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112th Congress                                                   Report
                                 SENATE
 2d Session                                                     112-245
_______________________________________________________________________

                                     

                                                       Calendar No. 544

 
               DEEPWATER HORIZON SURVIVORS' FAIRNESS ACT

                               __________

                              R E P O R T

                                 OF THE

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                 S. 183



                                     

                December 5, 2012.--Ordered to be printed
       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                      one hundred twelfth congress
                             second session

            JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii             KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts         OLYMPIA J. SNOWE, Maine
BARBARA BOXER, California            JIM DeMINT, South Carolina
BILL NELSON, Florida                 JOHN THUNE, South Dakota
MARIA CANTWELL, Washington           ROGER F. WICKER, Mississippi
FRANK R. LAUTENBERG, New Jersey      JOHNNY ISAKSON, Georgia
MARK PRYOR, Arkansas                 ROY BLUNT, Missouri
CLAIRE McCASKILL, Missouri           JOHN BOOZMAN, Arkansas
AMY KLOBUCHAR, Minnesota             PATRICK J. TOOMEY, Pennsylvania
TOM UDALL, New Mexico                MARCO RUBIO, Florida
MARK WARNER, Virginia                KELLY AYOTTE, New Hampshire
MARK BEGICH, Alaska                  DEAN HELLER, Nevada
                     Ellen Doneski, Staff Director
                   James Reid, Deputy Staff Director
                     John Williams, General Counsel
               Richard Russell, Republican Staff Director
            David Quinalty, Republican Deputy Staff Director
               Rebecca Seidel, Republican General Counsel


                                                       Calendar No. 544
112th Congress                                                   Report
                                 SENATE
 2d Session                                                     112-245

======================================================================




               DEEPWATER HORIZON SURVIVORS' FAIRNESS ACT

                                _______
                                

                December 5, 2012.--Ordered to be printed

                                _______
                                

     Mr. Rockefeller, from the Committee on Commerce, Science, and 
                Transportation, submitted the following

                                 REPORT

                         [To accompany S. 183]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill (S. 183) to clarify the 
applicability of certain maritime laws with respect to the 
blowout and explosion of the mobile offshore drilling unit 
Deepwater Horizon, having considered the same, reports 
favorably thereon with an amendment (in the nature of a 
substitute) and recommends that the bill (as amended) do pass.

                          Purpose of the Bill

  The Deepwater Horizon Survivors' Fairness Act is intended to 
address the inability for the widows and families of Deepwater 
Horizon workers to secure fair compensation for their loss. 
Under current law the relatives of Deepwater Horizon victims 
are entitled to only lost wages for the accident beyond what is 
available under current law. This bill would expand the 
remedies available to the families by allowing them to seek 
nonpecuniary losses and fair compensation for pain. The bill is 
intended to bring compensation for families of Deepwater 
Horizon victims in line with their available remedies if the 
accident had occurred on land.

                          Background and Needs

  On April 20, 2010, at approximately 10:00 p.m., the mobile 
offshore drilling unit Deepwater Horizon, owned and operated by 
Transocean Ltd. on behalf of British Petroleum (BP), suffered 
an explosion in the Gulf of Mexico, 42 miles southeast of 
Venice, LA. Search and Rescue operations were immediately 
commenced, and 115 of the 126 crew members were recovered. 
Eleven crew members were killed in the explosion.
  In the aftermath of the accident, much attention has turned 
to the need to reconsider the current laws governing the 
recovery of damages for injury and death under maritime law. 
The sufficiency of remedies for wrongful death is an issue of 
great significance for the widows and families of the 11 
deceased Deepwater Horizon workers. In a wrongful death action 
brought under applicable maritime law, a litany of factors 
(e.g., nature of employment, location of the accident) 
determines the levels of compensation available to survivors of 
the deceased. Yet even under the most egregious circumstances, 
current law prevents most survivors from recovering damages 
beyond the sum of lost lifetime wages (pecuniary damages).

