And Not a Drop to Drink: Admiralty Law and the BP Well Blowout

Abstract

Although viewed as an admiralty tort by commentators (e.g., Professor David Robertson) and a 2011 BP Blowout MDL opinion (B-1 Bundle) by presiding MDLJudge Carl Barbier) I argued that the blowout is not an admiralty tort for three reasons: 1. The tort does not satisfy the requirement of Executive Jet Aviation Co. v. City of Cleveland, 409 U.S. 249 (1972) (Executive Jet) that it be substantially related to a traditional activity. 2. It does not satisfy the Executive Jet requirement for a vessel. More specifically, the Deepwater Horizon drilling rig or mobile offhsore drilling unit (MODU) does not qualify as a vessel under Outer Continental Shelf Act(OCSLA) sec.1333(a)(1), which, instead classifies MODUs as temporarily attached devices (TADs). 3. In line with Rodrigue v. Aetna Cas. & Sur. Co., 395 U,S,352 (1969), torts occurring on OCSLA situses are governed by the (non-admiralty) OCSLA, not by admiralty law. Rodrigue overruled the leading Fifth Circuit precedent, Snipes v. Pure Oil Co., 293 F.2d 60 (5th Cir. 1961), because, like the B-1 Bundle ruling in the BP MDL, it wrongly ruled that tdortgs on OCSLA situses are not maritime events but rather are ruled by OCSLA. A major theme of the article is that virtually all 5th Circuit OCSLA tort rulings up to the BP MDL addressed the entitlement of injured or deceased workers atop drilling rig platforms (whether fixed or TADS) whereas the unique OCSLA/Oil Pollution act of 1990 tort being litigated in the BP blowout is an action to remedy the economic and property losses incurred by tens of thousands of off-platform plaintiffs in the Gulf coastal state in consequence of the OCS oil discharge of the BP subsea and the 45/10,0000ths of the total discharge from the Deepwater Horizon. The policy argument in favor of deeming the MODU an admiralty vessel in the conventional injured deceased platform worker case (that the latter's recovery is dependent on that labelling) is wholly irrelevant with respect to the dissimilar OCSLA/OPA tort in the BP MDL.