America's Maritime History vs. 21st Century Ambulance Chasers

Bruce Thompson
Once again the New Orleans Times-Picayune (NOLA.com) has an excellent article recounting the players in the upcoming trial to determine liability for the Deepwater Horizon incident. Rebecca Mowbray describes the action this way:

Because of the complexity of the case, the plaintiffs involved are as varied as they are numerous. Although the case was initiated by Transocean, the rig owner, which filed to limit its liability in the incident under an arcane 19th century maritime law, creative lawyering and unique circumstances conspired to turn the proceeding into a massive trial over nearly every major question in the incident. The mammoth proceeding bundles together 535 cases, including claims brought by individuals and businesses harmed by the oil spill and other parties to the disaster. Cross-claims filed by the involved companies against one another are also included.

That "arcane 19th century maritime law" is a very rich branch of jurisprudence with huge volumes of prevailing precedent growing out of the commerce of global trading carried out by American whalers and clipper ships. This is Moby Dick for the Twenty-First Century. It is no place for your typical hot shot plaintiff's trial lawyers. They literally are unlikely to know larboard from starboard and proved that fact in the Joint Investigation Team (JIT) hearings held to produce the official government investigative report, issued in separate parts, by the United States Coast Guard and the Department of the Interior's Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE).

The first point to observe is that in what has allegedly become a trial against the Leaseholder, BP, and its contractors, Transocean, Halliburton and Cameron, was actually initiated by the owner of the drill rig, Deepwater Horizon, by the vessel's owner Transocean, a Swiss company.  And of course BP was once known as British Petroleum.  So any outcome in court that is unfavorable to the "defendants" is virtually certain to end up in the World Court as a battle among nations, including the United States, Switzerland, Great Britain, the Republic of the Marshall Islands (the flag state of the vessel) etc.  This is no place for a quick talking showman who has a record of success fooling the rubes in a jury by showing them faked x-rays of alleged asbestos injuries, as was the case in the endless asbestos litigation that once bankrupted hundreds of America's prime industrial companies under fraudulent evidence. The public is in no mood to see a repeat of the farcical proceedings that forced the likes of Babcock and Wilcox, a once huge employer in Barberton, Ohio, into bankruptcy. Those once mighty trial lawyers, such as John Edwards, are no longer held in such high public esteem. Where have you gone Erin Brockovich?

As David Hammer of the Times-Picayune noted in a separate article, Most BP Plaintiffs May Be Inligible For Compensation:

The "presentment" issue could endanger 60 percent of them. In August, Barbier ruled that claims under the Oil Pollution Act of 1990 would have to meet presentment requirements -- to seek redress from BP or its designee, Feinberg -- to be eligible for compensation.

Until now, little was known about the vast majority of the claimants who joined the lawsuit against BP and its drilling partners. All but a few hundred of them filed using a brief form promoted by plaintiffs lawyers simply as a way to preserve claims. For months, observers have speculated about how many of those "short-form" filers still had open claims to litigate.

The new data shows there are 38,815 litigation plaintiffs who did present to Feinberg but haven't settled. Of those, Feinberg ruled 10,921 ineligible, 16,202 as having deficient documentation to support their claim and 1,059 as potential fraud cases.

The remaining 10,623 appear to be in the strongest position as litigants because Feinberg has ruled them eligible: Most accepted emergency payments in 2010 but never came back to file a final claim, and the rest have accepted interim three-month payments in 2011 and 2012 to cover ongoing losses without having to sign a release.

So of the private citizens who still feel they have some legitimate claim for compensation, Kenneth Feinberg believes that 1,059 are crooks trying to commit a felony! Another 10, 921 are opportunists who tried, and so far have failed, to make a quick easy buck. Another 16,202 are those who may have a legitimate claim, but may have been living in a black market cash economy and have been neglectful about filing income tax returns and collecting Social Security taxes from their cash employees, such as deckhands on shrimp boats.  Is there a reason New Orleans is sometimes known as "The Big Easy"?

Note that for any of those who have legitimate claims, but foolishly listened to the siren songs of the ambulance chasers, the court has arranged to make BP pay reasonable attorney's fees equal to 6% of the compensation due to offset the 6% deduction that the court had previously imposed on those naïfs, whom Times-Picayune columnist James Gill described as "suckers."  Their net result will be to come out even. They will get what they have previously agreed to and not one cent more.

So the trial is really going to come down to the big players, on one side will be BP and its contractors Transocean, Halliburton and Cameron with Transocean being the named plaintiffs (they filed the case!) and the Federal Government and its subordinate member states on the other.  All the action will take place under oath, with the whole world watching, and will be subject to appeal to the World Court, so the Obama Administration, with its proclivity for acting like a banana republic, will not have the final word!

Are you ready for some maritime law football Mr. President? Half-time ends on February 27, 2012 in New Orleans, Louisiana!

