111TH CONGRESS REPT. 111–521 " ! HOUSE OF REPRESENTATIVES 2d Session Part 1 

SECURING PROTECTIONS FOR THE INJURED FROM 

LIMITATIONS ON LIABILITY ACT 

JUNE 30, 2010.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. CONYERS, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

ADDITIONAL VIEWS 

[To accompany H.R. 5503] 

[Including Committee Cost Estimate] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 5503) to revise laws regarding liability in certain civil actions 

arising from maritime incidents, and for other purposes, having 

considered the same, report favorably thereon with an amendment 

and recommend that the bill as amended do pass. 

CONTENTS 

Page 

The Amendment ...................................................................................................... 2 

Purpose and Summary ............................................................................................ 4 

Background and Need for the Legislation ............................................................. 4 

Supporters of H.R. 5503 .......................................................................................... 16 

Hearings ................................................................................................................... 17 

Committee Consideration ........................................................................................ 17 

Committee Votes ...................................................................................................... 17 

Committee Oversight Findings ............................................................................... 19 

New Budget Authority and Tax Expenditures ...................................................... 20 

Committee Cost Cost Estimate ............................................................................... 20 

Performance Goals and Objectives ......................................................................... 20 

Constitutional Authority Statement ...................................................................... 20 

Advisory on Earmarks ............................................................................................. 20 

Section-by-Section Analysis .................................................................................... 21 

Changes in Existing Law Made by the Bill, as Reported ..................................... 22 

Additional Views ...................................................................................................... 31 


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THE AMENDMENT

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Securing Protections for the Injured from Limitations on Liability Act’’. 

SEC. 2. AMENDMENTS TO DEATH ON THE HIGH SEAS ACT. 

The Death on the High Seas Act (chapter 303 of title 46, United States Code), 

is amended— 

(1) in section 30302— 

(A) by inserting ‘‘or law’’ after ‘‘admiralty’’; 

(B) by striking ‘‘3 nautical miles’’ and inserting ‘‘12 nautical miles’’; and 

(C) by striking the last sentence; 

(2) in section 30303— 

(A) by inserting ‘‘and nonpecuniary loss’’ after ‘‘pecuniary loss’’; 

(B) by striking ‘‘by’’ and all that follows through the end, and inserting 

‘‘, plus a fair compensation for the decedent’s pain and suffering.’’; and 

(C) by adding at the end the following: ‘‘In this section, the term ‘nonpecuniary loss’ means loss of care, comfort, and companionship.’’; 

(3) in section 30305 by inserting ‘‘or law’’ after ‘‘admiralty’’; 

(4) in section 30306, by inserting ‘‘or law’’ after ‘‘admiralty’’; 

(5) by striking section 30307, and redesignating section 30308 as section 

30307; 

(6) in section 30307, as so redesignated, by amending subsection (b) to read 

as follows: 

‘‘(b) INTERNAL AND TERRITORIAL WATERS.—This chapter does not apply to the waters of the Great Lakes or waters within the territorial limits of a State that do not 

exceed 12 nautical miles from the shore of the United States. In such waters, the 

rules applicable under Federal, State, maritime, and other appropriate law shall 

apply.’’; and 

(7) in the table of sections at the beginning of such chapter, by striking the 

items relating to sections 30307 and 30308 and inserting the following: 

‘‘30307. Nonapplication.’’. 

SEC. 3. AMENDMENTS TO JONES ACT. 

Title 46, United States Code, is amended— 

(1) in section 30104, by adding at the end the following: ‘‘In addition to other 

amounts authorized under such laws, the recovery for a seaman who so dies 

shall include recovery for loss of care, comfort, and companionship.’’; and 

(2) by striking section 30105 and the item relating to that section in the table 

of sections at the beginning of chapter 301. 

SEC. 4. REPEAL OF LIMITATION OF LIABILITY ACT. 

Chapter 305 of title 46, United States Code, is amended by repealing sections 

30505, 30506, 30507, 30511, and 30512 and the items relating to those sections in 

the table of sections at the beginning of chapter 305. 

SEC. 5. AMENDMENT TO CLASS ACTION FAIRNESS ACT. 

Title 28, United States Code, is amended— 

(1) in section 1711(2), by inserting ‘‘, but does not include an action brought 

by a State or subdivision of a State on behalf of its citizens’’ before the period; 

(2) in section 1332(d)(1)(B), by inserting ‘‘, but does not include an action 

brought by a State or subdivision of a State on behalf of its citizens’’ before the 

semicolon; and 

(3) in section 1332(d)(11)(B)(ii)— 

(A) by striking ‘‘or’’ at the end of subclause (III); 

(B) by striking the period at the end of subclause (IV) and inserting ‘‘; 

or’’; and 

(C) by adding at the end the following: 

‘‘(V) the claims are made by a State or subdivision of a State on behalf of its 

citizens.’’. 

SEC. 6. UNENFORCEABILITY OF CERTAIN SECRECY AGREEMENTS. 

(a) IN GENERAL.—Part VI of title 28, United States Code, is amended by adding 

at the end the following: 


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‘‘CHAPTER 181—UNENFORCEABILITY OF CERTAIN SECRECY 

AGREEMENTS 

‘‘Sec. 

‘‘4101. Unenforceability of certain secrecy agreements. 

‘‘§ 4101. Unenforceability of certain secrecy agreements 

‘‘(a) IN GENERAL.—Subject to subsection (b), an agreement, promise, or directive 

to restrict the dissemination of information regarding the cause of a discharge into 

waters off the shore of the United States of a substance that contaminates a marine 

or coastal environment or endangers public health, regarding the nature or extent 

of such a discharge, regarding the damage caused or threatened by such a discharge, or regarding the efforts to remediate the effects of such a discharge, shall 

be void as against public policy and unenforceable in any legal proceeding. 

‘‘(b) EXCEPTION.— ‘‘(1) GENERALLY.—Subsection (a) does not apply with respect to a directive 

contained in a court order, or issued by a Government agency with authority 

to enforce such a directive in a court, restricting dissemination of information 

as necessary to protect public health or safety. 

‘‘(2) PROCEDURE RELATING TO EXCEPTION.— ‘‘(A) A court shall not grant judicial enforcement of a directive or order 

described in paragraph (1) unless the proponent of the directive or order 

proves by clear and convincing evidence that such enforcement is permitted 

under paragraph (1). 

‘‘(B) If a court grants judicial enforcement of any directive or order described in paragraph (1), the court shall state the court’s factual findings 

and conclusions of law relating to that enforcement on the record.’’. 

(b) CLERICAL AMENDMENT.—The table of chapters for part VI of title 28, United 

States Code, is amended by adding at the end the following new item: 

‘‘181. Unenforceability of Certain Secrecy Agreements .......................................................................... 4101’’. 

SEC. 7. AMENDMENTS TO TITLE 11 OF THE UNITED STATES CODE. 

(a) TREATMENT OF CERTAIN PROPERTY IN BANKRUPTCY.— 

(1) LIMITATION ON SALE OR LEASE OF CERTAIN PROPERTY IN BANKRUPTCY.— 

Section 363 of title 11, United States Code, is amended by adding at the end 

the following: 

‘‘(q) Notwithstanding any other provision of this section, if the debtor is liable 

under any law for a claim arising from an incident (as defined in section 1001 of 

the Oil Pollution Act of 1990, and that gives rise to liability under such Act), the 

trustee may not sell or lease all or substantially all property of the estate of the 

debtor (or, to the extent that the court has or can obtain jurisdiction over any affiliate of the debtor, property of such affiliate) unless the entity that acquires such 

property (including any affiliate of such entity) assumes the obligation to pay the 

amount of allowed unsecured claims arising from such incident that is not paid by 

the debtor, or unless creditors holding at least two-thirds in amount, and more than 

one-half in number, of such claims consent to different treatment.’’. 

(2) LIMITATION ON TREATMENT OF CERTAIN PROPERTY UNDER A PLAN OF REORGANIZATION.—Section 1129(b)(2)(B) of title 11, United States Code, is amended— 

(A) in clause (i) by striking ‘‘or’’ at the end; 

(B) in clause (ii) by striking the period at the end and inserting ‘‘; or’’; 

and 

(C) by adding at the end the following: 

‘‘(iii) that includes claims of the kind described in section 363(q), if the 

plan provides for a sale or lease of all or substantially all of property of the 

estate, the plan requires the entity that acquires such property (including 

any affiliate of such entity) to assume the obligation to pay the amount of 

allowed unsecured claims arising from an incident described in section 

363(q) that is not paid by the debtor, or creditors holding at least two-thirds 

in amount, and more than one-half in number, of such claims consent to 

different treatment.’’. 

(b) CONFORMING AMENDMENT.—Section 303(f) of title 11, United States Code, is 

amended by adding at the end the following: ‘‘If the debtor is liable under any law 

for a claim arising from an incident (as defined in section 1001 of the Oil Pollution 

Act of 1990, and that gives rise to liability under such Act), the debtor may not sell 

or lease all or substantially all property of the debtor (or, to the extent that the 

court has or can obtain jurisdiction over any affiliate of the debtor, property of such 

affiliate) unless the entity that acquires such property (including any affiliate of 

such entity) assumes the obligation to pay the amount of allowed unsecured claims 

arising from such incident that is not paid by the debtor, or creditors holding at 


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1The 126-member crew reportedly consisted of forty-one contract workers, including four Halliburton employees and five M-I SWACO employees; six or seven BP employees; and seventynine Transocean employees, including the rig commander, Captain Curt Kuchta. Of the eleven 

fatalities, nine of the men were employed by Transocean and two by M-I SWACO. 

least two-thirds in amount, and more than one-half in number, of such claims consent to different treatment.’’. 

SEC. 8. EFFECTIVE DATE. 

This Act and the amendments made by this Act shall take effect on the date of 

enactment of this Act and shall apply to cases pending on or after such date. 

PURPOSE AND SUMMARY

H.R. 5503, the Securing Protections for the Injured from Limitations on Liability Act, will revise outdated laws regarding liability 

in certain civil actions arising from maritime incidents, to ensure 

fair and just compensation to the injured and their families. It will 

also make supplemental changes in other laws to prevent companies with widespread liability from offshore oil disasters from using 

bankruptcy to remove significant assets from availability to pay 

victims, to restrict enforceability of secrecy agreements regarding 

the contamination or the cleanup efforts, and to clarify the authority of State attorneys general to pursue claims on behalf of their 

citizens. 

BACKGROUND AND NEED FOR THE LEGISLATION

I. BACKGROUND

On April 20, 2010, there was an explosion on the Deepwater Horizon oil drilling platform that ultimately engulfed the vessel in 

flames, sank it, and caused a massive oil spill in the Gulf of Mexico 

that continues to spread throughout the Gulf Coast, and perhaps 

beyond. Of the 126 crew members, 11 men were killed, and at least 

17 others were physically injured.1

The Deepwater Horizon (DWH) was owned by Transocean, Ltd., 

a leading offshore drilling contractor with more than 18,000 employees worldwide. British Petroleum (BP) is a global energy company (including BP America). It leased the DWH from Transocean, 

and was also the operator and principal developer of the oil field 

on which the Deepwater Horizon oil drilling platform was located. 

Halliburton, a global oil field services company with over 50,000 

employees worldwide, was the cement contractor aboard the vessel. 

Cameron International is a global provider of pressure control, 

processing, flow control, and compression systems, and was the 

manufacturer of the blowout preventer (BOP) aboard the oil vessel. 

BP’s partners in the DWH drilling project were Anadarko Petroleum Corporation and Mitsui Oil Exploration. Anadarko was a nonoperating investor with a 25% stake in the project, and had no employees stationed on the rig. Mitsui, which specializes in natural 

gas exploration and development, had a 10% investment in the 

well. There have been no published reports about whether Mitsui 

had any employees on board the rig on the day of the explosion. 

M-I SWACO was subcontracted as the DWH’s mud engineer. 

Weatherford International Ltd. was the casing subcontractor. Finally, Schlumberger Ltd. was contracted by BP to conduct wireline 

services. Schlumberger had a crew on board the DWH, but accordVerDate Mar 15 2010 02:14 Jul 01, 2010 Jkt 089006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6601 E:\HR\OC\HR521P1.XXX HR521P1

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2 Henry Fountain, ‘‘Documents Show Risky Decisions Before BP Blowout,’’ N.Y. Times, June 

14, 2010. 3 John Schwartz, ‘‘Liability Questions Loom for BP and Ex-Partners,’’ N.Y. Times,. June 24, 

2010. 4 It is difficult to estimate the potential costs of the DWH disaster, but a 2005 explosion at 

a BP refinery in Texas, killing 15 and injuring scores more, reportedly resulted in a settlement 

totaling some $1.6 billion, albeit under a different applicable liability scheme. Stephanie 

Mencimer, ‘‘Screwed if By Sea,’’ Slate, June 16, 2010. 5 46 U.S.C. §§ 30301–30308. 

6 46 U.S.C. §§ 30104–30106. There are two maritime statutes, both enacted as part of the Merchant Marine Act of 1920, that are commonly known as the ‘‘Jones Act,’’ both named for the 

sponsor of the provisions, Senator Wesley Jones. Section 27 of the 1920 Act, now codified at 46 

U.S.C. § 55102, is a cabotage law that requires that all waterborne shipping between points 

within the United States be carried out by vessels built in the United States, owned by U.S. 

citizens (at least 75%), and manned with U.S. citizen crews. The Act essentially bars foreignbuilt and -operated vessels from engaging in U.S. domestic commerce. The second, at issue here, 

is section 33 of the 1920 Act, now codified at 46 U.S.C. §§ 30104–30106, It governs liability for 

the personal injury or death of a seaman occurring during the course of employment. 7 46 U.S.C. § 30501 et. seq. 

