[Senate Report 112-245]
[From the U.S. Government Publishing Office]
112th Congress Report
SENATE
2d Session 112-245
_______________________________________________________________________
Calendar No. 544
DEEPWATER HORIZON SURVIVORS' FAIRNESS ACT
__________
R E P O R T
OF THE
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 183
December 5, 2012.--Ordered to be printed
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred twelfth congress
second session
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts OLYMPIA J. SNOWE, Maine
BARBARA BOXER, California JIM DeMINT, South Carolina
BILL NELSON, Florida JOHN THUNE, South Dakota
MARIA CANTWELL, Washington ROGER F. WICKER, Mississippi
FRANK R. LAUTENBERG, New Jersey JOHNNY ISAKSON, Georgia
MARK PRYOR, Arkansas ROY BLUNT, Missouri
CLAIRE McCASKILL, Missouri JOHN BOOZMAN, Arkansas
AMY KLOBUCHAR, Minnesota PATRICK J. TOOMEY, Pennsylvania
TOM UDALL, New Mexico MARCO RUBIO, Florida
MARK WARNER, Virginia KELLY AYOTTE, New Hampshire
MARK BEGICH, Alaska DEAN HELLER, Nevada
Ellen Doneski, Staff Director
James Reid, Deputy Staff Director
John Williams, General Counsel
Richard Russell, Republican Staff Director
David Quinalty, Republican Deputy Staff Director
Rebecca Seidel, Republican General Counsel
Calendar No. 544
112th Congress Report
SENATE
2d Session 112-245
======================================================================
DEEPWATER HORIZON SURVIVORS' FAIRNESS ACT
_______
December 5, 2012.--Ordered to be printed
_______
Mr. Rockefeller, from the Committee on Commerce, Science, and
Transportation, submitted the following
REPORT
[To accompany S. 183]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 183) to clarify the
applicability of certain maritime laws with respect to the
blowout and explosion of the mobile offshore drilling unit
Deepwater Horizon, having considered the same, reports
favorably thereon with an amendment (in the nature of a
substitute) and recommends that the bill (as amended) do pass.
Purpose of the Bill
The Deepwater Horizon Survivors' Fairness Act is intended to
address the inability for the widows and families of Deepwater
Horizon workers to secure fair compensation for their loss.
Under current law the relatives of Deepwater Horizon victims
are entitled to only lost wages for the accident beyond what is
available under current law. This bill would expand the
remedies available to the families by allowing them to seek
nonpecuniary losses and fair compensation for pain. The bill is
intended to bring compensation for families of Deepwater
Horizon victims in line with their available remedies if the
accident had occurred on land.
Background and Needs
On April 20, 2010, at approximately 10:00 p.m., the mobile
offshore drilling unit Deepwater Horizon, owned and operated by
Transocean Ltd. on behalf of British Petroleum (BP), suffered
an explosion in the Gulf of Mexico, 42 miles southeast of
Venice, LA. Search and Rescue operations were immediately
commenced, and 115 of the 126 crew members were recovered.
Eleven crew members were killed in the explosion.
In the aftermath of the accident, much attention has turned
to the need to reconsider the current laws governing the
recovery of damages for injury and death under maritime law.
The sufficiency of remedies for wrongful death is an issue of
great significance for the widows and families of the 11
deceased Deepwater Horizon workers. In a wrongful death action
brought under applicable maritime law, a litany of factors
(e.g., nature of employment, location of the accident)
determines the levels of compensation available to survivors of
the deceased. Yet even under the most egregious circumstances,
current law prevents most survivors from recovering damages
beyond the sum of lost lifetime wages (pecuniary damages).
Summary of Provisions
The Deepwater Horizon Survivors' Fairness Act (S. 183) would
modify existing maritime law for the surviving family members
of the 11 Deepwater Horizon workers. Under current law,
survivors of those killed aboard the Deepwater Horizon can only
collect the sum of lost lifetime wages. This stands in stark
contrast to the remedies that would be available to survivors
if this accident occurred at a similar land-based facility. The
legislation is narrow in scope, and provides equitable relief
only to the survivors of the 11 workers killed aboard the
Deepwater Horizon.
