Deepwater Horizon -- Apportionment of Blame

The civil trial in the Deepwater Horizon accident is now in the hands of Judge Carl Barbier. The final arguments have been filed. The payment of claims has continued, despite a court-appointed claims settlement attorney suddenly resigning under allegations of misconduct. The judge will decide which of the three remaining defendants -- BP, Transocean, or Halliburton -- bears what share of the blame. And there is plenty of blame to share.

The MSM meme, based on the "news" from the White House, is that BP was grossly negligent and bears full responsibility. They should pay the maximum fine of $4,300 per barrel for 4.9 million barrels of oil spilled. The eyes of state and federal government officials, of both parties, are alight at the prospect of billions of dollars in pork barrel spending, without a need to raise taxes. We shall see. But a word of caution: don't always believe what the White House tells you!

Just to give you a taste of the unexpected, let us look at some of the highlights of the expert testimony of Capt. Andrew Mitchell.

From page 7 of his testimony:

2. Through a Drilling Contract signed in 1998, BP's predecessor engaged a MODU, later to be known as DEEPWATER HORIZON. The Contract required that the "Contractor shall have the primary responsibility for the safety of all its operations . . . the Contractor shall place the highest priority on safety while performing the work." BP had reason to be confident that the risks associated with the DEEPWATER HORIZON drilling Macondo 252 were being managed effectively by Transocean, given:

• Specific health, safety and environmental requirements specified in Exhibit D of the Contract;

• The additional requirements in the BP-Transocean HSE Management Systems Bridging Document;

• Regular audits conducted by BP and third parties; and

• The fact that DEEPWATER HORIZON achieved seven years without recording a lost time injury.

3. However, Transocean failed to comply with sections of the International Safety Management (ISM) Code. The Master of the DEEPWATER HORIZON was incapable by virtue of the Transocean command structure and inadequate training to make the right decisions at critical times. As a consequence of these major non-conformities with the ISM Code, the Emergency Disconnect System (EDS) was not operated in a timely manner. Had Transocean fully complied with these sections of the ISM Code, it would have had a more coherent, clear, and understandable organisational structure with properly trained marine crew onboard the DEEPWATER HORIZON and the major loss of life, personal injury, and pollution would most probably have been averted.This Report sets out my opinion on this matter.

That is contrary to what the Obama White House has been spinning! Maybe Transocean bears much of the responsibility under a warranty of merchantability and fitness for their services and equipment (the Deepwater Horizon itself and the blowout preventer, for example). Their men were in charge of well control under the contract between Transocean and BP. Conceivably, the judge could let BP off completely! It was Transocean that did not comply with the International Safety Management (ISM) Code. And Judge Barbier presides in an Admiralty Court, not just a regular federal court. International regulations carry a lot of weight in Admiralty Courts.

Let us also not forget that Halliburton has been charged with tampering with the evidence and the judge has yet to rule on sanctions against it.They told BP that they had a good cement job when their own lab reports indicated that the cement would not cure properly. They could join Transocean is bearing the brunt of the costs of the environmental fines.

And the Coast Guard has now determined that the cleanup efforts in Florida, Alabama, and Mississippi have reached the point where special efforts are no longer required. And most of the remaining soiled areas in Louisiana are best left to the forces of natural remediation.

BP's travails for causing the accident and their responsibility for compensating the victims are winding down. There is a bit more to be resolved with regard to fisheries and lingering health issues, but the scientific reports on those issues are not yet done. Only time will tell what the long-term effects have been.

Next on the agenda will be Phase Two of the trial in September, determining who was responsible for the Keystone Kops response under the National Incident Commander, Admiral Thad Allen, who reported to the Secretary of Homeland Security and then directly on to President Obama. As Harry Truman once put it, "The buck stops here". Bring out the popcorn -- this ought to be quite a show!

The civil trial in the Deepwater Horizon accident is now in the hands of Judge Carl Barbier. The final arguments have been filed. The payment of claims has continued, despite a court-appointed claims settlement attorney suddenly resigning under allegations of misconduct. The judge will decide which of the three remaining defendants -- BP, Transocean, or Halliburton -- bears what share of the blame. And there is plenty of blame to share.

The MSM meme, based on the "news" from the White House, is that BP was grossly negligent and bears full responsibility. They should pay the maximum fine of $4,300 per barrel for 4.9 million barrels of oil spilled. The eyes of state and federal government officials, of both parties, are alight at the prospect of billions of dollars in pork barrel spending, without a need to raise taxes. We shall see. But a word of caution: don't always believe what the White House tells you!

Just to give you a taste of the unexpected, let us look at some of the highlights of the expert testimony of Capt. Andrew Mitchell.

From page 7 of his testimony:

2. Through a Drilling Contract signed in 1998, BP's predecessor engaged a MODU, later to be known as DEEPWATER HORIZON. The Contract required that the "Contractor shall have the primary responsibility for the safety of all its operations . . . the Contractor shall place the highest priority on safety while performing the work." BP had reason to be confident that the risks associated with the DEEPWATER HORIZON drilling Macondo 252 were being managed effectively by Transocean, given:

• Specific health, safety and environmental requirements specified in Exhibit D of the Contract;

• The additional requirements in the BP-Transocean HSE Management Systems Bridging Document;

• Regular audits conducted by BP and third parties; and

• The fact that DEEPWATER HORIZON achieved seven years without recording a lost time injury.

3. However, Transocean failed to comply with sections of the International Safety Management (ISM) Code. The Master of the DEEPWATER HORIZON was incapable by virtue of the Transocean command structure and inadequate training to make the right decisions at critical times. As a consequence of these major non-conformities with the ISM Code, the Emergency Disconnect System (EDS) was not operated in a timely manner. Had Transocean fully complied with these sections of the ISM Code, it would have had a more coherent, clear, and understandable organisational structure with properly trained marine crew onboard the DEEPWATER HORIZON and the major loss of life, personal injury, and pollution would most probably have been averted.This Report sets out my opinion on this matter.

That is contrary to what the Obama White House has been spinning! Maybe Transocean bears much of the responsibility under a warranty of merchantability and fitness for their services and equipment (the Deepwater Horizon itself and the blowout preventer, for example). Their men were in charge of well control under the contract between Transocean and BP. Conceivably, the judge could let BP off completely! It was Transocean that did not comply with the International Safety Management (ISM) Code. And Judge Barbier presides in an Admiralty Court, not just a regular federal court. International regulations carry a lot of weight in Admiralty Courts.

Let us also not forget that Halliburton has been charged with tampering with the evidence and the judge has yet to rule on sanctions against it.They told BP that they had a good cement job when their own lab reports indicated that the cement would not cure properly. They could join Transocean is bearing the brunt of the costs of the environmental fines.

And the Coast Guard has now determined that the cleanup efforts in Florida, Alabama, and Mississippi have reached the point where special efforts are no longer required. And most of the remaining soiled areas in Louisiana are best left to the forces of natural remediation.

BP's travails for causing the accident and their responsibility for compensating the victims are winding down. There is a bit more to be resolved with regard to fisheries and lingering health issues, but the scientific reports on those issues are not yet done. Only time will tell what the long-term effects have been.

Next on the agenda will be Phase Two of the trial in September, determining who was responsible for the Keystone Kops response under the National Incident Commander, Admiral Thad Allen, who reported to the Secretary of Homeland Security and then directly on to President Obama. As Harry Truman once put it, "The buck stops here". Bring out the popcorn -- this ought to be quite a show!

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