of the battle the war was lost."  The key is a pattern. Scattered unrelated though multiple ordinarily negligent acts may not amount to gross negligence aboard a highly complex vessel engaged in highly complex operations. When multiple ordinarily negligent acts are related to causation of a specific catastrophic event the acts present a pattern of behaviors that suggest gross negligence. 

2."Minimal regulatory compliance is not the standard of care required for employees, the environment, or the public interests, the standard is higher than that". Nearly identical language appears so many times in the reports of American Admiralty Bureau Forensic Examiners in the publicly available cases in Louisiana and Texas that it seems almost boiler plate report language (see especially the reports of the late Capt. Jay Disler). We base our position in part on the expert reports of the AAB in numerous cases asserting this concept that has so often  apparently been accepted by the admiralty courts in Louisiana, Texas, Virginia  the Carolinas, and California. We also base it in part on AAB COM.NO.1  VOl.5 (2004) ISBN )-970408-4-2 page 5 which provides the AAB's reasoning for including all MODU's and "Floating Facilities" as vessels within 1 USC 3. Thus the "general duty" articulated for vessels described in AAB COM. NO.3, Vol.1 (1994)  ISBN 1-879778-27-0. applies and the distribution of "responsibility" outlined there will likely run a close parallel with the distribution of "liability."

3. A rig employee may commit gross negligence and so may shore based management personnel, it is not a case of either/ or. Again we refer to the general duty as described in AABCOM. NO.3,Vol. ISBN 1-879778-27-0. particularly note the parties held jointly or severally responsible in 33 CFR 140.3 the general duty clause for the OCS safety regulations.

4.Adherence to "Industry Standards" or the "Ordinary Practices of the Industry are not  adequate defenses against negligence. First there is a distinction between "Industry Standards" and the "Ordinary Practice of the Industry". Industry standards are formally adopted and recorded by an industry associated group after review and consideration."Ordinary practices of the industry" are simply observable in everyday operations in a variety of companies. In individual cases of the AAB we have seen many "ordinary practices" struck down as in fact inherently dangerous. (We can't cite to AAB cases this is based on memories of staff who were employed there,) but The AAB INTERIM RECOMMENDATIONS FOR TOW POWERING AND CONFIGURATION FOR WESTERN RIVER PUSH TOWS ISBN 1-879778-62-9 pretty well demonstrated some of the ordinary practices of the inland towing industry relative to  tow powering and configuration as "not in conformance with the laws of physics and hydrodynamics". Also AAB COM. No.7, Vol.3 (1996) ISBN 1-879778-59-9 described flaws in existing recreational boating powering standards. So both "Industry Standards" and "Ordinary Practices" don't provide an automatically acceptable defense against negligence. One would have to show that the pertinent operation was not only in compliance with all relevant regulations and in conformance with all "Industry Standards" and "Ordinary Practices" but that the standards and practices stand up to expert scrutiny as actual safe practices. The case experience of the American Admiralty Bureau shows that quite a few maritime and offshore industry standards and practices serve nothing more than expediency or cost shaving and in fact are inherently unsafe. Note AAB COM. NO 3, Vol. II (1995), ISBN 1-879778-38-6 which is titled ''ADVOCACY GROUPS AS STANDARDS SOURCES'' . This AAB comment is quite a cautionary tale about "industry standards".

 So basically, relying on our admittedly cursory review of secondary sources we don't see a bright future for BP and the other defendants in this litigation. The lawyers for both sides of course won't be relying on secondary sources, but we would still bet on our "findings", either at trial or on appeal. Sometimes secondary sources can be a major aid in finding on point cases. Certainly the American Admiralty Bureau COMMENTATORS and GUIDE publications cite to cases. If anyone is in need of reviewing these publications, an updated version of Volume 1 of the COMMENTATOR series is reprinted in our "AUTHORITATIVE LITERATURE" section. For all other AAB publications a complete collection is in the U.S.Supreme Court Law Library and the McNaulty Library at the U.S. Merchant Marine Academy. Quite a number of volumes are found in the Louisiana Supreme Court Law Library and scattered elements of the collection are in various Federal District Court Law libraries. Any may be purchased by contacting the original distributor Marine Education Textbooks at 985-879-33866. Contrary to some reports the AAB COMMENTATORS and GUIDES are not out of print, they have always been print on demand publications.