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S. HRG. 111–1054 

THE DEEPWATER HORIZON TRAGEDY: 

HOLDING RESPONSIBLE PARTIES ACCOUNTABLE 

HEARING 

BEFORE THE

COMMITTEE ON COMMERCE, 

SCIENCE, AND TRANSPORTATION 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

JUNE 30, 2010 

Printed for the use of the Committee on Commerce, Science, and Transportation 

( 

(II) 

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

JOHN D. ROCKEFELLER IV, West Virginia, Chairman 

DANIEL K. INOUYE, Hawaii 

JOHN F. KERRY, Massachusetts 

BYRON L. DORGAN, North Dakota 

BARBARA BOXER, California 

BILL NELSON, Florida 

MARIA CANTWELL, Washington 

FRANK R. LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas 

CLAIRE MCCASKILL, Missouri 

AMY KLOBUCHAR, Minnesota 

TOM UDALL, New Mexico 

MARK WARNER, Virginia 

MARK BEGICH, Alaska 

KAY BAILEY HUTCHISON, Texas, Ranking 

OLYMPIA J. SNOWE, Maine 

JOHN ENSIGN, Nevada 

JIM DEMINT, South Carolina 

JOHN THUNE, South Dakota 

ROGER F. WICKER, Mississippi 

GEORGE S. LEMIEUX, Florida 

JOHNNY ISAKSON, Georgia 

DAVID VITTER, Louisiana 

SAM BROWNBACK, Kansas 

MIKE JOHANNS, Nebraska 

ELLEN L. DONESKI, Staff Director 

JAMES REID, Deputy Staff Director 

BRUCE H. ANDREWS, General Counsel 

ANN BEGEMAN, Republican Staff Director 

BRIAN M. HENDRICKS, Republican General Counsel 

NICK ROSSI, Republican Chief Counsel 

(III) 

C O N T E N T S 

Page 

Hearing held on June 30, 2010 ............................................................................... 1 

Statement of Senator Rockefeller ........................................................................... 1 

Prepared statement of Ernest Cannon and Ben Barnes on Behalf of 

Shelley Anderson submitted by Hon. John D. Rockefeller IV ................... 47 

Statement of Senator Hutchison ............................................................................ 2 

Prepared statement .......................................................................................... 4 

Article, dated June 30, 2010, from The Times-Picayune, entitled ‘‘Cut 

Red Tape and Get More Skimming Vessels to the Oil Spill’’ .................... 34 

Statement of Senator Wicker .................................................................................. 5 

Statement of Senator Lautenberg .......................................................................... 12 

Prepared statement .......................................................................................... 13 

Statement of Senator Begich .................................................................................. 36 

Statement of Senator LeMieux ............................................................................... 38 

Statement of Senator Thune ................................................................................... 41 

Statement of Senator Vitter .................................................................................... 42 

Statement of Senator Klobuchar ............................................................................ 47 

WITNESSES

Shelley Anderson, Widow of Jason Anderson of Midfield, Texas ........................ 6 

Prepared statement .......................................................................................... 8 

Natalie Roshto, Widow of Shane Roshto of Liberty, Mississippi ......................... 8 

Prepared statement .......................................................................................... 10 

Courtney Kemp, Widow of Roy Wyatt Kemp, of Jonesville, Louisiana, 

prepared statement ....................................................................................... 11 

Thomas C. Galligan, Jr., President and Professor of Humanities, Colby-Sawyer College and Scholar on Torts and Maritime Person Injury Law ............... 14 

Prepared statement .......................................................................................... 16 

Fred McCallister, Vice President, Allegiance Capital Corporation ..................... 25 

Prepared statement .......................................................................................... 27 

(1) 

THE DEEPWATER HORIZON TRAGEDY: 

HOLDING RESPONSIBLE PARTIES 

ACCOUNTABLE 

WEDNESDAY, JUNE 30, 2010 

U.S. SENATE, 

COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:05 a.m. in room 

SR–253, Russell Senate Office Building, Hon. John D. Rockefeller 

IV, Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. JOHN D. ROCKEFELLER IV, 

U.S. SENATOR FROM WEST VIRGINIA 

The CHAIRMAN. This hearing will come to order. 

We welcome our witnesses, all of them, and others who might be 

in the audience. 

Seventy-one very difficult, very painful days have passed since 

the enormous disaster in the Gulf began. And with every day that 

goes by, the economic and environmental damage grows worse and 

worse. While we don’t know the exact number, experts estimate 

that up to 6.9 million barrels of oil have spewed out of the Gulf— 

out of the pipe, into the Gulf, wreaking one kind of havoc on coastal communities, workers’ livelihoods, and fragile wetlands. 

At the very heart of this—and the greatest environmental catastrophe in American history is what we’re talking about—is something equally as important; that is, a very human tragedy. The explosion that occurred on the Deepwater Horizon oil rig on April 20 

killed 11 workers, injured 17; since then, at least two more response workers have been killed on the job. 

Like so many men and women in the Gulf region and in communities across America, they took pride in their jobs, worked hard 

at their jobs—hard jobs, indeed—and they loved their communities, 

they provided for their families, even if their work was not always 

appreciated or understood by outsiders and the rest of the world. 

It’s that way in coal mining. It certainly is that way in the work 

that was done by these folks who were on those platforms. 

For the survivors and loved ones, some of whom are here today, 

the nightmare is obviously just beginning. Put another way, it’s far 

from over. Livelihoods have disappeared, and the fabric binding 

these families together has been torn, leaving a terrible sense of 

loss and incredible uncertainty. 

I’m deeply disturbed by reports that different families will have 

access to, in fact, different relief, depending on their loved ones’ 

2 

jobs and where they were killed. It is my understanding today that 

Transocean, the owner of the Deepwater Horizon, is seeking to limit 

its liability for this loss, in Federal court, under a legal loophole 

that is both unconscionable and outdated. Hence, part of the reason 

for this hearing. 

Transocean’s cold and calculated efforts to avoid taking full responsibility for their actions—or, rather, inactions—shines a very 

bright light on a serious problem, which is a lack of accountability 

and equal treatment under the law. We cannot allow that, in this 

Senator’s judgment, to continue. 

There are three simple questions that I hope we can answer at 

today’s hearing. One, Do our maritime laws need to be updated? 

Two, Are all injured parties being treated fairly under these laws? 

And do the distinctions that allow for people to be treated differently make any sense at all? Are the parties—three—responsible 

for causing the harm being held fully accountable, or are they 

using outdated laws to escape paying their fair share? 

Let me be clear. Employers whose negligence causes an employee 

or anyone else’s death should be held fully accountable for the pain 

and the suffering they cause, regardless of where their death takes 

place. Companies that do harm should not be able to hide behind 

statutes from 1851, for heaven sakes, to avoid paying for the harm 

they have caused. And the courts should have the power to make 

an example of a company that disregards its workers’ safety. 

I firmly believe a consistent culture of workplace safety must 

form the bedrock of any serious and responsible industry. Whether 

you’re operating a rig in the Gulf or, as I indicated, a mine in the 

coal fields of West Virginia, these core principles depend upon business doing the right thing, and governments, by the way, enforcing 

the law. And that cannot be allowed to change simply depending 

on the location of where the work is and was done. 

Today’s hearing is an important opportunity to hear from you, 

the families, who have been affected so painfully by this awful disaster. You have our Nation’s heartfelt sympathy. We want to honor 

your loved one’s sacrifice and make conditions safer for all workers. 

Your voice today, in the weeks and months ahead, is absolutely essential—again, the reason for this hearing. 

Thank you for being here and for sharing your stories with the 

Committee today. I know full well that it cannot be easy. Please 

know that the Committee will continue to work on these issues to 

make sure workers and their families get the protections they deserve and make sure those who cause the harm are held fully accountable. 

We have a fundamental obligation to bring real accountability 

and fairness to a system where it has been sorely missing. You 

have my commitment that we will do that. 

I call on my very distinguished and very excellent Ranking Member. 

STATEMENT OF HON. KAY BAILEY HUTCHISON, 

U.S. SENATOR FROM TEXAS 

Senator HUTCHISON. Well, thank you, Mr. Chairman. 

Today, we are holding our second hearing in this committee on 

this tragic oil spill, and the 44th hearing in Congress since this 

3 

happened. We’re going to talk about the result of the spill, the legal 

remedies, and the Jones Act. I want to, first, say, to Mrs. Anderson 

and Mrs. Roshto, that our hearts go out to you. What you have suffered, we know, is just unimaginable. We just hope that we can settle some things here that will keep, maybe, you from having to go 

through this type of experience, or others like this experience, in 

the future. 

We are now looking at a leak that started over 2 months ago, 

and we’re told that the leak will probably not really be stopped for 

another month and a half. To date, 140 million gallons of oil have 

leaked into the Gulf of Mexico. This is unacceptable, and clearly we 

need to be looking for ways to prevent this type of action in the 

future from happening, but also learn how to respond more quickly 

to mitigate the damage. 

I want to talk about the Jones Act. I’m glad that you’re with us, 

Mr. McCallister, because you have experience with trying to bring 

skimmers in to be helpful. And I want you to describe, later, the 

problems that you have encountered. 

To date, over 20 countries have offered response vessels and expertise to assist in the cleanup of the Gulf, but, because of the 1920 

Merchant Marine Act, known as the Jones Act, foreign vessels are 

prohibited from operating within 3 nautical miles of the U.S. coastline, except after going through an extended process for waivers. 

However, the waivers have not been granted for foreign skimmers 

to come within the 3 nautical miles, and that’s where we need 

them right now. 

Three days after Hurricane Katrina, the previous Administration 

waived the Jones Act so that foreign countries could send vessels 

in to help. Yet, despite the situation that we have, the Jones Act 

has not been granted any waivers in this oil spill, and we are seeing the oil seep onto the shores. 

I have introduced Senate Bill 3512, the Waiver Act, cosponsored 

by Senators LeMieux, Cornyn, Isakson, McCain, Barrasso, Bond, 

and Sessions. This would just allow the waivers to occur immediately so that, obviously, under the auspices of the Coast Guard, 

these foreign vessels could come in and help with the mitigation of 

the damage. And with each hour that passes, such a waiver is one 

more hour that the communities in most need of assistance are 

forced to go without it. I hope that, frankly, the President will 

waive it on his own. He can do it. He should do it. We can get this 

hurdle out of the way right now. I introduced the legislation. I hope 

that we can pass it, because I think it will give some real help. 

I want to also say that I think we can work together for planning 

for the future, but, as I have said before, I don’t think we should 

stop drilling in the Gulf, where we have safely drilled for 40 years. 

I think we need to take the steps to assure that we do it safely, 

that we protect the Gulf, that we protect the shores, and that we 

protect the environment. I think we can do that, and I think we 

can do it in an expeditious way if we all work together. And I hope 

that’s what we can achieve through these hearings and, hopefully, 

legislation. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Hutchison follows:] 

4 

PREPARED STATEMENT OF HON. KAY BAILEY HUTCHISON, U.S. SENATOR FROM TEXAS

Thank you, Mr. Chairman, for holding today’s hearing, which is our Committee’s 

second hearing so far on the tragic oil spill in the Gulf, and the 44th (19 in the Senate, 25 in the House) in the Congress. Today we will consider the various legal remedies available as a result of the spill, as well as discuss the Jones Act. 

On April 20, 2010, the Deepwater Horizon Mobile Offshore Drilling Unit exploded, 

killing 11 employees onboard the rig and causing the largest oil spill in U.S. history. 

To the widows of those workers who perished and are here with us today, Shelley 

Anderson, from Midfield, Texas, and Natalie Roshto, from Liberty, Mississippi, 

please know that my thoughts and prayers continue to be with you and the others 

who have lost a loved one on the Deepwater Horizon. I thank you for being with 

us during this difficult time. 

It has been 72 days since the oil spill began. An estimated 140 million gallons 

of oil have leaked into the water of the Gulf of Mexico. We are told that the best 

chance for stopping the leak won’t happen until mid-August when BP hopes to complete the drilling of two relief wells—almost 4 months after the leak began. This 

is unacceptable. We must learn from this tragedy and fix what can be fixed now, 

and continue to work to find solutions in those areas for which answers have not 

yet been found. 

WAIVER Act 

As many of our domestic resources are being exhausted, we need to look to our 

foreign friends for assistance. To date, over 20 countries have offered response vessels and expertise to assist in cleanup of the Gulf. Unfortunately, due provisions in 

the Merchant Marine Act of 1920, also known as the Jones Act, foreign vessels are 

prohibited from operating within three miles of the U.S. coastline. 

Common sense dictates that three miles from the shore is the crucial area that 

needs protection from all types of response vessels. That is why there should be a 

temporary waiver of the Jones Act to allow foreign response vessels to join with 

their domestic counterparts to control and contain the oil leak—wherever they are 

most needed. 

This is not without precedent. Just 3 days after Hurricane Katrina made landfall, 

the previous Administration waived the Jones Act for foreign response vessels to aid 

in the response efforts. 

Yet, despite waiver requests, the Administration has not granted any Jones Act 

waivers, while oil continues to wash ashore along the Gulf Coast. That is why I 

have introduced S. 3512, the Water Assistance from International Vessels for Emergency Response Act (WAIVER), along with Senators LeMieux, Cornyn, Isakson, 

McCain, Barrasso, Bond and Sessions. 

Our legislation would provide a temporary waiver of the Jones Act for a period 

of time associated with emergency response to the oil spill. I would prefer the administration take immediate action and not wait for legislation to grant a temporary 

waiver of the Jones Act so the Gulf can receive assistance from all resources at our 

disposal. After all, each hour that passes without such a waiver is one more hour 

that the communities in most need of assistance are forced to go without. But if it 

takes legislation, ours is ready to pass. 

I am pleased that Fred McCallister, another Texas witness, was able to join us 

today. He requested a Jones Act waiver nearly 2 weeks ago (June 16) from the 

Coast Guard, and has yet to receive an acceptance or rejection notice regarding his 

request. 

Mr. McCallister’s Dallas-based company has contracted for 25 foreign-flagged oil 

spill response vessels which he wanted to bring to the Gulf to assist with 3 cleanup 

efforts. I hope he will describe the hoops and hurdles he has gone through in requesting a Jones Act waiver and hopefully we can learn from his experience and 

improve the waiver process, or rather, what appears to be a lack of process, one way 

or another. 

Proposed Legislation 

In addition to the lack of available resources to assist in the Gulf, the lack of a 

clear response plan from BP and the Administration is very troubling. For that reason, I am currently working with a number of stakeholders to develop legislation 

that would help ensure that responsible parties, including companies and Federal 

agencies, establish meaningful response plans to address any size spill on day one. 

We need to be able to better mitigate and control any spill so it does not amplify 

into the massive spill we see today in the Gulf. 

By enhancing coordination efforts among the private and public sector in terms 

or response, response equipment and enhance research and development for oil response, my legislation will allow responders to ‘‘hit the ground running.’’ I look forVerDate Nov 24 2008 10:14 Aug 31, 2011 Jkt 068023 PO 00000 Frm 00008 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\68023.TXT SCOM1 PsN: JACKIE
5 

ward to working with my colleagues on what I hope can be a bipartisan solution 

to many of the ongoing problems we see today. 

Again, I thank the Chairman for holding this hearing and I thank the witnesses 

for being with us today. 

The CHAIRMAN. Thank you, Senator Hutchison. 

We will now—neither Senator Lautenberg nor Senator Thune are 

here, and so, we will proceed to the witnesses. And—— 

Senator WICKER. Mr. Chairman? 

The CHAIRMAN. Yes. 

Senator WICKER. I understood I’d be allowed to make an opening 

statement. 

The CHAIRMAN. You had that understanding with my esteemed—— 

Senator WICKER. Staff to staff, I think. 

The CHAIRMAN. Staff to staff. Well, that means that Mr. Isakson 

also should have that right. OK. I hope it’s short. 

Senator WICKER. Yes, as are all of my statements. 

[Laughter.] 

Senator WICKER. But, I do appreciate the Chair indulging me. 

STATEMENT OF HON. ROGER F. WICKER, 

U.S. SENATOR FROM MISSISSIPPI 

Senator WICKER. And thank you also, Mr. Chairman, for holding 

this hearing today on the ongoing catastrophe and related legal 

and regulatory impediments to the cleanup of our Gulf Coast. 

I appreciate Mrs. Roshto and Mrs. Anderson being here today. It 

is under very unfortunate circumstances. Mrs. Roshto and her late 

husband, Shane, from Liberty, Mississippi, are constituents of 

mine. And my deepest condolences to both of these ladies, and to 

the other families involved. 

As news of the drilling operation’s safeguards omitted in the lead 

up to this tragic explosion come to light, I grow more and more 

troubled at the negligence exhibited by the responsible parties in 

the operation of Deepwater Horizon. I am aware that debates took 

place on this oil rig as to what safety precautions should be taken. 

And the ones who would cut corners seem to have won that debate. 

So, I’m eager to hear the testimony of both of these ladies today, 

and the testimony of the other witnesses. 

We’re also witnessing a tragic situation unfold with regard to the 

response. I had the opportunity, last weekend, to do another flyover 

of the impacted waters, and witnessed oil in Mississippi Sound for 

the first time, and in our passes near the barrier islands. Since my 

flight, we’ve witnessed the closures of several beaches, and almost 

all of our Mississippi Sound fishing grounds. 

I also witnessed the lack of skimming equipment, during my 

flight. This is unacceptable. The Federal on-scene coordinator determined there was an insufficient number of skimming vessels engaged in the cleanup more than 2 weeks ago. This recognition 

should have spurred action. It did not. Only yesterday did the 

State Department follow, with their separate determination, and 

declared that we would, finally, accept the invitations of some of 

our foreign allies, in bringing their equipment here. 

We still hear stories of domestic skimming assets sitting, unused. 

We also hear stories of delays of the Administration’s ability to acVerDate Nov 24 2008 10:14 Aug 31, 2011 Jkt 068023 PO 00000 Frm 00009 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\68023.TXT SCOM1 PsN: JACKIE
6 

cept international assistance. We should hear stories of armadas of 

vessels protecting our coast. Unfortunately, this is not the case. 

I understand there are many impediments to our plea for more 

skimmers. It took some time, but the Administration created an expedited waiver process for the Jones Act, and seven vessels have 

been approved for use in our waters over the past 48 hours. This 

is a start. The Administration could simplify this further by 

waiving the Jones Act for skimming vessels, as Senator Hutchison 

has mentioned, no different than the waiver provided for oilspill 

tankers responding after Hurricane Katrina. We need all domestic 

and international resources responding. 

I understand there are additional obstacles through the Federal 

Water Pollution Control Act on skimmer discharge limits. Unbelievably, our pollution control laws are preventing us from cleaning 

up the pollution in our own waters. 

We should not be discussing unresolved cleanup obstacles more 

than 70 days after the start of this disaster. This is clearly a failure of this Administration to fully grasp the extent of the disaster. 

Mr. Chairman and Ranking Member Hutchison, my fellow members of the Committee, we need to work together to address the 

issues that are impeding access to these skimming vessels and 

equipment. We need to ensure the Administration is providing the 

proper waivers, and doing so in a timely manner. We need assurances that the State Department is resolving the reciprocity issue. 

We also need to know that the Clean Water Act is not one of the 

biggest obstacles to clean water in the Gulf of Mexico. Congress 

must review any bureaucratic obstacles to cleaning up this disaster, waive them in a responsible manner, and help restore our 

Gulf Coast. We can no longer afford to wait for action to occur. We 

owe it to the folks on the coast who have lost their livelihoods and 

lost their way of life. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator. 

And we will go now—Senator Lautenberg is on his way, and he 

would need to make an opening statement, as well as Senator 

Thune, should he come. 

Mrs. Shelley Anderson, we welcome you and would like to hear 

your testimony. And you need to turn the button on, and put that 

fairly close to your mouth. 

Mrs. ANDERSON. I don’t know how to turn the button. 

The CHAIRMAN. That—you did. 

Mrs. ANDERSON. Did? OK, thank you. 

STATEMENT OF SHELLEY ANDERSON, WIDOW OF JASON 

ANDERSON OF MIDFIELD, TEXAS 

Mrs. ANDERSON. My name is Shelley Anderson. My husband is 

Jason Anderson, and he’s a toolpusher on the Deepwater Horizon. 

We have a 5-year-old daughter, named Lacy, and a 17-month-old 

son, named Ryver. Our 8-month—our 8-year wedding anniversary 

is next month. 

Jason has been a—distant on his last few hitches, whenever he 

would come home and whenever I would talk to him on the rig, and 

I would ask him what the problem was, and he would always tell 

me the same thing, that there’s a lot of stuff going on, on the rig, 

7 

and that the walls were too thin, that he couldn’t talk about it 

right then, and that he would talk about it when he got home. But, 

he never actually would talk about it when he got home, because 

it would just be something else for me to worry about, and Jason 

did not take care of me by making me worry about anything. I 

never had to worry about anything. 

