Trends in Marine Pollution Legislation
Christine, Brian, Risk Management
IN 1969, A CRIPPLED tanker named the Torrey Canyon lay beached in shallow water off the English coast, leaking oil into the sea. Since the tanker was not salvageable, British authorities decided to bomb the vessel to release and bum the oil before it oozed onto shore - the first time such a decision was ever made. Soon after, Royal Air Force planes swooped down on the ship, subjecting it to heavy bombardment. The effort, however, was only partially successful; oil continued to leak from the ship, then washed in and choked the shoreline.
"The graphic pictures that came out of the Torrey Canyon incident with the Royal Air Force attempting to bomb the vessel, and the oil washing onto beaches are still with us today," said Richard Hobbie, president of the Water Quality Insurance Syndicate in New York at an American Institute of Marine Underwriters seminar in New York. "That event more than any other ushered in the modern era of pollution legislation and public awareness of the issue."
Since the Torrey Canyon incident, a plethora of new oil pollution laws have been developed. "These legislative schemes fall into three major categories: national legislation, international conventions and voluntary compensation schemes," said Mr. Hobbie. "The focus of this legislation was originally on the removal of contamination. But more and more, these legislative schemes are requiring compensation for damaged parties and for negative effects to natural resources."
IN THE UNITED STATES, oil pollution legislation has a long history, said Mr. Hobbie. The first federal water pollution law was the Rivers and Harbors Act of 1899, which stated that prohibited discharges from a vessel had to be intentional to constitute a violation. "The law had a cleanup requirement, and there were also criminal penalties for violations." A later law, the Oil Pollution Act of 1924, also addressed intentional discharges, but added the concept of gross negligence." Up through 1970, these were the two main laws that governed refuse dumping in the United States, although 'refuse' wasn't generally considered to refer to oil until the 1960s," said Mr. Hobbie.
With public attention focused on issues such as hazardous waste, offshore oil exploration, and the cleanliness of deepwater ports, governmental agencies developed and passed additional statutes, including the Federal Water Pollution Control Act in 1972, also known as the Clean Water Act (CWA), amended in 1977. "Each of these superseding pieces of legislation has tended to impose greater liability, reduce defenses, and expand the types of damages to be claimed," he said.
The trend toward greater liability for water pollution has culminated in the Oil Pollution Act of 1990 (OPA), which is significantly changing the liability scheme for oil pollution, said Mr. Hobbie. Previous to OPA's passage, the cleanup procedures for oil spills were covered by the CWA. "Under the CWA, the president of the United States was given the responsibility to monitor all cleanup operations," said Mr. Hobbie. "If the president deemed that the cleanup was unsatisfactory, he then turned the task over to the Coast Guard, which would take over the cleanup effort and send the offending party a bill."
OPA, however, presents a different twist. "OPA is worded slightly differently from the CWA, in that it authorizes the president to `direct' the cleanup," said Mr. Hobbie. "However, the word `direct' is generally being interpreted to mean that the Coast Guard has the authority to completely take over a cleanup at any point in the operation, even if the responsible party is doing a good job." The Coast Guard is also responding to marine incidents that haven't actually resulted in a spill. As an example, Mr. Hobbie cited a case where an oil barge ran aground in the Mississippi River. "Although there was no spill, the Coast Guard took over the operation and activated a strike team from Fort Dix to Sault St. …