8 33 U.S.C. §§ 2701–2761. 

9 33 U.S.C. § 2702(d). ‘‘The responsible party is able to recover through subrogation from a 

third party solely at fault, but is not relieved of strict liability for the payment of claims up 

to the limitations provided by OPA. The sole fault third party, once complete fault has been 

Continued 

ing to company officials, they left the rig several hours before the 

fire and explosion.2

Each of these companies has been implicated in the events leading up to the explosion and the continuing oil spillage, and each 

may bear some legal responsibility for the resulting harm.3

Although the legal issues are complex and still taking shape, 

there are at least several general categories of responsibility arising out of the Gulf Coast oil disaster. First, there is the legal responsibility of the companies for the deaths and injuries of the 

workers that resulted from the April 20 explosion.4 The current 

statutory regime governing this aspect of the legal liabilities is exceedingly complex and outdated, in some instances resting on laws 

written in the mid-19th century to protect American merchant sailing ship owners. In addition to general maritime law, at least two 

Federal statutes—the Death on the High Seas Act 5 (DOHSA) and 

the Jones Act 6—will likely govern the extent to which injured 

workers and dependent family members of deceased or injured 

workers can recover damages. 

In addition, for its part, Transocean filed suit in Houston, Texas, 

on May 13, 2010 under another statute that may be relevant to 

further proceedings. That statute, the Limitation of Liability Act 7

(LOLA), enacted in 1851, is designed to limit rather than facilitate 

recovery. It permits a vessel owner to limit its liability for all personal injury claims that may be brought against it to the value of 

the vessel and its cargo. With its ‘‘vessel’’ on the Gulf floor, 

Transocean has estimated that amount in this case to be approximately $27 million. 

Second, there is responsibility for the broader economic damages 

resulting from the spill, under the Oil Pollution Act of 1990 8

(OPA). Passed in the aftermath of the Exxon Valdez oil spill in 

Prince William Sound, OPA establishes a framework for those 

harmed by the offshore discharge of oil to recover for specified damages. Under OPA, the ‘‘responsible party’’ is strictly liable for all 

economic damages associated with a discharge of oil into the waters of the United States, as well as cleanup and removal costs. A 

‘‘responsible party’’ may recoup some costs from third parties under 

certain circumstances.9 Where an oil spill emanates from a vessel, 


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established, then steps into the shoes of the responsible party, theerby becoming subject to the 

liabilities, limitations and defenses of the Act. There is, however, no mention of the liabilities 

or defenses available to third parties only partially at fault.’’ Gregg L. McCurdy, Comment, An 

Overview of OPA 1990 and its Relationship to Other Laws, 5 U.S.F. Mar. L.J. 423, 426–27 

(1993)(footnotes omitted). 10 33 U.S.C. § 2701(32). 11See ‘‘CS Sees Total BP Oil Spill Cost Up To $37 Billion.’’ June 2, 2010. at http:// 

www.zerohedge.com/article/cs-sees-total-bp-oil-spill-cost-37-billion-eat-3-years-free-cash-flow-willrequire-10-rise-g. 12 In addition, liability limits are unavailable if the violation of a Federal safety, construction, 

or operating requirement proximately caused the spill. Spillers must also report the incident 

and cooperate with response officials to take advantage of the liability caps. OPA Section 

1004(c). 13See Liability Issues Surrounding the Gulf Coast Oil Disaster: Hearing Before the House 

Committee on the Judiciary, 111th Cong. (2010) (testimony of Darryl Willis, Vice President, Resources, BP America). See also Jackie Calmes, ‘‘For Gulf Victims, Mediator With Deep Pockets 

and Broad Power,’’ N.Y.Times, June 22, 2010 (‘‘ ‘All of the design, all of the implementation and 

all of the administration’ of the claims process ‘is basically a handshake between the Obama 

administration, BP and me,’ Mr. Feinberg said Tuesday.’’). 14OPA Section 1002(b)(1). 15 33 U.S.C. § 2715. 16See, BP has spent $2 billion on Oil Spill cleanup: Company Says it has paid out $105 Million to Victims; Overall Cleanup Cost Expected to Continue Rising, June 21, 2010, http:// 

www.cbsnews.com/stories/2010/06/21/national/main6602994.shtml 17Fiona Marharg-Bravo and Rolfe Winkler, ‘‘Could BP’s Money Stop Flowing?’’ N.Y. Times, 

June 18, 2010. 18See Omnibus Budget Reconciliation Act of 1986 (P.L. 99–509). However, Congress did not 

authorize its use or fund it until after the Exxon Valdez incident. In 1990, OPA provided the 

statutory authorization necessary to put the fund into effect. The OSLTF was initially funded 

the ‘‘responsible party’’ is the owner or operator of the vessel from 

which the oil is discharged.10 As the operator of the DWH, BP is 

responsible for the economic damages associated with the spill. As 

of June 22, 2010, BP estimated that it had paid out $118,044,258 

to Gulf Coast claimants, but the ultimate responsibility will be far 

more. For example, on June 2, 2010, Credit Suisse estimated that 

these economic damages could total $14 billion.11

OPA sets liability limits, or caps, on what the responsible party pays beyond the cleanup costs, at $75 million per incident (as defined by the Act). This liability cap does not apply if the responsible 

party or any of its contractors violated any Federal or State safety 

regulations or acted with gross negligence.12 The damages expressly recoverable under OPA are limited to (1) property damage; 

(2) subsistence loss; (3) net lost government revenue; (4) net lost 

profits or earning capacity; (5) cost of increased public services; and 

(6) damage to natural resources. OPA does not apply to personal 

injury or wrongful death. However, BP representatives have testified that it would not seek to avail itself of the cap—that it would 

pay ‘‘all legitimate claims’’—though it has not yet explained what 

it will consider legitimate, nor has it formally agreed to extend its 

liability beyond the OPA cap.13

The third category of legal responsibility is the broader responsibility for cleanup costs. Under OPA, the responsible party is obligated to reimburse all cleanup costs incurred by others, not only 

by a government entity, but also by a private party,14 although it 

may seek contribution or subrogation from other companies.15 As 

of June 21, 2010, BP had reportedly spent approximately $2 billion 

in cleanup and containment efforts,16 but a recent estimate by The 

New York Times estimated eventual cleanup costs of perhaps as 

high as $14 billion.17 If BP is unwilling or unable to pay all cleanup costs, the Oil Spill Liability Trust Fund (OSLTF) provides a 

backstop for relief. The OSLTF was established by Congress in 

1986 to create a pool of readily available funds for oil spill response 

needs.18 The Fund is primarily used to finance the costs incurred 


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by a five-cent-per-barrel tax on the oil industry. The Emergency Economic Stabilization Act of 

2008 (P.L. 110–343) increased the tax rate to eight cents through 2016. In 2017, the rate will 

increase to nine cents, and the tax is scheduled to terminate at the end of 2017. See section 

405 of P.L. 110–343. The fund is administered by the U.S. Coast Guard. Other revenue sources 

for the fund include interest earned on fund deposits, cost recovery from the parties responsible 

for spills, and any fines or civil penalties collected. 19 ‘‘Could BP’s Money Stop Flowing,’’ N.Y. Times, June 18, 2010, B2. 20Matthew Wald, ‘‘Tax on Oil May Help Pay for Cleanup,’’ N.Y. Times, May 1, 2010. 21 26 U.S.C. § 9509(c)(2)(A). 22Press Release, BP, BP Establishes $20 Billion Claims Fund for Deepwater Horizon Spill and 

Outlines Dividend Decisions (June 16, 2010) (www.bp.com). 23 Anna Fifield, ‘‘Lawyers file class action suits against BP,’’ Financial Times, FT.com. June 

11, 2010. 24Marilyn Tennissen, ‘‘BP seeks MDL in Houston for Deepwater Horizon cases,’’ 

LegalNewline.com, May 19, 2010. 

by Federal and State agencies for prompt oil spill removal and to 

reimburse Federal, State and Indian tribe trustees for recoverable 

costs associated with oil spills, including natural resource damages.19 The OSLTF is presently estimated to contain roughly $1.6 

billion.20 The maximum amount of money that may be withdrawn 

from the OSLTF is $1 billion per incident (as defined by OPA).21

OPA was designed to encourage administrative resolution of 

claims directly with the responsible party. Therefore, a government 

claimant seeking reimbursement for removal or cleanup costs, or 

any claimant seeking economic damages, must first present the 

claim to the responsible party. If the responsible party denies the 

claim or does not settle the claim within 90 days, a claimant may 

seek funds from the OSLTF or initiate action in a court of law. To 

date, no money has been withdrawn from the Fund in connection 

with the Gulf spill cleanup. 

In regard to these two broader categories of responsibility, BP 

announced that it will establish a $20 billion escrow account—a 

claims fund—as urged by President Obama, which adds another 

layer of complexity to the evaluation and resolution of claims. This 

fund will be set aside as part of the ‘‘Independent Claims Facility’’ 

(ICF), which will be managed by Kenneth Feinberg. The fund will 

be built up over a three-and-a-half-year period and be available ‘‘to 

satisfy legitimate claims including natural resource damages and 

state and local response costs.’’ 22 The fund reportedly will not pay 

out fines or penalties, but will honor claims that are adjudicated, 

whether by the ICF or by a court, or as agreed to by BP. According 

to initial accounts, the fund is not intended to represent a cap on 

BP liabilities, and will proceed on parallel tracks with other efforts 

by claimants to obtain redress for harms caused by the spill. Although the contours of this fund, and of the overall claims process, 

are not entirely clear at this point, claimants apparently may 

choose to pursue their claims wherever they wish, and are not precluded from accessing multiple forums. 

Many of the general areas of liability present overlapping and 

interrelated issues. As of June 11, 2010, more than 160 cases are 

going forward as class actions.23 BP has already filed a motion to 

consolidate the cases before one multi-district litigation court, and 

the Judicial Panel for Multidistrict Litigation is scheduled to hold 

a hearing on July 29 in Boise, Idaho.24 In addition, personal injury 

claims stemming from the spill and cleanup have been submitted 

to BP or are being pursued in the courts under various theories of 

relief. It is unclear to what extent these type claims are candidates 

for resolution by the ICF. 


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25 33 U.S.C. § 1251 et seq. 26Press Release, Center for Biological Diversity, Lawsuit Seeks $19 Billion in Clean Water 

Act Penalties From BP (June 21, 2010). 27 Jim Efstathiou Jr., ‘‘BP May Owe U.S. $1 Million a Day in Royalties on Spilled Oil,’’ 

Bloomberg.com, May 21, 2010. 28 Helene Cooper and Peter Baker, ‘‘U.S. Opens Criminal Inquiry Into Oil Spill,’’ N.Y.Times, 

June 1, 2010. 29See Liability Issues Surrounding the Gulf Coast Oil Disaster: Hearing Before the House 

Committee on the Judiciary, 111th Cong. (2010) (testimony of Jim Hood, Attorney General, 

State of Mississippi) (‘‘[M]y office has begun the process of reviewing all potential legal claims 

on behalf of the state arising out of the oil spill incident.’’). See also, ‘‘UPDATE 1-Florida could 

sue BP over any spill damage-governor.’’ Reuters, May 4, 2010. 30Originally codified at 46 U.S.C. § 761, et seq, the statute is now found at 46 U.S.C. § 30301 

through § 30308. 31See The Harrisburg, 119 U.S. 199 (1886); The Alaska, 130 U.S. 201 (1889); La Bourgoyne, 

210 U.S. 95 (1908). 

Finally, there are the fines due under the Clean Water Act 25 and 

related statutes. It has been estimated by some that the civil fines 

due under this statute could be as high as $22 billion, and a private lawsuit has recently been filed seeking a similar amount.26 It 

has also been asserted that BP will be responsible for royalties to 

the Federal Government for each barrel of oil lost, which could cost 

large additional amounts.27 A further factor is the criminal probe 

that Attorney General Eric Holder announced on June 1, 2010, 

along with the Justice Department’s civil investigation. The threshold for a criminal investigation has ‘‘certainly been passed,’’ Attorney General Holder said, although he would not disclose the exact 

targets of the probe. Prosecutors are reportedly looking at possible 

violations of the Clean Water Act, the Migratory Bird Treaty Act, 

the Endangered Species Act, and the Oil Pollution Act.28 In addition, lawsuits have been filed or are contemplated by the attorneys 

general of the affected States.29

II. NEED FOR THE LEGISLATION

A. Remedies for maritime death and injury due to negligence 

Maritime law is a patchwork of Federal rules and principles 

emanating from judicial opinions, statutory enactments, and international treaties. In the wake of what is projected to be the largest 

oil spill in U.S. history, it is evident that raising the $75 million 

cap provided by the Oil Pollution Act of 1990 (OPA) is not sufficient, now or in the future, to address the bodily harm to those 

caught in the explosion or those involved in cleanup of the resulting spill. The OPA cap applies to commercial loss; it does not reach 

the losses of those who suffered personal injuries or who died in 

the explosion, or those who may be harmed in the cleanup efforts. 

