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Sat

15

May

2010

Transocean follows in the wake of the TITANIC, invokes old law to hold down its liability
Saturday, 15 May 2010 06:52
by Margie Burns

Transocean invokes old law to hold down its losses; may be giving HAL and BP an out too

Following in the wake of the Titanic . . .

As of Thursday, the National Law Journal reports, Transocean is trying to cut its losses from the BP oil spill down to $27 million. Transocean, which owns the oil rig that exploded in the Gulf of Mexico, killing 11 people, filed a motion in federal court in the Southern District of Texas invoking an 1851 maritime law:

“Citing an 1851 law aimed at shipping mishaps, Transocean said its damages should be limited to $26.7 million in unpaid drilling fees earned before the April 20 explosion, noting the Deepwater Horizon rig is otherwise worth nothing now. [italics added]

The Limitation of Liability Act of 1851 states that the owner of a ship—or, in this case, offshore oil rig—is only liable for the value of the ship post-accident. This is the same law the owners of the Titanic used to limit their liability.”


Killing both parents and throwing yourself on the mercy of the court as an orphan.

Whatever its value as legal precedent, the Titanic would seem to be poor precedent from a PR standpoint. The very fundamentals were so openly compromised—poorer passengers blatantly kept from rescue or survival, a lack of the most basic safety features such as lifeboats—that the name was shorthand for decades, along with the Triangle Fire, for poshie* indifference to human life and suffering. But in any case, while this specific legal move by Transocean beggars description, the broad effort—to avoid paying the costs of the disaster, by any means—was predictable.
 

What makes the move more troubling is that, if Transocean is allowed to go this route, the company may also affect the legal liability of BP and Halliburton. Both companies could argue that their own damages are increased by Transocean’s action subsequent to the explosion and that—thus—their own liability should be limited.

Heading for toward the border

There is also that little matter of venue. Prominent plaintiff’s attorney Michael Papantonio has already told viewers on Ed Schultz that the companies in the matter are judge-shopping. And when they shop, they know where to go. The Fifth Circuit, which covers the Gulf Coast, used to be one of the best judicial circuits in the United States.

“They did judge-shop. They forum-shopped. They went somewhere where they can tell an AG, yes, we`re there to help you, but then the next thing we know, they`re in front of a judge in south Texas, where the oil industry is king.

So, that didn`t just happen by mistake. And look, I applaud Jim Hood for trying. He`s out front on the fight.

But the truth is, this is a company that at the end of the day, they`re concerned about up thing, can they survive? And I`ve got to tell you, this is the first time, Ed, where I`ve really thought they might not survive. And if they go into something called a bankruptcy-limited fund, that judge over in Texas . . . I`m going to fight like the dickens to keep it out of Texas because I`m worried about what`s happening in Texas.

But at the same time, if they do--this is something that could put this company out of money. I mean, I`m telling you.

Yes, they made $30 billion last year, $27 billion the year before that, but they could argue in front of a judge that it`s foreseeable that they don`t have enough money to pay for all of this. Transocean, Halliburton, nobody has enough to pay for all of this. Then what happens?”

Schultz asks [from transcript], “If it gets to a Texas judge, the chances aren`t very good for full restitution. Is that fair?”

PAPANTONIO: Well, I think it`s--I think it`s very fair. There`s a couple of things.

First of all, there`s a circuit-- it`s called the Fifth Circuit. It`s one of the least favorable circuits we`d want to be with this issue. And look, I`ve got to tell you something. If you don`t think that they went out of their way to pack those courts these last 10 years, that the Republicans focussed on trying to pack not just the trial courts, but the appellate courts in that state, all you have to do is look at the results even on a state level. It`s disastrous. [italics added]

So, this just doesn`t happen, that they say, hey, we want to go to Texas. There`s more [class action] cases filed in Louisiana, Mississippi, Alabama and Florida than Texas.

SCHULTZ: And quickly, do you believe that they`re honest brokers when they tell five attorneys general that they`re not going to pay attention to the caps?

PAPANTONIO: No.

SCHULTZ: They all pay attention to caps. They may not pay attention to a cap of $75 million, but there`s going to be a number when they`re going to stop and fight.

PAPANTONIO: You should have heard the promises they made in the tobacco litigation, Ed. You should have heard the promises. They`d sit across the table and tell you one thing. The next day, they do absolutely the opposite of what they promise.”

Papantonio’s law firm is handling some of the BP oil spill litigation, leading a class action. Papantonio also predicted on air that BP may go into bankruptcy limited protection, to hold down its costs.

Papantonio also predicted, May 3, the move by Transocean:

“My prediction is in the next several weeks, we`re going to see Transocean asserting this claim of limited liability.

They are going to say, gee, under the law, we`re only limited to the value of our rig, and we don`t have to pay more than that. As a matter of fact, if you look at the value of the rig right now, it`s about $500 million, and it`s useless, basically.

Then, what you`re going to see, Ed--this is where the interesting turn takes place. You`re going to see BP let Transocean fall on their sword, act like they are responsible. And BP is then going to have the high ground.

SCHULTZ: Yes.

PAPANTONIO: They`re going to have the high ground and say gee whiz, we didn`t do anything wrong. Transocean did it. It`s not our problem.

We`ve seen it happen time and time again, and we`re just seeing it here again. There`s nothing--there are no new surprises about a company like BP.”

Meanwhile--as Papantonio has also mentioned--the closed-door confabs on energy policy, in the previous White House, continue to take their toll.

*P.O.S.H. is an acronym: Port out, starboard home, on the (British) passage to India.

BP is now trying a new and perhaps more hopeful method of diminishing the oil spill, the AP reports. Instead of trying to cap off the major leak, the company is trying to insert a tube into the hole, to siphon off the underwater gusher.

Not to be too optimistic, but this method might have a chance, with whatever modifications or adjustments become necessary. Siphoning off the gushing oil has got to have more of a prayer than trying to cap it underwater, or underground. The oil, if this insert works, would then be siphoned to a tanker.



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