Third-Party Liability Under Opa 90: Have The Courts Veered Off Course?

Judicial expansion of liability under oil-pollution liability statutes is an historical fact. It is particularly evident with respect to third-party liability for oil pollution response costs and damages. In the 1970s and 1980s numerous cases under the Federal Water Pollution Control Act defined and redefined third-party liability in ways unanticipated by the maritime industry. Often these decisions appeared to be based on little more than a desire to assign maximum liability and responsibility to parties viewed as culpable or having the deepest pockets. Judicial modification of the statutory scheme was often aided, or caused, by a lack of coherent legislative history on the subject. The situation has not been helped, and indeed has been exacerbated, by the passage of the Oil Pollution Act of 1990 (OPA 90). In fact, the decisions by the district and appellate courts in National Shipping Co. of Saudi Arabia (NSCSA) v. Moran Mid-Atlantic Corp., which evidence a basic misreading of the provisions of OPA 90, have resulted in an interpretation of the law that may potentially leave a shipowner with a large liability for oil-spill response costs and third-party claims that is unrecoverable from a culpable third party. This is possible even though the shipowner may be entirely blameless for the spill from its vessel.