The Death on the High Seas Act (DOHSA) is the primary statute 

applicable to wrongful deaths occurring on board vessels further 

than three nautical miles from U.S. shores and on commercial aircraft further than twelve nautical miles out. It allows for specified 

dependent relatives of the decedent to seek pecuniary damages for 

accidents at sea, and both pecuniary and non-pecuniary damages 

for certain aviation accidents. 

Congress enacted DOSHA in 1920 30 to create a cause of action 

for wrongful deaths occurring on the high seas beyond 3 nautical 

miles from U.S. shores, after a series of Supreme Court cases left 

the availability of damages for deaths at sea in confusion.31

DOHSA allows the spouse, parents, child, or dependent relative of 

a seafarer or vessel passenger to seek recovery for pecuniary damVerDate Mar 15 2010 02:14 Jul 01, 2010 Jkt 089006 PO 00000 Frm 00008 Fmt 6659 Sfmt 6601 E:\HR\OC\HR521P1.XXX HR521P1

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32 46 U.S.C. § 30307. 33There are two very different laws commonly referred to as the Jones Act. See supra note 

6. 34See Kernan v. American Dredging Co., 355 U.S. 426, 430 n.4 (1958); Moragne v. States Marine Lines, Inc., 398 U.S. 375, 399–401 (1970) (discussing unseaworthiness remedy under 

DOHSA). 35 ‘‘Seaman Status,’’ website prepared and hosted by Arnold & Itkin LLP, available at: http:// 

www.jones-act-maritime-lawyer.com/jones-act/jones-act-seaman-status.php. 

ages only. But DOHSA generally does not provide recovery for predeath pain and suffering, or for non-pecuniary loss of care, comfort, 

and companionship. This means, for example, that when a child or 

retired worker is killed, the surviving family’s recovery would essentially be limited to funeral expenses. Indeed, the fact that many 

of the passengers aboard TWA Flight 800 were children, who had 

no income on which to base pecuniary loss, was a significant driving factor in Congress’s decision to amend DOHSA as to commercial aviation accidents. 

The Jones Act, also passed in 1920, provides a cause of action for 

wrongful death or personal injury for ‘‘seamen’’ who die in the 

course of employment as the result of negligence. The Jones Act allows pecuniary damages from the employer for the negligence of 

the shipowner, the captain, or fellow members of the crew. 

In the area of wrongful death, both the Jones Act and DOHSA 

generally confine recovery for negligent loss of life to pecuniary 

losses. Both statutes, however, have legislatively or judicially mandated exceptions that have produced irrational anomalies in the 

law. This legislation addresses those anomalies. 

When Congress first considered and enacted DOHSA, overseas 

commercial aviation simply did not exist. Still, anyone who died as 

the result of a plane crash on the high seas was covered under the 

terms of the statute. Following the TWA Flight 800 crash in 1996, 

Congress amended DOHSA to provide for non-pecuniary damages—specifically, the loss of care, comfort and companionship—for 

victims of commercial aviation crashes that occur more than 12 

nautical miles from the coast.32 The change was made effective 

from the day before the TWA crash. 

The Jones Act 33 provides protections for seamen on vessels, including benefits for injured seamen and a cause of action for injuries or death resulting from negligence on the part of their employer. Liability for the wrongful death of a Jones Act seaman may 

also be based on the unseaworthiness of the vessel under 

DOHSA.34

Only seamen can bring claims under the Jones Act, and then 

only against their employer. The test for seaman status is threepronged: a worker must (1) be assigned to a vessel or identifiable 

fleet of vessels that is not permanently moored and is operating on 

a navigable waterway; (2) contribute to the mission of the vessel; 

and (3) spend a significant amount of time on board the vessel.35

There is no doubt that the regular crew of the Deepwater Horizon 

were seamen under the Jones Act. The available damages are 

claims for injuries—in which case seamen are entitled to regular 

tort damages—and for wrongful death claims, in which case the 

damages are limited to pecuniary loss and pre-death pain and sufVerDate Mar 15 2010 02:14 Jul 01, 2010 Jkt 089006 PO 00000 Frm 00009 Fmt 6659 Sfmt 6601 E:\HR\OC\HR521P1.XXX HR521P1

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36 46 U.S.C. 30104. In Miles v. Apex Marine Corp., 498 U.S. 19 (1990), the Supreme Court 

held that the Jones Act precludes recovery of non-pecuniary losses by the dependants of a deceased seaman. 37Thomas J. Schoenbaum, Admiralty and Maritime Law 805 (4th ed. 2004). 38 New Jersey Steam Nav. Co. v. Merchant’s Bank of Boston, 47 U.S. 344 (1848) 

fering.36 Damages stemming from loss of society are not recoverable under either type of claim. The underlying cause of action for 

Jones Act claims is negligence on the part of the employer, although injured seamen also have the right to obtain maintenance 

and cure (generally a daily stipend as well as the payment of medical bills) for injuries that do not stem from negligence. 

The bill corrects these shortcomings. It amends DOHSA to permit recovery for non-pecuniary loss and pre-death pain the suffering, to allow trial by jury, and to permit State law to govern 

which surviving family members are eligible to recover. It amends 

the Jones Act to permit recovery of non-pecuniary loss in cases of 

wrongful death, and to ensure that these protections apply to all 

offshore oil rig workers. 

B. Limitation of Liability Act 

In addition to the restrictions on damages recoverable under 

DOHSA and the Jones Act, the Limitation of Liability Act (LOLA) 

is another Federal law that could operate to arbitrarily limit the 

liability owed to the dead and injured workers who were serving 

on the Deepwater Horizon. Passed in 1851, LOLA limits a vessel 

owner’s liability to the post-accident value of the vessel and her 

pending freight. Like much of maritime law, U.S. law borrowed 

this principle of British maritime law. The British Parliament 

passed legislation in 1734 to limit the liability of shipowners to the 

value of the ship, in order to give the British shipping industry a 

competitive advantage over shipping companies based in continental Europe. The American shipping industry sought a similar 

limitation.37

When LOLA was enacted in 1851, the ship’s master controlled 

and managed the ship and stood in place of the ship’s owner—usually an individual, not the shipping conglomerates of today—during 

voyages that took months and often years. The absence of modern 

technology and communications equipment left shipowners vulnerable to the improper acts of the master, including embezzlement 

and other criminal acts. In 1848, the U.S. Supreme Court held 

steamboat owners responsible for the loss of gold and silver coins 

contained in a wooden crate after a fire destroyed the ship.38 This 

decision prompted Congress to legislate for the protection of the 

American maritime industry. 

Congress enacted the LOLA in 1851. The Act restricts the liability of shipowners to the value of the vessel and pending freight. Liability resulting from an employee’s negligence or other bad act exists only if there was ‘‘privity or knowledge’’ of the owner. In 1934, 

Congress amended LOLA, after a fire on a ship caused 134 deaths, 

to require that a shipowner’s liability for personal injury or death 

be based on a dollar amount—then $60 per ton. That amount was 

raised to $420 per ton in 1984. 

LOLA does not provide for liability, but rather limits the liability 

of a shipowner for personal injury and property damage. A shipowner can initiate a limitation action by petitioning the Federal 


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39 Complaint and Petition for Exoneration from or Limitation of Liability, In re the complaint 

and petition of Triton Asset Leasing GmbH, Transocean Holdings LLC, Transocean Offshore 

Deepwater Drilling Inc., and Transocean Deepwater Inc., as owner, managing owners, owners 

pro-hoc vice, and/or Operators of the MODU Deepwater Horizon, in a Cause for Exoneration 

From or Limitation of Liability, Complaint and Petition No. 4:10-cv-01721 (S.D.Tex. May 13, 

2010). 40Mary Flood, ‘‘Judge stays spill cases at Transocean’s request,’’ Houston Chronicle. May 13, 

2010. 

court within 6 months after receiving a notice that a suit has been 

filed. The petition stays proceedings elsewhere, and consolidates all 

State claims into Federal court. 

In a filing in a Federal court in Texas, Transocean has invoked 

this antiquated law in an effort to have its liability ‘‘for all claims 

for any loss of life, injury, loss, destruction and damages arising 

out of or occurring on the voyage of the . . . Deepwater Horizon’’ 39

limited to the post-accident value of the Deepwater Horizon—essentially a $26.7 million cap. All other proceedings against 

Transocean have been suspended pending a determination by the 

court whether the LOLA limitation applies.40 For victims of the 

DWH disaster and their families, LOLA prolongs their grief, and 

threatens to limit severely their ability to provide economic stability for the future. If the court grants the limitation, multiple 

claimants—including the DWH survivors and the families of those 

who died—will be eligible for only a pro rata share of the limitation 

fund. 

LOLA has clearly outlived any legitimate purpose it may once 

have served. Its original purpose—to promote American shipping 

interests—is now largely serving the interests of carriers incorporated in Third World countries and using foreign-flagged vessels 

in order to avoid having to pay U.S. taxes or follow U.S. health and 

safety regulations. Moreover, Congress could not possibly have envisioned in 1851 that movable industrial oil exploration and development platforms would qualify as ‘‘vessels’’ under LOLA and attempt to shield their liability in this type of disaster. 

When LOLA was enacted, a shipowner could communicate with 

the captain and crew of a vessel away from home port only through 

documents transshipped on other vessels. LOLA was intended to 

protect those owners in light of that difficulty in staying in communication. Today’s communication technology allows shipowners to 

oversee their vessels as constantly as they wish, even when the 

vessel is on the other side of the world. Owners today have direct 

communication by radio, computers, and phone, and a ship can be 

positioned and monitored constantly using satellite systems. Continued use of LOLA simply removes healthy incentives for owners 

to properly oversee their ships. 

Finally, there are better, more sophisticated alternatives for protecting shipowners than LOLA. Today, shipowners have a wide variety of legal tools available that better protect their financial interests. For example, insurance, contract, charter, mortgage, and the 

separate incorporation of vessels are alternative methods that offer 

more appropriate financial protection than LOLA. 

In this current case, LOLA could even hamper BP from seeking 

reimbursement from Transocean for Transocean’s own negligence 

in the Deepwater Horizon explosion and resulting spill. Repealing 

LOLA will enable BP to hold Transocean accountable for any apVerDate Mar 15 2010 02:14 Jul 01, 2010 Jkt 089006 PO 00000 Frm 00011 Fmt 6659 Sfmt 6601 E:\HR\OC\HR521P1.XXX HR521P1

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41 Class Action Fairness Act § 2, 28 U.S.C. 1332(d). 42 Under CAFA, a ‘‘class action’’ is ‘‘any civil action filed in a district court of the United States 

under rule 23 of the Federal Rules of Civil Procedure or any civil action that is removed to a 

district court of the United States that was originally filed under a State statute or rule of judicial procedure authorizing an action to be brought by 1 or more representatives as a class action.’’ 28 U.S.C. § 1711(2). ‘‘Mass action’’ is defined as ‘‘any civil action (except a civil action within the scope of section 1711(2) in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of 

law or fact, except that jurisdiction shall exist only over those plaintiffs whose claims in a mass 

action satisfy the jurisdictional amount requirements under subsection (a).’’ 28 U.S.C. 

§ 1332(d)(11)(B)(i). 43 151 Cong. Rec. 746 (2005) (statement of Rep. James F. Sensenbrenner) (‘‘[W]hen State attorneys general sue on behalf of their citizens, those actions are almost always ‘parens patriae’ 

actions, and not class actions; and the former will be in no way affected by this bill.’’). 44 151 Cong. Rec. 1161 (2005) (statement of Sen. Thomas R. Carper) (‘‘For most attorneys general who wish to file a case on behalf of their citizens against some defendant, they have the 

opportunity to use parens patriae. For those who do not, in my judgment, they still have the 

opportunity to use the class action lawsuit.’’); id. at 1162 (statement of Sen. John Cornyn) (‘‘But 

clearly, when State law and the State Constitution specifically provide for the right of . . . a 

State attorney general, to sue on behalf of his State’s citizens, then this bill, when made a law, 

will not in any way impede that endeavor.’’); id. at 1163 (statement of Sen. Chuck Grassley) 

(‘‘because almost all civil suits brought by State attorneys general are parens patriae suits, similar representative suits or direct enforcement actions, it is clear they . . . will not be affected 

by this bill.’’); id. at 1164 (statement of Sen. Pryor) (‘‘I hope the courts will recognize the legislative history we developed today. The intention of this Senate and the conference is not to limit 

any existing rights or any existing abilities of the State attorneys general in pursuing cases they 

may deem appropriate to pursue.’’). 45 In re Katrina Canal Breaches Litigation, 524 F.3d 700, 706 (5th Cir. 2008); Louisiana ex 

rel. Caldwell v. Allstate Ins. Co., 536 F.3d 418 (5th Cir. 2008). 46Liability Issues Surrounding the Gulf Coast Oil Disaster: Hearing Before the H. Comm. on 

the Judiciary, 111th Cong. (2010) (testimony of Jim Hood, Attorney General of Mississippi). 47 Connecticut v. Moody’s Corp., 664 F. Supp. 2d 196, 200 (D. Conn. 2009) (citing Connecticut 

v. Levi Strauss & Co., 471 F. Supp. 363, 370–71 (D. Conn. 1979) (‘‘[I]t has long been recognized 

that a state can act as parens patriae for a circumscribed group of its citizens.’’). 

propriate share of responsibility under the Oil Pollution Act. This 

is yet another illustration of why LOLA should be repealed. 

