TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Tuesday, October 25, 2011

Galligan & Bush on the OPA and Preemption

Tom Galligan (President, Colby-Sawyer) and Brittan Bush (LSU) have posted to SSRN Displacement and Preemption:  The OPA's Effect on General Maritime Law and State Tort Law Punitive Damages Claims.  The abstract provides:

There are many levels at which we must seek to understand the Deepwater Horizon disaster. They include the scientific, the technological, the economic, the regulatory, and the legal. One of the essential ways in which we Americans redress rights and try to right wrongs is through civil litigation, and the Deepwater Horizon disaster has appropriately spawned litigation. Victims of the disaster have filed claims against the various parties allegedly responsible for the explosion and spill. They have filed tort claims arising under general maritime law and state tort law. They have sought compensatory damages as well as punitive damages - punitive damages are designed to punish and deter those allegedly responsible for allegedly reckless, tortuous activity. Those injured have also filed statutory damages claims under the Oil Pollution Act of 1990 (OPA).

The question then, is what, if any effect, does the OPA have on maritime or state punitive damages claims in cases to which it applies? Does the OPA displace or preempt pre-existing claims? Our answer is that punitive damages are recoverable under either general maritime law or state law even if the OPA also applies.

As we explain below, Congress’ intent is clear that the OPA has no effect at all on state law claims. Likewise, punitive damages are still recoverable under the general maritime law in a case to which the OPA also applies. This conclusion is based on several reasons: (1) the OPA is silent on punitive damages, (2) OPA’s express maritime savings provision, (3) OPA’s legislative history, (4) a review of U.S. Supreme Court maritime jurisprudence addressing the effect that the passage of new statute has on a pre-existing general maritime law claim, (5) an analysis of other no fault schemes and their effect on pre-existing tort claims, (6) and the fact that punitive damages are remedial in nature.


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