Friday, April 26, 2013




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. 


  1. The aspect of this case I have never heard discussed is the matter of the Blow Out Preventer (BOP) and its maintenance history or "pedigree." The BOP was reportedly beyond its maintenance cycle, but was allowed to be used by then Minerals Management Service, who would have certainly known this before drilling would have been permitted to begin. It has been supposed by those with more detailed knowledge of the regulatory construct that the role of the agency (MMS) in allowing this BOP to be used was a decision based more on accelerating the eventual royalty collections than the technical risks of such a decision, and that that error led to the near immediate reorganization of the agency in order to separate the technical approvals, royalty management, and operational oversight functions. Do such factors play into the decisions by the courts? Does a possibility that the approving authority permitted (and may have even encouraged) the use of a BOP outside its prescribed maintenance parameters absolve BP of any share in the alleged negligence? I would like to know the answers...

  2. The American Admiralty Bureau Commentators don't indicate any real case exposure to drilling technology. However the Bureau had extensive case exposure to private aids to navigation. The Bureau participated in quite a few cases where industries established a permitted obstruction in a navigation area with day marks and lights, or the absence of lights approved by the Coast Guard. Then 20 years later after marinas and other nearby facilities dramatically increased vessel traffic these obstructions still carried the lights and marks mandated by the Coast Guard for a nearly deserted location twenty years prior. In each case of allision where a highly vulnerable recreational boat failed to see the inadequately marked structure, the obstruction owner attempted to subrogate against the Coast Guard. The Coast Guard's position was always that responsibility for the effectiveness of the lights rested with the permittee, the obstruction owner. None of the obstruction owning defendants were ever able to bring the Coast Guard into the litigation. We predict that the same will prove true for BP, the MMS approval of equipment used regardless of circumstances, will not relieve BP of ultimate responsibility/liability for the effectiveness of the equipment employed. The California mooring buoy cases of the American Admiralty Bureau are the only cases we are aware of in the offshore context where a defendant tried to reduce or shift liability to a regulatory agency for inadequate regulation, or lax enforcement. It didn't work, all of the precedent cited by the judges indicated that regulatory agencies do not have any responsibility or liability for ultimate effectiveness of equipment as actually employed.

  3. I understand the private aid issues, and have been in cases where the obstruction changed its configuration to a point where a more stringent lighting configuration was required, where that represents an obvious oversight of the facility owner not to determine if the changes precipitated a higher lighting standard. But the hypothetical above (and that is all it is until evidence emerges) is based on the observed bullying behavior of MMS' prior Royalty management process. Imagine a permit showing the out-of-service BOP and its pedigree being submitted in the drilling plan documentation (which would be a requirement); said plan calls for the required shoreside maintenance and testing to be done on the BOP with spud in of some date "A" and MMS saying the BOP looks fine - deploy it and spud in earlier. Defying their request is like telling the traffic cop "I don't want to show you my license." The lightening speed reorganization of responsibilities at the former MMS and my personal experience recognizing the primacy of the Royalty folks over technical issues are what make this scenario plausible, coupled with an absence of any criminal negligence charge - something that would have certainly been pursued if BP had fraudulently represented the condition of the BOP, like saying it was inside its maintenance interval when it was not.