C. Clarification of state enforcement authority 

Congress enacted the Class Action Fairness Act of 2005 (CAFA) 

to facilitate the removal of ‘‘interstate cases of national significance’’ to Federal court under diversity jurisdiction, and to provide 

for greater regulation of class and mass actions.41 Although the 

statutory definitions in CAFA of ‘‘class action’’ and ‘‘mass action’’ 

are phrased broadly,42 the congressional debates in both the 

House 43 and Senate 44 indicate an intent to preserve the authority 

of a State government to bring and keep cases in its own State 

courts when the action involves its own citizens and its own laws. 

Nevertheless, the Fifth Circuit held in 2008 that an action brought 

by a State attorney general as a parens patriae action was subject 

to CAFA.45

During the Committee’s hearing on the legal liability issues 

stemming from the Gulf Coast oil spill, Mississippi Attorney General Jim Hood testified that CAFA impeded his ability to pursue 

claims on behalf of the State of Mississippi against parties responsible for violating State law.46 H.R. 5503 will clarify that actions 

brought by a State attorney general in his official capacity under 

his State’s law, in its courts, on behalf of its citizens, are not subject to removal to Federal court under CAFA.47

D. Protections against unwarranted secrecy regarding pollutant discharges 

In the days following the DWH explosion and rescue efforts, reports emerged that BP had required unemployed fishermen, as a 

condition for assistance, employment, or access to the affected area, 


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48See ‘‘Federal judge says BP can’t force local workers to sign waivers of liability,’’ at http:// 

thelensnola.org/2010/05/03/bp-worker-agreemen/. There were also other reports of statements 

being signed under apparent duress. For example, in early May, National Public Radio (NPR) 

reported that DWH rig workers were required ‘‘to sign form letters about what they had seen 

and whether they had been injured’’ before being released to their families. This account was 

verified in testimony before the Committee by Stephen Stone, a roustabout employed by 

Transocean who was on the DWH on April 20. Mr. Stone testified that they ‘‘were told we had 

to give a written statement before we could leave the boat’’ and that it was ‘‘28 hours after the 

explosion’’ before he ‘‘was given access to a phone, and was allowed to call [his] wife’’ to let her 

know that he had survived. 49Section 363(f) provides: 

The trustee may sell property under subsection (b) or (c) of this section free and clear of 

any interest in such property of an entity other than the estate only if— 

(1) applicable nonbankruptcy law permits sale of such property free and clear of such 

interest; 

(2) such entity consents; 

(3) such interest is a lien and the price at which such property is to be sold is greater 

than the aggregate value of all liens on such property; 

(4) such interest is in bona fide dispute; or 

(5) such entity could be compelled, in a legal or equitable proceeding, to accept a 

money satisfaction of such interest. 

11 U.S.C. § 363(f). 50 In general, successor liability will attach if: (1) the purchaser expressly or impliedly assumed the liability; (2) the transaction amounted to a merger or consolidation of the businesses; 

(3) the purchaser was merely a continuation of the seller; or (4) the transaction was entered 

into fraudulently in order to avoid liability for the obligations. Alan N. Resnick & Henry J. 

Sommer, Collier on Bankruptcy, ¶ 363.06[7] (15th ed. rev’d 2007). 51 Id. 

to sign an agreement not to provide information to the news media, 

investigators, or others regarding the oil spill, the clean-up and 

containment efforts, or the public health implications.48 Indeed, in 

a lawsuit brought by the president of the United Commercial Fishermen Association in Louisiana, U.S. District Judge Helen G. 

Berrigan granted a restraining order against the agreements, finding them unconscionable. To prevent further abuses in this and future disasters, H.R. 5503 specifies that agreements or directives of 

this nature are unenforceable, as they interfere with the public’s 

right to be informed. It provides an exception for court orders or 

government agency directives when there is a determination that 

the dissemination of information could endanger public health or 

safety. 

E. Protections in bankruptcy for maritime oil spill claimants 

Under section 363(f) of the Bankruptcy Code, assets of a company in a bankruptcy case may be sold ‘‘free and clear of any interest in such property’’ if certain conditions are met.49 Unsecured 

creditors generally are entitled to share only in the unencumbered 

proceeds of the sale and in the remaining unencumbered assets. In 

actuality, the sale may generate proceeds sufficient only to satisfy 

the claims of secured creditors having an interest in the transferred property, thereby leaving little or no money for unsecured 

creditors. 

The rights of future creditors may also be terminated. Successor 

liability is an equitable principle largely determined under applicable State law.50 A number of courts have sought to protect purchasers of assets in bankruptcy, against possible claims to which 

they might otherwise be subject under principles of successor liability, by approving sales ‘‘free of all present or future claims against 

the debtor or the estate,’’ 51 although some courts have questioned 


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52 Id.; see, e.g., Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) 

Pension Fund v. Tasemkin, Inc., 59 F.3d 48, 51 (7th Cir. 1995) (noting that ‘‘it is not clear why 

an intervening bankruptcy proceeding, in particular, should have a per se preclusive effect on 

the creditor’s chances’’). 53 Under section 1123(a)(5)(D), a plan may be implemented through the ‘‘sale of all or any part 

of the property of the estate, either subject to or free of any lien, or the distribution of all or 

any part of the property of the estate among those having an interest in such property of the 

estate.’’ 54 11 U.S.C. § 1129(b)(2). 55 11 U.S.C. §§ 1129(b)(2)(B), 1129(a)(7)(A)(ii). 56 11 U.S.C. § 303(f). 57 33 U.S.C. § 2701(14)(‘‘ ‘incident’ means any occurrence or series of occurrences having the 

same origin, involving one or more vessels, facilities, or any combination thereof, resulting in 

the discharge or substantial threat of discharge of oil’’); 33 U.S.C. § 1321(7)(A) (establishing civil 

liability for entities responsible for an incident). 58 11 U.S.C. § 101(2). 

the ability of a bankruptcy court to override principles of successor 

liability under section 363(f).52

A company in chapter 11 reorganization may also choose to dispose of all its assets under a reorganization plan.53 While creditors 

have the right to object, a court can confirm a plan anyway if it 

finds that the plan is ‘‘fair and equitable’’ within the meaning of 

section 1129(b)(2).54 A plan can satisfy this standard with respect 

to a class of unsecured claims even if it does not propose to pay 

them in full, as long as they receive as much as they would in liquidation, and as long as no claims junior to them receive any payment.55

A company in involuntary bankruptcy may also sell all or substantially all its assets if no order for relief has yet been entered. 

During the so-called ‘‘gap period’’ between the filing of the petition 

and the entry of the order for relief, the company may dispose of 

property ‘‘as if an involuntary case concerning the debtor had not 

been commenced,’’ notwithstanding section 363, unless the court orders otherwise.56

In a bankruptcy case where the debtor is liable under any law 

for claims arising from an Oil Pollution Act (OPA) incident,57 section 7 of this bill makes several amendments to the Bankruptcy 

Code to protect the holders of such claims. First, the bill amends 

section 363 to condition the sale or lease of all or substantially all 

of the debtor’s assets in a bankruptcy case where the company is 

liable for such claims. The sale or lease may not occur unless either: (1) the acquirer (including any affiliate thereof) assumes the 

obligation to pay the amount of allowed unsecured claims arising 

from such incident not paid by the debtor; or (2) creditors holding 

at least two-thirds in amount, and more than one-half in number, 

of such claims consent to different treatment. 

The amendment to 363 applies not only to property of the estate 

of the debtor, but also to property of any affiliate of the debtor to 

the extent the court has or can obtain jurisdiction over the affiliate. 

The Bankruptcy Code defines ‘‘affiliate,’’ in pertinent part, to include the parents and subsidiaries of corporate debtors who meet 

certain specified ownership criteria.58 Thus, in a chapter 11 case 

filed by a subsidiary with few assets, this bill will also condition 

sales by the debtor’s parent if the court has jurisdiction over the 

parent. 

The bill also amends Bankruptcy Code section 1129(b)(2)(B) to 

impose the same conditions on confirming a chapter 11 plan of reorganization. Thus, a plan of reorganization that proposes to sell 

or lease all or substantially all of the debtor’s assets must provide 


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59See, e.g., Landgraf v.USI Film Products, 511 U.S. 265 (1994); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15–16 (1976); U.S. v. Schooner Peggy, 5 U.S. (Cranch 1) 103, 110 (1801) 

(‘‘It is in the general true that the province of an appellate court is only to enquire whether 

a judgment when rendered was erroneous or not. But if subsequent to the judgment and before 

the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied.’’). 60 309 F.3d 662, 674 (9th Cir. 2002). 61 Robert Meltz and Kenneth Thomas, ‘‘Constitutional Issues Raised By Pending Bill to Expand Liability Under the Death on the High Seas Act and the Jones Act,’’ Congressional Research Service, June 28, 2010. 62 H.R. 800, the Protection of Lawful Commerce in Arms Act, introduced by Rep. Stearns (R– 

FL) in the 109th Congress (Senate version, S. 397, became Pub. L. 109–124) (‘‘A qualified civil 

liability action [against gun manufacturers or sellers] that is pending on the date of the enactment of this Act shall be dismissed immediately by the court in which the action was brought 

or is currently pending.’’). 63 H.R. 2926, Air Transportation Safety and System Stabilization Act, introduced by Rep. 

Young (R–AK) on September 21, 2001, and became Pub. L. 107–42 on September 22, 2001. 

(‘‘SEC. 408. Limitation on Air Carrier Liability (a) In General.’’ Notwithstanding any other provision of law, liability for all claims, whether for compensatory or punitive damages, arising 

from the terrorist-related aircraft crashes of September 11, 2001, against any air carrier shall 

not be in an amount greater than the limits of the liability coverage maintained by the air carrier.’’) 64S. 181, Lilly Ledbetter Fair Pay Act of 2009, introduced by Sen. Mikulski (D–MD) on January 8, 2009 in the 111th Congress, became Pub. L. 111–2 on January 29, 2009 (‘‘This Act, and 

the amendments made by this Act, take effect as if enacted on May 28, 2007 and apply to all 

Continued 

that either the acquirer (including any affiliate) will assume the obligation to pay the claims arising from the OPA incident if not paid 

by the debtor, or creditors holding at least two-thirds in amount, 

and more than one-half in number, of such claims must consent to 

different treatment. 

Finally, this bill amends Bankruptcy Code section 303(f) to ensure that creditors with claims arising from an incident under the 

OPA will be similarly protected during the period between an involuntary bankruptcy petition and an order for relief. 

F. Ensuring immediate applicability of improvements in the law 

Based on evidence gathered during the hearing on Liability 

Issues Surrounding the Gulf Coast Oil Disaster, the Committee determined that there were several reasons to apply this legislation 

to pending cases, including the gravity of the disaster on April 20, 

2010, the antiquated and inconsistent nature of much of the legal 

framework in maritime law, and the need for comprehensive and 

uniform application of the new legislation. 

It is long settled that as long as Congress has a rational purpose, 

it may elect to respond to an issue of public policy with legislation 

that is immediate in effect, without running afoul of the Constitution.59 The 9th Circuit, in Seariver Maritime Financial Holdings v. 

Mineta,60 held that legislation providing for immediate liability adjustments, even if it could apply to identifiable parties on the basis 

of ‘‘irreversible past actions,’’ is permissible so long as it furthers 

a ‘‘nonpunitive legislative purpose.’’ 

Moreover, analysis by the non-partisan Congressional Research 

Service confirms that ‘‘because H.R. 5503 does not impose criminal 

penalties, it raises no constitutionality concerns under the Ex Post 

Facto Clause.’’ 61

This provision is consistent with a number of statutory changes 

to liability law enacted in recent years, including laws partially immunizing gun sellers and manufacturers; 62 limiting liability of airlines and providing compensation for victims of the September 11, 

2001 attack; 63 providing compensation to workers subjected to unlawful employment practices; 64 expanding recovery under State 


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claims of discrimination in compensation under title VII of the Civil Rights Act of 1964 (42 

U.S.C. 2000e et seq.) the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.), 

title I and section 503 of the Americans with Disabilities Act of 1990, and sections 501 and 504 

of the Rehabilitation Act of 1973, that are pending on or after that date.’’) 65 Implementing Recommendations of the 9/11 Commission Act of 2007, Pub. L. No. 110–53 

(2007) (legislation contains a retroactivity provision, which clarifies that 49 U.S.C. § 20106 applies to all pending State law causes of action arising from activities or events occurring on or 

after January 18, 2002, the date of the Minot, North Dakota train derailment). 66 H.R. 1000, The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 

introduced by Rep. Shuster (R-PA) on March 3, 1999 in response to the Continental Express 

Flight 2574 in 1991 (became Pub. L. 106–181 on April 4, 2000) (‘‘The amendments [to DOHSA] 

made by subsections (a) and (b) shall apply to any death occurring after July 16, 1996’’). 67 428 U.S. 1 (1976). In Turner Elkhorn Mining Co., the Court upheld a statute which required mine operators to provide compensation for a former employee’s death or disability due 

to pneumoconiosis who terminated before the act’s passage and was challenged as a violation 

of the Due Process Clause of the Fifth Amendment. The Court held that immediate application 

of such civil liability statutes will be upheld as constitutional so long as there is a rational governmental purpose. 

law retroactively for cases stemming from the Minot, North Dakota 

train derailment; 65 and permitting non-pecuniary damages under 

DOSHA for aviation accidents on the high seas.66 Relevant Supreme Court precedent, in cases such as Usery v. Turner Elkhorn 

Mining Co.,67 have upheld immediate application of civil law 

changes of this nature. 

