[Senate Hearing 111-1054]
[From the U.S. Government Printing Office]



                                                       S. Hrg. 111-1054

                    THE DEEPWATER HORIZON TRAGEDY: 
                HOLDING RESPONSIBLE PARTIES ACCOUNTABLE

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

                                HEARING

                               before the

                         COMMITTEE ON COMMERCE,
                      SCIENCE, AND TRANSPORTATION
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 30, 2010

                               __________

    Printed for the use of the Committee on Commerce, Science, and 
                             Transportation

















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       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

            JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii             KAY BAILEY HUTCHISON, Texas, 
JOHN F. KERRY, Massachusetts             Ranking
BYRON L. DORGAN, North Dakota        OLYMPIA J. SNOWE, Maine
BARBARA BOXER, California            JOHN ENSIGN, Nevada
BILL NELSON, Florida                 JIM DeMINT, South Carolina
MARIA CANTWELL, Washington           JOHN THUNE, South Dakota
FRANK R. LAUTENBERG, New Jersey      ROGER F. WICKER, Mississippi
MARK PRYOR, Arkansas                 GEORGE S. LeMIEUX, Florida
CLAIRE McCASKILL, Missouri           JOHNNY ISAKSON, Georgia
AMY KLOBUCHAR, Minnesota             DAVID VITTER, Louisiana
TOM UDALL, New Mexico                SAM BROWNBACK, Kansas
MARK WARNER, Virginia                MIKE JOHANNS, Nebraska
MARK BEGICH, Alaska
                    Ellen L. Doneski, Staff Director
                   James Reid, Deputy Staff Director
                   Bruce H. Andrews, General Counsel
                 Ann Begeman, Republican Staff Director
             Brian M. Hendricks, Republican General Counsel
                  Nick Rossi, Republican Chief Counsel












                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on June 30, 2010....................................     1
Statement of Senator Rockefeller.................................     1
    Prepared statement of Ernest Cannon and Ben Barnes on Behalf 
      of Shelley Anderson submitted by Hon. John D. Rockefeller 
      IV.........................................................    47
Statement of Senator Hutchison...................................     2
    Prepared statement...........................................     4
    Article, dated June 30, 2010, from The Times-Picayune, 
      entitled ``Cut Red Tape and Get More Skimming Vessels to 
      the Oil Spill''............................................    34
Statement of Senator Wicker......................................     5
Statement of Senator Lautenberg..................................    12
    Prepared statement...........................................    13
Statement of Senator Begich......................................    36
Statement of Senator LeMieux.....................................    38
Statement of Senator Thune.......................................    41
Statement of Senator Vitter......................................    42
Statement of Senator Klobuchar...................................    47

                               Witnesses

Shelley Anderson, Widow of Jason Anderson of Midfield, Texas.....     6
    Prepared statement...........................................     8
Natalie Roshto, Widow of Shane Roshto of Liberty, Mississippi....     8
    Prepared statement...........................................    10
    Courtney Kemp, Widow of Roy Wyatt Kemp, of Jonesville, 
      Louisiana, prepared statement..............................    11
Thomas C. Galligan, Jr., President and Professor of Humanities, 
  Colby-Sawyer College and Scholar on Torts and Maritime Person 
  Injury Law.....................................................    14
    Prepared statement...........................................    16
Fred McCallister, Vice President, Allegiance Capital Corporation.    25
    Prepared statement...........................................    27

 
                     THE DEEPWATER HORIZON TRAGEDY:
                HOLDING RESPONSIBLE PARTIES ACCOUNTABLE

                              ----------                              


                        WEDNESDAY, JUNE 30, 2010

                                       U.S. Senate,
        Committee on Commerce, Science, and Transportation,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:05 a.m. in 
room SR-253, Russell Senate Office Building, Hon. John D. 
Rockefeller IV, Chairman of the Committee, presiding.

       OPENING STATEMENT OF HON. JOHN D. ROCKEFELLER IV, 
                U.S. SENATOR FROM WEST VIRGINIA

    The Chairman. This hearing will come to order.
    We welcome our witnesses, all of them, and others who might 
be in the audience.
    Seventy-one very difficult, very painful days have passed 
since the enormous disaster in the Gulf began. And with every 
day that goes by, the economic and environmental damage grows 
worse and worse. While we don't know the exact number, experts 
estimate that up to 6.9 million barrels of oil have spewed out 
of the Gulf--out of the pipe, into the Gulf, wreaking one kind 
of havoc on coastal communities, workers' livelihoods, and 
fragile wetlands.
    At the very heart of this--and the greatest environmental 
catastrophe in American history is what we're talking about--is 
something equally as important; that is, a very human tragedy. 
The explosion that occurred on the Deepwater Horizon oil rig on 
April 20 killed 11 workers, injured 17; since then, at least 
two more response workers have been killed on the job.
    Like so many men and women in the Gulf region and in 
communities across America, they took pride in their jobs, 
worked hard at their jobs--hard jobs, indeed--and they loved 
their communities, they provided for their families, even if 
their work was not always appreciated or understood by 
outsiders and the rest of the world. It's that way in coal 
mining. It certainly is that way in the work that was done by 
these folks who were on those platforms.
    For the survivors and loved ones, some of whom are here 
today, the nightmare is obviously just beginning. Put another 
way, it's far from over. Livelihoods have disappeared, and the 
fabric binding these families together has been torn, leaving a 
terrible sense of loss and incredible uncertainty.
    I'm deeply disturbed by reports that different families 
will have access to, in fact, different relief, depending on 
their loved ones' jobs and where they were killed. It is my 
understanding today that Transocean, the owner of the Deepwater 
Horizon, is seeking to limit its liability for this loss, in 
Federal court, under a legal loophole that is both 
unconscionable and outdated. Hence, part of the reason for this 
hearing.
    Transocean's cold and calculated efforts to avoid taking 
full responsibility for their actions--or, rather, inactions--
shines a very bright light on a serious problem, which is a 
lack of accountability and equal treatment under the law. We 
cannot allow that, in this Senator's judgment, to continue.
    There are three simple questions that I hope we can answer 
at today's hearing. One, Do our maritime laws need to be 
updated? Two, Are all injured parties being treated fairly 
under these laws? And do the distinctions that allow for people 
to be treated differently make any sense at all? Are the 
parties--three--responsible for causing the harm being held 
fully accountable, or are they using outdated laws to escape 
paying their fair share?
    Let me be clear. Employers whose negligence causes an 
employee or anyone else's death should be held fully 
accountable for the pain and the suffering they cause, 
regardless of where their death takes place. Companies that do 
harm should not be able to hide behind statutes from 1851, for 
heaven sakes, to avoid paying for the harm they have caused. 
And the courts should have the power to make an example of a 
company that disregards its workers' safety.
    I firmly believe a consistent culture of workplace safety 
must form the bedrock of any serious and responsible industry. 
Whether you're operating a rig in the Gulf or, as I indicated, 
a mine in the coal fields of West Virginia, these core 
principles depend upon business doing the right thing, and 
governments, by the way, enforcing the law. And that cannot be 
allowed to change simply depending on the location of where the 
work is and was done.
    Today's hearing is an important opportunity to hear from 
you, the families, who have been affected so painfully by this 
awful disaster. You have our Nation's heartfelt sympathy. We 
want to honor your loved one's sacrifice and make conditions 
safer for all workers. Your voice today, in the weeks and 
months ahead, is absolutely essential--again, the reason for 
this hearing.
    Thank you for being here and for sharing your stories with 
the Committee today. I know full well that it cannot be easy. 
Please know that the Committee will continue to work on these 
issues to make sure workers and their families get the 
protections they deserve and make sure those who cause the harm 
are held fully accountable.
    We have a fundamental obligation to bring real 
accountability and fairness to a system where it has been 
sorely missing. You have my commitment that we will do that.
    I call on my very distinguished and very excellent Ranking 
Member.

            STATEMENT OF HON. KAY BAILEY HUTCHISON, 
                    U.S. SENATOR FROM TEXAS

    Senator Hutchison. Well, thank you, Mr. Chairman.
    Today, we are holding our second hearing in this committee 
on this tragic oil spill, and the 44th hearing in Congress 
since this happened. We're going to talk about the result of 
the spill, the legal remedies, and the Jones Act. I want to, 
first, say, to Mrs. Anderson and Mrs. Roshto, that our hearts 
go out to you. What you have suffered, we know, is just 
unimaginable. We just hope that we can settle some things here 
that will keep, maybe, you from having to go through this type 
of experience, or others like this experience, in the future.
    We are now looking at a leak that started over 2 months 
ago, and we're told that the leak will probably not really be 
stopped for another month and a half. To date, 140 million 
gallons of oil have leaked into the Gulf of Mexico. This is 
unacceptable, and clearly we need to be looking for ways to 
prevent this type of action in the future from happening, but 
also learn how to respond more quickly to mitigate the damage.
    I want to talk about the Jones Act. I'm glad that you're 
with us, Mr. McCallister, because you have experience with 
trying to bring skimmers in to be helpful. And I want you to 
describe, later, the problems that you have encountered.
    To date, over 20 countries have offered response vessels 
and expertise to assist in the cleanup of the Gulf, but, 
because of the 1920 Merchant Marine Act, known as the Jones 
Act, foreign vessels are prohibited from operating within 3 
nautical miles of the U.S. coastline, except after going 
through an extended process for waivers. However, the waivers 
have not been granted for foreign skimmers to come within the 3 
nautical miles, and that's where we need them right now.
    Three days after Hurricane Katrina, the previous 
Administration waived the Jones Act so that foreign countries 
could send vessels in to help. Yet, despite the situation that 
we have, the Jones Act has not been granted any waivers in this 
oil spill, and we are seeing the oil seep onto the shores.
    I have introduced Senate Bill 3512, the Waiver Act, 
cosponsored by Senators LeMieux, Cornyn, Isakson, McCain, 
Barrasso, Bond, and Sessions. This would just allow the waivers 
to occur immediately so that, obviously, under the auspices of 
the Coast Guard, these foreign vessels could come in and help 
with the mitigation of the damage. And with each hour that 
passes, such a waiver is one more hour that the communities in 
most need of assistance are forced to go without it. I hope 
that, frankly, the President will waive it on his own. He can 
do it. He should do it. We can get this hurdle out of the way 
right now. I introduced the legislation. I hope that we can 
pass it, because I think it will give some real help.
    I want to also say that I think we can work together for 
planning for the future, but, as I have said before, I don't 
think we should stop drilling in the Gulf, where we have safely 
drilled for 40 years. I think we need to take the steps to 
assure that we do it safely, that we protect the Gulf, that we 
protect the shores, and that we protect the environment. I 
think we can do that, and I think we can do it in an 
expeditious way if we all work together. And I hope that's what 
we can achieve through these hearings and, hopefully, 
legislation.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Hutchison follows:]

  Prepared Statement of Hon. Kay Bailey Hutchison, U.S. Senator from 
                                 Texas
    Thank you, Mr. Chairman, for holding today's hearing, which is our 
Committee's second hearing so far on the tragic oil spill in the Gulf, 
and the 44th (19 in the Senate, 25 in the House) in the Congress. Today 
we will consider the various legal remedies available as a result of 
the spill, as well as discuss the Jones Act.
    On April 20, 2010, the Deepwater Horizon Mobile Offshore Drilling 
Unit exploded, killing 11 employees onboard the rig and causing the 
largest oil spill in U.S. history. To the widows of those workers who 
perished and are here with us today, Shelley Anderson, from Midfield, 
Texas, and Natalie Roshto, from Liberty, Mississippi, please know that 
my thoughts and prayers continue to be with you and the others who have 
lost a loved one on the Deepwater Horizon. I thank you for being with 
us during this difficult time.
    It has been 72 days since the oil spill began. An estimated 140 
million gallons of oil have leaked into the water of the Gulf of 
Mexico. We are told that the best chance for stopping the leak won't 
happen until mid-August when BP hopes to complete the drilling of two 
relief wells--almost 4 months after the leak began. This is 
unacceptable. We must learn from this tragedy and fix what can be fixed 
now, and continue to work to find solutions in those areas for which 
answers have not yet been found.
WAIVER Act
    As many of our domestic resources are being exhausted, we need to 
look to our foreign friends for assistance. To date, over 20 countries 
have offered response vessels and expertise to assist in cleanup of the 
Gulf. Unfortunately, due provisions in the Merchant Marine Act of 1920, 
also known as the Jones Act, foreign vessels are prohibited from 
operating within three miles of the U.S. coastline.
    Common sense dictates that three miles from the shore is the 
crucial area that needs protection from all types of response vessels. 
That is why there should be a temporary waiver of the Jones Act to 
allow foreign response vessels to join with their domestic counterparts 
to control and contain the oil leak--wherever they are most needed.
    This is not without precedent. Just 3 days after Hurricane Katrina 
made landfall, the previous Administration waived the Jones Act for 
foreign response vessels to aid in the response efforts.
    Yet, despite waiver requests, the Administration has not granted 
any Jones Act waivers, while oil continues to wash ashore along the 
Gulf Coast. That is why I have introduced S. 3512, the Water Assistance 
from International Vessels for Emergency Response Act (WAIVER), along 
with Senators LeMieux, Cornyn, Isakson, McCain, Barrasso, Bond and 
Sessions.
    Our legislation would provide a temporary waiver of the Jones Act 
for a period of time associated with emergency response to the oil 
spill. I would prefer the administration take immediate action and not 
wait for legislation to grant a temporary waiver of the Jones Act so 
the Gulf can receive assistance from all resources at our disposal. 
After all, each hour that passes without such a waiver is one more hour 
that the communities in most need of assistance are forced to go 
without. But if it takes legislation, ours is ready to pass.
    I am pleased that Fred McCallister, another Texas witness, was able 
to join us today. He requested a Jones Act waiver nearly 2 weeks ago 
(June 16) from the Coast Guard, and has yet to receive an acceptance or 
rejection notice regarding his request.
    Mr. McCallister's Dallas-based company has contracted for 25 
foreign-flagged oil spill response vessels which he wanted to bring to 
the Gulf to assist with 3 cleanup efforts. I hope he will describe the 
hoops and hurdles he has gone through in requesting a Jones Act waiver 
and hopefully we can learn from his experience and improve the waiver 
process, or rather, what appears to be a lack of process, one way or 
another.
Proposed Legislation
    In addition to the lack of available resources to assist in the 
Gulf, the lack of a clear response plan from BP and the Administration 
is very troubling. For that reason, I am currently working with a 
number of stakeholders to develop legislation that would help ensure 
that responsible parties, including companies and Federal agencies, 
establish meaningful response plans to address any size spill on day 
one. We need to be able to better mitigate and control any spill so it 
does not amplify into the massive spill we see today in the Gulf.
    By enhancing coordination efforts among the private and public 
sector in terms or response, response equipment and enhance research 
and development for oil response, my legislation will allow responders 
to ``hit the ground running.'' I look forward to working with my 
colleagues on what I hope can be a bipartisan solution to many of the 
ongoing problems we see today.
    Again, I thank the Chairman for holding this hearing and I thank 
the witnesses for being with us today.

