OPA BLOWS AWAY MEXICAN PLAINTIFFS’ CLAIMS AGAINST BP
In re Oil Spill by the Oil Rig "Deepwater Horizon", No. MDL 2179, 2020 U.S. Dist. LEXIS 202465 (E.D. La. Oct. 26, 2020)
Allyson Colomb
The United States District Court for the Eastern District of Louisiana granted BP’s dispositive motion after finding that the OPA displaced the Mexican Plaintiffs’ assert maritime law claims, and that the Mexican Plaintiffs could not satisfy the OPA’s requirements for foreign claimants.
The Mexican Plaintiffs contended that two treaties permit their recovery by OPA: the United States-Mexico-Canada Agreement and the North American Agreement on Environmental Cooperation. The USMCA was not in effect until after the Deepwater Horizon oil spill and the Mexican Plaintiffs provided no reason as to why it should apply to their claims. Additionally, the NAAEC provides that only those with a legally protected interest under United States law have access to any proceedings. The treaty itself does not automatically provide the Mexican Plaintiffs a legally recognized interest. The court explained that the Mexican Plaintiffs have no basis in United States law that allows Mexican residents to bring a claim under OPA; and therefore, the NAAEC fails to authorize the Mexican Plaintiffs recovery under the OPA. Finally, the trial court emphasized that the Mexican Plaintiffs have not provided any case holding the NAAEC authorizes claims through the OPA. Therefore, the Mexican Plaintiffs have failed to meet the OPA’s requirements for foreign claimants to recover. The OPA claims are dismissed.
The court noted that in Settoon Towing, L.L.C. v. Marquette Transp. Co., L.L.C. (In re Complaint of Settoon Towing, L.L.C.) (5th Cir. 2017)the court emphasized the phrase “except as otherwise provided in this Act, this Act does not affect—(1) admiralty and maritime law . . . ." in the OPA. Judge Barbier maintained that this shows that admiralty claims that are preserved are those not addressed in the OPA. Importantly, the Mexican Plaintiffs did not provide any response to the standards in United States v. American Commercial Lines, LLC, 759 F.3d 420 (5th Cir. 2014) and Setton that provide federal law is essentially displaced when an established Act directly speaks to the claims presented, which in this case is the OPA. The OPA clearly addresses any avenue of recovery for a foreign plaintiff with economic losses due to an oil spill. Because the OPA directly addresses the problem on point, the Mexican Plaintiffs’ claims are not preserved by OPA’s savings clause. Thus, the court held that the OPA displaced the application of general maritime law in the Mexican Plaintiffs’ claims.
Here, the Mexican Plaintiffs filed a mass joinder claim that is prohibited by Pretrial Order No. 60 issues in March of 2016. The Court noted that this is yet another reason to dismiss the Mexican Plaintiffs’ claims. The trial judge went on to explain that even if the OPA did not trump the Mexican Plaintiffs’ claims under general maritime law, there are still other obstacles that they likely would not overcome, and their “only hope” would be to recover under the commercial fisherman exception to the Robins Dry Rock rule. However, this exception is not recognized by the Fifth Circuit, and this Court noted that the Mexican Plaintiffs would have to persuade the Fifth Circuit to recognize it.
Furthermore, if the exception were recognized in the Fifth Circuit, the Mexican Plaintiffs may not fit it because, as BP pointed out, the exception only covers fishermen who “routinely fished in waters closed by a government entity.” This would preclude all of the Mexican Plaintiffs, especially since only 17 of 41 claim to even be commercial fishermen.
The Court granted BP’s dispositive motion and all claims by the Mexican Plaintiffs are dismissed with prejudice.
In lengthy dicta, Judge Barbier took issue with the expansive interpretation of the phrase “except as otherwise provided in this Act…” in 33 U.S.C. § 2751 (e) which according to the Fifth Circuit totally displaces any and all pre-existing general maritime law claims for economic damages or recovery costs. He cited the Congressional Conference Report which he stated: “preserves existing maritime law except where OPA contains a specific provision to the contrary.” He further maintained that to allow foreign claimants to recover under U.S. general maritime law would not be contrary to the Oil Pollution Act. It would appear that the claimants may well ask for an interlocutory appeal on this to the U.S. Fifth Circuit.