SUPPORTERS OF H.R. 5503 

The following individuals and organizations have written in support of H.R. 5503: 

• Survivors of workers killed in the Deepwater Horizon explosion, 

including Michelle, Keith, and Chris Jones, the widow, father, 

and brother of Gordon Jones; Natalie Roshto and Denise Arnold, 

widow and mother of Shane Roshto; Rhonda Burkeen, widow of 

Aaron Dale Burkeen; and Jacqueline Duncan, sister of Wyatt 

Kemp 

• David Erickson, father of Christopher Blair Erickson, killed by 

electrocution while working aboard the oil tanker S/R Wilmington, owned by a subsidary of Exxon-Mobile 

• Lynda Sanford, who was injured in a cruise ship accident that 

killed her mother and two other women and injured 13 other 

passengers 

• Mississippi Attorney General Jim Hood 

• The International Cruise Victims Association 

• The National Center for Victims of Crime 

• The National Organization of Parents of Murdered Children 

• Public Citizen 

• Alliance for Justice 

• National Consumers League 

• ConsumerWatchdog 

• Center for Justice & Democracy 

• Center for Biological Diversity 

• Friends of the Earth 

• U.S. Action 


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HEARINGS

The full Committee on the Judiciary held 1 day of hearings on 

May 27, 2010, to examine the liability issues stemming from the 

explosion on the Deepwater Horizon and the resulting oil spill. The 

witnesses who testified before the Committee were Keith D. Jones, 

Esq., father of Gordon Jones, who died while working on the Deepwater Horizon; Douglas Harold Brown, a Transocean, Ltd. employee and survivor of the Deepwater Horizon explosion; Stephen 

Stone, a Transocean, Ltd. employee and survivor of the Deepwater 

Horizon explosion; Bryan Encalade, President, Louisiana Oysters 

Association; Jim Hood, Attorney General for the State of Mississippi; Darryl Willis, Vice President, Resources, BP America; Rachel Clingman, Acting General Counsel, Transocean, Ltd.; James 

W. Ferguson, Vice President and Deputy General Counsel, Halliburton; William C. Lemmer, General Counsel, Cameron International Corporation; Vincent J. Foley, Partner, Holland & Knight; 

and Thomas C. Galligan, Jr., President and Professor, Colby-Sawyer College. 

COMMITTEE CONSIDERATION

On June 23, 2010, the Committee met in open session to mark 

up the bill H.R. 5503, and ordered the bill, as amended, favorably 

reported by a rollcall vote of 16 to 11, a quorum being present. 

COMMITTEE VOTES

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that the following 

rollcall votes occurred during the Committee’s consideration of H.R. 

5503. 

1. An amendment offered by Mr. Smith to limit the bill’s coverage to claims arising out of an oil spill. Defeated 19 to 14. 

ROLLCALL NO. 1 

Ayes Nays Present 

Mr. Conyers, Jr., Chairman ............................................................................... X 

Mr. Berman ....................................................................................................... X 

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................

Mr. Delahunt .....................................................................................................

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu ............................................................................................................. X 

Mr. Deutch ........................................................................................................ X 

Mr. Gutierrez .....................................................................................................

Ms. Baldwin ...................................................................................................... X 

Mr. Gonzalez ...................................................................................................... X 

Mr. Weiner ......................................................................................................... X 

Mr. Schiff .......................................................................................................... X 

Ms. Sa ́nchez ...................................................................................................... X 

Mr. Maffei ......................................................................................................... X 


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ROLLCALL NO. 1—Continued 

Ayes Nays Present 

Mr. Polis ............................................................................................................

Mr. Smith, Ranking Member ............................................................................. X 

Mr. Sensenbrenner, Jr. ...................................................................................... X 

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren .......................................................................................................

Mr. Issa ............................................................................................................. X 

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ......................................................................................................

Mr. Jordan ......................................................................................................... X 

Mr. Poe .............................................................................................................. X 

Mr. Chaffetz ...................................................................................................... X 

Mr. Rooney ........................................................................................................ X 

Mr. Harper ......................................................................................................... X 

Total ................................................................................................ 14 19 

2. An amendment offered by Mr. Goodlatte to limit the Class Action Fairness Act amendment to class actions arising out of an oil 

spill. Defeated 16 to 12. 

ROLLCALL NO. 2 

Ayes Nays Present 

Mr. Conyers, Jr., Chairman ............................................................................... X 

Mr. Berman .......................................................................................................

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................ X 

Mr. Delahunt .....................................................................................................

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................

Ms. Chu ............................................................................................................. X 

Mr. Deutch ........................................................................................................ X 

Mr. Gutierrez .....................................................................................................

Ms. Baldwin ...................................................................................................... X 

Mr. Gonzalez ......................................................................................................

Mr. Weiner ......................................................................................................... X 

Mr. Schiff .......................................................................................................... X 

Ms. Sa ́nchez ......................................................................................................

Mr. Maffei ......................................................................................................... X 

Mr. Polis ............................................................................................................

Mr. Smith, Ranking Member ............................................................................. X 

Mr. Sensenbrenner, Jr. ......................................................................................

Mr. Coble ...........................................................................................................

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren ....................................................................................................... X 

Mr. Issa .............................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ......................................................................................................

Mr. Jordan ......................................................................................................... X 


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19 

ROLLCALL NO. 2—Continued 

Ayes Nays Present 

Mr. Poe .............................................................................................................. X 

Mr. Chaffetz ...................................................................................................... X 

Mr. Rooney ........................................................................................................ X 

Mr. Harper ......................................................................................................... X 

Total ................................................................................................ 12 16 

3. Motion to order the bill favorably reported, as amended. Approved 16–11. 

ROLLCALL NO. 3 

Ayes Nays Present 

Mr. Conyers, Jr., Chairman ............................................................................... X 

Mr. Berman .......................................................................................................

Mr. Boucher ....................................................................................................... X 

Mr. Nadler .........................................................................................................

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................

Mr. Delahunt .....................................................................................................

Mr. Cohen ..........................................................................................................

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu ............................................................................................................. X 

Mr. Deutch ........................................................................................................ X 

Mr. Gutierrez .....................................................................................................

Ms. Baldwin ...................................................................................................... X 

Mr. Gonzalez ......................................................................................................

Mr. Weiner .........................................................................................................

Mr. Schiff .......................................................................................................... X 

Ms. Sa ́nchez ...................................................................................................... X 

Mr. Maffei ......................................................................................................... X 

Mr. Polis ............................................................................................................ X 

Mr. Smith, Ranking Member ............................................................................. X 

Mr. Sensenbrenner, Jr. ......................................................................................

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren ....................................................................................................... X 

Mr. Issa .............................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ...................................................................................................... X 

Mr. Jordan ......................................................................................................... X 

Mr. Poe .............................................................................................................. X 

Mr. Chaffetz ...................................................................................................... X 

Mr. Rooney ........................................................................................................ X 

Mr. Harper .........................................................................................................

Total ................................................................................................ 16 11 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of RepVerDate Mar 15 2010 02:14 Jul 01, 2010 Jkt 089006 PO 00000 Frm 00019 Fmt 6659 Sfmt 6601 E:\HR\OC\HR521P1.XXX HR521P1

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resentatives, are incorporated in the descriptive portions of this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 

COMMITTEE COST ESTIMATE

The Congressional Budget Office (CBO) estimate of the costs of 

implementing H.R. 5503 was not available as the time of filing this 

report. When the CBO letter setting forth its official cost estimate 

becomes available, it will be printed in the Congressional Record. 

In compliance with clause 3(d)(2) of rule XIII of the Rules of the 

House of Representatives, the Committee estimates the costs as follows: 

The Committee does not anticipate that the bill will have any 

significant effect on the Federal budget, nor that it will result in 

any unfunded mandate or any significant new costs to the U.S. 

economy. The bill amends various existing laws governing private 

and State government actions for recovery of damages for tortious 

conduct, conditions the sale of certain assets in bankruptcy under 

certain conditions, and adds a new restriction on the enforcement 

of secrecy agreements unless necessary to protect public health or 

safety. 

PERFORMANCE GOALS AND OBJECTIVES

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, H.R. 5503 amends 

the Death on the High Seas Act, the Jones Act, the Class Action 

Fairness Act, and the Bankruptcy Code, repeals the Limitations on 

Liability Act, and limits the enforceability of secrecy agreements 

regarding the discharge of dangerous materials into waters off the 

shore of the United States. This will improve the relief available 

for death or injury on the high seas, help ensure accountability of 

companies responsible for environmental and physical disasters at 

sea, hold polluting entities accountable to a high level of transparency, and secure the right of State attorneys general to bring 

court actions on behalf of citizens of their State, under the law of 

their State, in their State courts. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee finds authority for this legislation in article I, section 8, clauses 4 and 18 of the Constitution. 

ADVISORY ON EARMARKS

In accordance with clause 9 of rule XXI of the Rules of the House 

of Representatives, H.R. 5503 does not contain any congressional 

earmarks, limited tax benefits, or limited tariff benefits as defined 

in such clause 9. 


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SECTION-BY-SECTION ANALYSIS

The following discussion describes the bill as reported by the 

Committee. 

Sec. 1. Short Title. Section 1 sets forth the short title of the bill 

as the ‘‘Securing Protection for the Injured from Limitations on Liability Act.’’ 

Sec. 2. Amendments to Death on the High Seas Act. Section 2 

makes various amendments to the Death on the High Seas Act 

(DOHSA). Section 2(1) amends 46 U.S.C. § 30302 to allow the personal representative to bring suit under law as well as admiralty, 

thus permitting a jury trial; to standardize the threshold for 

DOHSA’s applicability at beyond 12 nautical miles from the U.S. 

shore; and to permit State law to govern who is eligible to receive 

compensation, by deleting language that confines those eligible to 

the decedent’s spouse, parent, child, or dependent relative. 

Section 2(2) amends 46 U.S.C. § 30303 to permit recovery for 

non-pecuniary loss (defined as the survivors’ loss of the care, comfort, and companionship provided by the decedent), as well as for 

the pain and suffering endured by the decedent prior to death. 

Sections 2(3) and 2(4) make conforming changes to other sections 

of DOHSA to ensure that actions can be brought in law as well as 

in admiralty. 

Section 2(5) strikes 46 U.S.C. § 30307, which provides special 

rules governing commercial aviation. As the bill now essentially 

makes these special rules applicable universally, this section is unnecessary. 

Section 2(6) revises the clarifications, in what is now 46 U.S.C. 

§ 30308, and will become redesignated as 46 U.S.C. § 30307, as to 

what law applies on the Great Lakes and in waters within the 12- 

mile limit. It confirms that the rules applicable under Federal, 

State, maritime, and other appropriate law shall apply. 

Section 2(7) makes a conforming change to the table of sections 

in chapter 303 of 46 U.S.C. 

Sec. 3. Amendments to Jones Act. Section 3 makes two amendments to the Jones Act. Section 3(1) amends 46 U.S.C. 30104 to 

add non-pecuniary loss to the recovery permitted by the survivors 

of a seaman who is killed in the course of employment. Section 3(2) 

strikes 46 U.S.C. § 30105, which currently bars recovery by a worker who is not a U.S. citizen or permanent resident, or the worker’s 

survivors, against mineral or energy companies for personal injury 

or death occurring in the territorial waters or continental shelf of 

a foreign state, unless neither the law of that foreign state nor the 

law of the worker’s country of citizenship or residence makes any 

remedy available. 

Sec. 4. Repeal of Limitation of Liability Act. Section 4 repeals the 

Limitation of Liability Act, now found in 46 U.S.C. §§ 30505, 30506, 

30507, 30511, and 30512. 

Sec. 5. Amendment to Class Action Fairness Act. Section 5 

amends the Class Action Fairness Act to clarify that the right to 

remove class actions and mass actions to Federal court does not 

apply to an action brought by a State (or subdivision of a State) 

in its own State court on behalf of citizens of that State. Substantively equivalent clarifications are made to 28 U.S.C. 

§§ 1711(2), 1332(d)(1)(B), and 1332(d)(11)(B)(ii). 


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Sec. 6. Unenforceability of Certain Secrecy Agreements. Section 6 

adds a new section 4101 to 28 U.S.C., to make unenforceable in 

any legal proceeding secrecy agreements or directives regarding the 

cause of a discharge of contaminants into the waters off the shore 

of the United States or regarding the cleanup efforts. There is an 

exception for directives in court orders or by a government agency 

determination that the restriction is necessary to protect public 

health or safety. Any court order enforcing a restriction on this 

basis must be based on clear and convincing evidence, and must be 

accompanied by findings of fact and conclusions of law supporting 

it. 

Sec. 7. Amendments to Title 11 of the United States Code. Section 

7 amends the Bankruptcy Code to place conditions on the sale or 

lease of all or substantially all property of a company in bankruptcy that is liable under any law for claims arising from an incident covered under the Oil Pollution Act. Related amendments are 

made to 11 U.S.C. §§ 363, 1129(b)(2)(B), and 303(f). No such sale 

or lease is permitted unless (1) the entity that acquires the property (including all the entity’s affiliates, if any) assumes the obligation to pay whatever amount of those claims is not paid by the 

company in bankruptcy, or (2) more than one-half the claimants, 

holding at least two-thirds the dollar aggregate amount of the 

claims, consent to different treatment. 