    The Chairman. Thank you, Senator Hutchison.
    We will now--neither Senator Lautenberg nor Senator Thune 
are here, and so, we will proceed to the witnesses. And----
    Senator Wicker. Mr. Chairman?
    The Chairman. Yes.
    Senator Wicker. I understood I'd be allowed to make an 
opening statement.
    The Chairman. You had that understanding with my esteemed--
--
    Senator Wicker. Staff to staff, I think.
    The Chairman. Staff to staff. Well, that means that Mr. 
Isakson also should have that right. OK. I hope it's short.
    Senator Wicker. Yes, as are all of my statements.
    [Laughter.]
    Senator Wicker. But, I do appreciate the Chair indulging 
me.

              STATEMENT OF HON. ROGER F. WICKER, 
                 U.S. SENATOR FROM MISSISSIPPI

    Senator Wicker. And thank you also, Mr. Chairman, for 
holding this hearing today on the ongoing catastrophe and 
related legal and regulatory impediments to the cleanup of our 
Gulf Coast.
    I appreciate Mrs. Roshto and Mrs. Anderson being here 
today. It is under very unfortunate circumstances. Mrs. Roshto 
and her late husband, Shane, from Liberty, Mississippi, are 
constituents of mine. And my deepest condolences to both of 
these ladies, and to the other families involved.
    As news of the drilling operation's safeguards omitted in 
the lead up to this tragic explosion come to light, I grow more 
and more troubled at the negligence exhibited by the 
responsible parties in the operation of Deepwater Horizon. I am 
aware that debates took place on this oil rig as to what safety 
precautions should be taken. And the ones who would cut corners 
seem to have won that debate. So, I'm eager to hear the 
testimony of both of these ladies today, and the testimony of 
the other witnesses.
    We're also witnessing a tragic situation unfold with regard 
to the response. I had the opportunity, last weekend, to do 
another flyover of the impacted waters, and witnessed oil in 
Mississippi Sound for the first time, and in our passes near 
the barrier islands. Since my flight, we've witnessed the 
closures of several beaches, and almost all of our Mississippi 
Sound fishing grounds.
    I also witnessed the lack of skimming equipment, during my 
flight. This is unacceptable. The Federal on-scene coordinator 
determined there was an insufficient number of skimming vessels 
engaged in the cleanup more than 2 weeks ago. This recognition 
should have spurred action. It did not. Only yesterday did the 
State Department follow, with their separate determination, and 
declared that we would, finally, accept the invitations of some 
of our foreign allies, in bringing their equipment here.
    We still hear stories of domestic skimming assets sitting, 
unused. We also hear stories of delays of the Administration's 
ability to accept international assistance. We should hear 
stories of armadas of vessels protecting our coast. 
Unfortunately, this is not the case.
    I understand there are many impediments to our plea for 
more skimmers. It took some time, but the Administration 
created an expedited waiver process for the Jones Act, and 
seven vessels have been approved for use in our waters over the 
past 48 hours. This is a start. The Administration could 
simplify this further by waiving the Jones Act for skimming 
vessels, as Senator Hutchison has mentioned, no different than 
the waiver provided for oilspill tankers responding after 
Hurricane Katrina. We need all domestic and international 
resources responding.
    I understand there are additional obstacles through the 
Federal Water Pollution Control Act on skimmer discharge 
limits. Unbelievably, our pollution control laws are preventing 
us from cleaning up the pollution in our own waters.
    We should not be discussing unresolved cleanup obstacles 
more than 70 days after the start of this disaster. This is 
clearly a failure of this Administration to fully grasp the 
extent of the disaster.
    Mr. Chairman and Ranking Member Hutchison, my fellow 
members of the Committee, we need to work together to address 
the issues that are impeding access to these skimming vessels 
and equipment. We need to ensure the Administration is 
providing the proper waivers, and doing so in a timely manner. 
We need assurances that the State Department is resolving the 
reciprocity issue. We also need to know that the Clean Water 
Act is not one of the biggest obstacles to clean water in the 
Gulf of Mexico. Congress must review any bureaucratic obstacles 
to cleaning up this disaster, waive them in a responsible 
manner, and help restore our Gulf Coast. We can no longer 
afford to wait for action to occur. We owe it to the folks on 
the coast who have lost their livelihoods and lost their way of 
life.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator.
    And we will go now--Senator Lautenberg is on his way, and 
he would need to make an opening statement, as well as Senator 
Thune, should he come.
    Mrs. Shelley Anderson, we welcome you and would like to 
hear your testimony. And you need to turn the button on, and 
put that fairly close to your mouth.
    Mrs. Anderson. I don't know how to turn the button.
    The Chairman. That--you did.
    Mrs. Anderson. Did? OK, thank you.

   STATEMENT OF SHELLEY ANDERSON, WIDOW OF JASON ANDERSON OF 
                        MIDFIELD, TEXAS

    Mrs. Anderson. My name is Shelley Anderson. My husband is 
Jason Anderson, and he's a toolpusher on the Deepwater Horizon. 
We have a 5-year-old daughter, named Lacy, and a 17-month-old 
son, named Ryver. Our 8-month--our 8-year wedding anniversary 
is next month.
    Jason has been a--distant on his last few hitches, whenever 
he would come home and whenever I would talk to him on the rig, 
and I would ask him what the problem was, and he would always 
tell me the same thing, that there's a lot of stuff going on, 
on the rig, and that the walls were too thin, that he couldn't 
talk about it right then, and that he would talk about it when 
he got home. But, he never actually would talk about it when he 
got home, because it would just be something else for me to 
worry about, and Jason did not take care of me by making me 
worry about anything. I never had to worry about anything.
    Jason also talked about his will, this last time home, all 
the way up to the point where I dropped him off at the airport 
to go get on the rig. We talked about our future together, what 
he wanted for the kids. We talked about how to plan. We made 
plans together. And now I have to plan for a future without my 
soulmate, without my husband, without my best friend. My 
children are never going to have their father back. Ryver's 
daddy is never going to throw him a football, and Lacy's daddy 
is never going to walk her down the aisle at her wedding. Jason 
will never be able to teach them how to ski or drive a car or 
take them hunting or all the other things that daddies are 
supposed to do. Jason's never going to be here again to put his 
arms around me and comfort me and tell me that everything is 
going to be OK, and make me feel like everything is going to be 
OK. Now all I have to do is worry.
    I believe that our damages should be considered under the 
same standards as deaths that have occurred on land. And why 
damages to be different for a family--why damages to a family 
have to be different for deaths that occur on the--on an ocean 
rather than on land.
    I'm concerned that the responsible parties will use every 
legal tactic and maneuver to delay our justice. In cases for 
those killed in the tragedy are lumped in with other cases for 
fishermen and landowners and businesses, in units of 
government, it could be years for our cases to be heard or 
resolved. I think I should be able to decide if I want to 
pursue my case alone or along with the hundreds of other 
claimants who have lost their income and property damage, but 
have not lost their husbands and fathers.
    Our damages were sustained at the time of the explosion, 
and the property damage claims, which BP wishes to delay us, in 
a result of failure to control the spill and perhaps the 
dispersants being used in the ocean. These are separate and 
distinct cases from ours, and our husbands' deaths should not 
be handled as--they need to be separated.
    We want to prevent the wives and families from ever being 
in our shoes. Just as I'm trying to teach my 5-year-old 
responsible behavior, I want to promote responsible behavior on 
the rigs. We are not special, but we are survivors of our 
husbands' lives. We want to be treated like any other survivor 
that's out there.
    And we want you to act quickly on this. We don't want it to 
take years and years. And I know the legislative process can be 
slow, but we just can't afford to wait. We need to get this 
done. And we want the chance to be heard in a court, where the 
judge can be trusted by everybody.
    Thank you.
    [The prepared statement of Mrs. Anderson follows:]

                Prepared Statement of Shelley Anderson, 
               Widow of Jason Anderson of Midfield, Texas
    My name is Shelley Anderson. My husband is Jason Anderson. Jason, a 
tool pusher on the Deepwater Horizon, was killed in the April 20 
explosion. We have a 5-year-old daughter, Lacy, and a 17-month-old son, 
Ryver. Our 8 year wedding anniversary is next month.
    Jason was a bit distant in his last few hitches when we talked on 
the phone. I would ask him what the problem was. He always said the 
same thing. ``. . . there is a bunch of stuff going on; I can't talk 
about it now. The walls are too thin. I will talk to you when I get 
home.'' Only he never would because it would have made me worry even 
more. That was not the way he would take care of me. Jason also talked 
of his will and the things he wanted for us and our children. We talked 
of our future together and our children's future. Now, I have to plan 
for a future without my soul mate, without the love of my life, without 
my best friend. My children will never ever have their father back. 
Lacy's daddy will never walk her down the aisle at her wedding. Ryver's 
daddy will never throw him a football. Jason will never be able to 
teach them to drive a car, ski behind a boat, take them hunting, or the 
many other things a father teaches his children. Jason will never be 
here to put his arms around me to comfort me to let me know that 
everything is going to be all right and that I have nothing to worry 
about. Now nothing is right and all I do is worry.
    I believe our damages should be considered under the same standards 
as if the deaths had occurred on land. Why would the damages to a 
family be different if a death occurs on the ocean as opposed to 
inland?
    I am concerned that responsible parties will use every legal tactic 
and maneuver to delay justice. If the cases for those killed in this 
tragedy are lumped in with the other cases for the fishermen, 
landowners, businesses and units of government, it could be years 
before our cases are resolved. I think I should be able to decide if I 
want to pursue my case alone, or along with the hundreds of other 
claimants--who have lost income and had property damaged--but have not 
lost husbands and fathers. Our damages were sustained at the time of 
the explosion--the property damage claims with which BP wishes to 
commingle and delay us are a result of a failure to control the spill 
and perhaps the dispersants being used in the ocean. These are separate 
and distinct cases from our husband's deaths and should be handled as 
such--separately.
    We want you to prevent wives and families from ever being in our 
shoes. Just as I am trying to teach my 5-year-old responsible behavior, 
we want to promote responsible behavior on the rigs. We may not be 
special; but we are survivors of our husband's and father's life and we 
want to be treated like any other survivor.
    Finally, I urge you to act quickly. I know that the legislative 
process can be slow, but this simply cannot afford to wait.

    The Chairman. Thank you very much. That was powerful and 
eloquent.
    Mrs. Anderson. I'm trying.
    The Chairman. We now are honored to hear from Mrs. Natalie 
Roshto, from Mississippi.

STATEMENT OF NATALIE ROSHTO, WIDOW OF SHANE ROSHTO OF LIBERTY, 
                          MISSISSIPPI

    Mrs. Roshto. Good morning. Chairman Rockefeller and Ranking 
Member Hutchison and other members----
    The Chairman. Would you pull that a little bit closer, Ms. 
Roshto?
    Mrs. Roshto [continuing]. And other members of the Senate 
Commerce Committee, I want to thank you for allowing me to 
speak today on behalf of my husband, Shane Roshto, who was 
tragically killed in the Deepwater Horizon explosion April 20, 
myself, and our wonderful son, Blaine.
    In the early hours of April 21, when I received the news of 
the explosion and fire, I never thought I would be sitting 
here. I never thought I would have to go home to a bright-eyed 
3-year-old and have to face the fact that his dad, and my 
husband, would never come home to us.
    Every 3 weeks, when Blaine and I would give Shane our last 
love, send him off for 3 weeks, I always feared the helicopter 
ride, but never did this kind of tragedy ever come to my mind. 
But, through God's grace, family, and wonderful new friends, 
Blaine and I are making it through.
    After all the safety schools, meetings, and fire drills, I 
just knew he was safe out there. When the events of the 
Deepwater Horizon explosion started to unfold, I asked myself, 
``Will I ever personally recover? What if he's out there and 
they just didn't look long enough?'' As the days passed, 
Shane's absence became reality.
    My husband took great pride in his job, loved his work and 
all his Deepwater Horizon family, but, most importantly, he 
knew that working out there provided a lifestyle for his son 
that most 22- and 21-year-olds could not provide. He loved us 
unselfishly, and provided a lifestyle that allowed me to attend 
college and also be at home with Blaine. During Shane's off 
weeks, he spent time every day with Blaine, passing on his love 
for the outdoors, hunting and fishing, and doing for others, 
most of all.
    As the days passed, I asked, ``Why? What happened?'' The 
life Blaine and I knew was truly over. My love story had came 
to an end. Though he is a mirror-image of his dad, Blaine now 
has a void that will never be filled. There is no amount of 
money that Transocean or BP can pay to bring my husband back or 
return Blaine's father. However, because of this tragedy, I 
have, unfortunately, learned that, under current law, there 
exists a huge discrepancy in the way that the death of a loved 
one is valued on the high seas. It is my understanding that the 
value of a loved one who dies at sea is valued far less than a 
loved one who dies on land. I am not a lawyer, by any means, 
but the policy behind this law does not make any sense to me, 
and does seem unfair.
    Under current law, because Shane died on an oil rig in 
Federal waters, Shane's death is limited to pecuniary damages, 
which essentially limits his loss to a value of his paycheck 
and funeral expenses. If Shane had died on land, the law would 
have recognized that Shane's life was more valuable, like the 
loss of society, the loss of love, affection, and care for 
Blaine, not only for Blaine, but for me, to help me, to give me 
ways to raise Blaine, to help me.
    The whole concept of valuing someone's life seems very 
strange to me, in light of everything that has happened. But, 
since this remedy that I'm left with to hold the party 
responsible for Shane's death accountable, I want to make sure 
that Congress acts quickly to change current law to ensure that 
all victims of maritime damages are treated equally.
    It should make no difference, in the eyes of the law, where 
a loved one is killed because of the wrongful acts of another. 
It should also make no difference whether the person killed 
worked as a seaman, contractor, or simply a passenger. The law 
should treat everyone the same.
    I pray every day when I wake, and, at bedtime prayers with 
Blaine, that I can sit him down one day and be able to tell him 
his daddy was a hero, a hero to all oil field men and women, 
because his dad changed the heart and soul of those who place 
their business agendas over the importance of life.
    In closing, I would like to ask that the next time you see 
a picture of the Deepwater Horizon in flames or hear about the 
oilspill, you think about this. The flow of oil will eventually 
be stopped. Slowly, the environment will recover. The Gulf, I 
pray, will continue to provide us with the oil and gas and many 
other things that we enjoy. But, the lives of the 11 men, their 
survivors, and the heroes of the Deepwater Horizon will forever 
be changed but an unfortunate tragedy that prompted changes in 
making the laws more equal for all maritime victims who die on 
the high seas.
    Thank you for your time, and I will be happy to answer any 
questions.
    [The prepared statement of Mrs. Roshto follows:]