Jason also talked about his will, this last time home, all the way 

up to the point where I dropped him off at the airport to go get 

on the rig. We talked about our future together, what he wanted 

for the kids. We talked about how to plan. We made plans together. 

And now I have to plan for a future without my soulmate, without 

my husband, without my best friend. My children are never going 

to have their father back. Ryver’s daddy is never going to throw 

him a football, and Lacy’s daddy is never going to walk her down 

the aisle at her wedding. Jason will never be able to teach them 

how to ski or drive a car or take them hunting or all the other 

things that daddies are supposed to do. Jason’s never going to be 

here again to put his arms around me and comfort me and tell me 

that everything is going to be OK, and make me feel like everything is going to be OK. Now all I have to do is worry. 

I believe that our damages should be considered under the same 

standards as deaths that have occurred on land. And why damages 

to be different for a family—why damages to a family have to be 

different for deaths that occur on the—on an ocean rather than on 

land. 

I’m concerned that the responsible parties will use every legal 

tactic and maneuver to delay our justice. In cases for those killed 

in the tragedy are lumped in with other cases for fishermen and 

landowners and businesses, in units of government, it could be 

years for our cases to be heard or resolved. I think I should be able 

to decide if I want to pursue my case alone or along with the hundreds of other claimants who have lost their income and property 

damage, but have not lost their husbands and fathers. 

Our damages were sustained at the time of the explosion, and 

the property damage claims, which BP wishes to delay us, in a result of failure to control the spill and perhaps the dispersants being 

used in the ocean. These are separate and distinct cases from ours, 

and our husbands’ deaths should not be handled as—they need to 

be separated. 

We want to prevent the wives and families from ever being in 

our shoes. Just as I’m trying to teach my 5-year-old responsible behavior, I want to promote responsible behavior on the rigs. We are 

not special, but we are survivors of our husbands’ lives. We want 

to be treated like any other survivor that’s out there. 

And we want you to act quickly on this. We don’t want it to take 

years and years. And I know the legislative process can be slow, 

but we just can’t afford to wait. We need to get this done. And we 

want the chance to be heard in a court, where the judge can be 

trusted by everybody. 

Thank you. 

[The prepared statement of Mrs. Anderson follows:] 

8 

PREPARED STATEMENT OF SHELLEY ANDERSON, 

WIDOW OF JASON ANDERSON OF MIDFIELD, TEXAS

My name is Shelley Anderson. My husband is Jason Anderson. Jason, a tool pusher on the Deepwater Horizon, was killed in the April 20 explosion. We have a 5- 

year-old daughter, Lacy, and a 17-month-old son, Ryver. Our 8 year wedding anniversary is next month. 

Jason was a bit distant in his last few hitches when we talked on the phone. I 

would ask him what the problem was. He always said the same thing. ‘‘. . . there 

is a bunch of stuff going on; I can’t talk about it now. The walls are too thin. I will 

talk to you when I get home.’’ Only he never would because it would have made me 

worry even more. That was not the way he would take care of me. Jason also talked 

of his will and the things he wanted for us and our children. We talked of our future 

together and our children’s future. Now, I have to plan for a future without my soul 

mate, without the love of my life, without my best friend. My children will never 

ever have their father back. Lacy’s daddy will never walk her down the aisle at her 

wedding. Ryver’s daddy will never throw him a football. Jason will never be able 

to teach them to drive a car, ski behind a boat, take them hunting, or the many 

other things a father teaches his children. Jason will never be here to put his arms 

around me to comfort me to let me know that everything is going to be all right 

and that I have nothing to worry about. Now nothing is right and all I do is worry. 

I believe our damages should be considered under the same standards as if the 

deaths had occurred on land. Why would the damages to a family be different if a 

death occurs on the ocean as opposed to inland? 

I am concerned that responsible parties will use every legal tactic and maneuver 

to delay justice. If the cases for those killed in this tragedy are lumped in with the 

other cases for the fishermen, landowners, businesses and units of government, it 

could be years before our cases are resolved. I think I should be able to decide if 

I want to pursue my case alone, or along with the hundreds of other claimants— 

who have lost income and had property damaged—but have not lost husbands and 

fathers. Our damages were sustained at the time of the explosion—the property 

damage claims with which BP wishes to commingle and delay us are a result of a 

failure to control the spill and perhaps the dispersants being used in the ocean. 

These are separate and distinct cases from our husband’s deaths and should be handled as such—separately. 

We want you to prevent wives and families from ever being in our shoes. Just 

as I am trying to teach my 5-year-old responsible behavior, we want to promote responsible behavior on the rigs. We may not be special; but we are survivors of our 

husband’s and father’s life and we want to be treated like any other survivor. 

Finally, I urge you to act quickly. I know that the legislative process can be slow, 

but this simply cannot afford to wait. 

The CHAIRMAN. Thank you very much. That was powerful and eloquent. 

Mrs. ANDERSON. I’m trying. 

The CHAIRMAN. We now are honored to hear from Mrs. Natalie 

Roshto, from Mississippi. 

STATEMENT OF NATALIE ROSHTO, WIDOW OF SHANE ROSHTO 

OF LIBERTY, MISSISSIPPI 

Mrs. ROSHTO. Good morning. Chairman Rockefeller and Ranking 

Member Hutchison and other members—— 

The CHAIRMAN. Would you pull that a little bit closer, Ms. 

Roshto? 

Mrs. ROSHTO [continuing]. And other members of the Senate 

Commerce Committee, I want to thank you for allowing me to 

speak today on behalf of my husband, Shane Roshto, who was tragically killed in the Deepwater Horizon explosion April 20, myself, 

and our wonderful son, Blaine. 

In the early hours of April 21, when I received the news of the 

explosion and fire, I never thought I would be sitting here. I never 

thought I would have to go home to a bright-eyed 3-year-old and 

9 

have to face the fact that his dad, and my husband, would never 

come home to us. 

Every 3 weeks, when Blaine and I would give Shane our last 

love, send him off for 3 weeks, I always feared the helicopter ride, 

but never did this kind of tragedy ever come to my mind. But, 

through God’s grace, family, and wonderful new friends, Blaine and 

I are making it through. 

After all the safety schools, meetings, and fire drills, I just knew 

he was safe out there. When the events of the Deepwater Horizon 

explosion started to unfold, I asked myself, ‘‘Will I ever personally 

recover? What if he’s out there and they just didn’t look long 

enough?’’ As the days passed, Shane’s absence became reality. 

My husband took great pride in his job, loved his work and all 

his Deepwater Horizon family, but, most importantly, he knew that 

working out there provided a lifestyle for his son that most 22- and 

21-year-olds could not provide. He loved us unselfishly, and provided a lifestyle that allowed me to attend college and also be at 

home with Blaine. During Shane’s off weeks, he spent time every 

day with Blaine, passing on his love for the outdoors, hunting and 

fishing, and doing for others, most of all. 

As the days passed, I asked, ‘‘Why? What happened?’’ The life 

Blaine and I knew was truly over. My love story had came to an 

end. Though he is a mirror-image of his dad, Blaine now has a void 

that will never be filled. There is no amount of money that 

Transocean or BP can pay to bring my husband back or return 

Blaine’s father. However, because of this tragedy, I have, unfortunately, learned that, under current law, there exists a huge discrepancy in the way that the death of a loved one is valued on the 

high seas. It is my understanding that the value of a loved one who 

dies at sea is valued far less than a loved one who dies on land. 

I am not a lawyer, by any means, but the policy behind this law 

does not make any sense to me, and does seem unfair. 

Under current law, because Shane died on an oil rig in Federal 

waters, Shane’s death is limited to pecuniary damages, which essentially limits his loss to a value of his paycheck and funeral expenses. If Shane had died on land, the law would have recognized 

that Shane’s life was more valuable, like the loss of society, the loss 

of love, affection, and care for Blaine, not only for Blaine, but for 

me, to help me, to give me ways to raise Blaine, to help me. 

The whole concept of valuing someone’s life seems very strange 

to me, in light of everything that has happened. But, since this 

remedy that I’m left with to hold the party responsible for Shane’s 

death accountable, I want to make sure that Congress acts quickly 

to change current law to ensure that all victims of maritime damages are treated equally. 

It should make no difference, in the eyes of the law, where a 

loved one is killed because of the wrongful acts of another. It 

should also make no difference whether the person killed worked 

as a seaman, contractor, or simply a passenger. The law should 

treat everyone the same. 

I pray every day when I wake, and, at bedtime prayers with 

Blaine, that I can sit him down one day and be able to tell him 

his daddy was a hero, a hero to all oil field men and women, beVerDate Nov 24 2008 10:14 Aug 31, 2011 Jkt 068023 PO 00000 Frm 00013 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\68023.TXT SCOM1 PsN: JACKIE
10 

cause his dad changed the heart and soul of those who place their 

business agendas over the importance of life. 

In closing, I would like to ask that the next time you see a picture of the Deepwater Horizon in flames or hear about the oilspill, 

you think about this. The flow of oil will eventually be stopped. 

Slowly, the environment will recover. The Gulf, I pray, will continue to provide us with the oil and gas and many other things that 

we enjoy. But, the lives of the 11 men, their survivors, and the heroes of the Deepwater Horizon will forever be changed but an unfortunate tragedy that prompted changes in making the laws more 

equal for all maritime victims who die on the high seas. 

Thank you for your time, and I will be happy to answer any 

questions. 

[The prepared statement of Mrs. Roshto follows:] 

PREPARED STATEMENT OF NATALIE ROSHTO, WIDOW OF SHANE ROSHTO

OF LIBERTY, MISSISSIPPI

Chairman Rockefeller, Ranking Member Hutchison, and other members of the 

Senate Commerce Committee, I want to thank you for allowing me to speak today 

on behalf of my husband, Shane Roshto, who was tragically killed in the Deepwater 

Horizon explosion April 20, myself and our son Blaine. 

In the early hours of April 21 when I received news of the explosion and fire, I 

never thought that I would be sitting here. I never thought that I would go home 

to a bright eyed 3 year old and have to face the fact that his Daddy, my husband, 

would never come home to us. Every 3 weeks when Blaine and I would give Shane 

our last loves sending him off for 3 weeks, I always feared the helicopter ride, but 

never did this kind of tragedy come to mind. Through God’s grace, family and 

friends, Blaine and I are making it through. 

After all the safety schools, meetings, fire drills and safety regulations I just knew 

he was safe. When the events of the Deepwater Horizon explosion started to unfold 

I asked myself will I ever personally recover; what if he’s out there and they just 

didn’t look long enough? As the days passed Shane’s absence became reality. 

My husband took great pride in his job, loved his work and all his Deepwater Horizon family, but most important he knew offshore work provided the life he wanted 

for his son. He loved us unselfishly and provided a lifestyle that allowed me to attend college and to be home with Blaine. During Shane’s off-weeks he spent time 

everyday with Blaine passing on his love for the outdoors, hunting and fishing and 

doing for others. 

As the days pass I ask why? What happened? The life Blaine and I knew is over. 

My love story came to an end. Though he is a mirror image of his Daddy, Blaine 

now has a void that will never be filled. 

There is no amount of money that Transocean or BP can pay to bring back my 

husband or return Blaine’s father to him. However, because of this tragedy I have 

unfortunately learned that under current law, there exists a huge discrepancy in the 

way the death of a loved one is valued on the high seas. It is my understanding 

that the value of a loved one who dies at sea is valued far less than a loved one 

who dies on land. I am not a lawyer by any means, but the policy behind this law 

does not make any sense to me and does not seem fair. Under current law, because 

Shane died on an oil rig in Federal waters, Shane’s death is limited to pecuniary 

damages—which essentially limits his loss to the value of his paycheck and funeral 

expenses. If Shane had died on land, the law would have recognized that Shane’s 

life was more valuable. 

The whole concept of valuing someone’s life seems very strange to me in light of 

everything that is happened. But since this is the remedy that I am left with to 

hold the party responsible for Shane’s death accountable, I want to make sure that 

Congress acts quickly to change current law to ensure that all victims of maritime 

disasters are treated equally. It should make no difference in the eyes of the law 

where a loved one is killed because of the wrongful acts of another. It should also 

make no difference whether the person killed worked as a seamen, contractor, or 

was simply a passenger. The law should treat everyone the same. 

I pray every day when I awake and at bedtime prayers with Blaine that I can 

sit him down one day and be able to tell him that his Daddy is a hero—a hero to 

11 

all oilfield men and women because his death changed the heart and soul of those 

who place their business agenda over the importance of life. 

In closing, I would like to ask that the next time you see a picture of the Deepwater Horizon in flames or hear about the oil spill that you think about this: The 

flow of oil will eventually be stopped, slowly the environment will recover, the Gulf 

I pray will continue to provide us with oil and gas and many other things that we 

all enjoy, but the lives of the 11 men, their survivors and heroes of the Deepwater 

Horizon will forever be changed. We can only hope that the legacy of this tragedy 

will be much more than a devastating oil spill, but an unfortunate tragedy that 

prompted changes in making the laws more equal for all maritime victims who die 

on the high seas. Thank you for your time and I will be happy to answer any questions you may have. 

The CHAIRMAN. Thank you very much—— 

Mrs. ROSHTO. And I would also like to introduce Courtney 

Kemp’s testimony into the record. 

The CHAIRMAN. That will be the order. 

[The information referred to follows:] 

PREPARED STATEMENT OF COURTNEY KEMP, WIDOW OF ROY WYATT KEMP, 

OF JONESVILLE, LOUISIANA

Hello, my husband is Roy Wyatt Kemp, one of the eleven men killed on the Deepwater Horizon oil rig that exploded on April 20, 2010. I reside in Jonesville, Louisiana, with our two beautiful daughters, Kaylee, 3 and Maddison, 5 months. 

I never thought I would be sitting before you today speaking on behalf of my husband and advocating to change a law that would affect my family and others. I appreciate the opportunity to tell you briefly about my husband and express my concerns regarding some issues that will affect many Americans. 

First and foremost, Wyatt is a Christian, one who loved the Lord with all of his 

heart. He had a tremendous amount of faith and seeked God’s will on a daily basis. 

Wyatt and I began dating while in high school and we have been married for five 

and a half years. He was a wonderful father, husband, son, brother, and friend to 

many. He was an avid outdoorsman who enjoyed hunting, fishing, and spending 

time with his duck dog, Ellie. 

Wyatt began working for Transocean Deepwater Drilling approximately four and 

a half years ago. He was only minutes away from completing his final shift as a 

Derrick Hand and was scheduled to come home the morning of April 21. He would 

have only been home for 2 weeks of his normal 3 weeks in order to return to the 

rig to join his new crew as Assistant Driller, a promotion he so deserved and one 

of which he was very excited. Wyatt was so proud of the Deepwater Horizon and 

the accomplishments it had made. Only a short time ago, the Horizon succeeded in 

drilling the deepest well in the gulf and second deepest in the world. Also, the rig 

was about to receive a safety award for commemorating 7 years without a single 

injury. It is because of this outstanding record that BP sought after the Deepwater 

Horizon because it was simply the best at accomplishing its goals and the crew 

aboard was outstanding in their field. 

The main purpose of our being here today is to address the Death on the High 

Seas Act. This Act was passed in 1920 and spells out the limited benefits a family 

may recover from the loss of a loved one when death is experienced on the high 

seas. Because this Act is outdated and does not fit the needs of today, I am asking 

that you amend DOHSA in order to make companies accountable for gross negligence such as the incident on the Deepwater Horizon. By changing this Act, perhaps companies will be more responsible for their wrongdoings and this type of accident will be avoided in the future. It is time that we bring DOHSA into the 21st 

century. 

Upholding safety regulations should be the number one priority on a rig. It is my 

belief that this terrible tragedy could have been prevented if only proper safety procedures had been followed. It is no secret the rig was behind schedule on this well 

due to the many problems they had experienced. However, the safety of its workers 

should not have been placed in jeopardy simply to bring in a well a few days early. 

Had these safety issues been resolved, the cost to the company would have only 

been measured in dollars and cents. The expense now is much greater as it cost 

eleven men their lives, eleven families their husbands, fathers, sons and brothers. 

How is it that the all mighty dollar has become more important than a human life? 

12 

It is detrimental to the southern states economy as well as our entire country 

when drilling in the gulf is discontinued. In the state of Louisiana there are two 

primary sources of income, agriculture and the oil and gas industry. If the moratorium continues it will be devastating to our already crippled economy, especially in 

the south. I understand, and want more than anything, that we need to know what 

happened that tragic night in the gulf in order to prevent it from happening again, 

but who’s to say we will have all of the necessary answers in 6 months. 

Because of the Moratorium, there are many who have already been laid off from 

their jobs in the gulf and thousands who worry every day if they will be next. So 

you see, even though my husband lost his life on an oil rig, I do not believe drilling 

should stop. Consider this, if a plane crashes, do we stop flying for 6 months? 

Finally, I would like to address a new issue that has recently come to my attention. It is the proposed inclusion of the eleven families in the Multi-Jurisdictional 

Class Action Suit that has been filed on behalf of the fishermen, shrimpers, etc. who 

have been affected by the spill. While I sympathize with those who make their living in the Gulf waters and I feel they should be compensated, it is my belief that 

although the loss of the two groups resulted from the same tragic incident, the impact is totally different and should be handled accordingly. I believe you will agree 

that the affect this tragedy has imposed on fishermen is of no comparison to the 

loss the eleven families who lost loved ones have suffered. Please do not allow this 

group of trial lawyers who are working to incorporate the two succeed in doing so. 

In closing, I would like to leave you with this thought; if the roles were reversed 

and you were standing in my shoes, would you be advocating changing a law that 

is so outdated and unfair? Would you be fighting to insure the livelihoods of many 

are not destroyed? My prayer is that you will make the right decisions regarding 

these matters so that no other families will have to endure the pain, grief, and suffering that my family is experiencing. You see, this is not about me; it is about honoring my husband and finding some type of justice for him and the others who lost 

their lives that tragic night. 

Thank you. 

The CHAIRMAN. And, of course, all of your statements will be 

automatically a part of the record. 

That was a very—also a very powerful, probing, deep, eloquent 

testimony, and I thank you very much for that. 

Senator Lautenberg, who is Chairman of the relevant Subcommittee, is here. 

And if you have something you’d like to say. 

STATEMENT OF HON. FRANK R. LAUTENBERG, 

U.S. SENATOR FROM NEW JERSEY 

Senator LAUTENBERG. Thank you very much, Mr. Chairman. 

And I thank Mrs. Roshto for her testimony. I heard enough of 

it to get some sense about the cost to your family and your wellbeing—has been as a result of what I will say is some questionable 

behavior on the part of BP. 

And I want to express my condolences to all of those who have 

lost loved ones in the Deepwater Horizon catastrophe, including our 

witnesses—Mrs. Anderson, Mrs. Roshto. 

Eleven men were killed when the BP rig exploded, and nothing 

is going to bring these people back. But, we can honor their losses 

by making sure that oil companies understand that a first responsibility of theirs is to protect the lives and well-being of the people 

that they have performing these tasks on these rigs. 

In the weeks before the catastrophic blowout, BP repeatedly 

chose to cut corners and put worker safety on the back burner. BP 

ignored countless warnings from engineers and subcontractors 

about the troubles with the well, and even discounted an e-mail— 

they called it ‘‘a nightmare well.’’ Just 4 days before the blowout, 

one BP executive admitted that the company was moving forward 

13 

in the face of danger, and he said, and I quote, ‘‘Who cares? It’s 

done. It’s the end of a story. We’ll probably be fine.’’ 

Mr. Chairman, I was one of the first Senators to visit Alaska 

after the Exxon Valdez crash, and I saw the destruction caused by 

that first—that oilspill firsthand. When the press coverage was intent—intense, Exxon issued a string of apologies, it promised to do 

right by the community, and it vowed to make sure the way of life 

these Alaskans knew would resume. But, as soon as the cameras 

were shut down, Exxon changed its tune. And I use this as an example. It fought the communities, the families, and the fishermen 

over every penny. Instead of making those victims whole, Exxon 

chose to make its lawyers rich. After 20 years—20 years of legal 

fights—Exxon succeeded in getting punitive damage claims reduced 

from $5 billion to $500 million. 

And we’re not going to let history repeat itself in this instance. 

Transocean, the largest oil—offshore rig operator in the world, has 

already gone to court to reduce its liability for the Gulf disaster by 

citing an 1851 maritime law. And that’s why the $20-billion fund 

that President Obama has established is so important. 

Mr. Chairman, offshore drilling is a risky, dangerous, and imperfect practice, but it’s also highly profitable. And when oil companies 

enter into this practice, they have to be prepared to pay whatever 

price their—to make their victims whole. We can’t afford, any 

longer, to shield big oil from the costs of offshore drilling. 