                         Summary of Provisions

  The Deepwater Horizon Survivors' Fairness Act (S. 183) would 
modify existing maritime law for the surviving family members 
of the 11 Deepwater Horizon workers. Under current law, 
survivors of those killed aboard the Deepwater Horizon can only 
collect the sum of lost lifetime wages. This stands in stark 
contrast to the remedies that would be available to survivors 
if this accident occurred at a similar land-based facility. The 
legislation is narrow in scope, and provides equitable relief 
only to the survivors of the 11 workers killed aboard the 
Deepwater Horizon.

                          Legislative History

  The legislation was introduced by Senator Rockefeller on 
January 25, 2011, with Senators Whitehouse and Schumer as 
original cosponsors. Last Congress, Senator Rockefeller was the 
lead sponsor of S. 3755, the Fairness in Admiralty and Maritime 
Law Act. Though S. 3755 was not passed by the Committee, there 
was a request for unanimous consent to pass S. 3755 on the 
Floor that was denied. S. 183 passed the Committee by voice 
vote at an Executive Session held on June 8, 2011, with an 
amendment in the nature of a substitute from Senator 
Rockefeller that made technical and clarifying changes to the 
bill. There were no other amendments.

                            Estimated Costs

  In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate and section 403 of the 
Congressional Budget Act of 1974, the Committee provides the 
following cost estimate, prepared by the Congressional Budget 
Office:
S. 183--Deepwater Horizon Survivors' Fairness Act
    S. 183 would amend several laws related to private 
liability that apply to the injury or death of workers on 
ocean-going vessels or on certain other facilities located in 
the ocean. CBO estimates that enacting the legislation would 
have no significant impact on the federal budget.
    Enacting S. 183 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    The bill would expand both the Death on the High Seas Act 
(DOHSA) and the Jones Act to enable the surviving family 
members of a deceased worker to receive monetary compensation 
for nonmonetary damages as a result of the death of a relative 
on an ocean-going vessel or certain other facilities located in 
the ocean (such as oil-drilling rigs). S. 183 also would extend 
the distance from shore that would make ships subject to the 
provisions of DOHSA, and it would repeal the Limitation of 
Liability Act, a law that limits the value of certain damages 
that can be charged to vessel owners. Because those provisions 
would affect the liability of private firms, CBO estimates that 
enacting them would have no significant impact on the federal 
budget.
    S. 183 contains no intergovernmental mandates as defined in 
the Unfunded Mandates Reform Act (UMRA) and would impose no 
costs on state, local, or tribal governments.
    By retroactively removing various limits on the liability 
that owners and operators of vessels face as a result of the 
Deepwater Horizon explosion, the bill would impose a mandate as 
defined in UMRA. The costs of the mandate to owners and 
operators of vessels would be the difference in compensation 
for damages they would have to pay under current law compared 
to the amount that they would have to pay under the bill. 
Because those costs would depend on future judicial 
proceedings, CBO cannot determine whether the aggregate cost of 
the mandate would exceed the annual threshold established in 
UMRA for private-sector mandates ($142 million in 2011, 
adjusted annually for inflation).
    The CBO staff contacts for this estimate are Sarah Puro 
(for federal costs) and Sam Wice (for the private-sector 
impact). The estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

                      Regulatory Impact Statement

  In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following evaluation of the regulatory impact of the 
legislation, as reported:

                       NUMBER OF PERSONS COVERED

  The bill is limited in scope to the relatives of the 11 crew 
members who perished in the Deepwater Horizon accident.

                            ECONOMIC IMPACT

  The bill's economic impact is limited to possible civil 
actions that would be undertaken by relatives of those 11 crew 
members.

                                PRIVACY

  This bill will not have any adverse impact on the personal 
privacy of individuals.

                               PAPERWORK

  This bill will not provide any requirements for additional 
paperwork.

                   Congressionally Directed Spending

  In compliance with paragraph 4(b) of rule XLIV of the 
Standing Rules of the Senate, the Committee provides that no 
provisions contained in the bill, as reported, meet the 
definition of congressionally directed spending items under the 
rule.

                      Section-by-Section Analysis


Section 1. Short title

  Section 1 provides that the bill may be cited as the 
``Deepwater Horizon Survivors' Fairness Act''.