Legislative History
The legislation was introduced by Senator Rockefeller on
January 25, 2011, with Senators Whitehouse and Schumer as
original cosponsors. Last Congress, Senator Rockefeller was the
lead sponsor of S. 3755, the Fairness in Admiralty and Maritime
Law Act. Though S. 3755 was not passed by the Committee, there
was a request for unanimous consent to pass S. 3755 on the
Floor that was denied. S. 183 passed the Committee by voice
vote at an Executive Session held on June 8, 2011, with an
amendment in the nature of a substitute from Senator
Rockefeller that made technical and clarifying changes to the
bill. There were no other amendments.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
S. 183--Deepwater Horizon Survivors' Fairness Act
S. 183 would amend several laws related to private
liability that apply to the injury or death of workers on
ocean-going vessels or on certain other facilities located in
the ocean. CBO estimates that enacting the legislation would
have no significant impact on the federal budget.
Enacting S. 183 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
The bill would expand both the Death on the High Seas Act
(DOHSA) and the Jones Act to enable the surviving family
members of a deceased worker to receive monetary compensation
for nonmonetary damages as a result of the death of a relative
on an ocean-going vessel or certain other facilities located in
the ocean (such as oil-drilling rigs). S. 183 also would extend
the distance from shore that would make ships subject to the
provisions of DOHSA, and it would repeal the Limitation of
Liability Act, a law that limits the value of certain damages
that can be charged to vessel owners. Because those provisions
would affect the liability of private firms, CBO estimates that
enacting them would have no significant impact on the federal
budget.
S. 183 contains no intergovernmental mandates as defined in
the Unfunded Mandates Reform Act (UMRA) and would impose no
costs on state, local, or tribal governments.
By retroactively removing various limits on the liability
that owners and operators of vessels face as a result of the
Deepwater Horizon explosion, the bill would impose a mandate as
defined in UMRA. The costs of the mandate to owners and
operators of vessels would be the difference in compensation
for damages they would have to pay under current law compared
to the amount that they would have to pay under the bill.
Because those costs would depend on future judicial
proceedings, CBO cannot determine whether the aggregate cost of
the mandate would exceed the annual threshold established in
UMRA for private-sector mandates ($142 million in 2011,
adjusted annually for inflation).
The CBO staff contacts for this estimate are Sarah Puro
(for federal costs) and Sam Wice (for the private-sector
impact). The estimate was approved by Theresa Gullo, Deputy
Assistant Director for Budget Analysis.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
NUMBER OF PERSONS COVERED
The bill is limited in scope to the relatives of the 11 crew
members who perished in the Deepwater Horizon accident.
ECONOMIC IMPACT
The bill's economic impact is limited to possible civil
actions that would be undertaken by relatives of those 11 crew
members.
PRIVACY
This bill will not have any adverse impact on the personal
privacy of individuals.
PAPERWORK
This bill will not provide any requirements for additional
paperwork.
Congressionally Directed Spending
In compliance with paragraph 4(b) of rule XLIV of the
Standing Rules of the Senate, the Committee provides that no
provisions contained in the bill, as reported, meet the
definition of congressionally directed spending items under the
rule.
Section-by-Section Analysis
Section 1. Short title
Section 1 provides that the bill may be cited as the
``Deepwater Horizon Survivors' Fairness Act''.
Section 2. Amendment of Shipowners' Liability Act of 1851
Under existing law, an owner of a vessel can limit liability
for all claims arising from an incident involving the vessel to
its post-voyage value and that of its cargo. Under current
provisions of title 46, United States Code, governing maritime
liability, the owner of a vessel may bring a civil action in
Federal district court to limit owner liability with respect
to: (1) damage done to goods onboard the vessel; (2) damage by
collision to other vessels and their cargo; and (3) any other
damage or forfeiture done or incurred without the privity or
knowledge of the owner (including personal injury and death).
This section would amend the relevant sections in chapter 305
of title 46, United States Code, which comprise this law, to
clarify that claims for personal injury or wrongful death
arising from the blowout and explosion of the mobile offshore
drilling unit Deepwater Horizon that occurred on April 20,
2010, are not subject to the limitation.
Section 3. Amendment of the Death on the High Seas Act
Section 3 would amend chapter 303 of title 46, United States
Code, to enhance remedies against any negligent parties for
wrongful death on the high seas for the surviving families of
the 11 deceased workers aboard the Deepwater Horizon. This
section would provide the families of the 11 workers the
ability to recover fair compensation for the deceased's
pecuniary and nonpecuniary loss, plus a fair compensation for
their pain and suffering. Current law provides decedents the
ability to recover only pecuniary damages (lost lifetime wages)
from negligent parties.