And again, I express my sorrow to those who lost a son, a brother, a father, or a friend in the Deepwater explosion. We want to 

hear our witnesses give us their views on holding the oil companies 

accountable. 

And I brought this along to see—this is directly from the waters 

in the Gulf, and it wasn’t unclean bathers, it wasn’t fish specimens 

spewing pollution. This is it, as ugly as it is. And you see what 

happens when this carelessness—carelessness—took over. BP had 

a chance, in its initial decisions about what kind of a rescue system 

they would use, and it—they took the one that was supposedly less 

costly. 

Thank you, Mr. Chairman, for the opportunity to issue a statement. 

[The prepared statement of Senator Lautenberg follows:] 

PREPARED STATEMENT OF HON. FRANK R. LAUTENBERG, 

U.S. SENATOR FROM NEW JERSEY

Mr. Chairman, thank you for holding this hearing. 

I would like to first express my condolences to those who lost loved ones in the 

Deepwater Horizon catastrophe, including our witnesses, Mrs. Anderson and Mrs. 

Roshto. 

Eleven men were killed when the BP rig exploded—nothing will bring these men 

back, but we can honor their loss by making sure oil companies don’t continue to 

take risks that jeopardize lives. 

In the weeks before the catastrophic blowout, BP repeatedly chose to cut corners 

and put worker safety on the back burner. 

BP ignored countless warnings from engineers and subcontractors about the troubles with the well and even discounted an e-mail that called it a ‘‘nightmare well.’’ 

Just 4 days before the blowout, one BP executive admitted that the company was 

moving forward in the face of the danger and said ‘‘who cares, it’s done, end of story, 

will probably be fine.’’ 

Mr. Chairman, I was one of the first Senators to visit Alaska after the Exxon 

Valdez crash, and I saw the destruction caused by that oil spill firsthand. 

14 

When the press coverage was intense—Exxon issued a string of apologies, it 

promised to do right by the communities, and it vowed to make sure the way of life 

these Alaskans knew would resume. 

But as soon as the cameras were shut off—Exxon changed its tune. 

It fought the communities, the families and the fishermen over every penny. Instead of making those victims whole, Exxon chose to make its lawyers rich. 

After twenty years of legal fights, Exxon succeeded in getting punitive damages 

reduced from five billion dollars to five hundred million dollars. 

We can’t let history repeat itself. 

Transocean—the largest offshore rig operator in the world—has already gone to 

court to reduce its liability for the Gulf disaster by citing an 1851 maritime law. That’s why the $20 billion fund that President Obama has established is so important. 

Mr. Chairman, offshore drilling is a risky, dangerous and imperfect practice—but 

it’s also highly profitable. 

When oil companies enter into this practice, they have to be prepared to pay 

whatever price to make their victims whole. 

We can no longer afford to shield Big Oil from the costs of offshore drilling. 

I want to again express my sorrow to those who lost a son, a brother, a father, 

or a friend in the Deepwater explosion. We want to hear our witnesses give us their 

views on holding oil companies accountable. 

Thank you. 

The CHAIRMAN. Thank you, Senator Lautenberg. 

Our next witness is Dr. Tom Galligan, who is President, Professor of Humanities, at Colby-Sawyer College. 

STATEMENT OF THOMAS C. GALLIGAN, JR., PRESIDENT AND 

PROFESSOR OF HUMANITIES, COLBY-SAWYER COLLEGE 

AND SCHOLAR ON TORTS AND MARITIME PERSON INJURY 

LAW 

Dr. GALLIGAN. Chairman Rockefeller, Ranking Member 

Hutchison, and members of the Committee, thank you for inviting 

me to appear before you. 

My name is Tom Galligan, and I am the President of Colby-Sawyer College, in New London, New Hampshire, and I have written 

and spoken frequently throughout the years on torts and maritime 

law, and was a Law Professor and Dean for 20 years before moving 

to Colby-Sawyer. 

I’d like to talk about three issues: the outdated and limited damages available in high seas maritime wrongful death cases; the 

1851 Shipowners’ Limitation of Liability Act; and the availability 

and measure of punitive damages in admiralty. 

Let me begin with wrongful death recovery by the survivors of 

seamen and others under the Jones Act. And this isn’t the part of 

the Jones Act about waivers of the Jones Act; this is the part about 

recovery of a seaman in negligence actions, and his or her survivors, and others, under the Death on the High Seas Act. 

Both of these statutes were passed in 1920, another era. As interpreted, neither of them allows recovery for ‘‘loss of society’’ damages to the survivors of those killed in high seas maritime disasters. 

Now, what are ‘‘loss of society damages’’? They are compensation 

for the loss of care, comfort, and companionship caused by the 

death of a loved one. They are compensation for the loss of the relationship itself. The majority of American jurisdictions today recognize some right to recover for loss of society in wrongful death 

cases, but not the Jones Act and not DOHSA. The Jones Act and 

DOHSA do allow the survivors of someone killed on the high seas 

15 

to recover their pecuniary or economic loss, but neither allows any 

recovery for the loss of the relationship itself. Thus, a surviving 

spouse or child may recover loss of economic support or funeral expenses or loss of services, like cooking or cutting the lawn, but the 

survivors recover nothing for the very real emotional loss of the 

loved one. And a parent who is not financially dependent upon a 

child who is killed on the high seas would recover nothing at all 

for that child’s death. 

Today, under the Jones Act and DOHSA, the relationship itself 

between the decedent and his or her spouse, child, or parent is 

treated as if it has no value. Senators, a spouse, child, or parent 

who loses a loved one suffers a very real loss, as we have heard, 

and the law, to be just, must recognize it. 

Now, there’s one exception to the rule barring recovery of loss of 

society under DOHSA, and that exception points up current inconsistencies in the law. 

In 2000, after the Korean airline and TWA air disasters, you 

retroactively amended DOHSA to provide recovery of loss of society 

to the survivors of those killed in high seas commercial aviation 

disasters, but for anyone else killed on the high seas, including the 

11 workers who died on the Deepwater Horizon, the survivors may 

not recover for the loss of society. The law should be the same for 

all. 

Senator Leahy’s proposed Survivors Equality Act of 2010 would 

appropriately amend DOHSA to include recovery for loss of society. 

Now, tort law is concerned with corrective justice—with fairness, 

with consistency, and with compensation—but, it is also concerned 

with deterring unsafe behavior posing risks to people, property, 

and the environment. As the title of this hearing points out, law 

is concerned with holding people accountable. By not allowing recovery of loss of society, the applicable maritime law undercompensates. And if tort law undercompensates, it underdeters, because it does not hold those responsible accountable for all of the 

real, direct damages that they cause. 

Now, undercompensation and underdeterrence and increased risk 

in the maritime setting is exacerbated by the Shipowners’ Limitation of Liability Act. Originally passed in 1851 to encourage investment in maritime shipping and commerce, the Act allows a vessel 

owner to limit its liability to the post-voyage value of the vessel if 

the liability is incurred without the owner’s privity or knowledge. 

The Act was passed before the development of the modern corporate forum and before the evolution of bankruptcy law. The Act’s 

operation today can lead to drastic undercompensation for the victims of maritime disasters. 

Senator Schumer’s proposed bill, S. 3478, would repeal the relevant portions of the Limitation Act. 

Finally, these cumulative problems of limited liability and maritime law might be alleviated by the recovery of punitive damages 

in cases involving egregious fault. Punitive damages are an additional way to hold people accountable. Twice in the past two and 

one half years, the U.S. Supreme Court has recognized the right to 

recover punitive damages in maritime cases. However, the Court 

has limited the recovery of punitive damages, in most cases, to a 

one-to-one ratio between the punitive damages awarded and the 

16 

compensatory damages awarded. In uttering that rule, the Court 

was quick to point out, however, that if Congress were to choose 

a different rule, the Court would have to defer to that different 

rule. 

What does that ratio cap do? It deprives a judge or jury of the 

traditionally available availability to tailor a punitive award, within due process limits, to the particular facts of the case, including 

the level of blame-worthiness, the harm, the threatened harm, and 

the profitability of the activity. 

Senator Whitehouse’s proposed bill on maritime punitive damages, S. 3345, would restore that traditional ability to tailor a punitive award to the facts of the case. 

Thank you for listening, and I’m happy to answer any questions. 

[The prepared statement of Dr. Galligan follows:] 

PREPARED STATEMENT OF THOMAS C. GALLIGAN, JR., PRESIDENT AND PROFESSOR OF

HUMANITIES, COLBY-SAWYER COLLEGE AND SCHOLAR ON TORTS AND MARITIME

PERSON INJURY LAW

I. Introduction 

Chairman Rockefeller, Ranking Member Hutchison and members of the Committee, thank you for inviting me to appear before you today. My name is Tom 

Galligan and since 2006, it has been my good fortune to serve as the President of 

Colby-Sawyer College in New London, New Hampshire, where I am also a Professor 

in the Humanities Department. From 1998–2006, I was the Dean of the University 

of Tennessee College of Law where I also held a distinguished professorship. From 

1986–1998, I was a Professor at the LSU Paul M. Hebert Law Center in Baton 

Rouge, where I also held an endowed professorship. From 1996–1998, I also served 

as the Executive Director of the Louisiana Judicial College. At both Tennessee and 

LSU, I taught and wrote about torts and maritime law. I am the author or co-author 

of several books and many articles on tort law and punitive damages. Along with 

Frank Maraist, I am the author of three books on maritime law, one of which is 

and another of which will soon be co-authored by Catherine Maraist. I have also 

written law review articles on various aspects of maritime law and given countless 

speeches on torts and maritime law; and I continue to speak and write on those subjects. It is an honor to appear before you today. 

The disaster in the Gulf of Mexico has already resulted in death, injury, environmental devastation, and economic loss to individuals, businesses, and governmental 

entities. Additional damage is occurring every day. The staggering consequences of 

the spill force us to ask whether applicable laws are fair, consistent, and up-to-date. 

Do they provide adequate compensation to the victims of maritime and environmental disasters? And, do our laws provide economic actors with proper incentives 

to ensure efficient investments in accident avoiding activities? Does our law appropriately hold tortfeasors accountable? Sadly, an analysis of the relevant laws reveals 

a climate of limited liability and under compensation. 

The law under compensates, in part, because, the Jones Act and the Death on the 

High Seas Act (DOHSA), as interpreted, do not provide damages to the survivors 

of Jones Act seamen and others killed in high seas maritime disasters for the loss 

of care, comfort, and companionship suffered as a result of their loved ones’ deaths. 

Aggravating the situation, some courts have inappropriately relied on those recovery 

denying rules to further limit recovery of nonpecuniary damages in other maritime 

cases. These failures to fully compensate raise basic issues of fairness and corrective 

justice. Is it right, consistent with modern law and values, and just to deny recovery 

for very real damages such as the loss of care, comfort, and companionship one suffers when a loved one is killed? In addition, the failure to compensate raises important issues concerning tort law, deterrence, and accountability. 

If the law under compensates, economic actors, when deciding what to do and how 

to do it, face less than the total costs of their activities. This economic reality may, 

in turn, lead to under deterrence and increased risk. If the law does not hold people 

accountable, the risk of injury, death, and damage is increased. In the maritime setting, the climate of limitation is exacerbated by the existence of the 1851 Ship Owner’s Limitation of Liability Act. That law allows a ship owner to limit its liability 

to the post-disaster value of a vessel, providing the relevant events occurred without 

the privity or knowledge of the ship owner. While punitive damages might make up 

17 

for the lack of deterrence in some areas, the deterrent role of punitive damages in 

admiralty is less significant because of the rule that limits the recovery of punitive 

damages to compensatory damages in maritime cases at a 1:1 ratio. 

I will begin my analysis with a discussion of the legal fact that loss of society 

damages are not recoverable by the survivors of many who are killed in maritime 

disasters. In failing to allow recovery of loss of society damages—damages for loss 

of care, comfort, or companionship—maritime law is contrary to the rule prevailing 

in the majority of the states. Katherine J. Stanton, The Worth of Human Life, 85 

N.D. L. Rev. 123, 130–31 (2009). Consequently, maritime law under compensates 

the surviving families of seamen and those killed in high seas maritime tort disasters. Congress has the chance and ability to change this state of affairs by amending 

the relevant statutes. Indeed Senator Leahy’s proposed 2010 Survivor’s Equality Act 

of 2010, S. 3463, would appropriately amend DOHSA to make loss of society damages recoverable. 

Second, I will discuss the extension of the seamen and high seas no loss of society 

recovery rules to other maritime cases, thereby further limiting potential overall liability. Third, I will describe the anomalous high seas death rule that pre-death 

pain and suffering damages are not recoverable in a maritime survival actions 

where death occurs on the high seas. S. 3463 would supersede this anomalous rule. 

Fourth, I will briefly explain how under compensation can lead to under deterrence and increased risk. Next, I will address the maritime doctrine of limitation 

of liability. Senator Schumer’s proposed bill, S. 3478, would repeal the relevant provisions of the limitation act and assure more adequate compensation and deterrence. Finally, I will review the impact of maritime punitive damages rules on risk and 

deterrence. Senator Whitehouse’s proposed bill on maritime punitive damages, S. 

3345, would improve those punitive damages rules by restoring the traditional ability to tailor a punitive award to the facts of the case. 

II. Loss of Society in Maritime Wrongful Death Cases—Seaman and the 

High Seas 

Loss of society damages are not recoverable in Jones Act wrongful death cases 

and/or in any case where death occurs on the high seas. This harsh legal reality 

is inconsistent with modern American law and does not fully or fairly compensate 

survivors for loss arising from the maritime wrongful death of a loved one. This no 

recovery rule is also inconsistent with the more progressive recovery available in 

high seas commercial aviation disasters. 

A. Seamen 

The analytical starting point in any work place maritime tort case is to determine 

whether an injured or deceased person was a seaman because that status determines the legal rights of the claimant and family members. A seaman is a person 

who does the work of a vessel, McDermott International, Inc. v. Wilander, 498 U.S. 

337 (1991), and who has an employment-related connection to a vessel which is substantial in duration (more than 30 percent of one’s work time is spent on a vessel 

or fleet of commonly owned or controlled vessels), Chandris, Inc. v. Latsis, 515 U.S. 

347 (1995), and nature (the worker is exposed to the perils of the sea). Harbor Tug 

and Barge Company v. Papai, 520 U.S. 548 (1997). Maritime law treats a semi-submersible drilling rig as a vessel. Marathon Pipe Line Co. v. Drilling Rig/Odessa, 761 F.2d 229,233 (5th Cir. 1985). The moveable drilling rig is a vessel because it 

is ‘‘capable of being used as a means of transportation on water.’’ 3 U.S.C.A. § 3; 

Stewart v. Dutra Construction Company, 543 U.S. 481 (2005). The Deepwater Hori- zon was a moveable drilling rig and, therefore, under maritime law, it is a vessel. 

Interestingly, a permanently attached drilling platform, as opposed to a semi-submersible drilling rig, is not a vessel. 

Assuming that the Deepwater Horizon was a vessel, workers with a substantial 

employment-related connection to the Deepwater Horizon would be seamen. A seaman has several possible claims against his or her employer: (1) the right to recover 

maintenance and cure; (2) the right to recover injury caused by the unseaworthiness 

of the vessel on which he or she served (a vessel is unseaworthy if it presents an 

unreasonably unsafe condition to the seamen on board); and (3) a Jones Act, 46 

U.S.C.A. § 30104, right to recover in negligence against his or her employer. Frank 

L. Maraist & Thomas C. Galligan, Jr., Admiralty in Nutshell, 194–99 (5th ed. 2005). 

1. Jones Act Negligence 

The Jones Act incorporates the provisions of the Federal Employers Liability Act 

(FELA). 45 U.S.C.A. § 51. The Jones Act (through the FELA) provides certain survivors of seaman killed as a result of their employer’s negligence with wrongful 

death and survival action claims against the employer. Basically, a wrongful death 

18 

action is an action that compensates certain beneficiaries for the loss they suffer as 

a result of the death of the victim. A survival action provides recovery for the damages that the decedent suffered before his or her death. 

Critically, what do the recoverable damages include and what do they not include 

in a Jones Act negligence wrongful death action? The survivors can recover any loss 

of economic support, any lost services, and other traditional types of pecuniary damages. That is they recover economic losses. The survivors cannot recover loss of society damages. That is, they cannot recover for the loss of care, comfort, or companionship caused by the death. Loss of society damages are, in essence, those damages 

survivors suffer as a result of the fact that the deceased is no longer there to share 

the joys of life with the them. Thus a surviving spouse may recover any loss of support (net of taxes and what the decedent would have spent on themselves) and loss 

of service, such as cooking or painting or cutting the lawn and any other economic 

damages. But the spouse recovers nothing for the loss of the relationship. Likewise, 

a parent who is not financially dependent upon a child who is killed would recover 

nothing. 

The inability of the Jones Act seaman’s survivors to recover loss of society damages in the negligence action does not result from the language of the Jones Act 

or the FELA. Rather, it is the combination of a 1913 decision of the U.S. Supreme 

Court, Michigan Central R.R. Co. v. Vreeland, 227 U.S. 59 (1913), which refused to 

recognize the right to recover loss of society damages under the FELA (and which 

actually predated the passage of the Jones Act by 7 years) and the result of the 

Court’s reliance on that decision in Miles v. Apex Marine, 498 U.S. 19 (1990). 

One might arguably understand and appreciate the Vreeland holding in an era 

when the law of wrongful death was still in its relative infancy; human life spans 

were shorter, and given the state of technology, industry, and law, accidental death 

was a more common part of the American landscape than it is today. However, to 

deny recovery of loss of society damages in a wrongful death case today is out of 

the legal mainstream and is a throwback to a past era. A spouse, child, parent, or 

sibling of a seaman killed in a maritime disaster suffers a very real loss of society 

and the law should recognize it. 

Congress could easily remedy this state of affairs by amending 45 U.S.C.A. § 51, 

the FELA wrongful death statute, to state that recovery by a named beneficiary in 

a wrongful death action shall ‘‘include nonpecuniary damages for loss of care, comfort, and companionship.’’ That amendment would bring the Jones Act and FELA 

much more into line with modern tort law regarding the recovery of damages in 

wrongful death cases, as well as the economic, social, and familial realities of today. 

Representative Conyer’s proposed bill, Securing Protection for the Injured from Limitations on Liability Act, H.R. 5503, would, among other things, amend the Jones 

Act to make loss of society damages recoverable in seaman negligence based wrongful death cases. 

2. Unseaworthiness 

Moving from the negligence claim for wrongful death to the unseaworthiness 

claim for wrongful death, the general maritime law provides certain survivors with 

wrongful death and survival actions against a vessel owner (or operator under many 

circumstances) if the seaman is killed as a result of the vessel’s unseaworthiness. 

If the death occurs on the high seas, then DOHSA, 46 U.S.C.A. § 30302, governs the 

recoverable wrongful death damages arising from the vessel’s unseaworthiness. 

DOHSA limits recovery to ‘‘pecuniary loss.’’ 46 U.S.C.A. § 30303. Thus, the survivors 

of seamen killed as a result of a vessel’s unseaworthy condition on the high seas 

may not recover loss of society damages. Consequently, the spouse, parent, or child, 

who has no claim for pecuniary damages, recovers nothing for the losses caused by 

the death of a loved one and all of the issues raised concerning the inequity, incongruity, and antiquated nature of that limitation on recovery discussed above in conjunction with the Jones Act apply to DOHSA. One case worthy of note is Rux v. Republic of Sudan, 495 F.Supp.2d 541 (E.D. Va. 2007), which chillingly presents the 

operation of DOHSA. There, 56 surviving family members of the 17 sailors killed 

in the terrorist bombing of the U.S.S. Cole sued the Republic of Sudan under the 

Foreign Sovereign Immunities Act, 28 U.S.C.A. § 1605(a)(7), alleging that Sudan 

was at fault for providing material assistance and support to Al Qaeda, the group 

responsible for the attack. The court held that DOHSA applied and because nonpecuniary damages were not recoverable, 22 family members, including parents and 

siblings recovered nothing as a result of the deaths even though the court noted: 

The court sympathizes greatly with plaintiffs, who continue to suffer terribly 

years after their loved ones died. But the court is bound to follow the legal 

precedent before it. Congress makes the laws; courts merely interpret them. 

Whether to amend DOHSA to allow more liberal recovery in cases of death 

19 

caused by terrorism on the high seas, as Congress did in 2000 for cases of commercial aviation accidents on the high seas, is a question for Congress alone. 

Accordingly, plaintiffs’ IIED [intentional infliction of emotional distress] and 

maritime wrongful death claims are dismissed for failure to state a claim upon 

which relief can be granted. 