Section 2. Amendment of Shipowners' Liability Act of 1851

  Under existing law, an owner of a vessel can limit liability 
for all claims arising from an incident involving the vessel to 
its post-voyage value and that of its cargo. Under current 
provisions of title 46, United States Code, governing maritime 
liability, the owner of a vessel may bring a civil action in 
Federal district court to limit owner liability with respect 
to: (1) damage done to goods onboard the vessel; (2) damage by 
collision to other vessels and their cargo; and (3) any other 
damage or forfeiture done or incurred without the privity or 
knowledge of the owner (including personal injury and death). 
This section would amend the relevant sections in chapter 305 
of title 46, United States Code, which comprise this law, to 
clarify that claims for personal injury or wrongful death 
arising from the blowout and explosion of the mobile offshore 
drilling unit Deepwater Horizon that occurred on April 20, 
2010, are not subject to the limitation.

Section 3. Amendment of the Death on the High Seas Act

  Section 3 would amend chapter 303 of title 46, United States 
Code, to enhance remedies against any negligent parties for 
wrongful death on the high seas for the surviving families of 
the 11 deceased workers aboard the Deepwater Horizon. This 
section would provide the families of the 11 workers the 
ability to recover fair compensation for the deceased's 
pecuniary and nonpecuniary loss, plus a fair compensation for 
their pain and suffering. Current law provides decedents the 
ability to recover only pecuniary damages (lost lifetime wages) 
from negligent parties.

Section 4. Amendment of Jones Act

  Section 4 would amend chapter 301 of title 46, United States 
Code, to provide the families of the 11 deceased workers aboard 
the Deepwater Horizon the ability to recover nonpecuniary 
losses (loss of care, comfort, companionship, and society) from 
employers. Chapter 301 of title 46-commonly known as the Jones 
Act-provides the same rights to recovery for seamen as is 
available to railway employees under the Federal Employers' 
Liability Act (Railroad). Only a seaman can recover damages 
under chapter 301 of title 46 (a seaman is defined as an 
individual with a substantial connection to a vessel or a fleet 
of commonly owned vessels). Current law provides the survivors 
of certain seamen killed as a result of their employer's 
negligence with wrongful death and survival claims. Section 4 
would provide the families of the 11 workers the ability to 
recover fair compensation for the deceased's pecuniary and 
nonpecuniary loss, plus a fair compensation for their pain and 
suffering against a negligent employer.

Section 5. Effective date

  Section 5 would provide that all amendments to existing 
statutes shall apply to causes of action and claims arising 
after April 19, 2010, and actions commenced before the date of 
enactment of this Act that have not been finally adjudicated.

                        Changes in Existing Law

  In compliance with paragraph 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill, 
as reported, are shown as follows (existing law proposed to be 
omitted is enclosed in black brackets, new material is printed 
in italic, existing law in which no change is proposed is shown 
in roman):
  

                           TITLE 46. SHIPPING

                    SUBTITLE III. MARITIME LIABILITY

               CHAPTER 301. GENERAL LIABILITY PROVISIONS

Sec. 30104. Personal injury to or death of seamen

  A seaman injured in the course of employment or, if the 
seaman dies from the injury, the personal representative of the 
seaman may elect to bring a civil action at law, with the right 
of trial by jury, against the employer. Laws of the United 
States regulating recovery for personal injury to, or death of, 
a railway employee apply to an action under this section. If 
the action under this chapter arises from the blowout and 
explosion of the mobile offshore drilling unit Deepwater 
Horizon that occurred on April 20, 2010, the recovery for a 
seaman who dies may include fair compensation for nonpecuniary 
loss, plus a fair compensation for the decedent's pain and 
suffering. In this section, the term ``nonpecuniary loss'' 
means the loss of care, comfort, companionship, and society.

                           TITLE 46. SHIPPING

                    SUBTITLE III. MARITIME LIABILITY

                  CHAPTER 303. DEATH ON THE HIGH SEAS

Sec. 30302. Cause of action

  When the death of an individual is caused by wrongful act, 
neglect, or default occurring on the high seas beyond 3 
nautical miles from the shore of the United States, the 
personal representative of the decedent may bring a civil 
action in admiralty against the person or vessel responsible. 
If the death was attributable to the blowout and explosion of 
the mobile offshore drilling unit Deepwater Horizon that 
occurred on April 20, 2010, the action may be brought in law or 
in admiralty. The action shall be for the exclusive benefit of 
the decedent's spouse, parent, child, or dependent relative.

