John J. Costonis | Article
Among the many unresolved legal questions posed by BP’s Gulf well blowout are whether and to what extent maritime tort negligence remedies escape displacement by relevant federal statutes, including, principally, the Oil Pollution Act of 1990 (OPA or OPA 90). OPA jurisprudence over two decades holds that OPA displaces these remedies. Contrarily, however, the United States District Court for the Eastern District of Louisiana’s decision in In re Oil Spill by the Oil Rig “Deepwater Horizon” (hereinafter B1 Bundle) insists that general maritime law affords a parallel track to OPA’s remedies for economic and property oil discharge losses suffered by private claimants. B1 Bundle premises its holding on two contentions. First, OPA’s “silence,” defined as the statute’s failure expressly to displace maritime remedies, demonstrates the United States Congress’s intent to quarantine OPA as a mere supplement to general maritime law. Second, the United States Supreme Court’s decisions in Exxon Shipping Co. v. Baker and Atlantic Sounding Co. v. Townsend authoritatively establish OPA’s nondisplacement of maritime law punitive damages specifically and of maritime remedies as a whole. Neither claim is persuasive. B1 Bundle’s quarantine of federal statutory law–a product of the opinion’s unyielding admiralty-centrism–replicates the misconceived defensiveness of an earlier era’s judges who likewise strained to bar the encroachment of statutes on judge-made common law.