495 F.Supp.2d at 565. See also, Rux, 461 F.3d 461 (4th Cir. 2006), cert. denied, 

127 S.Ct. 1325 (2007); Rux, 672 F.Supp.3d 726 (E.D.Va. 2009). See generally, Ross 

M. Diamond, Damage—Unequal Recovery for Death on the High Seas, 45 Sept.— 

Trial 34 (2009). 

Here, as in Rux, in addition to the general and very substantial reasons to allow 

recovery of loss of society damages in DOHSA cases, there is an additional analytical prong involving a 2000 amendment to DOHSA (referred to in the quote from 

Rux above) that points to the need to amend DOHSA . In response to several highly 

publicized commercial airline disasters—KAL 007 and TWA 800—Congress amended DOHSA to provide for recovery of nonpecuniary damages (loss of care, comfort, 

and companionship), 46 U.S.C.A. § 30307(a), for death resulting from ‘‘a commercial 

aviation disaster occurring on the high seas beyond 12 nautical miles from the shore 

of the United States . . . but punitive damages are not recoverable.’’ 46 U.S.C.A. 

§ 30307(b). See generally, Stephen R. Ginger and Will S. Skinner, DOHSA’s Commercial Aviation Exception: How Mass Commercial Aviation Disasters Influenced 

Congress on Compensation for Deaths on the High Seas, 75 J. of Air Law & Comm. 

137 (2010) (discussing the legislation and the jurisprudence). This amendment, 

which was made retroactive to the day before one of the relevant air disasters, 

brought DOHSA into the legal mainstream as far as the survivors of victims of commercial aviation disasters. But, while the survivors of the victims of a commercial 

aviation disaster on the high seas may now recover nonpecuniary damages the survivors of anyone else killed on the high seas may not. It strains reason to come up 

with a meaningful, rational principle to justify the differential treatment, other than 

the very real social and political turmoil that followed the high profile tragic air disasters. The disaster of the Deepwater Horizon is, of course, a similarly tragic event, 

which presents an opportunity to bring the law into some logical, sensible, compassionate symmetry. S. 3463 would make loss of society damages recoverable for the 

survivors of anyone killed on the high seas. 

To add another relevant point to the analysis, OPA 90, 33 U.S.C.A. § 2701 et seq., 

allows victims of oil spills to recover various damages, including removal costs, 

§ 2702(b)(1); damage to real or personal property, § 2702(b)(2)(B); damage to natural 

resources used for subsistence, § 2702(b)(2)(C); and economic damages because of 

damage to property or natural resources even if the claimant does not own the property. § 2702(b)(2)(E). These rights to recover damages assure compensation to persons injured in various ways by an oil spill. 

But, critically, OPA 90 does not apply to personal injury or wrongful death claims. 

See generally, Gabrick v. Lauren Maritime (America), Inc., 623 F.Supp.2d 741 (E.D. 

La. 2009)(OPA does not cover bodily injury claims damage). Consequently, the survivors of the seaman (or others) killed on the high seas as a result of negligence 

or unseaworthiness do not recover for loss of society while the persons whose property was damaged or who lost profits do recover. This is not to say that recovery 

for damaged property or lost profits is not appropriate, it is merely to point out that 

currently recovery of economic loss is more readily available than recovery for loss 

of a loved one. 

I have noted above how a possible amendment to the Jones Act would deal with 

the seaman’s negligence claim; DOHSA could also be amended to delete the word 

‘‘pecuniary’’ before ‘‘loss’’ in 46 U.S.C.A. § 30303 and to add the language, ‘‘including 

nonpecuniary damages for loss of care, comfort, and companionship’’ after ‘‘loss’’ and 

S. 3463 would do exactly that. 

III. Seaman’s Survivors Wrongful Death Claims Against Third-Parties and 

Non-Seaman Wrongful Death Claims 

The beneficiaries of a seaman killed on the high seas may have claims not only 

against the vessel but may also have general maritime tort claims against other 

parties, such as manufacturers, contractors, or others. Likewise, the survivors of 

non-seamen tortuously killed on the high seas may have maritime wrongful death 

claims. But by definition, if death results on the high seas (or is caused by events 

on the high seas) then DOHSA applies and nonpecuniary damages would not be recoverable. 

As noted, if workers, who are not seaman, are killed as a result of a maritime 

disaster on the high seas, DOHSA would also govern their survivors’ recovery which 

would be limited to pecuniary damages, as currently defined. The amendments to 

20 

DOHSA, proposed in S. 3463, making nonpecuniary damages and pre-death pain 

and suffering damages recoverable, would apply to those claimants as well. 

Concomitantly, if the death occurs in territorial waters, nonpecuniary damages 

would seem to more likely be recoverable. Sea-Land Services, Inc. v. Gaudet, 414 

U.S. 573 (1974) (allowing the survivors of an LHWCA worker killed in territorial 

waters to recover loss of society). See also, Yamaha Motor Corp. v. Calhoun, 516 

U.S. 199 (1995) (allowing the survivors of a non-seafarer killed in territorial waters 

to rely on state law to seek recovery of loss of society damages). Thus where one 

dies may be more relevant to recovery than other critical circumstances, such as the 

injury to the relevant survivors. 

Notably, if a worker is killed on a stationary drilling platform located over the 

high seas, as opposed to being killed on a semi-submersible mobile rig, state law 

normally would govern his or her tort recovery rights against third persons and 

state law very probably would mean survivors could recover loss of society and predeath pain and suffering damages from third persons in a wrongful death action. 

This is because the Outer Continental Shelf Lands Act, 43 U.S.C.A. § (a)(2)(A), 

adopts the laws of each adjacent state as the governing law on OCS platforms, 

which are treated as islands in an upland state (recall that platforms, unlike rigs, 

are not vessels). See generally, Frank L. Maraist & Thomas C. Galligan, Jr., Admiralty in a Nutshell, 323–27 (5th ed. 2005); Alleman v. Omni Energy Services Corp, 580 F.3d 280 (5th Cir. 2009). Thus the measure of recovery in a fatal injury action 

on an off-shore oil or gas production facility (a rig or platform) would depend upon 

whether the relevant vehicle was a platform or a rig, even though the job that the 

killed worker was doing and the cause of the death was exactly the same. The point 

is that the potential recovery would illogically and unfairly depend upon happenstance not substance. 

IV. Expanded Under Compensation 

As noted above, the fact that the survivors of seamen and anyone killed on the 

high seas cannot recover for loss of society damages under compensates and is inconsistent with the current majority rule in America. Aggravating the situation, 

some courts have actually extended the scope of the Jones Act and DOHSA no recovery rules beyond their express reach and have applied them to limit or deny recovery in other maritime contexts. In Moragne v. States Marine Lines, Inc., 389 U.S. 

375 (1970), the U.S. Supreme Court created a general maritime law action for 

wrongful death that filled some of the gaps in maritime wrongful death law and 

that provided recovery in some cases not covered by DOHSA and the Jones Act. 

Then in, Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573 (1974) the Court held that 

the Moragne claim allowed the survivors of an LHWCA worker killed in territorial 

waters to recover loss of society damages. In so holding, the Court’s decision was 

consistent with the modern American majority rule allowing recovery of loss of society in wrongful death cases. Thereafter, the Court, in American Export Lines, Inc. 

v. Alvez, 446 U.S. 274 (1980), held that the spouse of an injured long shore worker 

could recover loss of society of consortium in a case where the worker was injured 

but not killed. 

However, 2 years before Alvez, the Court began a trend of liability limiting decisions ostensibly based on Congressional intent. In Mobil Oil Corporation v. 

Higginbotham, 436 U.S. 618 (1978), the Court refused to allow the survivors of 

someone killed on the high seas to rely upon the Moragne claim to recover loss of 

society damages because those damages were not recoverable under DOHSA. The 

Court decided that because Congress had spoken to the subject in DOHSA (limiting 

recovery to pecuniary damages), the Court was not free to supplement the recovery 

through the general maritime law. The trend to extend liability limitation was on. 

Thereafter, in Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986), the Court 

refused to allow the plaintiffs in a high seas death case to ‘‘borrow’’ state law to 

supplement DOHSA recovery. The limitation trend continued. 

Then, in Miles v. Apex Marine Corporation, 498 U.S. 19 (1990), the Court considered a case involving a seaman killed in territorial waters. There, a seaman was 

brutally murdered by a bellicose fellow crew member, who repeatedly stabbed the 

decedent. The decedent’s mother sued the employer alleging, among other things, 

a Jones Act negligence wrongful death claim and a Moragne general maritime law 

wrongful action claim arising out of an unseaworthy condition of the vessel (the 

presence of the bellicose seaman). In a somewhat surprising decision, the Court refused to allow the mother to recover her loss of society damages on the 

unseaworthiness general maritime law wrongful death claim. The Court reasoned 

that when Congress enacted the Jones Act in 1920 and incorporated the FELA, it 

must have been aware of the Vreeland decision, holding that the FELA did not authorize wrongful death recovery for loss of society damages, and so Congress must 

21 

have incorporated that holding in the Jones Act as judicial ‘‘gloss.’’ Id. at 32. The 

Miles Court then reasoned that since Congress supposedly did not intend to allow 

recovery for loss of society damages in a Jones Act based wrongful death claim for 

negligence, such damages were not available in a general maritime law (Moragne/ 

Gaudet) wrongful death action based on unseaworthiness. This was because, the 

Court said: ‘‘It would be inconsistent with our place in the constitutional scheme 

were we to sanction more expansive remedies in a judicially created cause of action 

in which liability is without fault [unseaworthiness] than Congress has allowed in 

cases of death resulting from negligence.’’ Id. at 32–33. See generally, David W. Robertson, Punitive Damages in U.S. Maritime Law: Miles, Baker, and Townsend, 70 

La. L. Rev. 463 (2010). The Miles decision was, of course, arguably inconsistent with 

the spirit, if not the holding, of Gaudet and Moragne, and scholars have criticized 

it. See Hon. John R. Brown, Admiralty Judges: Flotsam on the Sea of Maritime 

Law?, 24 J. Mar. L. & Com. 249 (1993); Robert Force, The Curse of Miles v. Apex 

Marine Corp: The Mischief of Seeking ‘‘Uniformity’’ and ‘‘Legislative Intent’’ in Maritime Personal Injury Cases, 55 La. L. Rev. 745 (1995). Moreover the Supreme Court 

has twice refused to extend the holding of Miles. Atlantic Sounding Co., Inc. v. Townsend, 129 S.Ct. 2561 (2009)(recognizing right to recover punitive damages in 

case alleging the arbitrary and willful failure to pay maintenance and cure); 

Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1995) (allowing the survivors of a 

non-seafarer killed in territorial waters to rely on state law to seek recovery of loss 

of society damages). 

However, despite the scholarly criticism and the Court’s failure to extend the 

holding of Miles, some lower courts have relied upon Miles, Tallentire, and 

Higginbotham to limit recovery of nonpecuniary damages in maritime cases that do 

not fall under those holdings. For instance, in Scarborough v. Clemco Industries, 

391 F.3d 660 (5th Cir. 2004), the fifth circuit said that loss of society damages were 

not recoverable in any wrongful death action involving a seaman, even when the 

claim was against a third party, who was not the decedent seaman’s employer or 

the owner of the vessel on which he or she was killed. In Doyle v. Graske, 579 F.3d 

898 (8th Cir. 2009)(boat passenger and spouse brought action in admiralty for personal injuries and loss of consortium damages sustained in boating accident off the 

coast of Grand Cayman Island when steering linkage disengaged), the court held 

that general maritime law did not allow loss of consortium recovery for the spouse 

of a non-seafarer (non-seaman/non-longshore worker) injured, as opposed to killed, 

on the high seas. See also, Chan v. Society Expeditions, Inc., 39 F.3d 1398 (9th Cir. 

1994). And, in Tucker v. Fearn, 333 F.3d 1216 (11 th Cir. 2003), the court, again 

relying upon Miles held that the father of a minor killed in a sailboat accident in 

Alabama territorial waters could not recover loss of society damages under the general maritime law. In Guevara v. Maritime Overseas Corp., 59 F.3d 1496 (5th Cir. 

1995), the court relied on Miles to deny recovery of punitive damages in a case involving the alleged arbitrary failure to pay maintenance and cure. Of course the Supreme Court abrogated the holding of Guevara in Atlantic Sounding Co., Inc. v. 

Townsend, 129 S.Ct. 2561 (2009) (allowing punitive damages). 

Of course all courts have not extended Miles beyond its holding. See, Kahumoku 

v. Titan Maritime, LLC, 486 F.Supp.2d 1144 (D.Hawai’i 2007)(law entitles LHWCA 

worker to recover punitive damages in maritime tort case); Clark v. W & M Kraft, 

Inc., 2007 WL 120136 (S.D. Ohio 2007) (loss of consortium recovery claim available 

for seaman’s spouse and son against third party); In re Consolidated Coal Co., 228 

F.Supp.2d 764 (N.D.W.Va. 2001)) (loss of consortium recovery claim available for 

seaman’s spouse against third party); Rebardi v. Crewboats, Inc., 906 So.2d 455 (La. 

App. 1st Cir. 2005) (punitive damages available). 

The fact that some courts have not extended Miles beyond its holding and some 

have done so results in inconsistency. But, more importantly, the fact that courts 

have extended Miles increases the number of cases in which the law fails to recognize the reality of injury and loss and in so doing either fails to compensate for that 

loss at all or, at best, under compensates. The extension of limited liability and 

under compensation expands the general climate of limited liability in maritime tort 

cases and hence maritime disasters. The extensions increase the possibility of under 

deterrence and the potential for increased and inefficient risk. Amending the Jones 

Act (actually the FELA) and DOHSA, to allow recovery for loss of care, comfort, and 

companionship would solve the problem because the amendments would do away 

with the language upon which courts have relied to limit recovery and increase risk. 

V. Survival Action Pre-Death Pain and Pain and Suffering 

Additionally, shifting from the wrongful death claim to the survival action claim, 

the Supreme Court in a case that did not involve a seaman has refused to allow 

recovery of pre-death pain and suffering as part of a survival action claim if death 

22 

occurs on the high seas. Dooley v. Korean Air Lines Co., Ltd., 524 U.S. 116 (1998). 

The law does allow the Jones Act seaman’s survivors to recover for pre-death pain 

and suffering. See, David W. Robertson & Michael F. Sturley, Recent Developments 

in Admiralty and Maritime Law at the National Level and in the Fifth and Eleventh 

Circuits, 32 Tul. Mar. L.J. 493 (2008). Thus, Dooley does not apply to those seaman 

claims but in any case covered by Dooley, involving a death caused by events on 

the high seas, no matter how much the decedent may have suffered before his or 

her death, those damages are not recoverable. 

To remedy this situation, Congress could amend the law to not only make loss 

of society damages recoverable, as suggested above, but also to make pre-death pain 

and suffering available in maritime survival actions. S. 3463 would do exactly that 

by making damages for pre-death pain and suffering recoverable. 

VI. Under Compensation Leads to Under Deterrence and Increased Risk 

Critically, in terms of the subject of this hearing-holding industry accountable— 

if the law under compensates, it will, by definition, under deter which will lead to 

lower than optimal investments in safety. Lower investments in safety and accident 

avoidance can lead to increased risk. This is true because when deciding what to 

do and how to do it, the rational economic actor will consider the costs of its activities. To the extent that a person does not have to pay a cost, it is much less likely 

to take that unpaid cost into account when deciding what to do and how to do it. 

As Judge Guido Calabresi so ably noted many years ago in The Costs of Accidents: 

A Legal and Economic Analysis (1970), one of the costs economic actors must consider is the costs of accidents. The costs of accidents are just as real and important 

as the costs of goods, the costs of raw materials, and the costs of labor. The critical 

importance of encouraging actors to take account of accident costs is also at the 

heart of Judge Richard Posner’s important law and economics scholarship and jurisprudence on negligence. See, e.g., Richard A. Posner, A Theory of Negligence, 1 J. 

of Legal Stud. 29 (1972). This truism about taking account of accident costs is also 

the crux of Judge Learned Hand’s famous negligence formula that provides that one 

is negligent if the burden or cost of avoiding a loss is less than the probability of 

the loss occurring times the anticipated magnitude (or value) of the loss if the loss 

arises and the actor fails to incur the burden, i.e., the costs of accident avoidance. 

Put algebraically as Judge Hand himself did, one is negligent if B < P x L and the 

actor does not avoid the loss by making the investment in safety. Interestingly 

Judge Hand originally articulated his famous and influential negligence formula in 

a maritime tort case. United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d 

Cir. 1947) . 

If a person does not take account of the costs of accidents when deciding what 

to do and how to do it, he or she will under invest in safety. Of course, compensatory damages are based in corrective justice and are designed to make the plaintiff whole—to put him or her in the position he or she would have been in if the 

wrong had never occurred. Professor Douglas Laycock has called it the ‘‘plaintiff’s 

rightful position.’’ Douglas Laycock, Modern American Remedies 14 (1985). However, compensatory damages also play another role in the regulation of American 

tort law because tort law not only compensates, it also deters unsafe conduct. And 

compensatory damages play a critical role in deterrence. Damages in tort cases force 

people to consider the costs of accidents when making decisions about engaging in 

risk. Moreover, as I have written: 

In addition to forcing actors to pay some accident costs, compensation performs 

a second efficiency related function. The tort system operates as a data bank 

providing actors access to information on the number of accidents that do occur, 

the damages that accident victims suffer, and the dollar value of those damages. 

In this regard the ‘‘fault’’ system facilitates actors’ ex ante [beforehand] calculations by providing them with the data they need to calculate the value of the 

damages that their activities impose on others. Given a large number of similarly situated actors, over time damages paid might be expected to somewhat 

equal the actual value ex ante of an activity’s accident costs . . . But in order 

for our current system to operate most effectively, some real relationship must 

exist between the accident costs society wants the actor to consider beforehand 

and the damages we force the actor to pay after the fact. The damages we 

award to compensate plaintiffs in personal injury cases and the categories of accident costs we want actors to consider ex ante should highly correlate. If actual 

damages awarded in tort suits do not reflect the costs we want actors to consider ex ante, but the system relies upon those actual awards as a ‘‘definition’’ 

of accident costs, then the system will not optimally deter. If the damages 

awarded in tort suits are less than the total costs we want actors to discount 

ex ante, we are encouraging people to consider less than all of the costs of that 

23 

activity and to over-engage in it. Likewise, if we overcompensate accident victims we are encouraging actors to under-engage in the activity. 

Thomas C. Galligan, Jr., Augmented Awards: The Efficient Evolution of Punitive 

Damages, 51 La. L. Rev. 3, 25–29 (1990) (footnotes omitted). 

To reiterate, to the extent tort law does not adequately compensate, it under deters and contributes to a more dangerous world than people have a right to expect. 

And, in the maritime setting the law under compensates because it does not compensate for loss of society in seaman and high sea death cases (other than commercial aviation disasters) and because courts have extended those no recovery rules 

to other maritime contexts. Of course maritime disasters and oil spills can cause 

more harm than injury and death. They cause damage to the environment and that 

damage to the environment devastates lifestyle, culture, and global well-being. It 

harms everyone. 

Moreover, there is evidence that environmental disasters can have devastating 

mental health effects. See, Brief Amici Curiae of Sociologists, Psychologists, and Law 

and Economic Scholars in Support of Respondents in Exxon Shipping Co. v. Baker, 128 S.Ct. 2605 (2008)(No. 07–219) at 8. In natural disasters the effects typically 

subside within 2 years, id. (citing Catalina M. Arata et al., Coping with Technological Disaster: An Application of the Conservation of Resources Model to the Exxon 

Valdez Oil Spill, 13 J. Traumatic Stress 23, 24 (2000)). But, technological disasters 

resulting from breakdowns by humans ‘‘consistently have social, cultural and psychological effects that are both more severe and longer-lasting.’’ Brief Amici Curiae 

of Sociologists, Psychologists, and Law and Economic Scholars, supra at 8 (citations 

omitted). The effects are particularly acute where the disaster impacts renewable 

resource communities like fisheries. Id. at 9. These effects manifested themselves 

in the Prince William Sound community in the wake of the Exxon Valdez spill in: 

chronic feelings of helplessness, betrayal, and anger; high rates of anxiety, depression, and post-traumatic stress; increased health care demands; increased crime 

rates; and more. Id. at 13–18. These injuries were very real and absent some compensation or device to force actors to consider them when deciding what to do and 

how to do it (i.e., some device to hold them accountable), they will not be forced to 

do so, tending toward under deterrence and increased risk. 

While OPA 90 provides liability for removal costs, property damage, economic 

loss, and more, it does not cure the problem of under compensation and under deterrence in maritime personal injury and wrongful death cases because it does not 

apply to maritime personal injury and wrongful death cases. The under compensation resulting from the current state of maritime personal injury and wrongful 

death law and the serious emotional harm that can result from a maritime, environmental disaster is not only unfair and inconsistent but it will potentially lead to increased risk. These economic realities are exacerbated in the maritime setting by 

the existence of the 1851 Ship Owner’s Limitation of Liability Act. 