Sec. 8. Effective Date. Section 8 provides that the bill and the 

amendments made by it take effect immediately on the date of enactment and apply to all pending and future cases. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, 

existing law in which no change is proposed is shown in roman): 

TITLE 46, UNITED STATES CODE 

* * * * * * * 

Subtitle III—Maritime Liability 

* * * * * * * 

CHAPTER 301—GENERAL LIABILITY PROVISIONS 

Sec. 

30101. Extension of jurisdiction to cases of damage or injury on land. 

* * * * * * * 

ø30105. Restriction on recovery by non-citizens and non-resident aliens for incidents 

in waters of other countries.¿ 

* * * * * * * 

§ 30104. Personal injury to or death of seamen 

A seaman injured in the course of employment or, if the seaman 

dies from the injury, the personal representative of the seaman 

may elect to bring a civil action at law, with the right of trial by 

jury, against the employer. Laws of the United States regulating 


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recovery for personal injury to, or death of, a railway employee 

apply to an action under this section. In addition to other amounts 

authorized under such laws, the recovery for a seaman who so dies 

shall include recovery for loss of care, comfort, and companionship. 

ø§ 30105. Restriction on recovery by non-citizens and nonresident aliens for incidents in waters of other 

countries 

ø(a) DEFINITION.—In this section, the term ‘‘continental shelf ’’ 

has the meaning given that term in article I of the 1958 Convention on the Continental Shelf. 

ø(b) RESTRICTION.—Except as provided in subsection (c), a civil 

action for maintenance and cure or for damages for personal injury 

or death may not be brought under a maritime law of the United 

States if— 

ø(1) the individual suffering the injury or death was not a 

citizen or permanent resident alien of the United States at the 

time of the incident giving rise to the action; 

ø(2) the incident occurred in the territorial waters or waters 

overlaying the continental shelf of a country other than the 

United States; and 

ø(3) the individual suffering the injury or death was employed at the time of the incident by a person engaged in the 

exploration, development, or production of offshore mineral or 

energy resources, including drilling, mapping, surveying, diving, pipelaying, maintaining, repairing, constructing, or transporting supplies, equipment, or personnel, but not including 

transporting those resources by a vessel constructed or adapted 

primarily to carry oil in bulk in the cargo spaces. 

ø(c) NONAPPLICATION.—Subsection (b) does not apply if the individual bringing the action establishes that a remedy is not available under the laws of— 

ø(1) the country asserting jurisdiction over the area in which 

the incident occurred; or 

ø(2) the country in which the individual suffering the injury 

or death maintained citizenship or residency at the time of the 

incident.¿ 

* * * * * * * 

CHAPTER 303—DEATH ON THE HIGH SEAS 

Sec. 

30301. Short title. 

* * * * * * * 

ø30307. Commercial aviation accidents. 

ø30308. Nonapplication.¿ 

30307. Nonapplication. 

§ 30301. Short title 

This chapter may be cited as the ‘‘Death on the High Seas Act’’. 

§ 30302. Cause of action 

When the death of an individual is caused by wrongful act, neglect, or default occurring on the high seas beyond ø3 nautical 

miles¿ 12 nautical miles from the shore of the United States, the 

personal representative of the decedent may bring a civil action in 


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admiralty or law against the person or vessel responsible. øThe action shall be for the exclusive benefit of the decedent’s spouse, parent, child, or dependent relative.¿ 

§ 30303. Amount and apportionment of recovery 

The recovery in an action under this chapter shall be a fair compensation for the pecuniary loss and nonpecuniary loss sustained 

øby the individuals for whose benefit the action is brought. The 

court shall apportion the recovery among those individuals in proportion to the loss each has sustained.¿, plus a fair compensation 

for the decedent’s pain and suffering. In this section, the term ‘‘nonpecuniary loss’’ means loss of care, comfort, and companionship. 

* * * * * * * 

§ 30305. Death of plaintiff in pending action 

If a civil action in admiralty or law is pending in a court of the 

United States to recover for personal injury caused by wrongful act, 

neglect, or default described in section 30302 of this title, and the 

individual dies during the action as a result of the wrongful act, 

neglect, or default, the personal representative of the decedent may 

be substituted as the plaintiff and the action may proceed under 

this chapter for the recovery authorized by this chapter. 

§ 30306. Foreign cause of action 

When a cause of action exists under the law of a foreign country 

for death by wrongful act, neglect, or default on the high seas, a 

civil action in admiralty or law may be brought in a court of the 

United States based on the foreign cause of action, without abatement of the amount for which recovery is authorized. 

ø§ 30307. Commercial aviation accidents 

ø(a) DEFINITION.—In this section, the term ‘‘nonpecuniary damages’’ means damages for loss of care, comfort, and companionship. 

ø(b) BEYOND 12 NAUTICAL MILES.—In an action under this chapter, if the death resulted from a commercial aviation accident occurring on the high seas beyond 12 nautical miles from the shore 

of the United States, additional compensation is recoverable for 

nonpecuniary damages, but punitive damages are not recoverable. 

ø(c) WITHIN 12 NAUTICAL MILES.—This chapter does not apply if 

the death resulted from a commercial aviation accident occurring 

on the high seas 12 nautical miles or less from the shore of the 

United States.¿ 

§ ø30308.¿ 30307. Nonapplication 

(a) * * * 

ø(b) INTERNAL WATERS.—This chapter does not apply to the 

Great Lakes or waters within the territorial limits of a State.¿ 

(b) INTERNAL AND TERRITORIAL WATERS.—This chapter does not 

apply to the waters of the Great Lakes or waters within the territorial limits of a State that do not exceed 12 nautical miles from 

the shore of the United States. In such waters, the rules applicable 

under Federal, State, maritime, and other appropriate law shall 

apply. 


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CHAPTER 305—EXONERATION AND LIMITATION OF 

LIABILITY 

Sec. 

30501. Definition. 

* * * * * * * 

ø30505. General limit of liability. 

ø30506. Limit of liability for personal injury or death. 

ø30507. Apportionment of losses.¿ 

* * * * * * * 

ø30511. Action by owner for limitation. 

ø30512. Liability as master, officer, or seaman not affected.¿ 

* * * * * * * 

ø§ 30505. General limit of liability 

ø(a) IN GENERAL.—Except as provided in section 30506 of this 

title, the liability of the owner of a vessel for any claim, debt, or 

liability described in subsection (b) shall not exceed the value of the 

vessel and pending freight. If the vessel has more than one owner, 

the proportionate share of the liability of any one owner shall not 

exceed that owner’s proportionate interest in the vessel and pending freight. 

ø(b) CLAIMS SUBJECT TO LIMITATION.—Unless otherwise excluded 

by law, claims, debts, and liabilities subject to limitation under 

subsection (a) are those arising from any embezzlement, loss, or destruction of any property, goods, or merchandise shipped or put on 

board the vessel, any loss, damage, or injury by collision, or any 

act, matter, or thing, loss, damage, or forfeiture, done, occasioned, 

or incurred, without the privity or knowledge of the owner. 

ø(c) WAGES.—Subsection (a) does not apply to a claim for wages. 

ø§ 30506. Limit of liability for personal injury or death 

ø(a) APPLICATION.—This section applies only to seagoing vessels, 

but does not apply to pleasure yachts, tugs, towboats, towing vessels, tank vessels, fishing vessels, fish tender vessels, canal boats, 

scows, car floats, barges, lighters, or nondescript vessels. 

ø(b) MINIMUM LIABILITY.—If the amount of the vessel owner’s liability determined under section 30505 of this title is insufficient 

to pay all losses in full, and the portion available to pay claims for 

personal injury or death is less than $420 times the tonnage of the 

vessel, that portion shall be increased to $420 times the tonnage 

of the vessel. That portion may be used only to pay claims for personal injury or death. 

ø(c) CALCULATION OF TONNAGE.—Under subsection (b), the tonnage of a self-propelled vessel is the gross tonnage without deduction for engine room, and the tonnage of a sailing vessel is the tonnage for documentation. However, space for the use of seamen is 

excluded. 

ø(d) CLAIMS ARISING ON DISTINCT OCCASIONS.—Separate limits 

of liability apply to claims for personal injury or death arising on 

distinct occasions. 

ø(e) PRIVITY OR KNOWLEDGE.—In a claim for personal injury or 

death, the privity or knowledge of the master or the owner’s superintendent or managing agent, at or before the beginning of each 

voyage, is imputed to the owner. 


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ø§ 30507. Apportionment of losses 

øIf the amounts determined under sections 30505 and 30506 of 

this title are insufficient to pay all claims— 

ø(1) all claimants shall be paid in proportion to their respective losses out of the amount determined under section 30505 

of this title; and 

ø(2) personal injury and death claimants, if any, shall be 

paid an additional amount in proportion to their respective 

losses out of the additional amount determined under section 

30506(b) of this title.¿ 

* * * * * * * 

ø§ 30511. Action by owner for limitation 

ø(a) IN GENERAL.—The owner of a vessel may bring a civil action 

in a district court of the United States for limitation of liability 

under this chapter. The action must be brought within 6 months 

after a claimant gives the owner written notice of a claim. 

ø(b) CREATION OF FUND.—When the action is brought, the owner 

(at the owner’s option) shall— 

ø(1) deposit with the court, for the benefit of claimants— 

ø(A) an amount equal to the value of the owner’s interest in the vessel and pending freight, or approved security; 

and 

ø(B) an amount, or approved security, that the court 

may fix from time to time as necessary to carry out this 

chapter; or 

ø(2) transfer to a trustee appointed by the court, for the benefit of claimants— 

ø(A) the owner’s interest in the vessel and pending 

freight; and 

ø(B) an amount, or approved security, that the court 

may fix from time to time as necessary to carry out this 

chapter. 

ø(c) CESSATION OF OTHER ACTIONS.—When an action has been 

brought under this section and the owner has complied with subsection (b), all claims and proceedings against the owner related to 

the matter in question shall cease. 

ø§ 30512. Liability as master, officer, or seaman not affected 

øThis chapter does not affect the liability of an individual as a 

master, officer, or seaman, even though the individual is also an 

owner of the vessel.¿ 

* * * * * * * 

TITLE 28, UNITED STATES CODE 

* * * * * * * 

PART IV—JURISDICTION AND VENUE 

* * * * * * * 


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CHAPTER 85—DISTRICT COURTS; JURISDICTION 

* * * * * * * 

§ 1332. Diversity of citizenship; amount in controversy; costs 

(a) * * * 

* * * * * * * 

(d)(1) In this subsection— 

(A) * * * 

(B) the term ‘‘class action’’ means any civil action filed under 

rule 23 of the Federal Rules of Civil Procedure or similar State 

statute or rule of judicial procedure authorizing an action to be 

brought by 1 or more representative persons as a class action, 

but does not include an action brought by a State or subdivision of a State on behalf of its citizens; 

* * * * * * * 

(11)(A) * * * 

(B)(i) * * * 

(ii) As used in subparagraph (A), the term ‘‘mass action’’ shall 

not include any civil action in which— 

(I) * * * 

* * * * * * * 

(III) all of the claims in the action are asserted on behalf of 

the general public (and not on behalf of individual claimants 

or members of a purported class) pursuant to a State statute 

specifically authorizing such action; øor¿ 

(IV) the claims have been consolidated or coordinated solely 

for pretrial proceedingsø.¿; or 

(V) the claims are made by a State or subdivision of a State 

on behalf of its citizens. 

* * * * * * * 

PART V—PROCEDURE 

* * * * * * * 

CHAPTER 114—CLASS ACTIONS 

* * * * * * * 

§ 1711. Definitions 

In this chapter: 

(1) * * * 

(2) CLASS ACTION.—The term ‘‘class action’’ means any civil 

action filed in a district court of the United States under rule 

23 of the Federal Rules of Civil Procedure or any civil action 

that is removed to a district court of the United States that 

was originally filed under a State statute or rule of judicial 

procedure authorizing an action to be brought by 1 or more 

representatives as a class action, but does not include an action 

brought by a State or subdivision of a State on behalf of its citizens. 

* * * * * * * 


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PART VI—PARTICULAR PROCEEDINGS 

CHAP. Sec. 

151. Declaratory Judgments ......................................................................... 2201 

* * * * * * * 

181. Unenforceability of Certain Secrecy Agreements ............................. 4101 

* * * * * * * 

CHAPTER 181—UNENFORCEABILITY OF CERTAIN 

SECRECY AGREEMENTS 

Sec. 

4101. Unenforceability of certain secrecy agreements. 

§ 4101. Unenforceability of certain secrecy agreements 

(a) IN GENERAL.—Subject to subsection (b), an agreement, promise, or directive to restrict the dissemination of information regarding the cause of a discharge into waters off the shore of the United 

States of a substance that contaminates a marine or coastal environment or endangers public health, regarding the nature or extent 

of such a discharge, regarding the damage caused or threatened by 

such a discharge, or regarding the efforts to remediate the effects of 

such a discharge, shall be void as against public policy and unenforceable in any legal proceeding. 

(b) EXCEPTION.— 

(1) GENERALLY.—Subsection (a) does not apply with respect to 

a directive contained in a court order, or issued by a Government agency with authority to enforce such a directive in a 

court, restricting dissemination of information as necessary to 

protect public health or safety. 

(2) PROCEDURE RELATING TO EXCEPTION.— 

(A) A court shall not grant judicial enforcement of a directive or order described in paragraph (1) unless the proponent of the directive or order proves by clear and convincing evidence that such enforcement is permitted under 

paragraph (1). 