Section 4. Amendment of Jones Act
Section 4 would amend chapter 301 of title 46, United States
Code, to provide the families of the 11 deceased workers aboard
the Deepwater Horizon the ability to recover nonpecuniary
losses (loss of care, comfort, companionship, and society) from
employers. Chapter 301 of title 46-commonly known as the Jones
Act-provides the same rights to recovery for seamen as is
available to railway employees under the Federal Employers'
Liability Act (Railroad). Only a seaman can recover damages
under chapter 301 of title 46 (a seaman is defined as an
individual with a substantial connection to a vessel or a fleet
of commonly owned vessels). Current law provides the survivors
of certain seamen killed as a result of their employer's
negligence with wrongful death and survival claims. Section 4
would provide the families of the 11 workers the ability to
recover fair compensation for the deceased's pecuniary and
nonpecuniary loss, plus a fair compensation for their pain and
suffering against a negligent employer.
Section 5. Effective date
Section 5 would provide that all amendments to existing
statutes shall apply to causes of action and claims arising
after April 19, 2010, and actions commenced before the date of
enactment of this Act that have not been finally adjudicated.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the Standing
Rules of the Senate, 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 material is printed
in italic, existing law in which no change is proposed is shown
in roman):
TITLE 46. SHIPPING
SUBTITLE III. MARITIME LIABILITY
CHAPTER 301. GENERAL LIABILITY PROVISIONS
Sec. 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 recovery for personal injury to, or death of,
a railway employee apply to an action under this section. If
the action under this chapter arises from the blowout and
explosion of the mobile offshore drilling unit Deepwater
Horizon that occurred on April 20, 2010, the recovery for a
seaman who dies may include fair compensation for nonpecuniary
loss, plus a fair compensation for the decedent's pain and
suffering. In this section, the term ``nonpecuniary loss''
means the loss of care, comfort, companionship, and society.
TITLE 46. SHIPPING
SUBTITLE III. MARITIME LIABILITY
CHAPTER 303. DEATH ON THE HIGH SEAS
Sec. 30302. Cause of action
When the death of an individual is caused by wrongful act,
neglect, or default occurring on the high seas beyond 3
nautical miles from the shore of the United States, the
personal representative of the decedent may bring a civil
action in admiralty against the person or vessel responsible.
If the death was attributable to the blowout and explosion of
the mobile offshore drilling unit Deepwater Horizon that
occurred on April 20, 2010, the action may be brought in law or
in admiralty. The action shall be for the exclusive benefit of
the decedent's spouse, parent, child, or dependent relative.
Sec. 30303. Amount and apportionment of recovery
The recovery in an action under this chapter shall be a fair
compensation for the pecuniary loss sustained by 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. If the action under
this chapter arises from the blowout and explosion of the
mobile offshore drilling unit Deepwater Horizon that occurred
on April 20, 2010, the recovery may include fair compensation
for nonpecuniary loss, plus a fair compensation for the
decedent's pain and suffering. In this section, the term
``nonpecuniary loss'' means the loss of care, comfort,
companionship, and society.
* * * * * * *
Sec. 30305. Death of plaintiff in pending action
If a civil action in admiralty 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. If a civil action in law
is pending in a court of the United States to recover for
personal injury caused by wrongful act, neglect, or default
described in the second sentence of section 30302 of this title
and the individual dies during the action as a result of that
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.
TITLE 46. SHIPPING
SUBTITLE III. MARITIME LIABILITY
CHAPTER 305. EXONERATION AND LIMITATION OF LIABILITY
30505. General limit of liability
(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.
(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.
[(c) Wages.--Subsection (a) does not apply to a claim for
wages.]
(c) Claims Not Subject to Limitation.--Subsection (a) does
not apply--
(1) to a claim for wages; or
(2) to a claim for personal injury or wrongful death
arising from the blowout and explosion of the mobile
offshore drilling unit Deepwater Horizon that occurred
on April 20, 2010.
* * * * * * *
30511. Action by owner for limitation
(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.
(b) Creation of Fund.--When the action is brought, the owner
(at the owner's option) shall--
(1) deposit with the court, for the benefit of
claimants--
(A) an amount equal to the value of the
owner's interest in the vessel and pending
freight, or approved security; and
(B) an amount, or approved security, that the
court may fix from time to time as necessary to
carry out this chapter; or
(2) transfer to a trustee appointed by the court, for
the benefit of claimants--
(A) the owner's interest in the vessel and
pending freight; and
(B) an amount, or approved security, that the
court may fix from time to time as necessary to
carry out this chapter.
(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 that are subject to
limitation under section 30505 shall cease.