VII. Limitation of Liability 

The Limitation of Liability Act, 46 U.S.C.A. § 30501 et seq., applies to these 

events. Originally passed in 1851 to encourage investment in maritime shipping and 

commerce, the limitation act allows a vessel owner (and some others) to limit its 

liability to the post-voyage value of the vessel if the liability is incurred without the 

privity or knowledge of the owner. 46 U.S.C.A. §§ 30505(a), (b), and 30506(e). And, 

the owner is entitled to retain any hull insurance. One may justifiably wonder 

whether an act passed at a time before the modern development of the corporate 

form (and other liability limiting devices) and the evolution of bankruptcy law is 

still salient; however, limitation is still extant as a matter of maritime law. The vessel owner creates a fund equal to the post-accident value of the ship (not including 

the hull insurance). The claimants then share the fund in proportion to the value 

of their claims. Personal injury and wrongful death claimants share with other 

claimants but if the vessel is a seagoing vessel and the fund is not adequate to provide the personal injury and wrongful death claimants with recovery equal to $420 

times the gross tonnage of the vessel, the owner must provide the difference, up to 

$420 per ton but no more. 46 U.S.C.A. § 30506(b). 

OPA 90 has its own liability limitation scheme and the applicable limit in this matter seems to be $75,000,000. While the Supreme Court has not considered the 

matter, lower Federal courts have held that the OPA 90 supersedes the limitation 

act on OPA 90 claims. See, e.g., Complaint of Metlife Capital Corp., 132 F.3d 818 

(1st Cir. 1997); In re Southern Scrap Material Co., LLC, 541 F.3d 584, 595 (5th Cir. 

2008) (dicta); Gabrick v. Lauren Maritime (America), Inc., 623 F.Supp.2d 741 (E.D. 

La. 2009). 

But, as noted, OPA 90 does not apply to personal injury or wrongful death. Thus 

the Limitation of Liability Act is applicable in a maritime disaster to allow a vessel 

24 

owner to limit its liability for personal injury and wrongful death claims. Clearly, 

this liability limiting device can lead to drastic under compensation to the victims 

of maritime disasters. Repealing the relevant portions of the Limitation of Liability 

Act would, of course, cure the problem of under compensation and under deterrence 

in general. Senator Schumer’s proposed bill, S. 3478 would do exactly that. 

VIII. Maritime Punitive Damages 

The under compensation and under deterrence resulting from the dated, inconsistent no recovery rules described above and the Limitation of Liability Act might 

be alleviated by the availability of punitive damages; however, the U.S. Supreme 

Court in Exxon Shipping Co. v. Baker, 128 S.Ct. 2605 (2008), held that punitive 

damages in most maritime cases are limited to or capped by a 1:1 ratio between 

the punitive damages awarded and the compensatory damages awarded. 

Punitive damages are damages in addition to compensation which are designed 

to punish and deter. They are only awarded where the plaintiff has proven fault; 

compensatory damages are awarded; and the plaintiff proves that the defendant’s 

conduct was worse than negligence; i.e, it was intentional, willful, wanton, or reckless. 

But how could punitive damages potentially alleviate the under deterrence caused 

by under compensatory damage awards? 

It is common ground among legal scholars and economists that inefficient behavior will not be deterred unless actors are forced to internalize all of the costs 

associated with their activities. Although adequate deterrence may generally be 

achieved through an award of compensatory damages, an award of punitive 

damages may be necessary to achieve complete deterrence in cases in which 

compensatory damages fail to fully account for the costs of a tortfeasor’s actions. 

Brief Amici Curiae of Sociologists, Psychologists, and Law and Economic Scholars, 

supra at 2. 

The U.S. Supreme Court has twice in the last two and one half years held that 

punitive damages are recoverable under general maritime law. See, e.g., Atlantic 

Sounding Co., Inc. v. Townsend, 129 S.Ct. 2561 (2009); Exxon Shipping Co. v. 

Baker, 128 S.Ct. 2605 (2008). 

After these two decisions punitive damages are arguably are available in seaman 

related cases given the holding in Townsend that a seaman may recover punitive 

damages under the general maritime law arising out of the arbitrary and willful 

failure to pay maintenance and cure. But punitive damages have not been traditionally recoverable in DOHSA cases. The matter will now be the subject of future argument and litigation. Notably, however, the potential absence of punitive damages in 

cases involving deaths for which no loss of society and/or no recovery of pre-death 

pain and suffering are available may inadequately deter those who engage in activities that may cause injury or loss of life because it can result in an undervaluing 

of human life and the tragic ramifications when it is lost. See, Thomas C. Galligan, 

Jr. Augmented Awards: The Efficient Evolution of Punitive Damages, 51 La. L. Rev. 

3 (1990). 

Additionally, even if available, the Court in Exxon Shipping Co. v. Baker, limited 

the amount of punitive damages recoverable in maritime cases to a 1:1 ratio between the punitive damages awarded and the compensatory damages awarded. Justice Stevens was among the dissenters and of one of the reasons for his disagreement with the majority was that maritime law was under compensatory. 

The majority noted that studies did not indicate a ‘‘marked increase’’ in the frequency of punitive damages over recent years. Id. at 2624. It also noted that the 

dollars awarded had not grown over time in real terms. Id. And the Court pointed 

out that the mean ratio of punitive damages to compensatory damages in the cases 

studied was less than one to one. Id. But the Court was apparently concerned with 

the potential unpredictable spread between high and low punitive awards and it 

was that concern which prompted the decision to generally limit the ratio of 

punitives to compensatories to 1:1. Id. at 2625. Critically, the Court pointed out that 

the case before it involved conduct which was worse than negligence but not malicious. Id. at 2631. It also noted that the activity was ‘‘profitless’’ to the tortfeasor. 

Id. The decision and the ratios should arguably not apply to cases involving higher 

levels of blameworthiness or ‘‘strategic financial wrongdoing.’’ Id. n.24. 

Whatever one might argue about cases to which the Exxon Shipping Co. v. Baker 

1:1 ratio should not apply, I believe that most lower court judges sitting in admiralty cases would apply the ratio to maritime cases they decide due to a concern 

about being overruled. The ratio cap then deprives a judge or jury of the traditionally available ability to tailor a punitive award, within Constitutional due process 

limits, see BMW of North America v. Gore, 517 U.S. 559 (1996), to the particular 

25 

facts of the case, including the level of blameworthiness, the harm suffered, the 

harm threatened, the profitability of the activity, and other relevant factors. Indeed 

one wonders if the 1:1 ratio aspect of Exxon Shipping Co. v. Baker would have been 

decided the same way if another maritime environmental disaster had occurred before the decision. 

Senator Whitehouse’s proposed bill, S. 3345, would restore the traditional ability 

to tailor a punitive award to the facts of the case by providing: ‘‘[I]n a civil action 

for damages arising out of a maritime tort, punitive damages may be assessed without reference to the amount of compensatory damages assessed in the action.’’ The 

effect of the proposed amendment would be to increase the deterrent impact of punitive damage awards in maritime cases. 

While the Supreme Court has never considered the issue, several courts have held 

that punitive damages are not available under OPA 90. See, e.g., South Port Marine 

LLC v. Gulf Oil Ltd., 234 F.3d 58 (1 st Cir. 2000); Clausen v. M/V NEW CARISSA, 

171 F.Supp.2d 1127 (D. Ore. 2001) . See the discussion in: Wright, Roy, Stephens, 

and Colomb, BP Deepwater Horizon Gulf of Mexico Oil Pollution Disaster, Preliminary Analysis: Law, Damages, and Procedure May 2010 (Available from Louisiana 

State Bar Association and the authors). The cited decisions say that OPA 90 preempts maritime law and therefore punitive damages are not available in a case involving maritime law and OPA 90. Interestingly, OPA 90 actually provides that it 

does not affect admiralty or maritime law. 33 U.S.C.A. § 2751(e). Moreover, OPA 90 

does not provide that punitive damages are not recoverable; it is merely silent on 

the subject. And both South Port Marine LLC v. Gulf Oil Ltd., 234 F.3d 58 (1st Cir. 

2000) and Clausen v. M/V NEW CARISSA, 171 F. Supp.2d 1127 (D. Ore. 2001) 

were decided before the Supreme Court’s affirmation of the right to recover punitive 

damages in Townsend and Exxon. Indeed in Exxon, the Court refused to find that 

the Clean Water Act, 33 U.S.C.A. § 1321 et seq., which was silent on the subject of 

punitive damages, precluded the recovery of punitive damages under maritime law. 

Finally, OPA 90 does not, as noted, apply to personal injury and wrongful death 

claims. Consequently, any preemptive affect OPA 90 might have on punitive damages in personal injury and wrongful death cases would seem to be limited. 

IX. Conclusion 

Recovery in maritime tort cases is under compensatory. The failure to allow recovery of loss of society damages in seaman and high seas maritime wrongful death 

cases (other than commercial aviations disasters) is unjust, dated, inconsistent, and 

out of alignment with current values. The rules not only fail to compensate but they 

arguably lead to under deterrence and increased risk because economic actors do not 

have to take those risks into account in deciding what to do and how to do it. S. 

3463 remedy that injustice. The extension of those rules beyond the contexts in 

which they arose exacerbates the problems and extends the climate of liability limitation. This risky state of affairs is aggravated by the 1851 Ship Owner’s Limitation 

of Liability Act, the relevant parts of which S. 3478 would repeal, and the potential 

positive effect of punitive damages is limited by the 1:1 punitive damages to compensatory damages rule of Exxon Shipping Co. v. Baker. S. 3345 would restore traditional flexibility in maritime punitive damages cases. As noted and as the various 

proposed bills referred to herein show, amendment and reform is both possible and 

necessary. The tragedy in the Gulf of Mexico provides a sad but necessary opportunity for our Nation to reconsider our law and make it more just in the aftermath 

of this disaster. 

The CHAIRMAN. Thank you very much, sir. 

And now Mr. Fred McCallister, who is Vice President of Allegiance Capital Corporation. 

STATEMENT OF FRED MCCALLISTER, VICE PRESIDENT, 

ALLEGIANCE CAPITAL CORPORATION 

Mr. MCCALLISTER. Good morning, Senators. It’s an honor to be 

here before you. 

I’m here to just tell you a story about my experience with trying 

to solve a problem, that seemed obvious to me on its face, which 

was that we needed additional equipment in the Gulf of Mexico to 

deal with the oilspill. 

26 

I—by—my day job is to provide financial advisory services to 

small/mid-sized companies. I had a client in Mississippi who approached me, in May, and said, ‘‘BP is needing additional vessels 

in the Gulf, particularly housing vessels.’’ They knew we had some 

experience with vessel transactions. Partially as a favor and partially as doing work for my client, we began to put together some 

vessels, some foreign flag vessels that we saw that were needed. 

Quite honestly, Senators, at that time I didn’t have a full appreciation of the Jones Act. The kind of transactions we handle typically 

do not involve the Jones Act. And so, we put together proposals, 

submitted them through their current channels at that time, which 

were subcontractors to BP. 

The subcontractors’ initial response to those proposals were very 

positive. These are vessels that are suited for this activity, and 

they put them forward to BP. 

After that, we got radio silence—my client did. We then saw all 

of the news regarding the need for skimmers. We saw Billy Nunn 

Gusser, we saw Governor Bob Jindahl down there, trying to jerryrig devices to clean up the spill, and we just could not reconcile the 

two things we were seeing. It was—on one hand, we had vessels 

that we thought were appropriate for the cleanup; on the other 

hand, we saw these governmental entities down there, struggling, 

trying to do whatever they could to defend their coast. 

So, we put together a skimmer package and submitted it to BP. 

Same response. 

After my client got frustrated and would not—could not get a response, I took it on myself. I’m from the Gulf region, my wife is 

from the Gulf region, I have property on the Gulf, I have family 

on the Gulf. We’ve lost—we lost homes in Katrina down there. So, 

it’s a very personal issue to me, as well, because I understand the 

Gulf-centric culture down there, and the Gulf-centric economy. 

So, we then started to raise a question. We made a public dialogue out of it. And certainly, when we got into the media, we 

started at least getting calls from BP, but could not get any kind 

of meaningful dialogue going as to why they weren’t using these 

types of vessels. 

So, after trying to educate myself, for the last month, on what’s 

going on in the Jones Act, we took it on ourselves to make a Jones 

Act waiver filing, actually went through to—we went to—first, to 

Admiral Thad Allen’s office. He—about the same time we made 

that filing, the expedited process was—press release—was issued. 

Didn’t have a lot of guidance in there, but it certainly directed us 

to Rear Admiral James Watson’s office, so we immediately made 

our waiver request to his office. 

Since then, we’ve had no response whatsoever, even after multiple inquiries as to the status. Senator Hutchison’s office has made 

inquiries on our behalf, and did get some feedback, so we at least 

know that they have our request in their hand and that it is in 

some stage of process. 

When we initially tried to contact them through—ourselves—we 

got unanswered phones, no voice mail. We did get a callback after 

calling the press contact at the office, and the response that we got 

was, ‘‘We’re in the process of creating forms. We don’t know the 

timeline.’’ We asked how many vessels—skimmer vessels are still 

27 

available—U.S.-hull skimmer vessels, because that’s a trigger for 

waiving the Jones Act. The answer was, ‘‘We are working on that, 

but it’s not public record, it’s not something we can release to you.’’ 

So, the bottom line is that, at this stage of the game, we’re quite 

frustrated with the fact that we haven’t had waivers issued, we 

haven’t had even any response. BP is going to have to be the ultimate accountable party for using this equipment. But, also, from 

our perspective, if the States want to take issues into their own 

hands, which a lot of them are saying that they need to do—Mississippi, Louisiana, Florida—that they are not going to want to use 

equipment that’s impaired with some sort of cloud of being illegal 

under the Jones Act or some risk of some sort of injunction against 

using this equipment in the Gulf. 

So, I—what I’m here today to ask the Committee to do is to support the Jones—this limited Jones Act waiver. I have no reason to 

ask that the Jones Act be gutted. It’s not—I don’t know that that’s 

appropriate. But, certainly for this situations—in situations like 

this, we need to be able to take the expertise from the other parts 

of the world, because what we’re doing in the Gulf, by sinking this 

oil rather than floating it and skimming it with the right equipment, is not the right thing to do. No one else in the world does 

this. And I—I’m concerned that, consistent with BP’s behavior, this 

is being done in their financial interest, to keep the oil below the 

surface, out of sight, out of mind, and amortize this cleanup over 

10 or 15 years, rather than attacking it with the right equipment 

and—getting it to the surface and extricating it from the Gulf. 

Thank you very much. 

[The prepared statement of Mr. McCallister follows:] 

PREPARED STATEMENT OF FRED MCCALLISTER, VICE PRESIDENT, 

ALLEGIANCE CAPITAL CORPORATION

Thank you for this opportunity to speak to you this morning. 

As an advisor and broker who works exclusively with closely-held and privatelyheld companies, I was contacted by one of my clients who currently supplies equipment to BP via United States Environmental Services asking that I and my firm, 

Allegiance Capital Corporation, help them in identifying specialty vessels that could 

be used for worker housing in the Gulf. 

Allegiance Capital has contacts worldwide through a network of marine brokers 

who have many different types of vessels available. We found a few unique vessels, 

mainly Greek cruise ships that also were car carriers. These ships could carry 500 

or more workers with all of the amenities of a cruise ship, but also had a large car 

carrier deck where booms and smaller boats could be stored and oil clean up work 

could be performed. As we became engaged in this work, the need for skimmers became apparent. We quickly discovered that the total availability of skimmers in the 

world was around 2,000 specialty built vessels, some for deep water and others for 

closer in to shore work and that most of the vessels in the U.S. that were available 

were already deployed in the Gulf. We found that this was a little bit like moving 

all the fire engines in the country to one area leaving other areas in the country 

somewhat exposed. As a result, we assembled a fleet of 25 skimmers, boom deployment vessels and two housing and equipment ships. Information is provided in the 

packet we assembled for you. 

Proposals were provided on June 5 (40mm gallons ago) via the established channels through which our client is currently supplying equipment. The BP subcontractor was excited about the vessels being a good fit but could not get a response 

from BP. After our client tried every possible avenue they could, they turned to us 

for assistance. Allegiance Capital then began to reach out to BP’s subcontractor, 

who had procured equipment for BP in May, with the results being the same, no 

response. With growing frustration we started a public discussion regarding the 

issues we were facing. 

28 

BP’s PR department called me within hours of being contacted by CNN and within a couple of days put me in touch with the Team Leader for vessel procurement, 

Veronica Brown. 

Veronica Brown called me on a Sunday, June 13, before my CNN interview on 

Monday the 14th and promised that our vessels would get expedited consideration. 

We submitted the proposals to Veronica Brown on Monday June 14 (25mm gallons ago), and were promised they would be reviewed on an expedited basis. To 

date, we have received no meaningful response. 

Even though the Jones Act was not raised as an issue, we became aware that BP 

may need to request a Jones Act waiver if they wanted to utilize our equipment. 

Given that BP has the need, the standing to make a request, and the ear of Adm. 

Thad Allen, we were satisfied that BP would make the request when needed. 

With a continued lack of response from BP and the news from the states, parishes 

and counties that they needed skimmers and were going to take matters into their 

own hands, Allegiance Capital took it on itself to submit a request for a Jones Act 

waiver. Our request was first submitted to Adm. Thad Allen’s office on June 16. 

After learning that Adm. Allen had issued a press release on June 15 saying that 

he was providing guidance to ensure expedited Jones Act waiver processing, we 

began trying to contact the numbers that had been provided in the press release 

to learn about the new guidance. After 2 days of unanswered phones, not even a 

voice mail, and one conversation with a press contact at Adm. Thad Allen’s office, 

we received a call from a Lt. Petta who had called us at the press contact’s request. 

Lt. Petta told us on June 16 that there are no procedures set up as yet for the waiver process; that they were working on the forms, but could not provide any other 

guidance or provide a copy of Adm. Allen’s guidance referred to in the press release. 

We also asked if they could provide the number of U.S. hulled skimmer vessels, 

given that ‘‘an adequate number of U.S. hulled vessels can not be engaged’’ is a trigger for a Jones Act waiver. On this subject we were told this was not public information. In spite of this lack of direction, we filed our request with Rear Adm. James 

Watson’s office on Monday June 21, as was generally directed in the press release. 

To date we have not received any correspondence relative to either of our requests. Through the efforts of Todd Bertoson of Senator Hutchinson’s office, we were 

told that our request is being reviewed by Matthew Weakley of the Unified Area 

Command Center Critical Resource Unit. We have e-mailed Mr. Weakley for questions and status updates but have not received a response. Mr. Weakley informed 

Mr. Bertoson that one of our non-skimmer vessels will be rejected because there are 

U.S. vessels that can fill the need. This is not the case given that there are no U.S. 

hulled vessels with both boarding and ferry capabilities in the U.S. We will respond 

to this anticipated rejection if and when they engage in communication. 

We have heard on many occasions that Jones Act waivers have not been requested. Even though that is an incorrect statement, it begs the question as to why 

the company with the most standing to make such a request, BP, has not made requests for waivers for these specialized vessels when there are no more U.S. hulled 

skimmers available. 

The explanation is that BP has chosen to ‘‘disperse and sink’’ the oil rather than 

to ‘‘surface and collect’’ the oil. Sinking and emulsifying the oil keeps the problem 

out of site and better serves BP’s financial interest than does removing the oil from 

the water. By sinking and dispersing the oil, BP can amortize the cost of the clean 

up over the next 15 years, or so, as tar balls continue to roll up on the beaches, 

rather than dealing with the issue now by removing the oil from the water with 

the proper equipment. As a financial advisor, I understand financial engineering 

and BP’s desire to stretch out its costs of remediating the oil spill in the Gulf. By 

managing the clean up over a period of many years, BP is able to minimize the financial damage as opposed to a huge expenditure in a period of a few years. 

There are arguments on both sides of the dispersants debate and unfortunately, 

the cost of this grand and unprecedented experiment they are conducting with the 

environment and people of the Gulf will not be fully determined for another 20 

years. 

Even if BP continues to refuse to utilize specialized equipment for remediating the 

oil, providing a Jones Act waiver for these specific purpose vessels will allow other 

governmental entities such as states, parishes and counties the option of utilizing 

this type of equipment to defend their shores. 

I, therefore, respectfully request the Committee’s support of the following actions: 

• Continue to support BP’s efforts to close and cap the Deepwater Horizon Well 

but not at the expense of removal and recovery of existing oil in the gulf. 

• Take all steps necessary to force BP to recover and remove oil from the surface 

of the Gulf. 

29 

• Take steps to cause BP to stop using sinking agents and dispersants so that 

the oil remains on the surface where it can be identified, tracked and removed. 