Once again the New Orleans Times-Picayune (NOLA.com) has an excellent article recounting the players in the upcoming trial to determine liability for the Deepwater Horizon incident. Rebecca Mowbray describes the action this way:

Because of the complexity of the case, the plaintiffs involved are as varied as they are numerous. Although the case was initiated by Transocean, the rig owner, which filed to limit its liability in the incident under an arcane 19th century maritime law, creative lawyering and unique circumstances conspired to turn the proceeding into a massive trial over nearly every major question in the incident. The mammoth proceeding bundles together 535 cases, including claims brought by individuals and businesses harmed by the oil spill and other parties to the disaster. Cross-claims filed by the involved companies against one another are also included.

That "arcane 19th century maritime law" is a very rich branch of jurisprudence with huge volumes of prevailing precedent growing out of the commerce of global trading carried out by American whalers and clipper ships. This is Moby Dick for the Twenty-First Century. It is no place for your typical hot shot plaintiff's trial lawyers. They literally are unlikely to know larboard from starboard and proved that fact in the Joint Investigation Team (JIT) hearings held to produce the official government investigative report, issued in separate parts, by the United States Coast Guard and the Department of the Interior's Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE).

The first point to observe is that in what has allegedly become a trial against the Leaseholder, BP, and its contractors, Transocean, Halliburton and Cameron, was actually initiated by the owner of the drill rig, Deepwater Horizon, by the vessel's owner Transocean, a Swiss company.  And of course BP was once known as British Petroleum.  So any outcome in court that is unfavorable to the "defendants" is virtually certain to end up in the World Court as a battle among nations, including the United States, Switzerland, Great Britain, the Republic of the Marshall Islands (the flag state of the vessel) etc.  This is no place for a quick talking showman who has a record of success fooling the rubes in a jury by showing them faked x-rays of alleged asbestos injuries, as was the case in the endless asbestos litigation that once bankrupted hundreds of America's prime industrial companies under fraudulent evidence. The public is in no mood to see a repeat of the farcical proceedings that forced the likes of Babcock and Wilcox, a once huge employer in Barberton, Ohio, into bankruptcy. Those once mighty trial lawyers, such as John Edwards, are no longer held in such high public esteem. Where have you gone Erin Brockovich?

As David Hammer of the Times-Picayune noted in a separate article, Most BP Plaintiffs May Be Inligible For Compensation:

The "presentment" issue could endanger 60 percent of them. In August, Barbier ruled that claims under the Oil Pollution Act of 1990 would have to meet presentment requirements -- to seek redress from BP or its designee, Feinberg -- to be eligible for compensation.

Until now, little was known about the vast majority of the claimants who joined the lawsuit against BP and its drilling partners. All but a few hundred of them filed using a brief form promoted by plaintiffs lawyers simply as a way to preserve claims. For months, observers have speculated about how many of those "short-form" filers still had open claims to litigate.

The new data shows there are 38,815 litigation plaintiffs who did present to Feinberg but haven't settled. Of those, Feinberg ruled 10,921 ineligible, 16,202 as having deficient documentation to support their claim and 1,059 as potential fraud cases.

The remaining 10,623 appear to be in the strongest position as litigants because Feinberg has ruled them eligible: Most accepted emergency payments in 2010 but never came back to file a final claim, and the rest have accepted interim three-month payments in 2011 and 2012 to cover ongoing losses without having to sign a release.

So of the private citizens who still feel they have some legitimate claim for compensation, Kenneth Feinberg believes that 1,059 are crooks trying to commit a felony! Another 10, 921 are opportunists who tried, and so far have failed, to make a quick easy buck. Another 16,202 are those who may have a legitimate claim, but may have been living in a black market cash economy and have been neglectful about filing income tax returns and collecting Social Security taxes from their cash employees, such as deckhands on shrimp boats.  Is there a reason New Orleans is sometimes known as "The Big Easy"?

Note that for any of those who have legitimate claims, but foolishly listened to the siren songs of the ambulance chasers, the court has arranged to make BP pay reasonable attorney's fees equal to 6% of the compensation due to offset the 6% deduction that the court had previously imposed on those naïfs, whom Times-Picayune columnist James Gill described as "suckers."  Their net result will be to come out even. They will get what they have previously agreed to and not one cent more.

So the trial is really going to come down to the big players, on one side will be BP and its contractors Transocean, Halliburton and Cameron with Transocean being the named plaintiffs (they filed the case!) and the Federal Government and its subordinate member states on the other.  All the action will take place under oath, with the whole world watching, and will be subject to appeal to the World Court, so the Obama Administration, with its proclivity for acting like a banana republic, will not have the final word!

Are you ready for some maritime law football Mr. President? Half-time ends on February 27, 2012 in New Orleans, Louisiana!