      Prepared Statement of Natalie Roshto, Widow of Shane Roshto 
                        of Liberty, Mississippi
    Chairman Rockefeller, Ranking Member Hutchison, and other members 
of the Senate Commerce Committee, I want to thank you for allowing me 
to speak today on behalf of my husband, Shane Roshto, who was 
tragically killed in the Deepwater Horizon explosion April 20, myself 
and our son Blaine.
    In the early hours of April 21 when I received news of the 
explosion and fire, I never thought that I would be sitting here. I 
never thought that I would go home to a bright eyed 3 year old and have 
to face the fact that his Daddy, my husband, would never come home to 
us. Every 3 weeks when Blaine and I would give Shane our last loves 
sending him off for 3 weeks, I always feared the helicopter ride, but 
never did this kind of tragedy come to mind. Through God's grace, 
family and friends, Blaine and I are making it through.
    After all the safety schools, meetings, fire drills and safety 
regulations I just knew he was safe. When the events of the Deepwater 
Horizon explosion started to unfold I asked myself will I ever 
personally recover; what if he's out there and they just didn't look 
long enough? As the days passed Shane's absence became reality.
    My husband took great pride in his job, loved his work and all his 
Deepwater Horizon family, but most important he knew offshore work 
provided the life he wanted for his son. He loved us unselfishly and 
provided a lifestyle that allowed me to attend college and to be home 
with Blaine. During Shane's off-weeks he spent time everyday with 
Blaine passing on his love for the outdoors, hunting and fishing and 
doing for others.
    As the days pass I ask why? What happened? The life Blaine and I 
knew is over. My love story came to an end. Though he is a mirror image 
of his Daddy, Blaine now has a void that will never be filled.
    There is no amount of money that Transocean or BP can pay to bring 
back my husband or return Blaine's father to him. However, because of 
this tragedy I have unfortunately learned that under current law, there 
exists a huge discrepancy in the way the death of a loved one is valued 
on the high seas. It is my understanding that the value of a loved one 
who dies at sea is valued far less than a loved one who dies on land. I 
am not a lawyer by any means, but the policy behind this law does not 
make any sense to me and does not seem fair. Under current law, because 
Shane died on an oil rig in Federal waters, Shane's death is limited to 
pecuniary damages--which essentially limits his loss to the value of 
his paycheck and funeral expenses. If Shane had died on land, the law 
would have recognized that Shane's life was more valuable.
    The whole concept of valuing someone's life seems very strange to 
me in light of everything that is happened. But since this is the 
remedy that I am left with to hold the party responsible for Shane's 
death accountable, I want to make sure that Congress acts quickly to 
change current law to ensure that all victims of maritime disasters are 
treated equally. It should make no difference in the eyes of the law 
where a loved one is killed because of the wrongful acts of another. It 
should also make no difference whether the person killed worked as a 
seamen, contractor, or was simply a passenger. The law should treat 
everyone the same.
    I pray every day when I awake and at bedtime prayers with Blaine 
that I can sit him down one day and be able to tell him that his Daddy 
is a hero--a hero to all oilfield men and women because his death 
changed the heart and soul of those who place their business agenda 
over the importance of life.
    In closing, I would like to ask that the next time you see a 
picture of the Deepwater Horizon in flames or hear about the oil spill 
that you think about this: The flow of oil will eventually be stopped, 
slowly the environment will recover, the Gulf I pray will continue to 
provide us with oil and gas and many other things that we all enjoy, 
but the lives of the 11 men, their survivors and heroes of the 
Deepwater Horizon will forever be changed. We can only hope that the 
legacy of this tragedy will be much more than a devastating oil spill, 
but an unfortunate tragedy that prompted changes in making the laws 
more equal for all maritime victims who die on the high seas. Thank you 
for your time and I will be happy to answer any questions you may have.

    The Chairman. Thank you very much----
    Mrs. Roshto. And I would also like to introduce Courtney 
Kemp's testimony into the record.
    The Chairman. That will be the order.
    [The information referred to follows:]

     Prepared Statement of Courtney Kemp, Widow of Roy Wyatt Kemp, 
                        of Jonesville, Louisiana
    Hello, my husband is Roy Wyatt Kemp, one of the eleven men killed 
on the Deepwater Horizon oil rig that exploded on April 20, 2010. I 
reside in Jonesville, Louisiana, with our two beautiful daughters, 
Kaylee, 3 and Maddison, 5 months.
    I never thought I would be sitting before you today speaking on 
behalf of my husband and advocating to change a law that would affect 
my family and others. I appreciate the opportunity to tell you briefly 
about my husband and express my concerns regarding some issues that 
will affect many Americans.
    First and foremost, Wyatt is a Christian, one who loved the Lord 
with all of his heart. He had a tremendous amount of faith and seeked 
God's will on a daily basis. Wyatt and I began dating while in high 
school and we have been married for five and a half years. He was a 
wonderful father, husband, son, brother, and friend to many. He was an 
avid outdoorsman who enjoyed hunting, fishing, and spending time with 
his duck dog, Ellie.
    Wyatt began working for Transocean Deepwater Drilling approximately 
four and a half years ago. He was only minutes away from completing his 
final shift as a Derrick Hand and was scheduled to come home the 
morning of April 21. He would have only been home for 2 weeks of his 
normal 3 weeks in order to return to the rig to join his new crew as 
Assistant Driller, a promotion he so deserved and one of which he was 
very excited. Wyatt was so proud of the Deepwater Horizon and the 
accomplishments it had made. Only a short time ago, the Horizon 
succeeded in drilling the deepest well in the gulf and second deepest 
in the world. Also, the rig was about to receive a safety award for 
commemorating 7 years without a single injury. It is because of this 
outstanding record that BP sought after the Deepwater Horizon because 
it was simply the best at accomplishing its goals and the crew aboard 
was outstanding in their field.
    The main purpose of our being here today is to address the Death on 
the High Seas Act. This Act was passed in 1920 and spells out the 
limited benefits a family may recover from the loss of a loved one when 
death is experienced on the high seas. Because this Act is outdated and 
does not fit the needs of today, I am asking that you amend DOHSA in 
order to make companies accountable for gross negligence such as the 
incident on the Deepwater Horizon. By changing this Act, perhaps 
companies will be more responsible for their wrongdoings and this type 
of accident will be avoided in the future. It is time that we bring 
DOHSA into the 21st century.
    Upholding safety regulations should be the number one priority on a 
rig. It is my belief that this terrible tragedy could have been 
prevented if only proper safety procedures had been followed. It is no 
secret the rig was behind schedule on this well due to the many 
problems they had experienced. However, the safety of its workers 
should not have been placed in jeopardy simply to bring in a well a few 
days early. Had these safety issues been resolved, the cost to the 
company would have only been measured in dollars and cents. The expense 
now is much greater as it cost eleven men their lives, eleven families 
their husbands, fathers, sons and brothers. How is it that the all 
mighty dollar has become more important than a human life?
    It is detrimental to the southern states economy as well as our 
entire country when drilling in the gulf is discontinued. In the state 
of Louisiana there are two primary sources of income, agriculture and 
the oil and gas industry. If the moratorium continues it will be 
devastating to our already crippled economy, especially in the south. I 
understand, and want more than anything, that we need to know what 
happened that tragic night in the gulf in order to prevent it from 
happening again, but who's to say we will have all of the necessary 
answers in 6 months.
    Because of the Moratorium, there are many who have already been 
laid off from their jobs in the gulf and thousands who worry every day 
if they will be next. So you see, even though my husband lost his life 
on an oil rig, I do not believe drilling should stop. Consider this, if 
a plane crashes, do we stop flying for 6 months?
    Finally, I would like to address a new issue that has recently come 
to my attention. It is the proposed inclusion of the eleven families in 
the Multi-Jurisdictional Class Action Suit that has been filed on 
behalf of the fishermen, shrimpers, etc. who have been affected by the 
spill. While I sympathize with those who make their living in the Gulf 
waters and I feel they should be compensated, it is my belief that 
although the loss of the two groups resulted from the same tragic 
incident, the impact is totally different and should be handled 
accordingly. I believe you will agree that the affect this tragedy has 
imposed on fishermen is of no comparison to the loss the eleven 
families who lost loved ones have suffered. Please do not allow this 
group of trial lawyers who are working to incorporate the two succeed 
in doing so.
    In closing, I would like to leave you with this thought; if the 
roles were reversed and you were standing in my shoes, would you be 
advocating changing a law that is so outdated and unfair? Would you be 
fighting to insure the livelihoods of many are not destroyed? My prayer 
is that you will make the right decisions regarding these matters so 
that no other families will have to endure the pain, grief, and 
suffering that my family is experiencing. You see, this is not about 
me; it is about honoring my husband and finding some type of justice 
for him and the others who lost their lives that tragic night.
    Thank you.

    The Chairman. And, of course, all of your statements will 
be automatically a part of the record.
    That was a very--also a very powerful, probing, deep, 
eloquent testimony, and I thank you very much for that.
    Senator Lautenberg, who is Chairman of the relevant 
Subcommittee, is here.
    And if you have something you'd like to say.

            STATEMENT OF HON. FRANK R. LAUTENBERG, 
                  U.S. SENATOR FROM NEW JERSEY

    Senator Lautenberg. Thank you very much, Mr. Chairman.
    And I thank Mrs. Roshto for her testimony. I heard enough 
of it to get some sense about the cost to your family and your 
well-being--has been as a result of what I will say is some 
questionable behavior on the part of BP.
    And I want to express my condolences to all of those who 
have lost loved ones in the Deepwater Horizon catastrophe, 
including our witnesses--Mrs. Anderson, Mrs. Roshto.
    Eleven men were killed when the BP rig exploded, and 
nothing is going to bring these people back. But, we can honor 
their losses by making sure that oil companies understand that 
a first responsibility of theirs is to protect the lives and 
well-being of the people that they have performing these tasks 
on these rigs.
    In the weeks before the catastrophic blowout, BP repeatedly 
chose to cut corners and put worker safety on the back burner. 
BP ignored countless warnings from engineers and subcontractors 
about the troubles with the well, and even discounted an e-
mail--they called it ``a nightmare well.'' Just 4 days before 
the blowout, one BP executive admitted that the company was 
moving forward in the face of danger, and he said, and I quote, 
``Who cares? It's done. It's the end of a story. We'll probably 
be fine.''
    Mr. Chairman, I was one of the first Senators to visit 
Alaska after the Exxon Valdez crash, and I saw the destruction 
caused by that first--that oilspill firsthand. When the press 
coverage was intent--intense, Exxon issued a string of 
apologies, it promised to do right by the community, and it 
vowed to make sure the way of life these Alaskans knew would 
resume. But, as soon as the cameras were shut down, Exxon 
changed its tune. And I use this as an example. It fought the 
communities, the families, and the fishermen over every penny. 
Instead of making those victims whole, Exxon chose to make its 
lawyers rich. After 20 years--20 years of legal fights--Exxon 
succeeded in getting punitive damage claims reduced from $5 
billion to $500 million.
    And we're not going to let history repeat itself in this 
instance. Transocean, the largest oil--offshore rig operator in 
the world, has already gone to court to reduce its liability 
for the Gulf disaster by citing an 1851 maritime law. And 
that's why the $20-billion fund that President Obama has 
established is so important.
    Mr. Chairman, offshore drilling is a risky, dangerous, and 
imperfect practice, but it's also highly profitable. And when 
oil companies enter into this practice, they have to be 
prepared to pay whatever price their--to make their victims 
whole. We can't afford, any longer, to shield big oil from the 
costs of offshore drilling.
    And again, I express my sorrow to those who lost a son, a 
brother, a father, or a friend in the Deepwater explosion. We 
want to hear our witnesses give us their views on holding the 
oil companies accountable.
    And I brought this along to see--this is directly from the 
waters in the Gulf, and it wasn't unclean bathers, it wasn't 
fish specimens spewing pollution. This is it, as ugly as it is. 
And you see what happens when this carelessness--carelessness--
took over. BP had a chance, in its initial decisions about what 
kind of a rescue system they would use, and it--they took the 
one that was supposedly less costly.
    Thank you, Mr. Chairman, for the opportunity to issue a 
statement.
    [The prepared statement of Senator Lautenberg follows:]

            Prepared Statement of Hon. Frank R. Lautenberg, 
                      U.S. Senator from New Jersey
    Mr. Chairman, thank you for holding this hearing.
    I would like to first express my condolences to those who lost 
loved ones in the Deepwater Horizon catastrophe, including our 
witnesses, Mrs. Anderson and Mrs. Roshto.
    Eleven men were killed when the BP rig exploded--nothing will bring 
these men back, but we can honor their loss by making sure oil 
companies don't continue to take risks that jeopardize lives.
    In the weeks before the catastrophic blowout, BP repeatedly chose 
to cut corners and put worker safety on the back burner.
    BP ignored countless warnings from engineers and subcontractors 
about the troubles with the well and even discounted an e-mail that 
called it a ``nightmare well.''
    Just 4 days before the blowout, one BP executive admitted that the 
company was moving forward in the face of the danger and said ``who 
cares, it's done, end of story, will probably be fine.''
    Mr. Chairman, I was one of the first Senators to visit Alaska after 
the Exxon Valdez crash, and I saw the destruction caused by that oil 
spill firsthand.
    When the press coverage was intense--Exxon issued a string of 
apologies, it promised to do right by the communities, and it vowed to 
make sure the way of life these Alaskans knew would resume.
    But as soon as the cameras were shut off--Exxon changed its tune.
    It fought the communities, the families and the fishermen over 
every penny. Instead of making those victims whole, Exxon chose to make 
its lawyers rich.
    After twenty years of legal fights, Exxon succeeded in getting 
punitive damages reduced from five billion dollars to five hundred 
million dollars.
    We can't let history repeat itself.
    Transocean--the largest offshore rig operator in the world--has 
already gone to court to reduce its liability for the Gulf disaster by 
citing an 1851 maritime law.
    That's why the $20 billion fund that President Obama has 
established is so important.
    Mr. Chairman, offshore drilling is a risky, dangerous and imperfect 
practice--but it's also highly profitable.
    When oil companies enter into this practice, they have to be 
prepared to pay whatever price to make their victims whole.
    We can no longer afford to shield Big Oil from the costs of 
offshore drilling.
    I want to again express my sorrow to those who lost a son, a 
brother, a father, or a friend in the Deepwater explosion. We want to 
hear our witnesses give us their views on holding oil companies 
accountable.
    Thank you.

    The Chairman. Thank you, Senator Lautenberg.
    Our next witness is Dr. Tom Galligan, who is President, 
Professor of Humanities, at Colby-Sawyer College.