• Cause the Jones Act to be waived for specific efforts of oil removal and recovery, 

thereby paving the way for foreign equipment and experts to assist in the Gulf. 

• Force BP to focus on removal and recovery efforts in both shallow and deep 

water zones. 

Thank you for your consideration of allowing a Jones Act waiver for these specialized vessels. 

BP Timeline 

Spill rate 1.6mm gallons per day 

Saturday, June 5th—ship proposal sent to USES via Chain 

Wednesday, June 9th—skimmer proposal sent to USES via Chain 

Friday, June 11th—call from Ray Veatore, BP Public Relations 

Saturday, June 12th—Call from Mark Truxillo, BP Acting Team Lead Equipment Logistics 

Sunday, June 13th—proposals for ship and skimmers sent to BP, Mark Truxillo 

Sunday, June 13th—call from Veronica Brown, BP Team Lead Vessels 

Monday, June 14th—proposal for ship and skimmers set to BP, Veronica Brown 

Wednesday, June 16th—waiver request sent to Adm. Thad Allen’s office 

Monday, June 21st—waiver request sent to Rear Adm. James Watson’s office 

SUPPLEMENT TO COMMERCE COMMITTEE TESTIMONY—JUNE 30, 2010 

Presented by: Fred McCallister, Allegiance Capital Corporation 

I. Introduction: 

1. Allegiance Capital represents European based foreign flagged, highly specialized marine equipment and the experts that have the scale and capacity to effectively participate in the removal of the surface oil in the Gulf. 

2. We are testifying to express our deep concerns as to why BP continues to resist 

the use of an armada of specialized oil recovery and removal vessels that today are 

parked in foreign ports awaiting the opportunity to help. 

3. We believe key to minimizing the continued damage to our marine environment 

and the economies of the Gulf States is the removal the oil rather than dispersing 

and sinking the oil. The only certain way of limiting the impact of the spill is to: 

• successful closure and capping of the well, and; 

• the recovery of the 3,500 sq. miles of oil currently on the surface of the Gulf. 

II. Key elements to this effort require this Committee’s understanding of: 

1. BP’s current policies in the Gulf can be characterized as: 

‘‘Disperse and Sink’’ Policy 

• The unprecedented use of dispersants and sinking agents being used below the 

surface as well as on the surface to cause the oil to break up and sink, or remain below the surface has the following benefits for BP: 

• Dramatically reduces the measurability of the spill and therefore reduces the 

amount of statutory damages and royalties that can be assessed against BP. 

{BP faces fines and penalties related to the Oil Pollution Act of 1990 and the 

Clean Water Act. Of note is the fact that under the Oil Pollution Act BP may 

be held responsible to pay an 18.75 percent royalty for all oil lost from the 

well. Also, under the Clean Water Act BP may be fined $4,300 for every barrel of oil released into the Gulf.) 

• Allows BP to conduct its clean up as tar balls arrive on the shores in the 

marshes of the Gulf over the next 15 years rather that removing the oil in 

a few concentrated months. 

‘‘Keep in Control’’ Policy 

• BP has kept control of all aspects of the oil recovery and cleanup efforts. This 

policy was highlighted by their eagerness to establish the $20 Billion Dollar Escrow Fund as a gesture to our government in return to be allowed to continue 

30 

to operate with policies that are in the best interest of BP but not in the best 

interest of the environment and the Gulf region. 

‘‘Defer and Delay’’ Policy 

• By deferring action, BP can delay cost today and amortize the cost over future 

years with less impact to BP’s shareholder value. 

‘‘Out of Sight, Out of Mind’’ Policy 

• by keeping as much of the oil below the surface as possible they are keeping 

the magnitude of the spill from being apparent to us all. 

Ill. A few key data points: 

• Experts today estimate the collective area of the patches of oil on the surface 

of the Gulf is 3,500 square miles (the equivalent of 2,240,000 square acres). The 

largest foreign oil recovery vessels can, if operating on a 24 hr shift, remove and 

recover 170 square acres per day. This equates to 13,176 vessel days. Reduced 

to practical terms, should the well stop flowing oil into the Gulf today, and 

should the vast amounts of oil not re-suspend itself, and if we immediately deployed the six of the world’s largest oil recovery and removal vessels, the effort 

of removing the surface oil from the Gulf would take 6 years. 

• Pursuant to our National Contingency Plan, or NCP, which is the Federal Government’s blueprint for responding to both oil spills and hazardous substance 

releases, Section 300.310(b) states: ‘‘as appropriate, actions shall be taken to recover the oil or mitigate its effects. Of the numerous chemical or physical methods that may be used, the chosen methods shall be the most consistent with 

protecting public health and welfare and the environment. Sinking agents shall 

not be used.’’ 

• Oil suspended below the surface will, at unpredictable times, move to our Gulf 

shorelines and marshes below the surface making surface removal impossible. 

This situation currently exists and will magnify itself exponentially if the continued use of sinking agents are allowed. Some of our best experts are predicting that these problems could last for several years. 

• Surface removal of the oil is the only way to mitigate the problem with certainty. BP’s policy of ‘‘Out of sight, Out of Mind’’ promoted through their use 

of sinking agents must be stopped and re-focused on surface recovery and removal of the oil. For the past several weeks we have worked closely with our 

foreign oil removal experts and carefully responded to BP’s questions, only to 

find ourselves caught up in BP’s ‘‘Defer and Delay’’ and ‘‘Disperse and Sink’’ 

policies. As a result we have been told by BP that they are studying the problem and analyzing the available resources. As of today BP has not engaged in 

meaningful discussions about the equipment we have offered. This is why we 

are here today asking for the Committee’s intervention to this situation. 

• Our foreign partners and their governments have, as early as 4 days after the 

Deepwater Horizon explosion, offered equipment and technical expertise to address this environmental disaster. Should BP’s actions be allowed to continue 

we will truly be facing a very long term environmental disaster in the Gulf. 

IV. We ask the Committee to take the following actions: 

• Continue to support BP’s efforts to close and cap the Deepwater Horizon Well 

but not at the expense of removal and recovery of existing oil in the gulf. 

• Take all steps necessary to force BP to recover and remove oil from the surface 

of the Gulf. 

• Take steps to cause BP to stop using sinking agents and dispersants so that 

the oil remains on the surface where it can be identified, tracked and removed. 

• Cause the Jones Act to be waived for specific efforts of oil removal and recovery, 

thereby paving the way for foreign equipment and experts to assist in the Gulf. 

• Force BP to focus on removal and recovery efforts both shallow and deep water 

zones. 

By taking such actions this committee can initiate a global response to this massive disaster. By any measure, continued delay will cause unnecessary damage to 

our marine environment, wetlands, and to the citizens of the Gulf Region. 

We continue to stand by waiting for someone in control to give us the opportunity 

to respond. Our vessels and experts can be in the Gulf Region within days. 

In the supplemental information we have provided you will find information describing in detail the types of equipment and technologies available. We stand ready 

31 

to work with this committee in any way that you find helpful in order to address 

this most important problem. 

The CHAIRMAN. Thank you very much. 

I’m going to ask a question, Mrs. Anderson, Mrs. Roshto, that’s— 

is—will be hard on you, emotionally, but which is extraordinarily 

important for setting the whole concept of what we’re discussing 

here, and that is the meaning of the word ‘‘loss of society.’’ Each 

of you, in your testimony, talked about it, but there’s a little difference between giving testimony and between answering questions 

about that. 

So, you know, your husbands were working offshore, on a mobile 

oil drilling rig. They were working under maritime laws that, as 

you indicated, yourselves, don’t apply to those of us who work on 

land. These laws have a variety of names, like the Merchant Marine Act, the Death on the High Seas Act, and the Limitation of 

Liability Act. Professor Galligan and other lawyers in the hearing 

room can tell us more about these laws. 

But, the bottom line has to do with accountability. And when 

people get killed or injured on a mobile offshore oil rig, they can’t 

hold companies accountable in the same way as if it had happened 

on land. But, the key to all of that, it seems to me, is the meaning 

of the word ‘‘loss of society,’’ which, if you present that to the American public, they don’t really know what one means by that. 

You uniquely, both of you, understand that fully. You’ve talked 

about that. But, I would like to have you again stress what that 

means, in terms of your families, the adjustments that you have to 

make, what you’re going through, the pain and suffering aspect of 

all of this. It’s very important that we understand that very closely. 

So, Ms. Anderson, I don’t want to put that burden on you or Ms. 

Roshto, but, Ms. Anderson, could you please say—respond to that? 

Ms. ROSHTO. Go ahead. 

Mrs. ANDERSON. It’s a—the loss of the love of my life. It’s very 

hard to explain, but I will try my best, and, with Jason’s help, 

maybe I can convey it to you. 

It’s everything. It’s his touch. It’s being able to talk to him. It’s 

being able to confide in him, and him confide in me. It’s being able 

to ask for his advice in something, not just to—how to mow the 

grass or how to—when to take out the garbage. It’s not just that. 

It’s having him sit beside me in church, and, when he understands 

the message, he holds my hand. It’s the one person—Jason is the 

one person that I knew would always be there for me, no matter 

what. Even if he disagreed with me, he would still be on my side, 

and somehow we would come up with a compromise together. 

It’s not just a job. Jason loves his job. But, his job as a husband 

and his job as a father, too. All of those things are gone. 

I don’t—I’d give it all back and—to have him come home, even 

if he was jobless. If I could just have him come home, and—I know 

that that can’t happen. He—he’s everything. He’s the breath in my 

lungs. He’s the beat of my heart. He’s the skip in my step and 

the—the dances that we shared together, all—it’s all gone. 

I am trying to convey that to you as best that I can, but the love 

that I have for Jason is more oil that’s spilled out in the Gulf than 

anything. It’s more water that’s on the Earth, more air that’s here 

in this room. It’s more than anything. 

32 

Thank you for letting me say that. Thank you for letting us be 

here. 

The CHAIRMAN. Thank you very, very much. 

Mrs. Roshto. 

Mrs. ROSHTO. A loss of society consists of the positive benefits 

that derived from Shane’s existence. What would he have contributed if he would have survived, in terms of support, assistance, 

training, comfort. And in that, what Shane would have not only 

provided for me, but for Blaine, the moral support that he could 

give a son. I can give support to Blaine, I can tell him, you know, 

‘‘You hit the ball right, son,’’ or, you know, ‘‘You played good 

today.’’ But, it’s different coming from a father to a son. 

The support that Shane—that now I have to pay somebody to 

mow my lawn, I now have to pay somebody to come in and fix what 

breaks at my house; whereas, when Shane was home, the 3 weeks 

he was home, he dealt with that, he fixed it, he did it. Now I have 

to spend extra time making sure that what I do around the house 

is done right, or now I have to make sure that I’m giving Blaine 

the support of both parents, a father and a mother. I celebrated Father’s Day this year. I mean, now I am the mother and the father. 

And that’s what a loss of society, to me, is—a loss of his assistance and support. He supported me. Shane, when he decided to go 

offshore was because I got pregnant. He stayed offshore to put me 

through school. I went to school every day of the week, but I was 

at home with my son every day of the week. Shane stayed offshore 

to provide a lifestyle for that. That’s the type of support that I lost. 

I didn’t get to just receive my diploma from college because of the 

accident, but he stayed offshore to provide a lifestyle for that. And 

that’s the support that I lost. That’s the loss of society, to me. 

The CHAIRMAN. I thank you both very, very much. 

Senator Hutchison. 

Senator HUTCHISON. Well, Mrs. Anderson and Mrs. Roshto, you 

have been so compelling, and I appreciate that you have come here 

to talk about your personal problems with the lack of conformity 

and understandable laws that would affect your future. So, thank 

you for putting that in such personal terms. 

I want to ask Professor Galligan just about how we got to this 

point, where the Limitation on Liability Act put this bifurcation of 

rights in place, between land and sea, and the different liability 

that can be assessed to the different entities. And let me just ask 

you to put it in perspective, also, in conjunction with what other 

countries do. Is there this type of confusion in the law in other 

countries, or limitations that would make it a norm in the maritime industry, or are we unique in that? 

Dr. GALLIGAN. Let me try to answer it this way. You said the 

limitation law and then talked about the damage differences, so let 

me start with the damage differences and then move to the limitation law. 

I think we arrived at having different measures of damages, for 

several reasons. One is history, is—as the law of wrongful death 

was evolving, both on land and at sea, in the latter part of the 19th 

century and the early part of the 20th century, it was a different 

world. Workplace death was, sadly, much more common than it is 

today. The law’s view of children and family members focused 

33 

much more on the economic than it did on the familial/relational 

aspect. 

Albeit at that same time, law land was evolving to begin to recognize loss of society damages. But, what happened was that the 

Jones Act—and the same Jones Act that Mr. McCallister’s talking 

about, but, again, a different section—and the Death on the High 

Seas Act were both passed in 1920. It really was a different time. 

Since 1920, land law has evolved to predominantly allow loss of 

society damages, but maritime law, in the case of the Jones Act 

and the Death on the High Seas Act, have not. And I think one 

of the reasons is, is that you have not comprehensively gone back 

and looked at the comparison between the two schemes—landbased law, maritime law, territorial waters, high seas. 

The one time that you really did go back and look at it was 2000, 

after Korean airline and TWA, and, at that time, you amended the 

law to make loss of society damages more common. 

Now, shifting to limitation. Limitation of Liability is, again, 

1851, passed to encouraged investment in maritime shipping and 

commerce. Other countries do also have limitation of liability acts. 

There’s an international convention on limitation of liability. I wish 

that I had more carefully gone back and looked at international 

law for this hearing than I did, and I’d be happy to supplement any 

answers I give. 

But, it is a hodgepodge of different approaches. The international 

convention is based on monetary units, not dollars, based on types 

of damages. So, there are differences. 

I would say, though, in looking at an—even if it is a norm in the 

maritime industry, the question is, Is that norm sensible and fair 

today? And my answer would be that it is outdated, and that, too, 

deserves your reconsideration. 

Senator HUTCHISON. Thank you. I just want to say, Mr. 

McCallister, I think you laid out the problem very well, and certainly, from your personal experience, it’s clear that there is no intention whatsoever to make it easy to waive the Jones Act in this 

response. 

In fact, I want to clarify the record, because I was a little confused by earlier opening statements. There has been no Jones Act 

waiver within the 3 nautical miles of the coastline to date in this 

accident. And that is a fact. I know that you have had that same 

experience, but it was confirmed to me by my staff, that the ships 

that are available can go in the international waters, they just 

can’t come in within the 3 nautical-mile limit. Is that your understanding, as well? 

Mr. MCCALLISTER. That’s correct, Senator. And my understanding is that, yesterday, there was actually some waivers issued 

for the vessels that have been working outside the 3-mile limit but 

now need to come to port. And so, for those specific vessels, my understanding is that there has been a waiver issued for the—for 

those vessels. And I don’t know what that number is. 

Senator HUTCHISON. But, you have still not heard anything with 

your offer of skimmers, is that correct? 

Mr. MCCALLISTER. That’s correct. We have not. 

Senator HUTCHISON. OK. With that, then, I thank you very 

much, all of you, for adding so much to our body of knowledge. 

34 

Thank you. 

The CHAIRMAN. Thank you, Senator Hutchison. 

Senator HUTCHISON. Oh, Mr. Chairman, could I submit, for the 

record, the editorial from the New Orleans Times-Picayune today, 

saying, ‘‘Cut Red Tape and Get More Skimming Vessels to the Oil 

Spill’’? 

The CHAIRMAN. So ordered. 

Senator HUTCHISON. Thank you. 

[The information referred to follows:] 

CUT RED TAPE AND GET MORE SKIMMING VESSELS TO OIL SPILL: AN EDITORIAL

The Times-Picayune—June 30, 2010 

U.S. Coast Guard Adm. Thad Allen talks like he understands how crucial skimming vessels are to removing oil from the Gulf of Mexico before it washes ashore. 

More skimming vessels are needed to remove oil from the Gulf of Mexico. 

‘‘Skimmers are our critical mass right now,’’ he said recently. ‘‘We need to put 

those wherever we can get them. And we want to get them from wherever they are 

available.’’ 

But Adm. Allen, who is the national incident commander for the oil spill, hasn’t 

backed up those words with action. According to BP’s most recent estimate, 433 vessels are collecting oil from the runaway oil well, but only a third of them are designed specifically for oil skimming. 

In the meantime, vessels that could be used to clean up the massive amounts of 

oil are being blocked by a sea of red tape. There are 850 skimmers in the southeast 

United States and 1,600 nationwide, but the Oil Pollution Act of 1990, which requires regions to maintain levels of equipment such as skimmers, is preventing 

some resources from coming to the Gulf. The Jones Act, a maritime law designed 

to promote U.S. shipping interests, is complicating efforts to get foreign boats here. 

‘‘It is hard to believe that the response is this anemic,’’ Sen. George LeMieux of 

Florida said on the Senate floor last week. ‘‘It is hard to believe that there is this 

lack of urgency or sense of purpose in getting this done.’’ 

The government isn’t alone in showing a lack of urgency. BP has declined an offer 

from Shell to bring an oil recovery boat that is sitting idle in Alaska to the Gulf. 

‘‘Nothing would prevent it from working right now in the Gulf of Mexico,’’ said Curtis Smith, a Shell spokesman. ‘‘It remains available in the event that BP reconsiders.’’ 

BP’s refusal to accept help from Shell is frustrating. Doug Suttles, BP America’s 

chief operating officer, told The Times-Picayune last week that the company ‘‘threw 

everything at’’ the out-of-control well. But everything apparently doesn’t include the 

Nanuq. 

As for the Oil Pollution Act, Adm. Allen says that discussions are going on within 

the administration about how to free up equipment. That’s a change from the admiral’s initial position, when he said that leaving other areas vulnerable was one of 

his biggest concerns. Given the scope of this disaster, it’s hard to understand why 

the government hasn’t moved more quickly from discussion to action. 

When it comes to the Jones Act, even less is happening. Adm. Allen has promised 

to process waivers to the act quickly, but so far none have been granted. The admiral has downplayed the effect of the law on the cleanup, but the experience of 

Ecoceane, a French company with a fleet of skimming boats, suggests that it is an 

impediment. Eric Vial, the company’s President, said it sold nine boats to a Florida 

contractor so that the Jones Act wouldn’t be a factor. Those boats could have been 

in the Gulf much sooner, he said. 

Sens. Kay Bailey Hutchinson and John Cornyn of Texas, along with Sen. 

LeMieux, have proposed legislation to temporarily waive the Jones Act for oil spill 

response vessels, and that’s a reasonable step in the face of this disaster. 

Local officials who have been begging for more skimmers shouldn’t have to wait 

for help because the Federal Government refused to deal with bureaucratic barriers. 

The CHAIRMAN. Senator Wicker, you’re next, but I also notice 

that Senator Thune has come, and he is Ranking on the relevant 

Subcommittee. 

35 

So, when we come to you, you get an extra 2 minutes to sort of 

say something, and then also ask your questions. 

Senator Wicker. 

Senator WICKER. Well, thank you. 

And let me say, to Mrs. Anderson and Mrs. Roshto, we all appreciate your testimony, and we appreciate the difficulty that you 

must have had in coming here. You shouldn’t have to be sitting 

there, talking about legal points. But, it has become necessary. 

I think everyone here would agree that you’re entitled to equal 

treatment under the law. And to the extent that your claim is not 

deemed as valuable as the claim of other people in like circumstances, we appreciate the difficulty you had in coming here 

and bringing that to our attention, and we appreciate it. And I 

hope there is a remedy for you, and I believe there is. 

Let me just ask, with regard to Mr. McCallister’s testimony, How 

long now have you been pursuing this waiver? 

Mr. MCCALLISTER. The waiver filing—first waiver filing, with 

Admiral Allen’s office, was on June 16. 

Senator WICKER. OK, so 2 weeks. And how many different offices, corporate and government, have you contacted or been to? 

Mr. MCCALLISTER. Just a—probably a fairly accurate guess 

would be about eight. 

Senator WICKER. OK. And have you calculated the potential oil 

that could have been skimmed if these hurdles had not been in 

place, had you been able to skim at your capacity each day? 

Mr. MCCALLISTER. Well, Senator, I have not added that up entirely. The—each one of the skimmers that we proposed—and these 

are relative to the largest skimmers that can be made available, 

which we currently have available now, that’s come available to us 

within the last 2 or 3 days—but, the skimmers that were proposed 

originally will skim about 3,500 gallons per hour, and we have a 

fleet of 25 of those that we proposed to be made available. 

So, in addition to that, there are very large skimmers with higher capacity. The skimmers are very efficient. They are specialized 

vessels that, you know, unlike what you see, which is dragging 

boom behind boats and gathering up and either burn or trying to 

siphon off the oil, these are skimmers that actually collect the oil 

in the belly of the vessel, run it through a weir system, and separate the oil from the water. So, these are highly efficient, specialized vessels. 