Sec. 30303. Amount and apportionment of recovery

  The recovery in an action under this chapter shall be a fair 
compensation for the pecuniary loss sustained by the 
individuals for whose benefit the action is brought. The court 
shall apportion the recovery among those individuals in 
proportion to the loss each has sustained. If the action under 
this chapter arises from the blowout and explosion of the 
mobile offshore drilling unit Deepwater Horizon that occurred 
on April 20, 2010, the recovery may include fair compensation 
for nonpecuniary loss, plus a fair compensation for the 
decedent's pain and suffering. In this section, the term 
``nonpecuniary loss'' means the loss of care, comfort, 
companionship, and society.

           *       *       *       *       *       *       *


Sec. 30305. Death of plaintiff in pending action

  If a civil action in admiralty is pending in a court of the 
United States to recover for personal injury caused by wrongful 
act, neglect, or default described in section 30302 of this 
title, and the individual dies during the action as a result of 
the wrongful act, neglect, or default, the personal 
representative of the decedent may be substituted as the 
plaintiff and the action may proceed under this chapter for the 
recovery authorized by this chapter. If a civil action in law 
is pending in a court of the United States to recover for 
personal injury caused by wrongful act, neglect, or default 
described in the second sentence of section 30302 of this title 
and the individual dies during the action as a result of that 
wrongful act, neglect, or default, the personal representative 
of the decedent may be substituted as the plaintiff and the 
action may proceed under this chapter for the recovery 
authorized by this chapter.

                           TITLE 46. SHIPPING

                    SUBTITLE III. MARITIME LIABILITY

          CHAPTER 305. EXONERATION AND LIMITATION OF LIABILITY

 30505. General limit of liability

  (a) In General.--Except as provided in section 30506 of this 
title, the liability of the owner of a vessel for any claim, 
debt, or liability described in subsection (b) shall not exceed 
the value of the vessel and pending freight. If the vessel has 
more than one owner, the proportionate share of the liability 
of any one owner shall not exceed that owner's proportionate 
interest in the vessel and pending freight.
  (b) Claims Subject to Limitation.--Unless otherwise excluded 
by law, claims, debts, and liabilities subject to limitation 
under subsection (a) are those arising from any embezzlement, 
loss, or destruction of any property, goods, or merchandise 
shipped or put on board the vessel, any loss, damage, or injury 
by collision, or any act, matter, or thing, loss, damage, or 
forfeiture, done, occasioned, or incurred, without the privity 
or knowledge of the owner.
  [(c) Wages.--Subsection (a) does not apply to a claim for 
wages.]
  (c) Claims Not Subject to Limitation.--Subsection (a) does 
not apply--
          (1) to a claim for wages; or
          (2) to a claim for personal injury or wrongful death 
        arising from the blowout and explosion of the mobile 
        offshore drilling unit Deepwater Horizon that occurred 
        on April 20, 2010.

           *       *       *       *       *       *       *


 30511. Action by owner for limitation

  (a) In General.--The owner of a vessel may bring a civil 
action in a district court of the United States for limitation 
of liability under this chapter. The action must be brought 
within 6 months after a claimant gives the owner written notice 
of a claim.
  (b) Creation of Fund.--When the action is brought, the owner 
(at the owner's option) shall--
          (1) deposit with the court, for the benefit of 
        claimants--
                  (A) an amount equal to the value of the 
                owner's interest in the vessel and pending 
                freight, or approved security; and
                  (B) an amount, or approved security, that the 
                court may fix from time to time as necessary to 
                carry out this chapter; or
          (2) transfer to a trustee appointed by the court, for 
        the benefit of claimants--
                  (A) the owner's interest in the vessel and 
                pending freight; and
                  (B) an amount, or approved security, that the 
                court may fix from time to time as necessary to 
                carry out this chapter.
  (c) Cessation of Other Actions.--When an action has been 
brought under this section and the owner has complied with 
subsection (b), all claims and proceedings against the owner 
related to the matter in question that are subject to 
limitation under section 30505 shall cease.