The BP B1 Bundle Ruling: Federal Statutory Displacement of General Maritime Law

Among the many unresolved legal questions posed by BP’s Gulf well blowout litigation are whether and to what extent maritime tort negligence remedies escape displacement by relevant federal statutes, including, principally, the Oil Pollution Act of 1990 (OPA). Consistent OPA jurisprudence over two decades holds that OPA displaces these remedies. Contrarily, however, the seminal decision in the BP MDL proceedings in the Eastern Federal District of Louisiana, BP B1 Bundle Ruling and Order, insists that, excepting a single procedural matter, general maritime law affords a parallel track to OPA’s remedies for economic and property oil discharge losses suffered by private claimants. B1 Bundle premises its holding on two contentions. First, OPA’s “silence,” defined as the statute’s failure expressly to displace maritime remedies, demonstrates Congress’s intent to quarantine OPA as a mere supplement to the general maritime law. Second, the United States Supreme Court’s decisions in Exxon Shipping Company v. Baker and Atlantic Sounding Company v. Townsend authoritatively establish OPA’s non-displacement of maritime law punitive damages, specifically, and maritime remedies as a whole.B1 Bundle fails to come to terms either with OPA’s origins and purposes or with Congress’s frustration with the inadequacy both of general maritime law and of pre-OPA federal statutes in the face of overtaking technological, economic and policy change. Nor does the opinion comport with sound constitutional policy as reflected in the Supreme Court’s displacement jurisprudence, which favors Congress over the federal courts in competitive lawmaking contests exemplified by the B1 Bundle dispute. B1 Bundle also ignores Townsend’s denial of authoritative status to supposed precedents that, like Baker and Townsend, are imperfectly aligned with the precise issue posed in B1 Bundle itself. It is such opinions that Justice Holmes had in mind when he stated that “hard cases make bad law.” In modern dress, B1 Bundle’s quarantine of federal statute law in consequence of the opinion’s unyielding admiralty-centrism takes it place alongside the misconceived zeal of earlier eras’ common law judges in resisting the encroachment of statutes on the common law and, later, of administrative decisionmaking on traditional legal procedures.The article’s thesis favoring OPA’s displacement of general maritime negligence tort remedies for private economic and property loss damages associated with discharges of oil in the nation’s navigable waters is supported by the identification and validation of the following principal pillars:*Resolution of the B1 Bundle displacement debate engages the interface of three legal spheres: Supreme Court displacement jurisprudence; federal statutory law (principally OPA), and general maritime law.*The Supreme Court’s displacement groundrules are shaped by separation of powers values, principal among which is the Court’s affirmation of Congress’s constitutional primacy over the federal judiciary when Congressional and judicial lawmaking overlap in ways that derogate from or are otherwise incompatible with Congressional primacy.*B1 Bundle’s “legislative silence equates with legislative approval” canon misconceives these groundrules and their supporting policy by slighting the goals, language, and structure of the OPA liability/compensation regime.*The relation between Congress and the federal judiciary in this debate is one of competition between two separate lawmaking branches pursuing the formulation of dissonant liability/compensation regime for the foregoing private economic and property losses.*B1 bundle is an exercise in judicial lawmaking, not a collaborative effort by the court, as an agent of Congress, to fill interstitial gaps in an incomplete congressional statute. The opinion aggressively carves out an independent, parallel track, co-equal with OPA, for a competing remedial regime. *OPA’s occupancy of “space” previously claimed by the maritime tort regime warrants the latter’s displacement absent evidence of Congress’s contrary intent. Unlike the free-floating maritime remedy, moreover, OPA derives and communicates its values as but one facet of an integrated framework that encompasses environmental values, federal agency rulemaking and expertise, OPA itself, and a graduated program of non-OPA civil and criminal penalties. Baked into OPA’s remedial regime, these elements robustly differentiate it from the maritime tort regime.*OPA section 2751(e), the misleadingly labeled “admiralty savings clause,” does not afford a plausible escape route from displacement. The clause’s stubborn restriction on the scope of the admiralty law being “saved” -- ”[e]xcept as otherwise provided in this Act” —deprives admiralty/maritime law of the sweeping immunity to displacement that state law enjoys from preemption pursuant to OPA section 2718(a)’s proviso-free state law savings clause. Despite or, perhaps, because of its faux title, this “admiralty savings clause” weakens, rather than bolsters the case for non-displacement. *The savings clauses of the federal statutes in play in Atlantic Sounding Company v. Townsend and Exxon Shipping Company v. Baker, on the other hand, reflect unambivalent Congressional support for the statutes’ non-displacement of general maritime law.*The Supreme Court’s bar on lower federal courts’ rewriting statutory rules under the guise of filling interstitial gaps discredits B1 Bundle’s approval of the maritime tort law entitlement to bring direct actions against defendants who are not named as responsible parties under OPA section 2702(a).*B1 Bundle’s bid for the survival of maritime law punitive damages is ill-conceived. OPA destroys the requisite survival platform by displacing maritime law’s compensatory damages cause of action upon which punitive damages must be predicated. B1 Bundle also upsets Congress’s deliberate compromise, engraved initially in FWPCA section 311 and updated in OPA section 2704, that accommodates industry, pollution tort victim, natural resource protection, and governmental interests through the statute’s graduated damages limitation regime, as supplemented by draconian extra-OPA statutory civil and criminal penalties.