Senator WICKER. Now, once that separation is made, what is 

then done with the water? 

Mr. MCCALLISTER. Well, the water that’s clarified can go back 

into the Gulf if it’s—you know, meets the standards to go back into 

the Gulf. But, it—but, these particular vessels are not—they don’t 

have centrifuges on them, like the—you know, like Kevin Costner’s 

centrifuge that they’re trying to get approved, so the water would 

have to be treated before it can go back in the Gulf. But, the bulk 

of the oil is separated, so you can treat lightly contaminated water, 

take the bulk oil and either process it or dispose of it, as appropriate. 

Senator WICKER. Yes. Well, you know, we’ve all developed a degree of expertise, which is growing daily in this two-and-a-halfmonth tragedy. It seems astonishing to most people, but environVerDate Nov 24 2008 10:14 Aug 31, 2011 Jkt 068023 PO 00000 Frm 00039 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\68023.TXT SCOM1 PsN: JACKIE
36 

mental statutes sometimes are preventing us from cleaning up the 

water, because not all of the water that is redischarged back into 

the Gulf is 100 percent oil-free. But—— 

Mr. MCCALLISTER. Correct. 

Senator WICKER—to me, if we can accept a process where 100 

percent of the oil is taken out of the water and only—and the water 

that is put back in only contains 1 or 2 percent, then, to me, you 

have a 98 percent or 99 percent success rate. 

The CHAIRMAN. Senator Wicker, I—— 

Senator WICKER. We ought—— 

The CHAIRMAN—I don’t—— 

Senator WICKER—we ought to be—— 

The CHAIRMAN—mean to disrespectful, sir—and you can ask any 

questions you want—but, it is fully my impression that this hearing is about the two young women, and others similarly suffering, 

and what—how they are to be treated, under different sets of laws, 

in a much more fair manner. I thought the point of this hearing 

was to have—to share in their grief, to share in their solution to 

the problem that they face, as opposed to an analysis of the environmental cleanup. I think that’s the subject of the hearing, but it 

doesn’t—— 

Senator WICKER. Well—— 

The CHAIRMAN—seem to me to be appropriate to their—— 

Senator WICKER. Well, my questioning—— 

The CHAIRMAN—suffering. 

Senator WICKER—my questioning is over, but I would simply 

point out to the Chair that a great deal of Mr. McCallister’s testimony was about his frustration. And the Ranking Member also has 

expressed her frustration about the process. So, I was merely following up on comments that were already made. But, I—— 

The CHAIRMAN. Well, we all share that. 

Senator WICKER. But, my questioning is over. 

The CHAIRMAN. We all share that. But, the point, to me, is the 

two very courageous young women who have no husbands. 

I thank you, and I go to Senator Isakson. He’s not here. 

Senator Pryor? Not here. 

Senator Begich. 

STATEMENT OF HON. MARK BEGICH, 

U.S. SENATOR FROM ALASKA 

Senator BEGICH. Thank you. Thank you, Mr. Chairman. And 

thank you for redirecting the conversation, because that’s what I 

came to at least hear and listen. 

I sympathize with your loss, your two losses, but also the nine 

other families that need also be recognized. And I sympathize with 

your story, because I lost my father in a tragic plane accident when 

I was 10. My mother was 34, had to raise six kids—four boys, the 

youngest being four. So, I sympathize with you a great deal. 

And so, today—and I’m glad, again, Mr. Chairman, you redirected the conversation, because I appreciate Mr. McCallister’s 

issues, and I hope that the Administration works forward and 

moves all the equipment. They’re doing an incredible job. 

37 

But, I want to dive into the issue that we hear, and that is really, How do we ensure proper compensation? And there is no real 

compensation that can be done in numbers. 

Someone from Alaska, myself, I saw what the Exxon Valdez did. 

We had waited 20 years for resolution. We had no loss of life, but— 

except, we had loss of life over 20 years. Twenty percent of the people who waited patiently for their claims to be settled—took 20 

years—twenty percent of them died in that process, waiting. 

I am hopeful, whatever we do here and on the floor of the Senate, that we do not have that same delay, not only for those, as 

you’ve mentioned in your testimony, of those who lost business in— 

impact—but specifically to the 11 families that lost life. And so, 

hopefully we will get focused on this issue in a way that really 

makes sure the laws are equalized. 

And I think, Professor, you gave an interesting comment, and I 

just want to ask you this question. And I’m a new member to the 

Senate. I’m going to claim this for as long as I’m here. And I’m 

from Alaska, so I get a double. And so—and I don’t want to be cynical, but we’re going to make a lot of great statements. People like 

me are very passioned about making sure people get just compensation. Because, I can tell you, in our loss, we did not. And that 

was, you know, 30-plus years ago, as an individual or a family. So, 

I’m anxious—and this will—you’re going to step—I’m going to ask 

you to step out a little bit here on it—and that is, even though the 

laws have not been changed in so many years, and we tinkered 

with them a little bit, some years ago, do you think there’s the political will to get beyond the debate of liability caps and torts and 

all that that’s—you know, ‘‘trial lawyers versus corporate America’’ 

debate that I have a feeling this will fall into, which is really too 

bad, because it’s really about people? It’s about ensuring that families get what they deserve with what’s owed to them for their loss. 

Do you think, honestly, that we can get, in this political body, beyond that debate, which will be trial lawyers versus corporate 

America and who represents who? 

Dr. GALLIGAN. I—you are asking me to step out—— 

Senator BEGICH. Darn right. People who come and testify, at 

least while I’m here, and I’m sitting here, are going to do that. 

Dr. GALLIGAN. I certainly hope that you can get outside that debate. I think the issue, when we talk about loss of society damages 

under the Death on the High Seas Act, or we talk about it under 

the Jones Act, or we talk about it on land, I couldn’t speak more 

eloquently than Ms. Anderson and Ms. Roshto spoke about how 

real that loss is. So, I don’t think that’s about lawyers who represent primarily plaintiffs or lawyers who represent primarily defendants, and I don’t think that’s about business in corporate 

America. I think that really is about people and about holding 

other people accountable. 

I would say this—and now I’m really out on the limb—if 

there’s—— 

Senator BEGICH. I like that. 

Dr. GALLIGAN—some other reason to protect some industry or 

some business, I don’t think it’s right—moral statement by the professor—to do it at the expense of people who suffer a very, very 

real loss. It should be a separate issue. 

38 

Senator BEGICH. Well, I appreciate that. And I didn’t mean to 

put you on the spot, but I am very sympathetic, and want to make 

sure these laws are corrected. Because it’s unfair that, as very eloquently spoken, that, you know, on land versus on sea, there are 

two different methods, which doesn’t seem logical at all. And I 

think to the American people it doesn’t make sense—not only to 

the 11 families, but to the American people, in general, it just 

doesn’t make sense. And sometimes things we do around this place 

don’t make sense. And this is a moment, probably, that we can 

make some sense here, and do the right thing in quick order. 

Again, I come from two ends of the equation, someone who was 

10 years old, who lost a father, to sitting here and looking back at 

what happened down at Exxon Valdez, and saw what it took, for 

20 years. And then, when it finally made it to the Supreme Court, 

in my personal opinion, the victims got ripped off. They went from 

$5 billion down to 500 million. And then Exxon waited and argued 

over paying the interest that was due on that 20 years. So, that’s 

just not right. 

And so, again, your two testimonies were passionate—without 

doubt, convincing to me. And I recognize that you don’t want to be 

lumped in, but you want to have that choice. You make that decision of how you will gather that compensation and that just result, 

but, at the same time, not in a delayed action. So, I really appreciate your two testimonies. 

Professor, thank you very much. 

Mr. McCallister, I didn’t have anything for you, because I think 

we could take your issue off record and go figure it out. But, this 

is what I came to hear, were these three. So, no disrespect to you. 

Thank you all very much. 

The CHAIRMAN. Thank you, Senator. 

Senator LeMieux. 

STATEMENT OF HON. GEORGE S. LEMIEUX, 

U.S. SENATOR FROM FLORIDA 

Senator LEMIEUX. Thank you, Mr. Chairman. 

I want to extend my condolences to you, Mrs. Anderson and Mrs. 

Roshto, and thank you for being here. I know it must have been 

incredibly difficult for you to talk today about your loss and how 

much your husbands mean to you. And, to echo the comments of 

my colleague from Mississippi, Senator Wicker, we all believe that 

there should be equal justice under the law. There is no reason 

that your losses should be treated differently than losses that occur 

when someone has a tragedy like this on the land versus on the 

water. 

So, I hope that we can work, Mr. Chairman, in a bipartisan way 

to address that, going forward. 

Now, Mr. Chairman, we do have Mr. McCallister here. And if 

you will indulge me, I do want to speak to him about this issue of 

skimmers, because, this tragedy is an ongoing tragedy that has 

been described by some as ‘‘a slow hurricane.’’ And the reason why 

is that, for a state like mine, in Florida, this oil is washing onshore. 

We are creating victims every day, maybe not as pronounced as 

Mrs. Anderson and Mrs. Roshto’s experiences. But, for example, domestic violence is going through the roof in northwest Florida right 

39 

now, because of the stress that this situation is causing on people. 

People have anguish in their eyes. 

When I was in Pensacola on Monday, I talked to people there 

who are seeing all this oil wash up on the beach and ruin their way 

of life. People move to Florida because they love the water. And it’s 

not just a recreational thing for us, it’s part of who we are in Florida, like it is in many other Gulf states. 

I have tremendous frustration about the lack of these skimmers. 

Now, I’ve been talking about it for weeks. And this is not a Democrat or Republican issue. This is an issue of getting the job done. 

Now, you talked about trying to get a waiver of the Jones Act. 

Senator Hutchison and I have legislation to waive the Jones Act. 

We’ve been told by the Coast Guard, we don’t need it. But, the 

truth is, is that there have been 64 offers of foreign assistance, and 

7 accepted. The Coast Guard now says that they will be accepting 

22 offers. We have 2,000 skimmers in this country, domestically, 

yet only 400 are in use. The Coast Guard and EPA signed an Executive Order, which I’m thankful for, yesterday, to waive the restrictions on domestic skimmers to bring them to the Gulf of Mexico. 

But, that’s 70 days into this. And we need more help. 

There’s a ship right now that’s steaming to the Gulf—it’s actually, probably in the Gulf, that you probably have seen on television, called ‘‘A Whale.’’ It’s the world’s largest skimmer. It’s bigger than an aircraft carrier. It can do more work in a single day 

than half of the skimmers that are out there, combined. And it 

doesn’t yet have approval to do this work. 

So, I want to thank you, Mr. McCallister, for bringing this issue. 

I want to thank our Ranking Member for having you come and testify here today, because this oil, Mr. Chairman, is going to have 

profound effects upon the Gulf Coast states. It’s not going to just 

affect them for months. It’s going to affect people for years. 

It’s not only people losing their ability to make their wages. You 

know, in Florida and other Gulf states, these folks make their living, for the whole year, between Memorial Day and Labor Day. 

And no one is coming to the beach anymore because of this. Plus, 

what’s it going to do to the seafood industry? What’s it going to do 

to the folks who work on these offshore rigs? Are they going to be 

able to continue their way of life? 

This disaster is having a profound effect upon my state, as well 

as Mississippi, Alabama, Louisiana, and Texas. And we just need 

to see some more urgency, Mr. Chairman. 

So, if today is not the day to talk about this, I would ask, and 

I think other colleagues would join me, sir, that we have another 

hearing to talk about the lack of response, and what we can do to 

create a sense of urgency. I know it’s something that you care 

about. And you’ve been passionate, Mr. Chairman, about this government, when it has the responsibility to do its job, whether it’s 

a coal mine disaster or this disaster, that the government does its 

job. 

So, I would respectfully suggest that maybe on another day we 

could have a hearing to talk about that more fully. 

And I thank you for calling this hearing today. 

The CHAIRMAN. Thank you Senator. 

And, Senator Lautenberg, you’re next. 

40 

Senator LAUTENBERG. Thank you, Mr. Chairman. 

And, once again, we appreciate the difficulties, to Mrs. Roshto 

and Mrs. Anderson, in having to review your personal pain. But, 

we thank you for doing it. And each of you has made a comment— 

OK, point it in the right direction—the—each of you—Mrs. Roshto, 

you said that your husband said that he was worried about all the 

mud they were losing from the well, and pressure the men felt to 

deliver more oil quickly. I quote you correctly here. Mrs. Anderson, 

husband said, Jason, that ‘‘There’s a bunch of stuff going on, and 

I can’t talk about it now. The walls are too thin. I will talk to you 

when I get home.’’ 

So, each one of your husbands worried about the safety of the 

rig. Fair enough? Do you think that your husbands would have 

been—thought they would have been punished for speaking out 

about this? 

Mrs. Anderson? 

Mrs. ANDERSON. I don’t know if he would have—Jason would 

have been punished, per se, if he had spoken out. I know that 

Jason would have spoken out if he felt like he wasn’t going to be 

able to come home. He would not have done anything that would 

have prevented him from coming home. He would have not done 

anything that would have harmed anyone. 

Senator LAUTENBERG. OK. But, he was—but, said that he ‘‘can’t 

talk about it.’’ So, he indicated that there was concern about—— 

Mrs. ANDERSON. There—yes. He very much so indicated that he 

was concerned about something, and just didn’t want me to worry 

about it. He didn’t give—— 

Senator LAUTENBERG. Mrs. Roshto—— 

Mrs. ANDERSON—want to give me something else to worry about. 

Senator LAUTENBERG. Thank you. 

Mrs. Roshto, your husband indicated that he was worried about 

the mud they were losing from the well, and felt that it was unsafe 

for them—those on the rig. Is that correct to conclude? 

Mrs. ROSHTO. I don’t think he ever felt personally unsafe, per se, 

to the point to where he would have—— 

Senator LAUTENBERG. Endanger, yes. 

Mrs. ROSHTO. Yes, endangered. But, he did, numerous times— 

the last time he was home, the weeks leading up to the accident 

that he was on the rig. There were many conversations that we 

had that we had never had before. He had never shown more concern on the rig than he had on this hole. 

Senator LAUTENBERG. Thank you. 

Mr. McCallister, hundreds of American vessels have responded to 

the cleanup. A number of foreign vessels also assisting in the cleanup efforts. However, there are a number of American vessels standing by, waiting to be called. Now, do you think that we ought to 

give preference to American vessels, American workers in the Gulf 

Coast cleanup, or should we look to competition between foreign 

flags and American flags? 

Mr. MCCALLISTER. Senator, to the extent that we have the types 

of vessels and the quantities of vessels that are U.S.-hulled, we 

should use them. We have to keep in mind that there are a couple 

of factors. 

41 

One is that the types of vessels that we’re talking about are not 

commonly available in the U.S.—— 

Senator LAUTENBERG. Well, I—— 

Mr. MCCALLISTER—specialized—— 

Senator LAUTENBERG.—I think it’s fair to say that Admiral Allen, 

who is making the decisions about that—and everyone seems to 

agree that he’s really thorough, that he’s on the job. I know him, 

as the Coast Guard Commandant, for some years. He’s a man 

whose judgment is beyond question. So, do you think he’s wrong 

here to say that we ought to move over to the foreign vessels? 

You know, I was stunned to read—to reflect on your testimony— 

‘‘Ships could carry 500 workers or more, with all the amenities of 

a cruise ship.’’ Well, that strikes me as not being very impressive, 

I must tell you. I was on a cruise ship, and they—someone who’s 

working every day to get something done as important as removing 

this oil doesn’t need those amenities. And I think that it’s quite 

clear that we’re looking, here, at bringing this large cruise ship to 

house workers—say the Jones Act is the only reason this proposal 

has been rejected. But, that doesn’t seem to be the case. It’s not 

because the Jones Act has its limitations to a couple of miles off 

coast, and they can be called upon. But, I think the challenge to 

Admiral Allen’s judgment, who has shown incredible leadership in 

this terrible situation, leaves us scratching our head and wondering 

what it is. 

Do you have any experience in operating—I know you work for 

a fund, or own a fund, however, do you have any experience in operating or owning skim vessels or cruise ship vessels? 

Mr. MCCALLISTER. No, sir. 

Senator LAUTENBERG. Mr. Chairman, we have problems here. 

And we have two women who survived enormous pain. My mother 

was 37 when my father died. I had already enlisted in the Army; 

I was 18. And the pain of my father’s death was incalculable in any 

way. He didn’t make much money. It wasn’t his money, it was his 

presence that counted. It was his part of the family. It was being 

dad to two kids. That’s what it was. And not to recognize pain and 

suffering at—if some is working at sea or someone’s working on 

land—strikes me as being incredulous. 

Thank you very much, Mr. Chairman. 

Thank you both, again, for your testimony. 

The CHAIRMAN. Thank you, Senator. 

And now Senator Thune. 

STATEMENT OF HON. JOHN THUNE, 

U.S. SENATOR FROM SOUTH DAKOTA 

Senator THUNE. Thank you, Mr. Chairman. I want to thank you 

and our Ranking Member for holding today’s hearing. 

And I also want to thank our witnesses for joining us. In particular, Shelley Anderson and Natalie Roshto, who are testifying 

today. 

As we look for ways to stop and clean up this spill, we cannot 

lose sight that not only is this an economic and an environmental 

tragedy, but it’s a human tragedy, first and foremost. And we can’t 

lose sight of the 11 lives that were lost during the explosion of that 

rig. 

42 

So, we thank the two wives for being with us today and for honoring their husbands’ memories by joining us as we look for ways 

to improve the industry and the government response to this tragedy. 

Mr. Chairman, British Petroleum has publicly declared that they 

are the responsible party. It’s critical that they be held to account 

for the environmental/economic damages caused by the ongoing oilspill in the Gulf. Victims, like the two wives who are with us today, 

must be made whole as fairly and quickly as possible. Beaches and 

marshes must be cleaned, and local economies put back on strong 

economic footing. 

It is equally important that the Federal Government response is 

adequate to address the ongoing concerns in and around the Gulf. 

And we also need to look at ways that we can cut through the red 

tape, some of which has been mentioned today, and provide as 

much flexibility as possible to local governments as they are dealing with this tragic spill. 

It’s important, Mr. Chairman, that Congress take the necessary 

steps to prevent such an accident from occurring in the future. And 

of course, it’s widely discussed that Congress may turn to an oilspill response bill soon after the 4th of July break. I’m hopeful that 

we can find bipartisan policy solutions that will speed up the cleanup efforts, minimize potential for future spills, and address the concerns that are raised here today by the wives of the two gentlemen 

who were lost. 

So, Mr. Chairman, I don’t have any questions. I think the subjects have been covered fairly well here. I just wanted to express 

my condolences to these two ladies, and welcome the other members of the panel, as well, and thank them for the input that they 

provided on what is a very difficult and ongoing and tragic circumstance for, not only that area of the country, but our entire 

country. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Thune. 

Senator Vitter. 

STATEMENT OF HON. DAVID VITTER, 

U.S. SENATOR FROM LOUISIANA 

Senator VITTER. Thank you, Mr. Chairman. 

I’ll be brief, as well. But, I just wanted to express three things. 

First of all, I join with everyone in expressing our deep condolences to Mrs. Roshto and Mrs. Anderson. You have helped highlight that there is a clear injustice here. So, I look forward to working with others to solve that on a bipartisan basis. But, we certainly continue to hold you all up in our prayers, and your families, 

and the families of the other victims, very, very much so. 

Second, I certainly want to join with Senator LeMieux in suggesting that it would be an appropriate topic for a further hearing 

to talk about the Federal response. I think, in many different ways, 

the Federal response has been, and remains, inadequate. I don’t 

think we have enough assets on the problem. That’s one of the 

major inadequacies. And I don’t think that’s fundamentally a Jones 

Act issue. I think that’s an aggressiveness/Federal-response issue, 

because I talk to a lot of folks, with significant assets ready and 

43 

waiting to go, who have not been deployed. And 90-plus percent of 

those are domestic assets. So, I join with Senator LeMieux in suggesting we look further into that, Mr. Chairman, because, unfortunately, that’s an ongoing issue. 

And third, and finally, I have a particular concern and, I guess, 

question for Mr. McCallister about the cruise ship proposal. My experience in coastal Louisiana is that there are businesses right on 

the coast, from the Texas border to the Mississippi border, devastated economically by this event. They certainly include a lot of 

hotels, a lot of catering services, and a lot of folks who can provide, 

right on the coast, all of those resources. And I think it’s fair and 

reasonable that we look to them first to mitigate their losses, before we do anything else. So, I am really at a loss for the immediate need for major use of cruise-ship-type vessels. 

Mr. MCCALLISTER. May I respond, Senator? 

Senator VITTER. Certainly. And I’m sorry I missed your testimony, but if you can lay out what the evidence is, or the study is, 

that supports the need for that. 