(B) If a court grants judicial enforcement of any directive 

or order described in paragraph (1), the court shall state 

the court’s factual findings and conclusions of law relating 

to that enforcement on the record. 

* * * * * * * 

TITLE 11, UNITED STATES CODE 

* * * * * * * 

CHAPTER 3—CASE ADMINISTRATION 

* * * * * * * 

SUBCHAPTER I—COMMENCEMENT OF A CASE 

* * * * * * * 


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§ 303. Involuntary cases 

(a) * * * 

* * * * * * * 

(f) Notwithstanding section 363 of this title, except to the extent 

that the court orders otherwise, and until an order for relief in the 

case, any business of the debtor may continue to operate, and the 

debtor may continue to use, acquire, or dispose of property as if an 

involuntary case concerning the debtor had not been commenced. 

If the debtor is liable under any law for a claim arising from an 

incident (as defined in section 1001 of the Oil Pollution Act of 1990, 

and that gives rise to liability under such Act), the debtor may not 

sell or lease all or substantially all property of the debtor (or, to the 

extent that the court has or can obtain jurisdiction over any affiliate 

of the debtor, property of such affiliate) unless the entity that acquires such property (including any affiliate of such entity) assumes 

the obligation to pay the amount of allowed unsecured claims arising from such incident that is not paid by the debtor, or creditors 

holding at least two-thirds in amount, and more than one-half in 

number, of such claims consent to different treatment. 

* * * * * * * 

SUBCHAPTER IV—ADMINISTRATIVE POWERS 

* * * * * * * 

§ 363. Use, sale, or lease of property 

(a) * * * 

* * * * * * * 

(q) Notwithstanding any other provision of this section, if the 

debtor is liable under any law for a claim arising from an incident 

(as defined in section 1001 of the Oil Pollution Act of 1990, and that 

gives rise to liability under such Act), the trustee may not sell or 

lease all or substantially all property of the estate of the debtor (or, 

to the extent that the court has or can obtain jurisdiction over any 

affiliate of the debtor, property of such affiliate) unless the entity 

that acquires such property (including any affiliate of such entity) 

assumes the obligation to pay the amount of allowed unsecured 

claims arising from such incident that is not paid by the debtor, or 

unless creditors holding at least two-thirds in amount, and more 

than one-half in number, of such claims consent to different treatment. 

* * * * * * * 

CHAPTER 11—REORGANIZATION 

* * * * * * * 

SUBCHAPTER II—THE PLAN 

* * * * * * * 

§ 1129. Confirmation of plan 

(a) * * * 

(b)(1) * * * 


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(2) For the purpose of this subsection, the condition that a plan 

be fair and equitable with respect to a class includes the following 

requirements: 

(A) * * * 

(B) With respect to a class of unsecured claims— 

(i) the plan provides that each holder of a claim of such 

class receive or retain on account of such claim property of 

a value, as of the effective date of the plan, equal to the 

allowed amount of such claim; øor¿ 

(ii) the holder of any claim or interest that is junior to 

the claims of such class will not receive or retain under the 

plan on account of such junior claim or interest any property, except that in a case in which the debtor is an individual, the debtor may retain property included in the estate under section 1115, subject to the requirements of 

subsection (a)(14) of this sectionø.¿; or 

(iii) that includes claims of the kind described in section 

363(q), if the plan provides for a sale or lease of all or substantially all of property of the estate, the plan requires the 

entity that acquires such property (including any affiliate of 

such entity) to assume the obligation to pay the amount of 

allowed unsecured claims arising from an incident described in section 363(q) that is not paid by the debtor, or 

creditors holding at least two-thirds in amount, and more 

than one-half in number, of such claims consent to different 

treatment. 


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1The Harrisburg, 119 U.S. 199 (1886) (holding that admiralty afforded no remedy for wrongful 

death in the absence of an applicable state or Federal statute). In 1970, the Supreme Court reversed its decision in The Harrisburg and provided for a general maritime cause of action for 

wrongful death. Moragne v. States Marines Lines, 398 U.S. 375 (1970). The general maritime 

cause of action is not applicable in cases in which other Federal statutory law (e.g., the Jones 

Act or DOHSA) applies. 

ADDITIONAL VIEWS

No one wants to see BP, Transocean, or any other party responsible for the Gulf coast oil disaster let off the hook for the tremendous amount of damage they have caused to the Gulf of Mexico and 

surrounding coastal states or for the lives lost in the fire and explosion aboard the Deepwater Horizon. Those responsible for this tragedy, and the economic damage, personal injury, and death it has 

caused, must be held fully accountable. 

H.R. 5503, the ‘‘Securing Protections for the Injured from Limitations on Liability Act,’’ was introduced in response to liability questions that have arisen in the wake of the Gulf oil spill. Certainly, 

the intent underlying this legislation is good. However, H.R. 5503 

is a very broad bill with only two major provisions directed solely 

at oil-spill related issues. The bill will likely have unintended consequences that reach well beyond the Gulf oil spill. Despite the fact 

that the bill is not emergency legislation aimed directly at the ongoing spill and that the bill applies retroactively, obviating the 

need for immediate, expedited consideration, the Committee did 

not hold a single legislative hearing on any of the bill’s provisions 

to help understand their full impact. 

Nonetheless, without the benefit of even a single legislative hearing, H.R. 5503 virtually re-writes U.S. maritime law, making portions of it out-of-step with the maritime-liability laws of nearly 

every other seagoing nation; eliminates important provisions of the 

Class Action Fairness Act, a statute passed just 5 years ago, with 

strong bi-partisan support, to ensure that class actions are decided 

in a neutral, fair forum—the Federal courts; and makes significant 

amendments to provisions of the Bankruptcy Code for debtors with 

oil-spill liability. Given the sweeping nature of the changes in this 

bill and the lack of committee process to create a record so members could understand its full effects, we were unable to support 

this legislation. 

BACKGROUND

A. Death on the High Seas Act 

Before the enactment of the Death on the High Seas Act 

(DOHSA), general maritime law did not permit the survivors of a 

person killed on the high seas to bring an action for wrongful 

death.1 In 1920, Congress enacted DOHSA to remedy this harsh 

consequence of general maritime law and create a cause of action 

in admiralty for wrongful deaths occurring more than three miles 


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2 46 U.S.C. § 30302. 

3 46 U.S.C. § 30106. 

4 46 U.S.C. § 30305. 

5 46 U.S.C. § 30304. 

6 46 U.S.C. § 30303. 

7Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 209 (1986). 8Dooley v. Korean Air Lines Co., 524 U.S. 116, 118 (1998). 9 45 U.S.C. §§ 51–60. 

10To be considered a substantial connection with a vessel, the worker must spend at least 

30 percent of his time in the service of a vessel on navigable waters. Chandris, Inc., v. Latsis, 

515 U.S. 347 (1995). 11See Ninth Circuit Model Civil Jury Instructions No. 9.4. 12 Comeaux v. T.L. James & Co., Inc., 702 F.2d 1023 (5th Cir. 1983). 

from shore, outside the territorial waters of the states. DOHSA 

limits the class of beneficiaries to the decedent’s ‘‘spouse, parent, 

child, or dependent relative,’’ 2 establishes a 3-year period of limitations,3 allows suits filed by the victim to continue as wrongfuldeath actions if the victim dies of his injuries while the action is 

pending,4 and provides that contributory negligence will not bar recovery.5 With respect to damages, the statute provides that the ‘‘recovery . . . shall be a fair compensation for the pecuniary loss sustained by the individuals for whose benefit the action is brought.’’ 6

Liability may be based on intentional acts, negligence, or 

unseaworthiness. DOHSA preempts all state wrongful death statutes 7 and actions under general maritime law.8

B. Jones Act 

In 1920, Congress enacted the Jones Act to remove the maritime 

law’s bar to a seaman’s suit for negligence. Under the Jones Act, 

which makes applicable to seamen injured in the course of their 

employment the provisions of the Federal Employers’ Liability 

Act,9 employees have a right of recovery for injuries resulting from 

the negligence of the shipowner, the operator, the captain, or fellow 

members of the crew. The Jones Act does not allow for the recovery 

of non-pecuniary damages. An action under the Act may be brought 

either in Federal court or state court, and a seaman is entitled to 

a jury trial (a right which is not afforded by general maritime law). 

In order to be considered a ‘‘Jones Act seaman,’’ a worker must 

have (1) an employment-related connection, which is substantial in 

both nature and duration,10 (2) to a vessel in navigation. 

The Jones Act is best thought of as an analog to land-based 

workers’ compensation laws, which do not apply to seamen working 

on U.S.-flagged vessels. Proof of negligence under the Jones Act 

does not require as high a burden of proof as is required for the 

general common law tort of negligence. Under the Jones Act, an injured seaman only needs to prove that his employer’s negligence is 

‘‘a’’ cause of his injuries. Thus, an employer is liable under the 

Jones Act if the employer’s actions ‘‘played any part, no matter how 

small, in bringing about the injury or damage.’’ 11 Courts have described the seaman’s burden of proving Jones Act negligence as 

‘‘featherweight.’’ 12

C. Limitation of Liability Act 

Congress enacted the Limitation of Liability Act (Liability Act) to 

encourage shipbuilding and to induce investment in the maritime 

industry by limiting the liability of vessel owners to the value of 

the vessel involved, together with its freight then pending. Claims 


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13 28 U.S.C. § 1332. 14Davis v. Carl Cannon Chevrolet-Olds, Inc. 182. F.3d 792, 797 (11th Cir. 1999). 

for personal injury and death have higher limits of liability over 

and above the value of the vessel and its freight. Additionally, certain other claims, including those for breach of contract, wages and 

environmental damage, are not subject to any limitation. A shipowner may invoke the protection of the Liability Act in two ways: 

(1) by asserting limitation of liability as a defense to a lawsuit; and 

(2) by filing a petition in Federal court seeking either exoneration 

from or limitation of liability and requiring all parties to bring 

their claims into that court. For purposes of H.R. 5503 and the 

Gulf oil spill, the two most important features of the Liability Act 

are the provisions concerning personal injury and death and the 

concursus provision that requires all claims to be filed before one 

Federal court. 

It is important to note that liability for oil spill and pollution related claims under the Oil Pollution Act are not covered by the Liability Act. The Oil Pollution Act has been interpreted to apply exclusively to such claims notwithstanding the Liability Act. 

D. Class Action Fairness Act 

Prior to enactment of the Class Action Fairness Act, most class 

actions were adjudicated in state courts, where the governing rules 

were applied inconsistently and often in a way that violated basic 

fairness and due process, and where there was often inadequate supervision over litigation procedures and proposed settlements. The 

Act corrected those flaws in the diversity jurisdiction statute 13 that 

prevented most interstate class actions from being adjudicated in 

Federal courts. Thus, it furthered one of the primary historical reasons for diversity jurisdiction, which ‘‘is the reassurance of fairness 

and competence that a Federal court can supply to an out-of-state 

defendant facing suit in state court.’’ 14

As relevant to H.R. 5503, the Class Action Fairness Act (CAFA) 

amended 28 U.S.C. § 1332 to provide Federal district courts with 

original jurisdiction of class actions if there are 100 or more class 

members, the aggregate amount in controversy exceeds $5,000,000, 

and: (A) any class member is a citizen of a state different from any 

defendant; (B) any member of the plaintiff class is a foreign state, 

or a citizen or subject of a foreign state, and any defendant is a 

citizen of a state; or (C) any member of the plaintiff class is a citizen of a state and any defendant is a foreign state or a citizen or 

subject of a foreign state. This change was a stark contrast to prior 

law, which required diversity of citizenship between every class 

representative and also required that every plaintiff seek damages 

in excess of $75,000. The pre-CAFA system easily allowed plaintiffs 

to avoid removal to Federal court by including a single non-diverse 

class representative, or by limiting an individual plaintiff’s claims 

to under $75,000. 

DISCUSSION

In general, we opposed H.R. 5503 in committee for two main reasons. First, although H.R. 5503 is being pushed as a response to 

liability issues that have arisen in the wake of the Gulf oil spill (inVerDate Mar 15 2010 02:14 Jul 01, 2010 Jkt 089006 PO 00000 Frm 00033 Fmt 6604 Sfmt 6604 E:\HR\OC\HR521P1.XXX HR521P1

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deed the acronym for the bill is the ‘‘SPILL Act’’), the provisions 

in the bill are not limited to either the Gulf oil spill or oil spills 

generally. Rather, the bill’s provisions make major changes to, 

among other things, U.S. maritime liability laws, the Class Action 

Fairness Act, and the Bankruptcy Code. In other words, the bill affects a wide range of interests that not only have no association 

with the Gulf oil spill, but are not even associated with the oil industry. 

Second, the bill is making these changes without even the benefit 

of one legislative hearing. Without a legislative hearing, we have 

no clear understanding of the full impact of the bill’s provisions. 

Understandably, sometimes legislation must move on an expedited 

basis to respond to emergencies; however, by its own terms H.R. 

5503 applies retroactively, providing the committee with a window 

of time in which to conduct the hearings required to ensure that 

the changes made by the bill are necessary and that the unintended consequences are limited. 