 STATEMENT OF THOMAS C. GALLIGAN, JR., PRESIDENT AND PROFESSOR 
 OF HUMANITIES, COLBY-SAWYER COLLEGE AND SCHOLAR ON TORTS AND 
                   MARITIME PERSON INJURY LAW

    Dr. Galligan. Chairman Rockefeller, Ranking Member 
Hutchison, and members of the Committee, thank you for inviting 
me to appear before you.
    My name is Tom Galligan, and I am the President of Colby-
Sawyer College, in New London, New Hampshire, and I have 
written and spoken frequently throughout the years on torts and 
maritime law, and was a Law Professor and Dean for 20 years 
before moving to Colby-Sawyer.
    I'd like to talk about three issues: the outdated and 
limited damages available in high seas maritime wrongful death 
cases; the 1851 Shipowners' Limitation of Liability Act; and 
the availability and measure of punitive damages in admiralty.
    Let me begin with wrongful death recovery by the survivors 
of seamen and others under the Jones Act. And this isn't the 
part of the Jones Act about waivers of the Jones Act; this is 
the part about recovery of a seaman in negligence actions, and 
his or her survivors, and others, under the Death on the High 
Seas Act.
    Both of these statutes were passed in 1920, another era. As 
interpreted, neither of them allows recovery for ``loss of 
society'' damages to the survivors of those killed in high seas 
maritime disasters.
    Now, what are ``loss of society damages''? They are 
compensation for the loss of care, comfort, and companionship 
caused by the death of a loved one. They are compensation for 
the loss of the relationship itself. The majority of American 
jurisdictions today recognize some right to recover for loss of 
society in wrongful death cases, but not the Jones Act and not 
DOHSA. The Jones Act and DOHSA do allow the survivors of 
someone killed on the high seas to recover their pecuniary or 
economic loss, but neither allows any recovery for the loss of 
the relationship itself. Thus, a surviving spouse or child may 
recover loss of economic support or funeral expenses or loss of 
services, like cooking or cutting the lawn, but the survivors 
recover nothing for the very real emotional loss of the loved 
one. And a parent who is not financially dependent upon a child 
who is killed on the high seas would recover nothing at all for 
that child's death.
    Today, under the Jones Act and DOHSA, the relationship 
itself between the decedent and his or her spouse, child, or 
parent is treated as if it has no value. Senators, a spouse, 
child, or parent who loses a loved one suffers a very real 
loss, as we have heard, and the law, to be just, must recognize 
it.
    Now, there's one exception to the rule barring recovery of 
loss of society under DOHSA, and that exception points up 
current inconsistencies in the law.
    In 2000, after the Korean airline and TWA air disasters, 
you retroactively amended DOHSA to provide recovery of loss of 
society to the survivors of those killed in high seas 
commercial aviation disasters, but for anyone else killed on 
the high seas, including the 11 workers who died on the 
Deepwater Horizon, the survivors may not recover for the loss 
of society. The law should be the same for all.
    Senator Leahy's proposed Survivors Equality Act of 2010 
would appropriately amend DOHSA to include recovery for loss of 
society.
    Now, tort law is concerned with corrective justice--with 
fairness, with consistency, and with compensation--but, it is 
also concerned with deterring unsafe behavior posing risks to 
people, property, and the environment. As the title of this 
hearing points out, law is concerned with holding people 
accountable. By not allowing recovery of loss of society, the 
applicable maritime law undercompensates. And if tort law 
undercompensates, it underdeters, because it does not hold 
those responsible accountable for all of the real, direct 
damages that they cause.
    Now, undercompensation and underdeterrence and increased 
risk in the maritime setting is exacerbated by the Shipowners' 
Limitation of Liability Act. Originally passed in 1851 to 
encourage investment in maritime shipping and commerce, the Act 
allows a vessel owner to limit its liability to the post-voyage 
value of the vessel if the liability is incurred without the 
owner's privity or knowledge. The Act was passed before the 
development of the modern corporate forum and before the 
evolution of bankruptcy law. The Act's operation today can lead 
to drastic undercompensation for the victims of maritime 
disasters.
    Senator Schumer's proposed bill, S. 3478, would repeal the 
relevant portions of the Limitation Act.
    Finally, these cumulative problems of limited liability and 
maritime law might be alleviated by the recovery of punitive 
damages in cases involving egregious fault. Punitive damages 
are an additional way to hold people accountable. Twice in the 
past two and one half years, the U.S. Supreme Court has 
recognized the right to recover punitive damages in maritime 
cases. However, the Court has limited the recovery of punitive 
damages, in most cases, to a one-to-one ratio between the 
punitive damages awarded and the compensatory damages awarded. 
In uttering that rule, the Court was quick to point out, 
however, that if Congress were to choose a different rule, the 
Court would have to defer to that different rule.
    What does that ratio cap do? It deprives a judge or jury of 
the traditionally available availability to tailor a punitive 
award, within due process limits, to the particular facts of 
the case, including the level of blame-worthiness, the harm, 
the threatened harm, and the profitability of the activity.
    Senator Whitehouse's proposed bill on maritime punitive 
damages, S. 3345, would restore that traditional ability to 
tailor a punitive award to the facts of the case.
    Thank you for listening, and I'm happy to answer any 
questions.
    [The prepared statement of Dr. Galligan follows:]

Prepared Statement of Thomas C. Galligan, Jr., President and Professor 
 of Humanities, Colby-Sawyer College and Scholar on Torts and Maritime 
                           Person Injury Law
I. Introduction
    Chairman Rockefeller, Ranking Member Hutchison and members of the 
Committee, thank you for inviting me to appear before you today. My 
name is Tom Galligan and since 2006, it has been my good fortune to 
serve as the President of Colby-Sawyer College in New London, New 
Hampshire, where I am also a Professor in the Humanities Department. 
From 1998-2006, I was the Dean of the University of Tennessee College 
of Law where I also held a distinguished professorship. From 1986-1998, 
I was a Professor at the LSU Paul M. Hebert Law Center in Baton Rouge, 
where I also held an endowed professorship. From 1996-1998, I also 
served as the Executive Director of the Louisiana Judicial College. At 
both Tennessee and LSU, I taught and wrote about torts and maritime 
law. I am the author or co-author of several books and many articles on 
tort law and punitive damages. Along with Frank Maraist, I am the 
author of three books on maritime law, one of which is and another of 
which will soon be co-authored by Catherine Maraist. I have also 
written law review articles on various aspects of maritime law and 
given countless speeches on torts and maritime law; and I continue to 
speak and write on those subjects. It is an honor to appear before you 
today.
    The disaster in the Gulf of Mexico has already resulted in death, 
injury, environmental devastation, and economic loss to individuals, 
businesses, and governmental entities. Additional damage is occurring 
every day. The staggering consequences of the spill force us to ask 
whether applicable laws are fair, consistent, and up-to-date. Do they 
provide adequate compensation to the victims of maritime and 
environmental disasters? And, do our laws provide economic actors with 
proper incentives to ensure efficient investments in accident avoiding 
activities? Does our law appropriately hold tortfeasors accountable? 
Sadly, an analysis of the relevant laws reveals a climate of limited 
liability and under compensation.
    The law under compensates, in part, because, the Jones Act and the 
Death on the High Seas Act (DOHSA), as interpreted, do not provide 
damages to the survivors of Jones Act seamen and others killed in high 
seas maritime disasters for the loss of care, comfort, and 
companionship suffered as a result of their loved ones' deaths. 
Aggravating the situation, some courts have inappropriately relied on 
those recovery denying rules to further limit recovery of nonpecuniary 
damages in other maritime cases. These failures to fully compensate 
raise basic issues of fairness and corrective justice. Is it right, 
consistent with modern law and values, and just to deny recovery for 
very real damages such as the loss of care, comfort, and companionship 
one suffers when a loved one is killed? In addition, the failure to 
compensate raises important issues concerning tort law, deterrence, and 
accountability.
    If the law under compensates, economic actors, when deciding what 
to do and how to do it, face less than the total costs of their 
activities. This economic reality may, in turn, lead to under 
deterrence and increased risk. If the law does not hold people 
accountable, the risk of injury, death, and damage is increased. In the 
maritime setting, the climate of limitation is exacerbated by the 
existence of the 1851 Ship Owner's Limitation of Liability Act. That 
law allows a ship owner to limit its liability to the post-disaster 
value of a vessel, providing the relevant events occurred without the 
privity or knowledge of the ship owner. While punitive damages might 
make up for the lack of deterrence in some areas, the deterrent role of 
punitive damages in admiralty is less significant because of the rule 
that limits the recovery of punitive damages to compensatory damages in 
maritime cases at a 1:1 ratio.
    I will begin my analysis with a discussion of the legal fact that 
loss of society damages are not recoverable by the survivors of many 
who are killed in maritime disasters. In failing to allow recovery of 
loss of society damages--damages for loss of care, comfort, or 
companionship--maritime law is contrary to the rule prevailing in the 
majority of the states. Katherine J. Stanton, The Worth of Human Life, 
85 N.D. L. Rev. 123, 130-31 (2009). Consequently, maritime law under 
compensates the surviving families of seamen and those killed in high 
seas maritime tort disasters. Congress has the chance and ability to 
change this state of affairs by amending the relevant statutes. Indeed 
Senator Leahy's proposed 2010 Survivor's Equality Act of 2010, S. 3463, 
would appropriately amend DOHSA to make loss of society damages 
recoverable.
    Second, I will discuss the extension of the seamen and high seas no 
loss of society recovery rules to other maritime cases, thereby further 
limiting potential overall liability. Third, I will describe the 
anomalous high seas death rule that pre-death pain and suffering 
damages are not recoverable in a maritime survival actions where death 
occurs on the high seas. S. 3463 would supersede this anomalous rule.
    Fourth, I will briefly explain how under compensation can lead to 
under deterrence and increased risk. Next, I will address the maritime 
doctrine of limitation of liability. Senator Schumer's proposed bill, 
S. 3478, would repeal the relevant provisions of the limitation act and 
assure more adequate compensation and deterrence.
    Finally, I will review the impact of maritime punitive damages 
rules on risk and deterrence. Senator Whitehouse's proposed bill on 
maritime punitive damages, S. 3345, would improve those punitive 
damages rules by restoring the traditional ability to tailor a punitive 
award to the facts of the case.
II. Loss of Society in Maritime Wrongful Death Cases--Seaman and the 
        High Seas
    Loss of society damages are not recoverable in Jones Act wrongful 
death cases and/or in any case where death occurs on the high seas. 
This harsh legal reality is inconsistent with modern American law and 
does not fully or fairly compensate survivors for loss arising from the 
maritime wrongful death of a loved one. This no recovery rule is also 
inconsistent with the more progressive recovery available in high seas 
commercial aviation disasters.
A. Seamen
    The analytical starting point in any work place maritime tort case 
is to determine whether an injured or deceased person was a seaman 
because that status determines the legal rights of the claimant and 
family members. A seaman is a person who does the work of a vessel, 
McDermott International, Inc. v. Wilander, 498 U.S. 337 (1991), and who 
has an employment-related connection to a vessel which is substantial 
in duration (more than 30 percent of one's work time is spent on a 
vessel or fleet of commonly owned or controlled vessels), Chandris, 
Inc. v. Latsis, 515 U.S. 347 (1995), and nature (the worker is exposed 
to the perils of the sea). Harbor Tug and Barge Company v. Papai, 520 
U.S. 548 (1997). Maritime law treats a semi-submersible drilling rig as 
a vessel. Marathon Pipe Line Co. v. Drilling Rig/Odessa, 761 F.2d 
229,233 (5th Cir. 1985). The moveable drilling rig is a vessel because 
it is ``capable of being used as a means of transportation on water.'' 
3 U.S.C.A.  3; Stewart v. Dutra Construction Company, 543 U.S. 481 
(2005). The Deepwater Horizon was a moveable drilling rig and, 
therefore, under maritime law, it is a vessel. Interestingly, a 
permanently attached drilling platform, as opposed to a semi-
submersible drilling rig, is not a vessel.
    Assuming that the Deepwater Horizon was a vessel, workers with a 
substantial employment-related connection to the Deepwater Horizon 
would be seamen. A seaman has several possible claims against his or 
her employer: (1) the right to recover maintenance and cure; (2) the 
right to recover injury caused by the unseaworthiness of the vessel on 
which he or she served (a vessel is unseaworthy if it presents an 
unreasonably unsafe condition to the seamen on board); and (3) a Jones 
Act, 46 U.S.C.A.  30104, right to recover in negligence against his or 
her employer. Frank L. Maraist & Thomas C. Galligan, Jr., Admiralty in 
Nutshell, 194-99 (5th ed. 2005).
1. Jones Act Negligence
    The Jones Act incorporates the provisions of the Federal Employers 
Liability Act (FELA). 45 U.S.C.A.  51. The Jones Act (through the 
FELA) provides certain survivors of seaman killed as a result of their 
employer's negligence with wrongful death and survival action claims 
against the employer. Basically, a wrongful death action is an action 
that compensates certain beneficiaries for the loss they suffer as a 
result of the death of the victim. A survival action provides recovery 
for the damages that the decedent suffered before his or her death.
    Critically, what do the recoverable damages include and what do 
they not include in a Jones Act negligence wrongful death action? The 
survivors can recover any loss of economic support, any lost services, 
and other traditional types of pecuniary damages. That is they recover 
economic losses. The survivors cannot recover loss of society damages. 
That is, they cannot recover for the loss of care, comfort, or 
companionship caused by the death. Loss of society damages are, in 
essence, those damages survivors suffer as a result of the fact that 
the deceased is no longer there to share the joys of life with the 
them. Thus a surviving spouse may recover any loss of support (net of 
taxes and what the decedent would have spent on themselves) and loss of 
service, such as cooking or painting or cutting the lawn and any other 
economic damages. But the spouse recovers nothing for the loss of the 
relationship. Likewise, a parent who is not financially dependent upon 
a child who is killed would recover nothing.
    The inability of the Jones Act seaman's survivors to recover loss 
of society damages in the negligence action does not result from the 
language of the Jones Act or the FELA. Rather, it is the combination of 
a 1913 decision of the U.S. Supreme Court, Michigan Central R.R. Co. v. 
Vreeland, 227 U.S. 59 (1913), which refused to recognize the right to 
recover loss of society damages under the FELA (and which actually 
predated the passage of the Jones Act by 7 years) and the result of the 
Court's reliance on that decision in Miles v. Apex Marine, 498 U.S. 19 
(1990).
    One might arguably understand and appreciate the Vreeland holding 
in an era when the law of wrongful death was still in its relative 
infancy; human life spans were shorter, and given the state of 
technology, industry, and law, accidental death was a more common part 
of the American landscape than it is today. However, to deny recovery 
of loss of society damages in a wrongful death case today is out of the 
legal mainstream and is a throwback to a past era. A spouse, child, 
parent, or sibling of a seaman killed in a maritime disaster suffers a 
very real loss of society and the law should recognize it.
    Congress could easily remedy this state of affairs by amending 45 
U.S.C.A.  51, the FELA wrongful death statute, to state that recovery 
by a named beneficiary in a wrongful death action shall ``include 
nonpecuniary damages for loss of care, comfort, and companionship.'' 
That amendment would bring the Jones Act and FELA much more into line 
with modern tort law regarding the recovery of damages in wrongful 
death cases, as well as the economic, social, and familial realities of 
today. Representative Conyer's proposed bill, Securing Protection for 
the Injured from Limitations on Liability Act, H.R. 5503, would, among 
other things, amend the Jones Act to make loss of society damages 
recoverable in seaman negligence based wrongful death cases.
2. Unseaworthiness
    Moving from the negligence claim for wrongful death to the 
unseaworthiness claim for wrongful death, the general maritime law 
provides certain survivors with wrongful death and survival actions 
against a vessel owner (or operator under many circumstances) if the 
seaman is killed as a result of the vessel's unseaworthiness. If the 
death occurs on the high seas, then DOHSA, 46 U.S.C.A.  30302, governs 
the recoverable wrongful death damages arising from the vessel's 
unseaworthiness. DOHSA limits recovery to ``pecuniary loss.'' 46 
U.S.C.A.  30303. Thus, the survivors of seamen killed as a result of a 
vessel's unseaworthy condition on the high seas may not recover loss of 
society damages. Consequently, the spouse, parent, or child, who has no 
claim for pecuniary damages, recovers nothing for the losses caused by 
the death of a loved one and all of the issues raised concerning the 
inequity, incongruity, and antiquated nature of that limitation on 
recovery discussed above in conjunction with the Jones Act apply to 
DOHSA. One case worthy of note is Rux v. Republic of Sudan, 495 
F.Supp.2d 541 (E.D. Va. 2007), which chillingly presents the operation 
of DOHSA. There, 56 surviving family members of the 17 sailors killed 
in the terrorist bombing of the U.S.S. Cole sued the Republic of Sudan 
under the Foreign Sovereign Immunities Act, 28 U.S.C.A.  1605(a)(7), 
alleging that Sudan was at fault for providing material assistance and 
support to Al Qaeda, the group responsible for the attack. The court 
held that DOHSA applied and because nonpecuniary damages were not 
recoverable, 22 family members, including parents and siblings 
recovered nothing as a result of the deaths even though the court 
noted:

        The court sympathizes greatly with plaintiffs, who continue to 
        suffer terribly years after their loved ones died. But the 
        court is bound to follow the legal precedent before it. 
        Congress makes the laws; courts merely interpret them. Whether 
        to amend DOHSA to allow more liberal recovery in cases of death 
        caused by terrorism on the high seas, as Congress did in 2000 
        for cases of commercial aviation accidents on the high seas, is 
        a question for Congress alone. Accordingly, plaintiffs' IIED 
        [intentional infliction of emotional distress] and maritime 
        wrongful death claims are dismissed for failure to state a 
        claim upon which relief can be granted.

    495 F.Supp.2d at 565. See also, Rux, 461 F.3d 461 (4th Cir. 2006), 
cert. denied, 127 S.Ct. 1325 (2007); Rux, 672 F.Supp.3d 726 (E.D.Va. 
2009). See generally, Ross M. Diamond, Damage--Unequal Recovery for 
Death on the High Seas, 45 Sept.--Trial 34 (2009).
    Here, as in Rux, in addition to the general and very substantial 
reasons to allow recovery of loss of society damages in DOHSA cases, 
there is an additional analytical prong involving a 2000 amendment to 
DOHSA (referred to in the quote from Rux above) that points to the need 
to amend DOHSA . In response to several highly publicized commercial 
airline disasters--KAL 007 and TWA 800--Congress amended DOHSA to 
provide for recovery of nonpecuniary damages (loss of care, comfort, 
and companionship), 46 U.S.C.A.  30307(a), for death resulting from 
``a commercial aviation disaster occurring on the high seas beyond 12 
nautical miles from the shore of the United States . . . but punitive 
damages are not recoverable.'' 46 U.S.C.A.  30307(b). See generally, 
Stephen R. Ginger and Will S. Skinner, DOHSA's Commercial Aviation 
Exception: How Mass Commercial Aviation Disasters Influenced Congress 
on Compensation for Deaths on the High Seas, 75 J. of Air Law & Comm. 
137 (2010) (discussing the legislation and the jurisprudence). This 
amendment, which was made retroactive to the day before one of the 
relevant air disasters, brought DOHSA into the legal mainstream as far 
as the survivors of victims of commercial aviation disasters. But, 
while the survivors of the victims of a commercial aviation disaster on 
the high seas may now recover nonpecuniary damages the survivors of 
anyone else killed on the high seas may not. It strains reason to come 
up with a meaningful, rational principle to justify the differential 
treatment, other than the very real social and political turmoil that 
followed the high profile tragic air disasters. The disaster of the 
Deepwater Horizon is, of course, a similarly tragic event, which 
presents an opportunity to bring the law into some logical, sensible, 
compassionate symmetry. S. 3463 would make loss of society damages 
recoverable for the survivors of anyone killed on the high seas.
    To add another relevant point to the analysis, OPA 90, 33 U.S.C.A. 
 2701 et seq., allows victims of oil spills to recover various 
damages, including removal costs,  2702(b)(1); damage to real or 
personal property,  2702(b)(2)(B); damage to natural resources used 
for subsistence,  2702(b)(2)(C); and economic damages because of 
damage to property or natural resources even if the claimant does not 
own the property.  2702(b)(2)(E). These rights to recover damages 
assure compensation to persons injured in various ways by an oil spill.
    But, critically, OPA 90 does not apply to personal injury or 
wrongful death claims. See generally, Gabrick v. Lauren Maritime 
(America), Inc., 623 F.Supp.2d 741 (E.D. La. 2009)(OPA does not cover 
bodily injury claims damage). Consequently, the survivors of the seaman 
(or others) killed on the high seas as a result of negligence or 
unseaworthiness do not recover for loss of society while the persons 
whose property was damaged or who lost profits do recover. This is not 
to say that recovery for damaged property or lost profits is not 
appropriate, it is merely to point out that currently recovery of 
economic loss is more readily available than recovery for loss of a 
loved one.
    I have noted above how a possible amendment to the Jones Act would 
deal with the seaman's negligence claim; DOHSA could also be amended to 
delete the word ``pecuniary'' before ``loss'' in 46 U.S.C.A.  30303 
and to add the language, ``including nonpecuniary damages for loss of 
care, comfort, and companionship'' after ``loss'' and S. 3463 would do 
exactly that.
III. Seaman's Survivors Wrongful Death Claims Against Third-Parties and 
        Non-Seaman Wrongful Death Claims
    The beneficiaries of a seaman killed on the high seas may have 
claims not only against the vessel but may also have general maritime 
tort claims against other parties, such as manufacturers, contractors, 
or others. Likewise, the survivors of non-seamen tortuously killed on 
the high seas may have maritime wrongful death claims. But by 
definition, if death results on the high seas (or is caused by events 
on the high seas) then DOHSA applies and nonpecuniary damages would not 
be recoverable.
    As noted, if workers, who are not seaman, are killed as a result of 
a maritime disaster on the high seas, DOHSA would also govern their 
survivors' recovery which would be limited to pecuniary damages, as 
currently defined. The amendments to DOHSA, proposed in S. 3463, making 
nonpecuniary damages and pre-death pain and suffering damages 
recoverable, would apply to those claimants as well.
    Concomitantly, if the death occurs in territorial waters, 
nonpecuniary damages would seem to more likely be recoverable. Sea-Land 
Services, Inc. v. Gaudet, 414 U.S. 573 (1974) (allowing the survivors 
of an LHWCA worker killed in territorial waters to recover loss of 
society). See also, Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1995) 
(allowing the survivors of a non-seafarer killed in territorial waters 
to rely on state law to seek recovery of loss of society damages). Thus 
where one dies may be more relevant to recovery than other critical 
circumstances, such as the injury to the relevant survivors.
    Notably, if a worker is killed on a stationary drilling platform 
located over the high seas, as opposed to being killed on a semi-
submersible mobile rig, state law normally would govern his or her tort 
recovery rights against third persons and state law very probably would 
mean survivors could recover loss of society and pre-death pain and 
suffering damages from third persons in a wrongful death action. This 
is because the Outer Continental Shelf Lands Act, 43 U.S.C.A.  
(a)(2)(A), adopts the laws of each adjacent state as the governing law 
on OCS platforms, which are treated as islands in an upland state 
(recall that platforms, unlike rigs, are not vessels). See generally, 
Frank L. Maraist & Thomas C. Galligan, Jr., Admiralty in a Nutshell, 
323-27 (5th ed. 2005); Alleman v. Omni Energy Services Corp, 580 F.3d 
280 (5th Cir. 2009). Thus the measure of recovery in a fatal injury 
action on an off-shore oil or gas production facility (a rig or 
platform) would depend upon whether the relevant vehicle was a platform 
or a rig, even though the job that the killed worker was doing and the 
cause of the death was exactly the same. The point is that the 
potential recovery would illogically and unfairly depend upon 
happenstance not substance.
IV. Expanded Under Compensation
    As noted above, the fact that the survivors of seamen and anyone 
killed on the high seas cannot recover for loss of society damages 
under compensates and is inconsistent with the current majority rule in 
America. Aggravating the situation, some courts have actually extended 
the scope of the Jones Act and DOHSA no recovery rules beyond their 
express reach and have applied them to limit or deny recovery in other 
maritime contexts. In Moragne v. States Marine Lines, Inc., 389 U.S. 
375 (1970), the U.S. Supreme Court created a general maritime law 
action for wrongful death that filled some of the gaps in maritime 
wrongful death law and that provided recovery in some cases not covered 
by DOHSA and the Jones Act. Then in, Sea-Land Services, Inc. v. Gaudet, 
414 U.S. 573 (1974) the Court held that the Moragne claim allowed the 
survivors of an LHWCA worker killed in territorial waters to recover 
loss of society damages. In so holding, the Court's decision was 
consistent with the modern American majority rule allowing recovery of 
loss of society in wrongful death cases. Thereafter, the Court, in 
American Export Lines, Inc. v. Alvez, 446 U.S. 274 (1980), held that 
the spouse of an injured long shore worker could recover loss of 
society of consortium in a case where the worker was injured but not 
killed.
    However, 2 years before Alvez, the Court began a trend of liability 
limiting decisions ostensibly based on Congressional intent. In Mobil 
Oil Corporation v. Higginbotham, 436 U.S. 618 (1978), the Court refused 
to allow the survivors of someone killed on the high seas to rely upon 
the Moragne claim to recover loss of society damages because those 
damages were not recoverable under DOHSA. The Court decided that 
because Congress had spoken to the subject in DOHSA (limiting recovery 
to pecuniary damages), the Court was not free to supplement the 
recovery through the general maritime law. The trend to extend 
liability limitation was on. Thereafter, in Offshore Logistics, Inc. v. 
Tallentire, 477 U.S. 207 (1986), the Court refused to allow the 
plaintiffs in a high seas death case to ``borrow'' state law to 
supplement DOHSA recovery. The limitation trend continued.
    Then, in Miles v. Apex Marine Corporation, 498 U.S. 19 (1990), the 
Court considered a case involving a seaman killed in territorial 
waters. There, a seaman was brutally murdered by a bellicose fellow 
crew member, who repeatedly stabbed the decedent. The decedent's mother 
sued the employer alleging, among other things, a Jones Act negligence 
wrongful death claim and a Moragne general maritime law wrongful action 
claim arising out of an unseaworthy condition of the vessel (the 
presence of the bellicose seaman). In a somewhat surprising decision, 
the Court refused to allow the mother to recover her loss of society 
damages on the unseaworthiness general maritime law wrongful death 
claim. The Court reasoned that when Congress enacted the Jones Act in 
1920 and incorporated the FELA, it must have been aware of the Vreeland 
decision, holding that the FELA did not authorize wrongful death 
recovery for loss of society damages, and so Congress must have 
incorporated that holding in the Jones Act as judicial ``gloss.'' Id. 
at 32. The Miles Court then reasoned that since Congress supposedly did 
not intend to allow recovery for loss of society damages in a Jones Act 
based wrongful death claim for negligence, such damages were not 
available in a general maritime law (Moragne/Gaudet) wrongful death 
action based on unseaworthiness. This was because, the Court said: ``It 
would be inconsistent with our place in the constitutional scheme were 
we to sanction more expansive remedies in a judicially created cause of 
action in which liability is without fault [unseaworthiness] than 
Congress has allowed in cases of death resulting from negligence.'' Id. 
at 32-33. See generally, David W. Robertson, Punitive Damages in U.S. 
Maritime Law: Miles, Baker, and Townsend, 70 La. L. Rev. 463 (2010). 
The Miles decision was, of course, arguably inconsistent with the 
spirit, if not the holding, of Gaudet and Moragne, and scholars have 
criticized it. See Hon. John R. Brown, Admiralty Judges: Flotsam on the 
Sea of Maritime Law?, 24 J. Mar. L. & Com. 249 (1993); Robert Force, 
The Curse of Miles v. Apex Marine Corp: The Mischief of Seeking 
``Uniformity'' and ``Legislative Intent'' in Maritime Personal Injury 
Cases, 55 La. L. Rev. 745 (1995). Moreover the Supreme Court has twice 
refused to extend the holding of Miles. Atlantic Sounding Co., Inc. v. 
Townsend, 129 S.Ct. 2561 (2009)(recognizing right to recover punitive 
damages in case alleging the arbitrary and willful failure to pay 
maintenance and cure); Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 
(1995) (allowing the survivors of a non-seafarer killed in territorial 
waters to rely on state law to seek recovery of loss of society 
damages).
    However, despite the scholarly criticism and the Court's failure to 
extend the holding of Miles, some lower courts have relied upon Miles, 
Tallentire, and Higginbotham to limit recovery of nonpecuniary damages 
in maritime cases that do not fall under those holdings. For instance, 
in Scarborough v. Clemco Industries, 391 F.3d 660 (5th Cir. 2004), the 
fifth circuit said that loss of society damages were not recoverable in 
any wrongful death action involving a seaman, even when the claim was 
against a third party, who was not the decedent seaman's employer or 
the owner of the vessel on which he or she was killed. In Doyle v. 
Graske, 579 F.3d 898 (8th Cir. 2009)(boat passenger and spouse brought 
action in admiralty for personal injuries and loss of consortium 
damages sustained in boating accident off the coast of Grand Cayman 
Island when steering linkage disengaged), the court held that general 
maritime law did not allow loss of consortium recovery for the spouse 
of a non-seafarer (non-seaman/non-longshore worker) injured, as opposed 
to killed, on the high seas. See also, Chan v. Society Expeditions, 
Inc., 39 F.3d 1398 (9th Cir. 1994). And, in Tucker v. Fearn, 333 F.3d 
1216 (11 th Cir. 2003), the court, again relying upon Miles held that 
the father of a minor killed in a sailboat accident in Alabama 
territorial waters could not recover loss of society damages under the 
general maritime law. In Guevara v. Maritime Overseas Corp., 59 F.3d 
1496 (5th Cir. 1995), the court relied on Miles to deny recovery of 
punitive damages in a case involving the alleged arbitrary failure to 
pay maintenance and cure. Of course the Supreme Court abrogated the 
holding of Guevara in Atlantic Sounding Co., Inc. v. Townsend, 129 
S.Ct. 2561 (2009) (allowing punitive damages).
    Of course all courts have not extended Miles beyond its holding. 
See, Kahumoku v. Titan Maritime, LLC, 486 F.Supp.2d 1144 (D.Hawai'i 
2007)(law entitles LHWCA worker to recover punitive damages in maritime 
tort case); Clark v. W & M Kraft, Inc., 2007 WL 120136 (S.D. Ohio 2007) 
(loss of consortium recovery claim available for seaman's spouse and 
son against third party); In re Consolidated Coal Co., 228 F.Supp.2d 
764 (N.D.W.Va. 2001)) (loss of consortium recovery claim available for 
seaman's spouse against third party); Rebardi v. Crewboats, Inc., 906 
So.2d 455 (La. App. 1st Cir. 2005) (punitive damages available).
    The fact that some courts have not extended Miles beyond its 
holding and some have done so results in inconsistency. But, more 
importantly, the fact that courts have extended Miles increases the 
number of cases in which the law fails to recognize the reality of 
injury and loss and in so doing either fails to compensate for that 
loss at all or, at best, under compensates. The extension of limited 
liability and under compensation expands the general climate of limited 
liability in maritime tort cases and hence maritime disasters. The 
extensions increase the possibility of under deterrence and the 
potential for increased and inefficient risk. Amending the Jones Act 
(actually the FELA) and DOHSA, to allow recovery for loss of care, 
comfort, and companionship would solve the problem because the 
amendments would do away with the language upon which courts have 
relied to limit recovery and increase risk.
V. Survival Action Pre-Death Pain and Pain and Suffering
    Additionally, shifting from the wrongful death claim to the 
survival action claim, the Supreme Court in a case that did not involve 
a seaman has refused to allow recovery of pre-death pain and suffering 
as part of a survival action claim if death occurs on the high seas. 
Dooley v. Korean Air Lines Co., Ltd., 524 U.S. 116 (1998). The law does 
allow the Jones Act seaman's survivors to recover for pre-death pain 
and suffering. See, David W. Robertson & Michael F. Sturley, Recent 
Developments in Admiralty and Maritime Law at the National Level and in 
the Fifth and Eleventh Circuits, 32 Tul. Mar. L.J. 493 (2008). Thus, 
Dooley does not apply to those seaman claims but in any case covered by 
Dooley, involving a death caused by events on the high seas, no matter 
how much the decedent may have suffered before his or her death, those 
damages are not recoverable.
    To remedy this situation, Congress could amend the law to not only 
make loss of society damages recoverable, as suggested above, but also 
to make pre-death pain and suffering available in maritime survival 
actions. S. 3463 would do exactly that by making damages for pre-death 
pain and suffering recoverable.
VI. Under Compensation Leads to Under Deterrence and Increased Risk
    Critically, in terms of the subject of this hearing-holding 
industry accountable--if the law under compensates, it will, by 
definition, under deter which will lead to lower than optimal 
investments in safety. Lower investments in safety and accident 
avoidance can lead to increased risk. This is true because when 
deciding what to do and how to do it, the rational economic actor will 
consider the costs of its activities. To the extent that a person does 
not have to pay a cost, it is much less likely to take that unpaid cost 
into account when deciding what to do and how to do it. As Judge Guido 
Calabresi so ably noted many years ago in The Costs of Accidents: A 
Legal and Economic Analysis (1970), one of the costs economic actors 
must consider is the costs of accidents. The costs of accidents are 
just as real and important as the costs of goods, the costs of raw 
materials, and the costs of labor. The critical importance of 
encouraging actors to take account of accident costs is also at the 
heart of Judge Richard Posner's important law and economics scholarship 
and jurisprudence on negligence. See, e.g., Richard A. Posner, A Theory 
of Negligence, 1 J. of Legal Stud. 29 (1972). This truism about taking 
account of accident costs is also the crux of Judge Learned Hand's 
famous negligence formula that provides that one is negligent if the 
burden or cost of avoiding a loss is less than the probability of the 
loss occurring times the anticipated magnitude (or value) of the loss 
if the loss arises and the actor fails to incur the burden, i.e., the 
costs of accident avoidance. Put algebraically as Judge Hand himself 
did, one is negligent if B < P x L and the actor does not avoid the 
loss by making the investment in safety. Interestingly Judge Hand 
originally articulated his famous and influential negligence formula in 
a maritime tort case. United States v. Carroll Towing Co., 159 F.2d 
169, 173 (2d Cir. 1947) .
    If a person does not take account of the costs of accidents when 
deciding what to do and how to do it, he or she will under invest in 
safety. Of course, compensatory damages are based in corrective justice 
and are designed to make the plaintiff whole--to put him or her in the 
position he or she would have been in if the wrong had never occurred. 
Professor Douglas Laycock has called it the ``plaintiff's rightful 
position.'' Douglas Laycock, Modern American Remedies 14 (1985). 
However, compensatory damages also play another role in the regulation 
of American tort law because tort law not only compensates, it also 
deters unsafe conduct. And compensatory damages play a critical role in 
deterrence. Damages in tort cases force people to consider the costs of 
accidents when making decisions about engaging in risk. Moreover, as I 
have written:

        In addition to forcing actors to pay some accident costs, 
        compensation performs a second efficiency related function. The 
        tort system operates as a data bank providing actors access to 
        information on the number of accidents that do occur, the 
        damages that accident victims suffer, and the dollar value of 
        those damages. In this regard the ``fault'' system facilitates 
        actors' ex ante [beforehand] calculations by providing them 
        with the data they need to calculate the value of the damages 
        that their activities impose on others. Given a large number of 
        similarly situated actors, over time damages paid might be 
        expected to somewhat equal the actual value ex ante of an 
        activity's accident costs . . . But in order for our current 
        system to operate most effectively, some real relationship must 
        exist between the accident costs society wants the actor to 
        consider beforehand and the damages we force the actor to pay 
        after the fact. The damages we award to compensate plaintiffs 
        in personal injury cases and the categories of accident costs 
        we want actors to consider ex ante should highly correlate. If 
        actual damages awarded in tort suits do not reflect the costs 
        we want actors to consider ex ante, but the system relies upon 
        those actual awards as a ``definition'' of accident costs, then 
        the system will not optimally deter. If the damages awarded in 
        tort suits are less than the total costs we want actors to 
        discount ex ante, we are encouraging people to consider less 
        than all of the costs of that activity and to over-engage in 
        it. Likewise, if we overcompensate accident victims we are 
        encouraging actors to under-engage in the activity.

    Thomas C. Galligan, Jr., Augmented Awards: The Efficient Evolution 
of Punitive Damages, 51 La. L. Rev. 3, 25-29 (1990) (footnotes 
omitted).
    To reiterate, to the extent tort law does not adequately 
compensate, it under deters and contributes to a more dangerous world 
than people have a right to expect. And, in the maritime setting the 
law under compensates because it does not compensate for loss of 
society in seaman and high sea death cases (other than commercial 
aviation disasters) and because courts have extended those no recovery 
rules to other maritime contexts. Of course maritime disasters and oil 
spills can cause more harm than injury and death. They cause damage to 
the environment and that damage to the environment devastates 
lifestyle, culture, and global well-being. It harms everyone.
    Moreover, there is evidence that environmental disasters can have 
devastating mental health effects. See, Brief Amici Curiae of 
Sociologists, Psychologists, and Law and Economic Scholars in Support 
of Respondents in Exxon Shipping Co. v. Baker, 128 S.Ct. 2605 
(2008)(No. 07-219) at 8. In natural disasters the effects typically 
subside within 2 years, id. (citing Catalina M. Arata et al., Coping 
with Technological Disaster: An Application of the Conservation of 
Resources Model to the Exxon Valdez Oil Spill, 13 J. Traumatic Stress 
23, 24 (2000)). But, technological disasters resulting from breakdowns 
by humans ``consistently have social, cultural and psychological 
effects that are both more severe and longer-lasting.'' Brief Amici 
Curiae of Sociologists, Psychologists, and Law and Economic Scholars, 
supra at 8 (citations omitted). The effects are particularly acute 
where the disaster impacts renewable resource communities like 
fisheries. Id. at 9. These effects manifested themselves in the Prince 
William Sound community in the wake of the Exxon Valdez spill in: 
chronic feelings of helplessness, betrayal, and anger; high rates of 
anxiety, depression, and post-traumatic stress; increased health care 
demands; increased crime rates; and more. Id. at 13-18. These injuries 
were very real and absent some compensation or device to force actors 
to consider them when deciding what to do and how to do it (i.e., some 
device to hold them accountable), they will not be forced to do so, 
tending toward under deterrence and increased risk.
    While OPA 90 provides liability for removal costs, property damage, 
economic loss, and more, it does not cure the problem of under 
compensation and under deterrence in maritime personal injury and 
wrongful death cases because it does not apply to maritime personal 
injury and wrongful death cases. The under compensation resulting from 
the current state of maritime personal injury and wrongful death law 
and the serious emotional harm that can result from a maritime, 
environmental disaster is not only unfair and inconsistent but it will 
potentially lead to increased risk. These economic realities are 
exacerbated in the maritime setting by the existence of the 1851 Ship 
Owner's Limitation of Liability Act.
VII. Limitation of Liability
    The Limitation of Liability Act, 46 U.S.C.A.  30501 et seq., 
applies to these events. Originally passed in 1851 to encourage 
investment in maritime shipping and commerce, the limitation act allows 
a vessel owner (and some others) to limit its liability to the post-
voyage value of the vessel if the liability is incurred without the 
privity or knowledge of the owner. 46 U.S.C.A.  30505(a), (b), and 
30506(e). And, the owner is entitled to retain any hull insurance. One 
may justifiably wonder whether an act passed at a time before the 
modern development of the corporate form (and other liability limiting 
devices) and the evolution of bankruptcy law is still salient; however, 
limitation is still extant as a matter of maritime law. The vessel 
owner creates a fund equal to the post-accident value of the ship (not 
including the hull insurance). The claimants then share the fund in 
proportion to the value of their claims. Personal injury and wrongful 
death claimants share with other claimants but if the vessel is a 
seagoing vessel and the fund is not adequate to provide the personal 
injury and wrongful death claimants with recovery equal to $420 times 
the gross tonnage of the vessel, the owner must provide the difference, 
up to $420 per ton but no more. 46 U.S.C.A.  30506(b).
    OPA 90 has its own liability limitation scheme and the applicable 
limit in this matter seems to be $75,000,000. While the Supreme Court 
has not considered the matter, lower Federal courts have held that the 
OPA 90 supersedes the limitation act on OPA 90 claims. See, e.g., 
Complaint of Metlife Capital Corp., 132 F.3d 818 (1st Cir. 1997); In re 
Southern Scrap Material Co., LLC, 541 F.3d 584, 595 (5th Cir. 2008) 
(dicta); Gabrick v. Lauren Maritime (America), Inc., 623 F.Supp.2d 741 
(E.D. La. 2009).
    But, as noted, OPA 90 does not apply to personal injury or wrongful 
death. Thus the Limitation of Liability Act is applicable in a maritime 
disaster to allow a vessel owner to limit its liability for personal 
injury and wrongful death claims. Clearly, this liability limiting 
device can lead to drastic under compensation to the victims of 
maritime disasters. Repealing the relevant portions of the Limitation 
of Liability Act would, of course, cure the problem of under 
compensation and under deterrence in general. Senator Schumer's 
proposed bill, S. 3478 would do exactly that.
VIII. Maritime Punitive Damages
    The under compensation and under deterrence resulting from the 
dated, inconsistent no recovery rules described above and the 
Limitation of Liability Act might be alleviated by the availability of 
punitive damages; however, the U.S. Supreme Court in Exxon Shipping Co. 
v. Baker, 128 S.Ct. 2605 (2008), held that punitive damages in most 
maritime cases are limited to or capped by a 1:1 ratio between the 
punitive damages awarded and the compensatory damages awarded.
    Punitive damages are damages in addition to compensation which are 
designed to punish and deter. They are only awarded where the plaintiff 
has proven fault; compensatory damages are awarded; and the plaintiff 
proves that the defendant's conduct was worse than negligence; i.e, it 
was intentional, willful, wanton, or reckless.
    But how could punitive damages potentially alleviate the under 
deterrence caused by under compensatory damage awards?

        It is common ground among legal scholars and economists that 
        inefficient behavior will not be deterred unless actors are 
        forced to internalize all of the costs associated with their 
        activities. Although adequate deterrence may generally be 
        achieved through an award of compensatory damages, an award of 
        punitive damages may be necessary to achieve complete 
        deterrence in cases in which compensatory damages fail to fully 
        account for the costs of a tortfeasor's actions.

