Legal Implications of the BPDeepwater Horizon Disaster

Florida Bar Continuing Legal Education Committee International Law Section of the Florida Bar

Santiago A. CuetoPartner

Coral Gables, FL 33146sc@cuetolawgroup.com

International Liability

--Alien Tort Claims Act--Jones Act--International Law--International Cooperation

International Liability--Spill not just confined to the Gulf of Mexico.--The Loop Current is a warm ocean current in the Gulf of Mexico that flows northward between Cuba and the Yucatán peninsula, moves north into the Gulf of Mexico, loops west and south before exiting to the east through the Florida Straits and into the Atlantic Ocean.--Approximately 5 million barrels of oil discharged into the Gulf of Mexico.--Approximately 1.8 to 2 million gallons of Corexit dispersant have been spayed in the Gulf of Mexico.

AA

Alien Tort Claims Act

28 U.S.C 1350“The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

Alien Tort Claims Act--Sosa

--Companies that have faced ATCA cases include Chevron, Coca-Cola, Exxon-Mobil, Firestone, Shell and Wal-Mart.

Alien Tort Claims ActTrends

--United Nations Declared Right to Clean Water a Fundamental Human Right

--Mexico Plans to File law Suit Against U.S.

The Jones Act-- The Merchant Marine Act of 1920-- Intended to protect the U.S. merchant

marine industry by requiring that all materials, goods or merchandise transported by water between U.S. ports be carried only on U.S.-registered ships that are built in the U.S., owned by U.S. citizens and crewed completely by U.S. citizens or permanent legal residents.

The Jones Act--Why is the BP oil disaster a U.S. domestic matter when the spill occurred 50 miles off the U.S. coast in international waters? --The spill is a domestic matter because it occurred within the Exclusive Economic Zone (EEZ) of the United States. --While the EEZ is technically in international waters, under the United Nations Convention on the Law of the Seas, a sovereign state has exclusive marine resource rights extending 200 miles from the baseline of its territorial waters.

The Jones Act--The U.S. Coast Guard has received offers to assist in various ways from over 17 nations including the following:

Canada, Mexico, Korea, Croatia, France , Germany, Ireland, Japan, Netherlands, Norway, Romania, Russia, Spain, Sweden, United Arab Emirates, United Kingdom, Vietnam

--The European Union also offered to help by coordinating the European response, should the State Department begin accepting any offers of foreign assistance.

The Jones Act-- The Act applies only to commercial

shipping - not to disaster response. -- The Coast Guard could grant Jones

Act waivers to allow foreign vessels to assist.

-- Such waivers were granted by previous administrations in the aftermath of hurricanes and other emergencies.

International Law

International Law

International Cooperation--Under the terms of the Cartagena

Convention, nations have a duty to alert each other whenever environmental threats at sea emerge.

--In responding to oil spill incidents, countries have a general obligation to cooperate to protect both the marine and coastal environments to the extent possible and within their capabilities.

International Liability

--Oil does not just disappear--Spreads--Disperses--Sinks to the sea bed--Evaporates

International Liability: the Future

Legal Implications of the BPDeepwater Horizon Disaster

THANK YOUSantiago A. Cueto

Partner

4000 Ponce de Leon Blvd., Suite 470Coral Gables, FL 33146

+1 305 777 0377sc@cuetolawgroup.com