Maritime Law Column: The Legacy of the Oil Pollution Act of 1990
"Oil spills in U.S. waters have decreased in both number and volume since OPA's enactment, though major incidents still occur from time to time," writes columnist Keith Letourneau.
February 01, 2024 at 10:00 AM
7 minute read
Cargo and ShippingIn 1989, the tanker Exxon Valdez grounded on Bligh Reef, Alaska resulting in the spill of more than 11 million gallons of oil into Prince William Sound. The resulting ecological disaster galvanized Congress to enact the Oil Pollution Act the next year. This legislation has had far-reaching implications for the carriage of oil by ship, enforcement actions against responsible parties, funding to respond to spills nationwide, and the protection of the U.S. marine environment.
Before OPA, single-hulled tankers carried oil to, from and between U.S. ports. OPA phased in the transition to double-hull tankers, which have become the norm worldwide. In 1992, the International Maritime Organization (IMO) modified the International Convention for the Prevention of Pollution by Ships (MARPOL) to phase in and extend the double-hull requirement globally. Studies show that depending on the impact speed, double hulls can reduce the likelihood of a pollution incident by more than 60% compared to single-hull tankers. While double-hull tankers are not a panacea to stop oil discharges at sea, they provide greater protection from pollution incidents caused by groundings, or low-speed/low-impact collisions. By way of example, in 2009, the double-hull tanker SKS Satilla allided with a submerged oil rig in the Gulf of Mexico creating a huge gash in the vessel's outer hull, but no oil spilled. In 2021, a tug collided with the tanker Polar Endeavor in Valdez, Alaska tearing a four-foot hole in the outer hull, but no oil spilled; the inner hull remained intact. On the downside, double-hulled tankers are more expensive to build and maintain and may be less stable due to a higher center of gravity and greater free-surface effect in the ballast tanks.
Under OPA, the "Responsible Party" or RP is strictly liable for an oil spill, though it may seek contribution or indemnity from other culpable parties. OPA requires the RP to immediately respond to a pollution incident by deploying an oil spill response organization (OSRO) to clean it up, failing which the U.S. Coast Guard (USCG) may take over the spill response and manage the operation at the RP's expense. One of the compromises that led to the passage of OPA is that cargo owners are not liable for a pollution discharge, though a variety of states also have imposed strict liability on the cargo owner in the event of a pollution discharge.
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