Lloyd's Maritime and Commercial Law Quarterly
LIABILITY UNDER UNITED STATES LAW FOR SPILLS OF OIL OR CHEMICALS FROM VESSELS
David Ashley Bagwell*
The current state of the law in the United States as to vessel oil and chemical spills is, unfortunately, both bewilderingly complex and in a state of flux. In the middle of 1985 the president of the U.S. Maritime Law Association reported to the Congress of the United States on pending oil spill legislation that “the present patchwork of federal and state laws is unwieldy, inconsistent, inefficient and unnecessarily expensive”.1 It is my sad duty to quilt that patchwork.
A. In general
The patchwork under U.S. law consists of three general statutes, namely, (1) the Federal Water Pollution Control Act2 (FWPCA) or Clean Water Act, (2) the Comprehensive Environmental Response, Compensation and Liability Act of 19803 (CERCLA) (sometimes called Superfund Act), and (3) the Refuse Act.4 There are also three federal statutes operating on a geographical basis, namely (1) the Outer Continental Shelf Lands Act5 (OCSLA), (2) the Trans-Alaska Pipeline Authorization Act,6 and (3) the Deepwater Port Act of 1974.7 There are also the two bodies of federal non-statutory decisional law called “Federal common law” and “the general maritime law”, state statutes and state common law, various conventions and protocols, and foreign law enforced by U.S. courts.
Patches must be sewn one at a time.
B. Federal Water Pollution Control Act
The FWPCA, first passed in 1948,8 contains a s. 1321 entitled “oil and hazardous substance liability”, which alone contains 12½ pages of text, six pages of legislative and executive history, and 17 pages of headnotes in the statutory source “United
* B.A. Vanderbilt University 1968, Corning Travelling Fellow 1969, J.D. University of Alabama 1973; Ambrecht, Jackson, DeMouy, Crowe, Holmes & Reeves (Mobile). This paper was presented in 1987 at the Tulane Admiralty Law Institute, and the author appreciates the consent of that Institute and of the Tulane Law Review to its publication outside the United States.
1. Letter of Graydon S. Staring, President, The Maritime Law Ass’n of the United States, to Hon. Gerry E. Studds, Chairman, Subcommittee on Coast Guard and Navigation, Committee on Merchant Marine and Fisheries, U.S. House of Representatives, 31 May 1985.
2. 33 U.S.C., s. 1251 et seq. We shall principally examine s. 1321.
3. 42 U.S.C., s. 9601 et seq.
4. 33 U.S.C., s. 407.
5. 43 U.S.C., s. 1811 et seq.
6. 43 U.S.C., s. 1651 et seq.
7. 33 U.S.C., s. 1501 et seq.
8. Act of 30 June 1948, 62 Stat. 1155.
496