    Brief Amici Curiae of Sociologists, Psychologists, and Law and 
Economic Scholars, supra at 2.
    The U.S. Supreme Court has twice in the last two and one half years 
held that punitive damages are recoverable under general maritime law. 
See, e.g., Atlantic Sounding Co., Inc. v. Townsend, 129 S.Ct. 2561 
(2009); Exxon Shipping Co. v. Baker, 128 S.Ct. 2605 (2008).
    After these two decisions punitive damages are arguably are 
available in seaman related cases given the holding in Townsend that a 
seaman may recover punitive damages under the general maritime law 
arising out of the arbitrary and willful failure to pay maintenance and 
cure. But punitive damages have not been traditionally recoverable in 
DOHSA cases. The matter will now be the subject of future argument and 
litigation. Notably, however, the potential absence of punitive damages 
in cases involving deaths for which no loss of society and/or no 
recovery of pre-death pain and suffering are available may inadequately 
deter those who engage in activities that may cause injury or loss of 
life because it can result in an undervaluing of human life and the 
tragic ramifications when it is lost. See, Thomas C. Galligan, Jr. 
Augmented Awards: The Efficient Evolution of Punitive Damages, 51 La. 
L. Rev. 3 (1990).
    Additionally, even if available, the Court in Exxon Shipping Co. v. 
Baker, limited the amount of punitive damages recoverable in maritime 
cases to a 1:1 ratio between the punitive damages awarded and the 
compensatory damages awarded. Justice Stevens was among the dissenters 
and of one of the reasons for his disagreement with the majority was 
that maritime law was under compensatory.
    The majority noted that studies did not indicate a ``marked 
increase'' in the frequency of punitive damages over recent years. Id. 
at 2624. It also noted that the dollars awarded had not grown over time 
in real terms. Id. And the Court pointed out that the mean ratio of 
punitive damages to compensatory damages in the cases studied was less 
than one to one. Id. But the Court was apparently concerned with the 
potential unpredictable spread between high and low punitive awards and 
it was that concern which prompted the decision to generally limit the 
ratio of punitives to compensatories to 1:1. Id. at 2625. Critically, 
the Court pointed out that the case before it involved conduct which 
was worse than negligence but not malicious. Id. at 2631. It also noted 
that the activity was ``profitless'' to the tortfeasor. Id. The 
decision and the ratios should arguably not apply to cases involving 
higher levels of blameworthiness or ``strategic financial wrongdoing.'' 
Id. n.24.
    Whatever one might argue about cases to which the Exxon Shipping 
Co. v. Baker 1:1 ratio should not apply, I believe that most lower 
court judges sitting in admiralty cases would apply the ratio to 
maritime cases they decide due to a concern about being overruled. The 
ratio cap then deprives a judge or jury of the traditionally available 
ability to tailor a punitive award, within Constitutional due process 
limits, see BMW of North America v. Gore, 517 U.S. 559 (1996), to the 
particular facts of the case, including the level of blameworthiness, 
the harm suffered, the harm threatened, the profitability of the 
activity, and other relevant factors. Indeed one wonders if the 1:1 
ratio aspect of Exxon Shipping Co. v. Baker would have been decided the 
same way if another maritime environmental disaster had occurred before 
the decision.
    Senator Whitehouse's proposed bill, S. 3345, would restore the 
traditional ability to tailor a punitive award to the facts of the case 
by providing: ``[I]n a civil action for damages arising out of a 
maritime tort, punitive damages may be assessed without reference to 
the amount of compensatory damages assessed in the action.'' The effect 
of the proposed amendment would be to increase the deterrent impact of 
punitive damage awards in maritime cases.
    While the Supreme Court has never considered the issue, several 
courts have held that punitive damages are not available under OPA 90. 
See, e.g., South Port Marine LLC v. Gulf Oil Ltd., 234 F.3d 58 (1 st 
Cir. 2000); Clausen v. M/V NEW CARISSA, 171 F.Supp.2d 1127 (D. Ore. 
2001) . See the discussion in: Wright, Roy, Stephens, and Colomb, BP 
Deepwater Horizon Gulf of Mexico Oil Pollution Disaster, Preliminary 
Analysis: Law, Damages, and Procedure May 2010 (Available from 
Louisiana State Bar Association and the authors). The cited decisions 
say that OPA 90 preempts maritime law and therefore punitive damages 
are not available in a case involving maritime law and OPA 90. 
Interestingly, OPA 90 actually provides that it does not affect 
admiralty or maritime law. 33 U.S.C.A.  2751(e). Moreover, OPA 90 does 
not provide that punitive damages are not recoverable; it is merely 
silent on the subject. And both South Port Marine LLC v. Gulf Oil Ltd., 
234 F.3d 58 (1st Cir. 2000) and Clausen v. M/V NEW CARISSA, 171 F. 
Supp.2d 1127 (D. Ore. 2001) were decided before the Supreme Court's 
affirmation of the right to recover punitive damages in Townsend and 
Exxon. Indeed in Exxon, the Court refused to find that the Clean Water 
Act, 33 U.S.C.A.  1321 et seq., which was silent on the subject of 
punitive damages, precluded the recovery of punitive damages under 
maritime law. Finally, OPA 90 does not, as noted, apply to personal 
injury and wrongful death claims. Consequently, any preemptive affect 
OPA 90 might have on punitive damages in personal injury and wrongful 
death cases would seem to be limited.
IX. Conclusion
    Recovery in maritime tort cases is under compensatory. The failure 
to allow recovery of loss of society damages in seaman and high seas 
maritime wrongful death cases (other than commercial aviations 
disasters) is unjust, dated, inconsistent, and out of alignment with 
current values. The rules not only fail to compensate but they arguably 
lead to under deterrence and increased risk because economic actors do 
not have to take those risks into account in deciding what to do and 
how to do it. S. 3463 remedy that injustice. The extension of those 
rules beyond the contexts in which they arose exacerbates the problems 
and extends the climate of liability limitation. This risky state of 
affairs is aggravated by the 1851 Ship Owner's Limitation of Liability 
Act, the relevant parts of which S. 3478 would repeal, and the 
potential positive effect of punitive damages is limited by the 1:1 
punitive damages to compensatory damages rule of Exxon Shipping Co. v. 
Baker. S. 3345 would restore traditional flexibility in maritime 
punitive damages cases. As noted and as the various proposed bills 
referred to herein show, amendment and reform is both possible and 
necessary. The tragedy in the Gulf of Mexico provides a sad but 
necessary opportunity for our Nation to reconsider our law and make it 
more just in the aftermath of this disaster.

    The Chairman. Thank you very much, sir.
    And now Mr. Fred McCallister, who is Vice President of 
Allegiance Capital Corporation.

   STATEMENT OF FRED McCALLISTER, VICE PRESIDENT, ALLEGIANCE 
                      CAPITAL CORPORATION

    Mr. McCallister. Good morning, Senators. It's an honor to 
be here before you.
    I'm here to just tell you a story about my experience with 
trying to solve a problem, that seemed obvious to me on its 
face, which was that we needed additional equipment in the Gulf 
of Mexico to deal with the oilspill.
    I--by--my day job is to provide financial advisory services 
to small/mid-sized companies. I had a client in Mississippi who 
approached me, in May, and said, ``BP is needing additional 
vessels in the Gulf, particularly housing vessels.'' They knew 
we had some experience with vessel transactions. Partially as a 
favor and partially as doing work for my client, we began to 
put together some vessels, some foreign flag vessels that we 
saw that were needed. Quite honestly, Senators, at that time I 
didn't have a full appreciation of the Jones Act. The kind of 
transactions we handle typically do not involve the Jones Act. 
And so, we put together proposals, submitted them through their 
current channels at that time, which were subcontractors to BP.
    The subcontractors' initial response to those proposals 
were very positive. These are vessels that are suited for this 
activity, and they put them forward to BP.
    After that, we got radio silence--my client did. We then 
saw all of the news regarding the need for skimmers. We saw 
Billy Nunn Gusser, we saw Governor Bob Jindahl down there, 
trying to jerry-rig devices to clean up the spill, and we just 
could not reconcile the two things we were seeing. It was--on 
one hand, we had vessels that we thought were appropriate for 
the cleanup; on the other hand, we saw these governmental 
entities down there, struggling, trying to do whatever they 
could to defend their coast.
    So, we put together a skimmer package and submitted it to 
BP. Same response.
    After my client got frustrated and would not--could not get 
a response, I took it on myself. I'm from the Gulf region, my 
wife is from the Gulf region, I have property on the Gulf, I 
have family on the Gulf. We've lost--we lost homes in Katrina 
down there. So, it's a very personal issue to me, as well, 
because I understand the Gulf-centric culture down there, and 
the Gulf-centric economy.
    So, we then started to raise a question. We made a public 
dialogue out of it. And certainly, when we got into the media, 
we started at least getting calls from BP, but could not get 
any kind of meaningful dialogue going as to why they weren't 
using these types of vessels.
    So, after trying to educate myself, for the last month, on 
what's going on in the Jones Act, we took it on ourselves to 
make a Jones Act waiver filing, actually went through to--we 
went to--first, to Admiral Thad Allen's office. He--about the 
same time we made that filing, the expedited process was--press 
release--was issued. Didn't have a lot of guidance in there, 
but it certainly directed us to Rear Admiral James Watson's 
office, so we immediately made our waiver request to his 
office.
    Since then, we've had no response whatsoever, even after 
multiple inquiries as to the status. Senator Hutchison's office 
has made inquiries on our behalf, and did get some feedback, so 
we at least know that they have our request in their hand and 
that it is in some stage of process.
    When we initially tried to contact them through--
ourselves--we got unanswered phones, no voice mail. We did get 
a callback after calling the press contact at the office, and 
the response that we got was, ``We're in the process of 
creating forms. We don't know the timeline.'' We asked how many 
vessels--skimmer vessels are still available--U.S.-hull skimmer 
vessels, because that's a trigger for waiving the Jones Act. 
The answer was, ``We are working on that, but it's not public 
record, it's not something we can release to you.''
    So, the bottom line is that, at this stage of the game, 
we're quite frustrated with the fact that we haven't had 
waivers issued, we haven't had even any response. BP is going 
to have to be the ultimate accountable party for using this 
equipment. But, also, from our perspective, if the States want 
to take issues into their own hands, which a lot of them are 
saying that they need to do--Mississippi, Louisiana, Florida--
that they are not going to want to use equipment that's 
impaired with some sort of cloud of being illegal under the 
Jones Act or some risk of some sort of injunction against using 
this equipment in the Gulf.
    So, I--what I'm here today to ask the Committee to do is to 
support the Jones--this limited Jones Act waiver. I have no 
reason to ask that the Jones Act be gutted. It's not--I don't 
know that that's appropriate. But, certainly for this 
situations--in situations like this, we need to be able to take 
the expertise from the other parts of the world, because what 
we're doing in the Gulf, by sinking this oil rather than 
floating it and skimming it with the right equipment, is not 
the right thing to do. No one else in the world does this. And 
I--I'm concerned that, consistent with BP's behavior, this is 
being done in their financial interest, to keep the oil below 
the surface, out of sight, out of mind, and amortize this 
cleanup over 10 or 15 years, rather than attacking it with the 
right equipment and--getting it to the surface and extricating 
it from the Gulf.
    Thank you very much.
    [The prepared statement of Mr. McCallister follows:]

        Prepared Statement of Fred McCallister, Vice President, 
                     Allegiance Capital Corporation
    Thank you for this opportunity to speak to you this morning.
    As an advisor and broker who works exclusively with closely-held 
and privately-held companies, I was contacted by one of my clients who 
currently supplies equipment to BP via United States Environmental 
Services asking that I and my firm, Allegiance Capital Corporation, 
help them in identifying specialty vessels that could be used for 
worker housing in the Gulf.
    Allegiance Capital has contacts worldwide through a network of 
marine brokers who have many different types of vessels available. We 
found a few unique vessels, mainly Greek cruise ships that also were 
car carriers. These ships could carry 500 or more workers with all of 
the amenities of a cruise ship, but also had a large car carrier deck 
where booms and smaller boats could be stored and oil clean up work 
could be performed. As we became engaged in this work, the need for 
skimmers became apparent. We quickly discovered that the total 
availability of skimmers in the world was around 2,000 specialty built 
vessels, some for deep water and others for closer in to shore work and 
that most of the vessels in the U.S. that were available were already 
deployed in the Gulf. We found that this was a little bit like moving 
all the fire engines in the country to one area leaving other areas in 
the country somewhat exposed. As a result, we assembled a fleet of 25 
skimmers, boom deployment vessels and two housing and equipment ships. 
Information is provided in the packet we assembled for you.
    Proposals were provided on June 5 (40mm gallons ago) via the 
established channels through which our client is currently supplying 
equipment. The BP subcontractor was excited about the vessels being a 
good fit but could not get a response from BP. After our client tried 
every possible avenue they could, they turned to us for assistance. 
Allegiance Capital then began to reach out to BP's subcontractor, who 
had procured equipment for BP in May, with the results being the same, 
no response. With growing frustration we started a public discussion 
regarding the issues we were facing.
    BP's PR department called me within hours of being contacted by CNN 
and within a couple of days put me in touch with the Team Leader for 
vessel procurement, Veronica Brown.
    Veronica Brown called me on a Sunday, June 13, before my CNN 
interview on Monday the 14th and promised that our vessels would get 
expedited consideration.
    We submitted the proposals to Veronica Brown on Monday June 14 
(25mm gallons ago), and were promised they would be reviewed on an 
expedited basis. To date, we have received no meaningful response.
    Even though the Jones Act was not raised as an issue, we became 
aware that BP may need to request a Jones Act waiver if they wanted to 
utilize our equipment. Given that BP has the need, the standing to make 
a request, and the ear of Adm. Thad Allen, we were satisfied that BP 
would make the request when needed.
    With a continued lack of response from BP and the news from the 
states, parishes and counties that they needed skimmers and were going 
to take matters into their own hands, Allegiance Capital took it on 
itself to submit a request for a Jones Act waiver. Our request was 
first submitted to Adm. Thad Allen's office on June 16.
    After learning that Adm. Allen had issued a press release on June 
15 saying that he was providing guidance to ensure expedited Jones Act 
waiver processing, we began trying to contact the numbers that had been 
provided in the press release to learn about the new guidance. After 2 
days of unanswered phones, not even a voice mail, and one conversation 
with a press contact at Adm. Thad Allen's office, we received a call 
from a Lt. Petta who had called us at the press contact's request. Lt. 
Petta told us on June 16 that there are no procedures set up as yet for 
the waiver process; that they were working on the forms, but could not 
provide any other guidance or provide a copy of Adm. Allen's guidance 
referred to in the press release. We also asked if they could provide 
the number of U.S. hulled skimmer vessels, given that ``an adequate 
number of U.S. hulled vessels can not be engaged'' is a trigger for a 
Jones Act waiver. On this subject we were told this was not public 
information. In spite of this lack of direction, we filed our request 
with Rear Adm. James Watson's office on Monday June 21, as was 
generally directed in the press release.
    To date we have not received any correspondence relative to either 
of our requests. Through the efforts of Todd Bertoson of Senator 
Hutchinson's office, we were told that our request is being reviewed by 
Matthew Weakley of the Unified Area Command Center Critical Resource 
Unit. We have e-mailed Mr. Weakley for questions and status updates but 
have not received a response. Mr. Weakley informed Mr. Bertoson that 
one of our non-skimmer vessels will be rejected because there are U.S. 
vessels that can fill the need. This is not the case given that there 
are no U.S. hulled vessels with both boarding and ferry capabilities in 
the U.S. We will respond to this anticipated rejection if and when they 
engage in communication.
    We have heard on many occasions that Jones Act waivers have not 
been requested. Even though that is an incorrect statement, it begs the 
question as to why the company with the most standing to make such a 
request, BP, has not made requests for waivers for these specialized 
vessels when there are no more U.S. hulled skimmers available.
    The explanation is that BP has chosen to ``disperse and sink'' the 
oil rather than to ``surface and collect'' the oil. Sinking and 
emulsifying the oil keeps the problem out of site and better serves 
BP's financial interest than does removing the oil from the water. By 
sinking and dispersing the oil, BP can amortize the cost of the clean 
up over the next 15 years, or so, as tar balls continue to roll up on 
the beaches, rather than dealing with the issue now by removing the oil 
from the water with the proper equipment. As a financial advisor, I 
understand financial engineering and BP's desire to stretch out its 
costs of remediating the oil spill in the Gulf. By managing the clean 
up over a period of many years, BP is able to minimize the financial 
damage as opposed to a huge expenditure in a period of a few years.
    There are arguments on both sides of the dispersants debate and 
unfortunately, the cost of this grand and unprecedented experiment they 
are conducting with the environment and people of the Gulf will not be 
fully determined for another 20 years.
    Even if BP continues to refuse to utilize specialized equipment for 
remediating the oil, providing a Jones Act waiver for these specific 
purpose vessels will allow other governmental entities such as states, 
parishes and counties the option of utilizing this type of equipment to 
defend their shores.
    I, therefore, respectfully request the Committee's support of the 
following actions:

   Continue to support BP's efforts to close and cap the 
        Deepwater Horizon Well but not at the expense of removal and 
        recovery of existing oil in the gulf.

   Take all steps necessary to force BP to recover and remove 
        oil from the surface of the Gulf.

   Take steps to cause BP to stop using sinking agents and 
        dispersants so that the oil remains on the surface where it can 
        be identified, tracked and removed.