Beyond these two overarching concerns with H.R. 5503, we have 

several specific concerns with the bill’s provisions: 

Non-pecuniary damages. H.R. 5503 provides for non-pecuniary 

damages under both the Death on the High Seas Act and the Jones 

Act. While it is understandable that in the wake of this tragedy, 

and in the name of holding the responsible parties fully accountable, there would be a push to provide decedents with the ability 

to claim additional damages, the non-pecuniary damages provisions 

apply to all cases brought under both acts and thus will have broad 

impact. It is unclear how significantly this change will affect U.S. 

maritime interests. However, we do know that in general awards 

of non-pecuniary damages are unpredictable, resulting from the inherent difficulties in valuing such damages and the great disparity 

in the price tag which different juries place on such losses. 

Additionally, with regard to allowing such damages under the 

Jones Act in particular, the change made by H.R. 5503 may create 

inequities for other American workers versus Jones Act seamen. 

The Jones Act, like the Federal Employer Liability Act (FELA) and 

the Longshore and Harbor Workers Compensation Act (LHWCA), 

is best thought of as an analog to state workers’ compensation statutes, not state tort law. But state workers’ compensation schemes, 

FELA, and LWHCA do not generally provide for the award of noneconomic damages. Combined with the fact that the negligence 

standard under the Jones Act has been characterized as ‘‘featherweight,’’ the provision of non-pecuniary damages under the Jones 

Act may be highly problematic. 

Unfortunately, just as with the other provisions in this bill, we 

did not have a hearing on these non-pecuniary damages provisions 

to understand how they will affect the U.S. maritime industry, 

which by most accounts is already in significant decline. Overturning long-settled expectations and possibly adding significant 

new costs could weaken the industry even further and lead to domestic job losses. We should not run that risk without a legislative 

record. 

Limitation of Liability Act. Section 4 of H.R. 5503 repeals the 

Liability Act without adopting any replacement legislation to fill 

the void in the United States for purposes of limitation of liability 


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for vessel-related incidents. However, the Liability Act is an important feature of U.S. maritime law addressing the liability of a vessel owner in the aftermath of a marine casualty, usually involving 

numerous parties with competing damage claims, loss of life or personal injury, and several potential jurisdictions in which claims 

may be filed. Repeal of the Liability Act without a suitable replacement mechanism will introduce uncertainty and in many cases 

may result in inadequate funds to compensate non-Oil Pollution 

Act claimants for personal injury and property damage resulting 

from a vessel casualty. 

The Liability Act provides a procedure in admiralty to enjoin all 

pending suits, and requires a concursus to compel all claims to be 

filed in a special limitation proceeding so that liability may be determined in one Federal forum. This procedure promotes judicial 

efficiency because it requires all claims from one incident to be litigated before a single Federal judge instead of multiple different forums with potentially conflicting or competing judgments. While 

limitation of liability promotes consistency and reliability for commercial interests involved in the shipping industry, the Act also 

benefits claimants because it requires the vessel owner to create a 

compensation fund to pay claimants. The vessel owner is required 

to file a ‘‘stipulation for value’’ in the form of a bond or other acceptable security for payment of claims arising out of the incident. 

The Act also requires the owner to create a personal injury fund 

($420 per gross ton of the vessel’s weight) to compensate personal 

injury or death claimants apart from property damage or other 

claims. By repealing the Act, this compensation fund will not be 

available to secure the claims of parties. 

The principle of global limitation of liability is vital to the international shipping industry. In particular, a large number of jurisdictions worldwide (52 nations as of May 31, 2010, including Canada, Mexico, United Kingdom, France, Germany, Spain, Italy, 

Japan, South Africa, and Korea) have adopted the 1976 Convention 

on Limitation of Liability for Maritime Claims (LLMC). The Protocol of 1996 amended the LLMC to provide for enhanced compensation and to provide a simplified procedure for updating the 

limitation amounts. 

If Congress wants to update or modernize the Liability Act, the 

answer is not simply to repeal the Act as is done in H.R. 5503. The 

LLMC and the Protocol of 1996 provide a useful example of a consensus among the international shipping nations for a workable 

compensation scheme that addresses modern concepts of insurance 

and liability with respect to claims against an owner and also creates a larger compensation fund based on the gross tonnage of the 

vessel involved. 

Class Action Fairness Act. The proposed amendments to the 

Class Action Fairness Act (CAFA) in H.R. 5503 are unnecessary 

and run counter to the very purpose of CAFA. CAFA was intended 

to ensure that actions involving minimal diversity (that is, cases 

brought by plaintiffs of one state against defendants of another 

state) are decided in a neutral, fair forum—the Federal courts. The 

alternative—permitting such actions to be tried in local courts, 

often with elected trial court judges, who favor local plaintiffs over 

out-of-state businesses—leads to unjust results. 


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15For instance, a state may bring an enforcement action for violation of the state’s unfair and 

deceptive trade practices statute to enjoin a deceptive practice and/or seeking civil penalties and 

other remedies authorized by the state statute. See, e.g., Missouri ex rel. Koster v. Portfolio Recovery Assocs., Inc., 686 F. Supp. 2d 942, 946–47 (E.D. Mo. 2010); Connecticut v. Moody’s Corp., 

664 F. Supp. 2d 196, 202 (D. Conn. 2009). 16 151 Cong. Rec. S 1157 (Feb. 9, 2005). 17Letter from the Judicial Conference of the United States, Committee on Rules of Practice 

and Procedure, to the Hon. Lamar Smith, Ranking Member, House Judiciary Committee (June 

28, 2010) (internal citations omitted). 

H.R. 5503 amends CAFA by providing that the CAFA minimal 

diversity provisions do not apply to ‘‘an action brought by a State 

or a subdivision of a State on behalf of its citizens.’’ However, this 

change is entirely unnecessary as courts appear uniformly to agree 

that CAFA does not provide Federal jurisdiction over enforcement 

actions brought by states on behalf of their citizens.15 Thus, the 

only real effect of the CAFA provisions in H.R. 5503 is to create 

a loophole that would keep legitimate class actions and mass actions from being removed to Federal court. 

This loophole would encourage enterprising attorneys to avoid 

Federal jurisdiction by finding state attorneys general to join their 

class action lawsuits. Rather than promote justice, such a result 

would promote questionable collaborations between private attorneys and public officials, in which the attorneys seek the state attorney general’s signature in order to avoid Federal jurisdiction. As 

Senator Hatch noted in floor debate on CAFA of an amendment 

with similar language to the language in H.R. 5503, 

this amendment is not only unnecessary, it actually creates opportunities for gaming. If this legislation enables State attorneys general to keep all class actions in State court, it will not 

take long for plaintiffs’ lawyers to figure out that all they need 

to do to avoid the impact of S. 5 is to persuade a State attorney 

general to simply lend the name of his or her office to a private 

class action. In other words, plaintiffs’ lawyers will try to keep 

interstate class actions in State court by simply naming that 

State’s attorney general at the end of complaint as a co-counsel 

or of-counsel.16

In effect, the amendments to CAFA contained in H.R. 5503 circumvent the law by creating a situation in which state attorneys 

general could partner with personal injury lawyers and bring private class actions for tort or contract damages that must stay in 

state courts. In other words, including a state attorney general as 

a co-plaintiff on a private class action might be enough to nullify 

CAFA, raising serious conflict of interest, legal ethics, and constitutional issues. 

Enforceability of Secrecy Agreements. Section 6 of H.R. 5503 

would make court orders restricting the dissemination of broad categories of information related to oil spills void and unenforceable 

in any legal proceeding, with very limited exception. The Judicial 

Conference of the United States has expressed serious concerns regarding this provision. According to the Conference, ‘‘[n]ot only 

does Section 6 circumvent the process for amending the Federal 

Rules of Civil Procedure that Congress established in the Rules Enabling Act, it threatens litigants’ rights and interests and creates 

an unworkable procedure for the cases covered by H.R. 5503.’’ 17


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18 Id. 19 Id. 20 Id. 

The Judicial Conference explains that the ‘‘provisions in Section 

6 would prohibit a court from enforcing a protective or confidentiality order that is necessary to protect vital privacy rights.’’ 18

Moreover, the Conference notes that section 6 ‘‘is unnecessary to 

achieve the bill’s purposes and has the potential to do great harm 

to those already struggling with the effects of the oil spill.’’ 19 Furthermore, according to the Conference, section 6 ‘‘provides an unworkable procedure that would delay and complicate discovery in 

the very cases that should be handled with expedition and efficiency to provide needed relief to those affected by the spill.’’ 20 Ultimately, the Judicial Conference concludes that section 6 should 

be removed from the legislation. 

Bankruptcy Protections. The impact of the bankruptcy provisions in H.R. 5503 is particularly difficult to understand fully without a legislative hearing. Certainly, no one wants BP or any other 

company with oil spill liability to file an opportunistic chapter 11 

bankruptcy to avoid its liability under the Oil Pollution Act and related laws. However, the bill’s proposed changes to the Bankruptcy 

Code are substantively questionable. 

The bill effectively gives oil spill liability claimants a veto over 

any asset sale unless they are paid in full and does not allow for 

confirmation of a chapter 11 plan that provides for the sale of assets unless oil spill claimants are either paid in full or consent to 

the sale. But, property cannot be sold for more than its value. 

Thus, if there is insufficient unencumbered value left in any property proposed to be sold in bankruptcy to compensate fully oil spill 

claimants, the oil spill claimants will have to agree to the sale or 

the sale will be blocked. 

The bankruptcy provisions in this bill, therefore, appear designed 

to give oil spill claimants leverage over secured claimholders by 

blocking sales of their collateral unless someone pays them off even 

before the secured claim is paid off. Accordingly, the bankruptcy 

provisions raise constitutional questions under the Fifth Amendment because they undermine the value of the collateral of the secured claimholders. In addition to the constitutional concerns, if 

property needs to be sold, it creates a stalemate between the debtor’s secured claimholders and other unsecured claimholders on the 

one hand, and the oil spill claimants on the other. Normally, if 

Congress wants to give claimants an advantage in bankruptcy, it 

gives some or all their claims (up to whatever amount Congress determines) priority status under 11 U.S.C. § 507(a). 

Giving veto power, leverage, and quasi priorities to oil spill 

claimants may sound good, but the flipside is that it demotes all 

other secured and unsecured claims. Why are these oil pollution 

claims more entitled to payment than other claims? What about 

personal injury bankruptcy claimants, should their claims be given 

less bankruptcy protection? Or, secured claimants, which in many 

cases include pension funds that have invested people’s retirement 

savings in what would otherwise be relatively safe investment vehicles, should their claims be put behind oil spill claimants? 


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Perhaps oil spill claimants should be given additional bankruptcy 

protections. But the exact nature of these protections and their impact needs to be examined through the normal legislative process 

of conducting hearings. BP is not on the verge of bankruptcy, as 

is demonstrated by its willingness to set up a $20 billion escrow 

fund, backed by BP assets. Ironically, the impact of this reform 

may be to make it harder for smaller firms to obtain financing, ultimately benefiting BP (and other large oil companies) by driving 

out potential competitors from off-shore drilling. The committee 

has the time to conduct a legislative hearing to ascertain the correct level and form of any needed bankruptcy protection for oil spill 

claimants. 

REPUBLICAN AMENDMENTS

Limit the bill’s provisions to claims arising out of oil spills. 

Ranking Member Smith offered an amendment to limit H.R. 5503 

to claims arising out of oil spills. The amendment was rejected on 

a party-line vote. 

Remove the Class Action Fairness Act provisions from the 

bill. Mr. Goodlatte offered an amendment to strike section 5 of the 

bill, which contains provisions amending the Class Action Fairness 

Act. The amendment was defeated on a voice vote. 

Limit the bill’s Class Action Fairness Act provisions to 

claims arising out of oil spills. Mr. Goodlatte also offered an 

amendment to limit the bill’s Class Action Fairness Act provisions 

to cases arising out of oil spills. The amendment was withdrawn. 

Waiver of the Jones Act restrictions on the operation of foreign vessels in U.S. waters. Mr. Lungren offered an amendment 

to waive the Jones Act provisions that restrict foreign vessels from 

aiding in the cleanup efforts in the Gulf of Mexico. The amendment 

was ruled non-germane. 

CONCLUSION

Those responsible for the Gulf coast oil disaster must be held 

fully liable, and Congress must ensure that U.S. liability laws are 

sufficient to ensure that result. However, without having held a 

legislative hearing to understand the full impact of H.R. 5503, we 

should not have moved this bill through committee on such an expedited basis. The extensive changes to U.S. maritime liability law 

in H.R. 5503, which apply well beyond oil spills, threaten to increase dramatically the cost of shipping goods—an increase that 

will be borne by all American consumers, and may put American 

jobs at risk. Additionally, the legislation unnecessarily amends the 

Class Action Fairness Act, opening up the very realistic possibility 

of enterprising trial attorneys gaming the system and circumventing Federal law to keep class actions out of Federal court. Finally, the bill essentially gives Oil Pollution Act claimants veto 

power over essential aspects of the bankruptcy process, seriously 

curtailing the rights of other bankruptcy claimants. 

Because this bill applies retroactively, there is no reason to rush 

this bill through committee, recommending that the full House 

adopt it, without having taken the time to conduct a single legislative hearing on its sweeping provisions. As Congress considers 


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amending the law to ensure that BP is held accountable for the 

Gulf oil spill, it should avoid harming, rather than advancing, the 

national interest. Without proper consideration of these proposed 

changes to the law, however, Congress risks harming the nation in 

order to punish BP. 

LAMAR SMITH. 

F. JAMES SENSENBRENNER, JR. 

BOB GOODLATTE. 

DARRELL E. ISSA. 

TRENT FRANKS. 

JIM JORDAN. 

Æ 


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