On July 19th, independent journalist Dahr Jamail reported that Gulf Coast fishermen had been told that BP and the $20 billion Feinberg-managed fund would subtract money they earn while working on the cleanup effort from any future damages claims, breaking an express promise by BP made to fishermens’ attorneys. He quoted from a letter sent on May 3 to an Interim Liaison Counsel for the BP cases in which A.T. Chenault, a lawyer representing BP, promised, “Lastly, we confirm that BP will not offset payments to vessel owners or other volunteers against claims they might have.” I can report that as of this afternoon, those fishermen are still being told that their cleanup earnings will offset their claims filed against BP for lost business earnings. Obviously, Ken Feinberg’s firm, which is being paid by BP as he establishes the fund, has done nothing to force BP to keep the promise less than two weeks after the disaster by its attorney to families of the victims. And it’s important to remember that BP still hasn’t signed any legally binding agreement to pay anything to anybody for any damages.
Meanwhile, the U.S. House is now on its August recess, and the Senate will join it later this week, after it votes to confirm Elena Kagan as the next Supreme Court Justice. The latest Senate bill introduced to deal with maritime liability limits is really weak compared to the House-passed SPILL Act; it not only doesn’t give the workers in commercial fishing industry, the most dangerous most dangerous in America, their 7th Amendment right to ask a jury to hold a fishing company accountable for negligence, but it fails to even do the minimum needed for the families of the 11 men who died onboard the Deepwater Horizon in the rig explosion. Incredibly, the bill language leaves open the potential that the families will receive no compensation, because it doesn’t repeal the Limitation on Liability Act, not even for personal injuries and wrongful deaths. Senators supporting the commercial fishing and shipping industries have successfully cut the SPILL Act in half. But it won’t really matter what that language says, because the half-loaf maritime liability bill is buried inside an energy bill that, on its own, has virtually no chance of enactment.
So Congress will be on vacation while (1) Feinberg lets BP lie to the fishermen who clean up its mess and cut their damage claims; (2) BP gets away with the “Exxon Valdez” modus operandi of ducking a legal commitment to paying all the damages; and (3) the families of the victims, including widows and orphans, still lack a clear roadmap to either recovering for the full amount needed to continue to live or to even exercising their Constitutional rights to pursue BP and its partners in court. BP will have no incentive, let alone legislated requirement, to do anything but stretch out its recovery responsibilities over a 20-year period, as Exxon did.
The Founding Fathers would not be impressed.