i. 1953 was a year of symbolic developments for American maritime law. In August, Congress enacted the Outer Continental Shelf Lands Act (OCSLA), requiring state law to apply to a broad range of legal disputes arising from the new industry of offshore oil drilling in the Gulf of Mexico. Then in December, the Supreme Court of the United States decided Pope & Talbot, Inc. v. Hawn, formally expressing what had long been assumed–that the rejection in Erie Railroad Co. v. Tompkins of the federal courts’ power to define general common law did not apply to their parallel power over admiralty law. On the one hand, OCSLA reflected a view that state law was better suited to deal with a variety of private disputes, even those occurring at sea. On the other, Pope & Talbot traces its lineage through a long line of cases that enshrine admiralty law as a unique species of federal law with special–and often unpredictable–preclusive power.
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The Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60, was enacted in 1908 to provide railway workers with a federal cause of action against their employers for negligently inflicted workplace injuries and illness. In 1920, the Jones Act, 46 U.S.C. § 30104, followed suit, giving seamen a negligence cause of action against their employers by incorporating FELA. The United States Supreme Court has frequently declared that “the Jones Act adopts ‘the entire judicially developed doctrine of liability’ under [FELA].” Although on four occasions the Supreme Court has held that the Jones Act is sometimes more plaintiff-friendly than FELA, there is nevertheless a presumption that FELA jurisprudence governs Jones Act cases, and vice versa.
“Absent express [statutory] language to the contrary, the elements of a FELA claim are determined by reference to the common law [of negligence].” In explicit language, FELA departs from the common law of Negligence in four respects: “It abolished the fellow servant rule, rejected contributory negligence in favor of comparative negligence, prohibited employers from contracting around the Act, and abolished the assumption of risk defense.” All four of these departures involve affirmative defenses to Negligence liability. This Article addresses the legitimacy and meaning of a fifth departure that was recently spotlighted in CSX Transportation, Inc. v. McBride. Unlike the four well-accepted FELA abolitions of affirmative defenses, the McBride departure–one that is destined to remain somewhat controversial–goes to the heart of a FELA plaintiff’s prima facie case in Negligence.
“Surround yourself with the best people you can find, delegate authority, and don’t interfere.”
–President Ronald Reagan
Though not the largest oil spill the United States has ever experienced, nor its worst environmental disaster, the BP/DEEPWATER HORIZON Oil Spill (DEEPWATER HORIZON) was enormous and devastating. Ignited by pressurized methane gas bubbling up from a depth of 18,360 feet below the sea, the DEEPWATER HORIZON oil rig exploded on April 20, 2010, killing eleven men. After the rig sank two days later, breaks in the riser pipe connecting the rig to the ocean floor began spewing hundreds of thousands of gallons of crude oil and gas into the Gulf of Mexico. At first, the spill was nearly impossible to control effectively. Oil flowing from the well washed up on the shores of Louisiana, Alabama, and Mississippi, and polluted thousands of square miles of ocean. Three months later, the well was successfully capped, ending the catastrophic flow of oil. Assessment of the ecological and economic damage continues, as do cleanup efforts.
Although some may believe that no one contemplated that an environmental disaster of such magnitude could occur, for catastrophes like DEEPWATER HORIZON, a coordinated national emergency response plan has existed in some form in the United States since 1968. The National Oil and Hazardous Substances Pollution Contingency Plan (NCP), created to respond to oil spills and hazardous substance releases, was borne out of the 1967 TORREY CANYON disaster off the coast of England. After the supertanker ran aground and spilled over thirty-one million gallons of crude oil into the Celtic Sea, the U.S. Government, recognizing the United States’ own vulnerability, created the NCP, which provided a national response strategy for oil spills. Many acts of Congress required amendment and expansion of the NCP over the years, culminating in the passage of the Oil Pollution Act of 1990 (OPA), which resulted in the most recent major revisions to the NCP.
On April 20, 2010, the Deepwater Horizon mobile offshore drilling unit exploded and sank approximately forty miles off the southern coast of Louisiana while working on the Macondo/MC252 oil well. According to federal government estimates, over the next eighty-seven days the well discharged over 200 million gallons of crude oil into the ecologically rich waters of the Gulf of Mexico. BP disputed this estimate as between twenty percent and fifty percent too high in comments submitted to the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, which was responsible for investigating the incident. As of this writing, the dispute between the federal government and BP persists over the amount of oil actually discharged into the Gulf of Mexico.
“In an honest service there are commonly low wages and hard labour: in piracy, satiety, pleasure and ease, liberty and power . . . . [A] merry life and a short one shall be my motto.”
— Captain Bartholomew Roberts, aka “Black Bart,” notorious pirate in the seventeenth century
Human beings, whether on land or at sea, have always had to choose between leading an honest, hardworking existence and leading a life of crime. Those who put to sea and choose the latter, we call pirates–and there have been no shortage of them. Pirates have long menaced the high seas, seeking harbors and ports to plunder and pillage for treasure. Although a 1696 trial at the Old Bailey deemed that “piracy is only a sea-term for robbery” that was “committed within the jurisdiction of the Admiralty,” it continues to emerge in new forms over time. As the twenty-first century unfolds, the world again confronts piracy. Rather than the romanticized “Black Bart” Roberts, today’s pirates are often found in small dhows off the coast of Somalia armed with automatic weapons and rocket-propelled grenades (RPGs). Some supply themselves with modern-age sextants, namely global positioning devices, and walkie-talkies. These new pirates have seized large tankers carrying oil or chemicals–cargoes valued up to $100 million–as far as several hundred miles off the coast of Somalia. In 2008, pirates attacked 141 vessels off the Horn of Africa; in 2010, the number increased to 160 vessel attacks, which resulted in the capture of 53 ships in the region; and in the first half of 2011, there were already 177 pirate attacks. These attacks continue today.
On behalf of the Tulane Maritime Law Journal members, our faculty
The Senior Board of Volume 38 of the Tulane Maritime Law Journal is very pleased to announce
Please join us for a presentation of selected works from Volume 38
Larry Kiern, a partner in Winston & Strawn’s Washington, D.C. office who concentrates his practice on maritime and admiralty law, has been named a “2012 Distinguished Legal Writing Award” recipient by the Burton Awards for Legal Achievement. This honor is dedicated to rewarding great achievements in law, with a special emphasis on writing and reform. […]