Mr. MCCALLISTER. Well, I appreciate your raising the question 

again, because it’s—even though I may have used the term ‘‘cruise 

ship amenities,’’ what we’re talking about here is a vessel that has 

boarding accommodations and also has a ferry deck. And the reason that this particular vessel could be useful in the Gulf is that 

you have a very large parking area on the bottom that could be 

used for equipment storage, boom transportation, boat storage, animal rescue, that type of thing. 

And it was also—this particular vessel was submitted, initially, 

in response to a request for boarding vessels. So, you know, we 

didn’t conceive that this was a vessel that was needed, of our own 

design, and try to throw it at them. This was actually something 

that was an out-bound request from BP through environmental— 

U.S. Environmental Services. And so, we tried to respond with a 

vessel that could house people with respectable accommodations, 

but also provide an excellent work platform that could move up and 

down the coast, as necessary. 

I agree, 100 percent. You know, taking away jobs or taking away 

economic opportunity is not a good thing. These vessels can be 

manned by local labor force and local workers, and that would be 

the intention. But, certainly, if this type of vessel is not needed by 

BP, you have no argument from me. I’m not trying to push it on 

anyone. They requested a boarding vessel. We did the work, 

brought them something for them to consider. 

Senator VITTER. Well, just two things. First of all, I understand 

your description of the vessel. We’re not talking about cruise 

ships—— 

Mr. MCCALLISTER. No. 

Senator VITTER—or two shows nightly. I get that. 

Mr. MCCALLISTER. Exactly. 

Senator VITTER. Second, quite frankly, the fact that BP put out 

some solicitation about some category of ships doesn’t boost my 

confidence. 

And I’ll tell you this anecdote. Very early on in the event, when 

I was in Grand Isle, which is our only inhabited barrier island, 

they had just closed the beaches on Grand Isle during the summer, 

44 

at their peak season, because of this event. So, at their peak economic season, Grand Isle was being shut down. At the same time, 

BP starts pulling in temporary housing—— 

Mr. MCCALLISTER. Right. 

Senator VITTER—to put on Grand Isle, when every hotel and 

motel in sight has just been emptied out. So, I just offer you that 

one anecdote to suggest that the fact that BP may have asked for 

it at some point doesn’t necessarily bolster my confidence. And I 

would encourage us all, again, to look to the areas and the people 

hit economically by this event, and give them the business first, 

and mitigate their losses first. 

Thank you very much, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Vitter. 

I want to return to the two people who I think this is—or, the 

three people who I think this hearing is about. 

And I have to, in a sense, apologize. I understand the Ranking 

Member—people have rights to ask who they want to a committee 

hearing, but this was not my idea of what the Committee hearing 

was going to be. My idea was, it was going to be about you two 

fine young women. And the professor here, who knows about the 

law, and how we can make this right, which is our business as a 

committee. The other is also our business as a committee, but it 

was not, in my judgment, our business today. And I apologize, if 

you feel others have been sort of talking past you, because that’s 

not fair. I’ve been to many coal mine disasters in my life, and when 

you’re dealing with people who are hurting, you focus on the people 

who are hurting, and the investigations take place, and all of that 

happens, but you focus on the people first. That’s my—at least, 

that’s my code of conduct. 

I want to ask something which doesn’t make a lot of sense to me. 

There’s a sort of difference in emphasis. A lot of people have said 

that Transocean spent a lot of time and money on safety training 

for their employees. Transocean says that its safety goal is an incident-free workplace, all the time and everywhere. 

They evidently were—they won a safety award in 2008, were 

about to receive an award for going 7 years without a lost-time accident. Then—so, that’s sort of over here. 

Then over here, what we’re trying to do now is to figure out what 

went wrong on April 20. The investigations aren’t complete, but 

what we are trying to learn is that—BP and Transocean, with the 

approval of Mineral Management Service, MMS, that particular 

government agency that nobody had ever heard of until this oilspill, and now everybody has heard of them, and they’ve heard of 

them with an enormous amount of disapproval—but, they decided, 

in a sense, to cut corners to get the job done quickly—BP and 

Transocean. 

The drilling project was, in fact, behind schedule, and it was, in 

fact, over budget. So, BP wanted it done, because it was losing 

money—my interpretation of it. So, my question to each of you 

would be, Do you have any thoughts about whether oil rig workers 

get pressured to cut corners or engage in unsafe practices? 

And I ask this question because it’s exactly what happens in coal 

mine country. It’s just exactly what happens. 

45 

Mrs. ANDERSON. I think if anybody is going to be in business, 

they’re going to be in business to make money or they’re not going 

to be in business very long. As far as my specific husband being 

pressured to do anything, I don’t know that for a fact. I would— 

I do know that my husband, Jason, would not do something that 

would prevent him from coming home. If he knew about it, and he 

knew that it would prevent him from coming home, which is his 

number-one goal every time, is to—just to come home, he wouldn’t 

participate in something that would prevent him from coming 

home. 

The CHAIRMAN. Mrs. Roshto? 

Mrs. ROSHTO. I personally don’t think Transocean acted unsafely 

on purpose. My husband never—he had actually stopped a job, not 

too long ago, because of some things that were going wrong. And 

he did not lose his job. He always felt he could go to Transocean. 

Now, let me say—Did I say BP? No. He went to Transocean, and 

told Transocean, you know, there was a problem. And he was able 

to stop the job. 

Now, the weeks leading up to the accident, I do believe that 

Shane felt unsafe at times. He never—the words never came out 

of his mouth, and he never said, ‘‘I feel unsafe.’’ From the conversations that we had, I gathered that he was unsafe. 

I don’t think that it was intentional on behalf of Transocean or 

BP. I believe that calls that were being made from higher above 

were forcing Transocean to have to cut corners, because of the contract they have. I do believe that it was coming from higher above, 

and the trickle-down effect was causing Transocean to have to cut 

corners. 

The CHAIRMAN. Ms. Anderson, would you agree with what she 

said? 

Mrs. ANDERSON. Yes, sir, mostly. I just would like to say that if 

somebody was cutting corners, and they think that the price of my 

husband’s life is worth a battery not being changed or a boatload 

of drilling mud being unloaded sooner, they are strongly mistaken. 

The CHAIRMAN. Yes, see, because, to me, it doesn’t—it really 

doesn’t matter if there is pressure. 

Mrs. ANDERSON. That’s right. 

The CHAIRMAN. If it comes from on the rig, from the people 

there, or if it comes from, you know, Great Britain, or anywhere 

else. Pressure that comes from within a corporation comes from 

within a corporation, and the corporation is responsible, if that 

pressure does come, no matter in what way it comes. And that’s 

why I think the consideration of how you are to be treated is so 

incredibly important. 

I make the assumption that there was unsafe practice. I’ve just 

heard too much evidence. I’m not a scientist, I’m not—you know, 

but we have people on this committee, behind me, staff, who are 

experts in these matters, and I think there’s a concern that there 

was unsafe hurry. 

What I would ask to you, Professor Galligan, is to sum up what 

you think we ought to do, as a committee, to solve the problems 

as best as we possibly can—and of course, we can’t do that entirely, 

but financially we can—of these two very courageous young 

women. 

46 

Dr. GALLIGAN. Well, I think, first and foremost, you ought to 

take a look at the Death on the High Seas Act, which does not 

allow recovery of loss to society damages for the survivors of victims who are killed on the high seas. And you ought to change that 

to allow loss of society damages to be recoverable, as Senator Leahy’s bill proposes. 

I would also encourage you to take a look at the Jones Act, as 

Representative Conyers’ bill, which is in the House side, amends 

the Jones Act to also allow loss to society damages for seamen, and 

that would really line up everything so that it really was consistent. 

I would urge you to seriously consider Senator Schumer’s bill on 

the Limitation of Liability Act, and ask yourselves whether or not 

that Act, passed 160 years ago, when the world was a very different place, is still needed, is still essential, is still fair, and 

whether America ought to be a leader in saying, ‘‘We need to hold 

the maritime industry accountable.’’ I would point out, on that regard, that we have many foreign ships who come to our courts and 

seek to limit their liability under the Limitation of Liability Act. 

And third, I would ask you to consider the Exxon case, and the 

one-to-one ratio between punitive damages and compensatory damages in maritime punitive damages cases. That case decided an 

issue solely of maritime law. And let me repeat what I said before. 

The majority opinion says, ‘‘If Congress thinks another rule is appropriate, it is within Congress’s power to articulate that rule.’’ So, 

it is within your power. 

And I would also remind you, as you well know, that that decision was uttered about 2 years ago, before something like the 

Exxon Valdez happened again. And now it has happened again. 

The CHAIRMAN. I thank you for that, very much. It’s a phenomenon, and an unfortunate one—and maybe it’s not just us, in 

America, maybe it’s people elsewhere—but, we—as a country, we 

do hold lives to be precious. We are shamed when things go wrong. 

We do find wrongness in companies. And it’s always after something bad has been affected. I come from West Virginia, where the 

whole coal mining situation is—you have a disaster, and then, all 

of a sudden, people get together and we pass mine safety laws. And 

we did that several years ago. And there was the first Federal mine 

safety laws in 30 years. I’m embarrassed by that fact. Now we’ve 

had another disaster, with 21—now 31 people—or, actually 29, in 

that particular incident, but 31, in effect—have died. And once 

again, we’re going to pass mine safety legislation. 

And you ask, ‘‘Why can’t we do it before?’’ And what I think you 

discovered, partly, is that there is tremendous pressure on corporations to make profits, and that that has its consequences—that has 

its consequences. And the consequences have been eloquently expressed by these two distinguished and courageous women. 

I would now ask unanimous consent to put two statements in the 

record of the hearing. I ask that—and this will be done—a short 

statement by Shelley Anderson’s lawyers, Ernest Cannon and Ben 

Barnes be put in the record. 

[The information referred to follows:] 

47 

PREPARED STATEMENT OF ERNEST CANNON AND BEN BARNES

ON BEHALF OF SHELLEY ANDERSON

We have a sincere concern about the rights of those who died and were injured 

aboard the Deepwater Horizon. Almost a century ago, Congress enacted the ‘‘Jones 

Act’’ to protect those who were injured working on offshore vessels because of their 

hazardous occupation and because of their vital service to our economy. The Supreme Court of the United States and many appellate courts have recognized the 

need to protect seaman as wards of the court for these very same reasons. 

Unfortunately, there are those who caused the explosion, the deaths and the injuries who are attempting to use other legislation called multidistrict litigation to 

frustrate the rights given by the Jones Act and the courts and to delay the injured 

and the families of the dead from enforcing those rights. 

In the two months since this tragedy occurred, BP and Cameron have done everything in their power to prevent the victims from pursuing their rights in the forum 

of their choice and have instead filed motions to stay all proceedings against them 

until a committee called a MDL committee meets in Idaho in July. They have asked 

that committee to join all of the seaman’s cases to those of the commercial fishermen, landowners and countless municipal and states claims. Instead of the judge 

or judges that were randomly assigned the cases, BP and Cameron want one judge 

appointed by that committee to hear all of the cases. It is reported that they have 

even lobbied for one judge by name. They are so convinced that their tactics will 

work that they have filed court papers saying it is a virtual certainty that these 

cases will be consolidated into the MDL. 

If BP and Cameron get the results they want to achieve, it will be many years 

before any of these families are able to enforce the rights which Congress has given 

to them. Combining the families’ cases with thousands of other cases in front of one 

judge cannot possibly serve the ends of justice. 

We cannot allow these claims to be combined with commercial claims such as the 

claims in the Exxon Valdez tragedy which 20 years later are still not resolved. We 

cannot allow these claims to be combined with all other claims in an MDL as was 

done in the Toyota acceleration cases where the dead and injured will not see a 

courtroom for years. 

The only solution is to allow Jones Act Seaman and their families the right to 

choose whether they want to be a part of the MDL. Therefore, I propose that seaman can opt-in or out of the MDL. This is the only way to fairly protect the rights 

of those who have given their lives and their livelihood as result of this tragedy. 

The CHAIRMAN. Is Senator Klobuchar coming in? Otherwise, I’m 

going to give closing remarks. 

[Pause.] 

The CHAIRMAN. I’m going to give closing remarks. 

This oilspill—— 

Senator Klobuchar, you’re welcome to say what you want. 

[Pause.] 

STATEMENT OF HON. AMY KLOBUCHAR, 

U.S. SENATOR FROM MINNESOTA 

Senator KLOBUCHAR. I’m sorry. I was at the Supreme Court 

hearing. 

Thank you. And thank you for your patience. Thank you, Chairman Rockefeller, for your patience. 

I did an event in my state last week, and it was a little unrelated 

to the liability issues here you’re talking about today. But, in some 

ways, it’s completely related. And it was about the migratory birds, 

which no one’s really dealt with yet, but we have 13 million birds, 

many of them from my State, and a half a million that are going 

to be heading down to the Gulf. That’s where they make their 

home in the winter. As the oil goes into the marshes, we have no 

idea the effect it’s going to have on all of these waterfowl. And the 

concern here is that they won’t react to oil in a marsh. They react 

to predators, but not to oil in a marsh. And we can’t exactly hold 

48 

up a sign and said, ‘‘Go to Texas instead, or go to Mexico instead.’’ 

So, it’s just one example of what you don’t expect to be happening. 

And obviously, there are much greater losses. And I appreciate— 

I heard, from my staff, about your testimony, and thank you very 

much for that. And I’m very, very sorry for your loss. 

What I wanted to ask about, actually, was something that has 

a strange relationship to Minnesota. And that was the Exxon 

Valdez case, because it was a Minnesota law firm that represented 

the fishermen in that case. And so, I’m very well—there’s a—aware 

of it. There’s, in fact, a book, that I helped to edit at one point, 

called ‘‘Cleaning Up,’’ about that trial and what happened with 

that case. 

And I know that it took over 20 years, and 32,000 people saw 

damages delayed and slashed. Eight thousand of plaintiffs died before they ever got paid. I know Senator Begich asked some about 

that. 

But, my question is if you think that there is a way to structure 

the law that we’re looking at so that the companies are 

incentivized to pay claims in a timely manner? 

Any ideas? Dr. Galligan? 

Dr. GALLIGAN. Well, I—I’ll start by saying that one way is to 

make the law clear. And so, the clearer the law is, the better able 

a company is to pay damages. So, if a company faces law that’s unclear, then it doesn’t know what the damages are. I think the 

Death on the High Seas Act here today presents an excellent example. People know there are bills that are pending, but they haven’t 

been passed yet, and so, I think they’re probably waiting to consider what Congress does. So, moving quickly on that would be important. 

Another way, Senator, is to make punitive damages available for 

the arbitrary or willful failure to pay claims on time. Maritime law 

does that in the case of what’s called ‘‘maintenance and cure,’’ 

which is when a seaman is hurt and she or he has a right to recover a payment for maintenance and medical expenses until they 

reach maximum medical cure. If the employer arbitrarily or willfully doesn’t make those payments, then punitive damages are 

available. 

It’s a little bit, Senator, like in bad-faith insurance cases in many 

States, when an insurer doesn’t pay a claim, that there are penalties or attorney’s fees that will be available. 

So, those are certainly all vehicles that you could consider to use 

to encourage the timely resolution and fair settlement of claims. 

Senator KLOBUCHAR. Mr. McCallister, do you have anything to 

add? 

Mr. MCCALLISTER. No. 

Senator KLOBUCHAR. OK. 

Mrs. ANDERSON. I do—— 

Senator KLOBUCHAR. OK. 

Mrs. ANDERSON—if you don’t mind. 

Senator KLOBUCHAR. No, that would be very good. 

Mrs. ANDERSON. With my husband and what we have gone 

through, our loss was absolutely instant. And in 20 years, my—if 

I’ve done my job correctly, my kids are going to be self-supportive 

in 20 years. They’re going to be 25 and 21. They should be able to 

49 

be fine by themselves. We don’t want to be lumped in with everyone else. We want the choice to go where we want to go to file our 

claims. And our loss was instant. 

I’m not a lawyer, I don’t know about the laws, but it seems to 

me the easiest way to pay all this is to get your checkbook out and 

write the check and be done. 

Senator KLOBUCHAR. I would agree. 

Mrs. ROSHTO. Can I say something—— 

Senator KLOBUCHAR. And I know we need to do some amending 

of the Death on the High Seas Act, as well, given the difference 

with—we had a hearing on this in my Judiciary Committee—but, 

about the difference with the airlines, and how that’s handled, and 

use those same standards over—which I think would be helpful. 

Yes, Mrs.—— 

Mrs. ROSHTO. Thank you. 

Senator KLOBUCHAR—Mrs. Roshto. 

Mrs. ROSHTO. The core of all this—I mean, really, I think—we 

lost 11 men that day, 11 men that we cannot bring back, 11 men 

that all had children, that their children will never be able to have 

fathers again. But, if—after this law is passed and it is made clear 

to these companies—not just BP, not just Transocean, any offshore 

drilling company—if it made clear to them that they, from the very 

begin with, will be held accountable in the end for these men’s 

lives, I think that if they know that from the very begin with, that 

they will be safer, to begin with. Because they knew—they knew 

the law. They knew that they could just throw these men out there 

and just, you know, give them a little safety every now and then. 

And if something happened, they didn’t think that we would be sitting here today, doing this. 

Senator KLOBUCHAR. Right. So, it goes into a cost-benefit—— 

Mrs. ROSHTO. Right. 

Senator KLOBUCHAR—analysis. 

Mrs. ROSHTO. That’s right. If you make them know, from the 

very begin with, that they have to be safe, I think that our men 

ultimately would be here today, in the end. 

Senator KLOBUCHAR. Yes. I thought about this when we had a 

hearing—Chairman had a hearing on the Toyota issue, and—remember, with their brakes, and that they—they actually calculated 

in and were cheering when they had to pay less money when they 

worked with the regulatory agency on how much they owed. And 

it was a really good example of how companies actually make a 

cost-benefit analysis and think, ‘‘Oh, it’s going to cost me less. So, 

that’s great, so I don’t have to worry about it anymore.’’ And I 

think you’re exactly right, that we look at this right now, understandably, to compensate Mrs. Anderson and others for their 

losses, and the wildlife of Minnesota, and everything else. But, we 

have to also look at it as a preventative measure. So. 

All right. Well, very good. I really appreciate it. I don’t want to 

hold up the Chairman any longer. 

And thank you so much for being here today. We look forward 

to working with you. 

The CHAIRMAN. Thank you, Senator Klobuchar. 

And you did, in fact, come over from a rather important hearing. 

So, we’re glad that you cared enough to come. 

50 

Let me just—in closing remarks, we earlier talked about Courtney Kemp, and I have now, as you know, put her statement in the 

record, but it’s interesting what she says in her testimony. She 

says, ‘‘It is my belief that this terrible tragedy could have been prevented, if only proper safety procedures had been followed,’’ close 

quote. Pretty direct. 

The cost of following safety rules—these are my words, not 

hers—have been a few dollars—would have meant a few dollars for 

BP and Transocean. Cost of cutting corners and rushing the job 

was 11 human lives and goodness knows what other kind of tragedy for those who were injured. 

Ms. Kemp asks us to, quote—says to us, ‘‘How is it that the almighty dollar has become more important than a human life?’’ and 

that closes her quote. 

So, what I would say to the two of you, and then, Mr. Galligan, 

to you, over the next few weeks we’re going to be working very 

hard on legislation to address this problem that we’ve been discussing this morning, and to come to a resolution, such as you have 

all, in different ways, suggested to us, because it’s a matter of national necessity, and it has everything to do with the quality of 

lives, the way others look at their futures, not just—and also the 

way you look at your future in—which will be more painful than 

for others. 

Various committees will be working on this, and it will be difficult to juggle that. But, I think our focus on this will be very 

clear. This committee obviously will be playing a key role in this 

process. 

So, our top priority is to make sure that safety always comes first 

on an oil rig—and elsewhere, for that matter, over what we have 

jurisdiction. And if safety doesn’t come first, and people are injured 

or killed, we’re going to update our laws to make sure that companies can be held fully accountable. That is the view of this particular Senator and, I think, the view of the great majority of those 

on this committee. 

I thank all of you for taking your time to come here. You came 

distances. You’ve testified quite marvelously in public. You’ve done 

an enormous amount of—I would say, especially to the two wonderful young women, you’ve done an enormous favor to everybody who 

works in the businesses that your husband worked in. And 

you’ve—what you’ve spoken about, I think will be a comfort to all 

families, whether their husbands died or were injured or not, simply by the way you said what you said, the passion and the righteousness and the rightness of what you said. 

And so, know that, as you go home. Really understand that, that 

you made a tremendous difference here today. 

We will do the right thing by you, I promise you that. 

This hearing is adjourned. 

[Whereupon, at 11:50 a.m., the hearing was adjourned.] 

Æ