   Cause the Jones Act to be waived for specific efforts of oil 
        removal and recovery, thereby paving the way for foreign 
        equipment and experts to assist in the Gulf.

   Force BP to focus on removal and recovery efforts in both 
        shallow and deep water zones.

    Thank you for your consideration of allowing a Jones Act waiver for 
these specialized vessels.
BP Timeline
Spill rate 1.6mm gallons per day

        Saturday, June 5th--ship proposal sent to USES via Chain

        Wednesday, June 9th--skimmer proposal sent to USES via Chain

        Friday, June 11th--call from Ray Veatore, BP Public Relations

        Saturday, June 12th--Call from Mark Truxillo, BP Acting Team 
        Lead Equipment Logistics

        Sunday, June 13th--proposals for ship and skimmers sent to BP, 
        Mark Truxillo

        Sunday, June 13th--call from Veronica Brown, BP Team Lead 
        Vessels

        Monday, June 14th--proposal for ship and skimmers set to BP, 
        Veronica Brown

        Wednesday, June 16th--waiver request sent to Adm. Thad Allen's 
        office

        Monday, June 21st--waiver request sent to Rear Adm. James 
        Watson's office
                                 ______
                                 

       Supplement to Commerce Committee Testimony--June 30, 2010

     Presented by: Fred McCallister, Allegiance Capital Corporation

I. Introduction:
    1. Allegiance Capital represents European based foreign flagged, 
highly specialized marine equipment and the experts that have the scale 
and capacity to effectively participate in the removal of the surface 
oil in the Gulf.
    2. We are testifying to express our deep concerns as to why BP 
continues to resist the use of an armada of specialized oil recovery 
and removal vessels that today are parked in foreign ports awaiting the 
opportunity to help.
    3. We believe key to minimizing the continued damage to our marine 
environment and the economies of the Gulf States is the removal the oil 
rather than dispersing and sinking the oil. The only certain way of 
limiting the impact of the spill is to:

   successful closure and capping of the well, and;

   the recovery of the 3,500 sq. miles of oil currently on the 
        surface of the Gulf.
II. Key elements to this effort require this Committee's understanding 
        of:
    1. BP's current policies in the Gulf can be characterized as:

    ``Disperse and Sink'' Policy

   The unprecedented use of dispersants and sinking agents 
        being used below the surface as well as on the surface to cause 
        the oil to break up and sink, or remain below the surface has 
        the following benefits for BP:

     Dramatically reduces the measurability of the spill and 
            therefore reduces the amount of statutory damages and 
            royalties that can be assessed against BP. (BP faces fines 
            and penalties related to the Oil Pollution Act of 1990 and 
            the Clean Water Act. Of note is the fact that under the Oil 
            Pollution Act BP may be held responsible to pay an 18.75 
            percent royalty for all oil lost from the well. Also, under 
            the Clean Water Act BP may be fined $4,300 for every barrel 
            of oil released into the Gulf.)

     Allows BP to conduct its clean up as tar balls arrive on 
            the shores in the marshes of the Gulf over the next 15 
            years rather that removing the oil in a few concentrated 
            months.

    ``Keep in Control'' Policy

   BP has kept control of all aspects of the oil recovery and 
        cleanup efforts. This policy was highlighted by their eagerness 
        to establish the $20 Billion Dollar Escrow Fund as a gesture to 
        our government in return to be allowed to continue to operate 
        with policies that are in the best interest of BP but not in 
        the best interest of the environment and the Gulf region.

    ``Defer and Delay'' Policy

   By deferring action, BP can delay cost today and amortize 
        the cost over future years with less impact to BP's shareholder 
        value.

    ``Out of Sight, Out of Mind'' Policy

   by keeping as much of the oil below the surface as possible 
        they are keeping the magnitude of the spill from being apparent 
        to us all.
Ill. A few key data points:

   Experts today estimate the collective area of the patches of 
        oil on the surface of the Gulf is 3,500 square miles (the 
        equivalent of 2,240,000 square acres). The largest foreign oil 
        recovery vessels can, if operating on a 24 hr shift, remove and 
        recover 170 square acres per day. This equates to 13,176 vessel 
        days. Reduced to practical terms, should the well stop flowing 
        oil into the Gulf today, and should the vast amounts of oil not 
        re-suspend itself, and if we immediately deployed the six of 
        the world's largest oil recovery and removal vessels, the 
        effort of removing the surface oil from the Gulf would take 6 
        years.

   Pursuant to our National Contingency Plan, or NCP, which is 
        the Federal Government's blueprint for responding to both oil 
        spills and hazardous substance releases, Section 300.310(b) 
        states: ``as appropriate, actions shall be taken to recover the 
        oil or mitigate its effects. Of the numerous chemical or 
        physical methods that may be used, the chosen methods shall be 
        the most consistent with protecting public health and welfare 
        and the environment. Sinking agents shall not be used.''

   Oil suspended below the surface will, at unpredictable 
        times, move to our Gulf shorelines and marshes below the 
        surface making surface removal impossible. This situation 
        currently exists and will magnify itself exponentially if the 
        continued use of sinking agents are allowed. Some of our best 
        experts are predicting that these problems could last for 
        several years.

   Surface removal of the oil is the only way to mitigate the 
        problem with certainty. BP's policy of ``Out of sight, Out of 
        Mind'' promoted through their use of sinking agents must be 
        stopped and re-focused on surface recovery and removal of the 
        oil. For the past several weeks we have worked closely with our 
        foreign oil removal experts and carefully responded to BP's 
        questions, only to find ourselves caught up in BP's ``Defer and 
        Delay'' and ``Disperse and Sink'' policies. As a result we have 
        been told by BP that they are studying the problem and 
        analyzing the available resources. As of today BP has not 
        engaged in meaningful discussions about the equipment we have 
        offered. This is why we are here today asking for the 
        Committee's intervention to this situation.

   Our foreign partners and their governments have, as early as 
        4 days after the Deepwater Horizon explosion, offered equipment 
        and technical expertise to address this environmental disaster. 
        Should BP's actions be allowed to continue we will truly be 
        facing a very long term environmental disaster in the Gulf.
IV. We ask the Committee to take the following actions:

   Continue to support BP's efforts to close and cap the 
        Deepwater Horizon Well but not at the expense of removal and 
        recovery of existing oil in the gulf.

   Take all steps necessary to force BP to recover and remove 
        oil from the surface of the Gulf.

   Take steps to cause BP to stop using sinking agents and 
        dispersants so that the oil remains on the surface where it can 
        be identified, tracked and removed.

   Cause the Jones Act to be waived for specific efforts of oil 
        removal and recovery, thereby paving the way for foreign 
        equipment and experts to assist in the Gulf.

   Force BP to focus on removal and recovery efforts both 
        shallow and deep water zones.

    By taking such actions this committee can initiate a global 
response to this massive disaster. By any measure, continued delay will 
cause unnecessary damage to our marine environment, wetlands, and to 
the citizens of the Gulf Region.
    We continue to stand by waiting for someone in control to give us 
the opportunity to respond. Our vessels and experts can be in the Gulf 
Region within days.
    In the supplemental information we have provided you will find 
information describing in detail the types of equipment and 
technologies available. We stand ready to work with this committee in 
any way that you find helpful in order to address this most important 
problem.

    The Chairman. Thank you very much.
    I'm going to ask a question, Mrs. Anderson, Mrs. Roshto, 
that's--is--will be hard on you, emotionally, but which is 
extraordinarily important for setting the whole concept of what 
we're discussing here, and that is the meaning of the word 
``loss of society.'' Each of you, in your testimony, talked 
about it, but there's a little difference between giving 
testimony and between answering questions about that.
    So, you know, your husbands were working offshore, on a 
mobile oil drilling rig. They were working under maritime laws 
that, as you indicated, yourselves, don't apply to those of us 
who work on land. These laws have a variety of names, like the 
Merchant Marine Act, the Death on the High Seas Act, and the 
Limitation of Liability Act. Professor Galligan and other 
lawyers in the hearing room can tell us more about these laws.
    But, the bottom line has to do with accountability. And 
when people get killed or injured on a mobile offshore oil rig, 
they can't hold companies accountable in the same way as if it 
had happened on land. But, the key to all of that, it seems to 
me, is the meaning of the word ``loss of society,'' which, if 
you present that to the American public, they don't really know 
what one means by that.
    You uniquely, both of you, understand that fully. You've 
talked about that. But, I would like to have you again stress 
what that means, in terms of your families, the adjustments 
that you have to make, what you're going through, the pain and 
suffering aspect of all of this. It's very important that we 
understand that very closely.
    So, Ms. Anderson, I don't want to put that burden on you or 
Ms. Roshto, but, Ms. Anderson, could you please say--respond to 
that?
    Ms. Roshto. Go ahead.
    Mrs. Anderson. It's a--the loss of the love of my life. 
It's very hard to explain, but I will try my best, and, with 
Jason's help, maybe I can convey it to you.
    It's everything. It's his touch. It's being able to talk to 
him. It's being able to confide in him, and him confide in me. 
It's being able to ask for his advice in something, not just 
to--how to mow the grass or how to--when to take out the 
garbage. It's not just that. It's having him sit beside me in 
church, and, when he understands the message, he holds my hand. 
It's the one person--Jason is the one person that I knew would 
always be there for me, no matter what. Even if he disagreed 
with me, he would still be on my side, and somehow we would 
come up with a compromise together.
    It's not just a job. Jason loves his job. But, his job as a 
husband and his job as a father, too. All of those things are 
gone.
    I don't--I'd give it all back and--to have him come home, 
even if he was jobless. If I could just have him come home, 
and--I know that that can't happen. He--he's everything. He's 
the breath in my lungs. He's the beat of my heart. He's the 
skip in my step and the--the dances that we shared together, 
all--it's all gone.
    I am trying to convey that to you as best that I can, but 
the love that I have for Jason is more oil that's spilled out 
in the Gulf than anything. It's more water that's on the Earth, 
more air that's here in this room. It's more than anything.
    Thank you for letting me say that. Thank you for letting us 
be here.
    The Chairman. Thank you very, very much.
    Mrs. Roshto.
    Mrs. Roshto. A loss of society consists of the positive 
benefits that derived from Shane's existence. What would he 
have contributed if he would have survived, in terms of 
support, assistance, training, comfort. And in that, what Shane 
would have not only provided for me, but for Blaine, the moral 
support that he could give a son. I can give support to Blaine, 
I can tell him, you know, ``You hit the ball right, son,'' or, 
you know, ``You played good today.'' But, it's different coming 
from a father to a son.
    The support that Shane--that now I have to pay somebody to 
mow my lawn, I now have to pay somebody to come in and fix what 
breaks at my house; whereas, when Shane was home, the 3 weeks 
he was home, he dealt with that, he fixed it, he did it. Now I 
have to spend extra time making sure that what I do around the 
house is done right, or now I have to make sure that I'm giving 
Blaine the support of both parents, a father and a mother. I 
celebrated Father's Day this year. I mean, now I am the mother 
and the father.
    And that's what a loss of society, to me, is--a loss of his 
assistance and support. He supported me. Shane, when he decided 
to go offshore was because I got pregnant. He stayed offshore 
to put me through school. I went to school every day of the 
week, but I was at home with my son every day of the week. 
Shane stayed offshore to provide a lifestyle for that. That's 
the type of support that I lost.
    I didn't get to just receive my diploma from college 
because of the accident, but he stayed offshore to provide a 
lifestyle for that. And that's the support that I lost. That's 
the loss of society, to me.
    The Chairman. I thank you both very, very much.
    Senator Hutchison.
    Senator Hutchison. Well, Mrs. Anderson and Mrs. Roshto, you 
have been so compelling, and I appreciate that you have come 
here to talk about your personal problems with the lack of 
conformity and understandable laws that would affect your 
future. So, thank you for putting that in such personal terms.
    I want to ask Professor Galligan just about how we got to 
this point, where the Limitation on Liability Act put this 
bifurcation of rights in place, between land and sea, and the 
different liability that can be assessed to the different 
entities. And let me just ask you to put it in perspective, 
also, in conjunction with what other countries do. Is there 
this type of confusion in the law in other countries, or 
limitations that would make it a norm in the maritime industry, 
or are we unique in that?
    Dr. Galligan. Let me try to answer it this way. You said 
the limitation law and then talked about the damage 
differences, so let me start with the damage differences and 
then move to the limitation law.
    I think we arrived at having different measures of damages, 
for several reasons. One is history, is--as the law of wrongful 
death was evolving, both on land and at sea, in the latter part 
of the 19th century and the early part of the 20th century, it 
was a different world. Workplace death was, sadly, much more 
common than it is today. The law's view of children and family 
members focused much more on the economic than it did on the 
familial/relational aspect.
    Albeit at that same time, law land was evolving to begin to 
recognize loss of society damages. But, what happened was that 
the Jones Act--and the same Jones Act that Mr. McCallister's 
talking about, but, again, a different section--and the Death 
on the High Seas Act were both passed in 1920. It really was a 
different time.
    Since 1920, land law has evolved to predominantly allow 
loss of society damages, but maritime law, in the case of the 
Jones Act and the Death on the High Seas Act, have not. And I 
think one of the reasons is, is that you have not 
comprehensively gone back and looked at the comparison between 
the two schemes--land-based law, maritime law, territorial 
waters, high seas.
    The one time that you really did go back and look at it was 
2000, after Korean airline and TWA, and, at that time, you 
amended the law to make loss of society damages more common.
    Now, shifting to limitation. Limitation of Liability is, 
again, 1851, passed to encouraged investment in maritime 
shipping and commerce. Other countries do also have limitation 
of liability acts. There's an international convention on 
limitation of liability. I wish that I had more carefully gone 
back and looked at international law for this hearing than I 
did, and I'd be happy to supplement any answers I give.
    But, it is a hodgepodge of different approaches. The 
international convention is based on monetary units, not 
dollars, based on types of damages. So, there are differences.
    I would say, though, in looking at an--even if it is a norm 
in the maritime industry, the question is, Is that norm 
sensible and fair today? And my answer would be that it is 
outdated, and that, too, deserves your reconsideration.
    Senator Hutchison. Thank you. I just want to say, Mr. 
McCallister, I think you laid out the problem very well, and 
certainly, from your personal experience, it's clear that there 
is no intention whatsoever to make it easy to waive the Jones 
Act in this response.
    In fact, I want to clarify the record, because I was a 
little confused by earlier opening statements. There has been 
no Jones Act waiver within the 3 nautical miles of the 
coastline to date in this accident. And that is a fact. I know 
that you have had that same experience, but it was confirmed to 
me by my staff, that the ships that are available can go in the 
international waters, they just can't come in within the 3 
nautical-mile limit. Is that your understanding, as well?
    Mr. McCallister. That's correct, Senator. And my 
understanding is that, yesterday, there was actually some 
waivers issued for the vessels that have been working outside 
the 3-mile limit but now need to come to port. And so, for 
those specific vessels, my understanding is that there has been 
a waiver issued for the--for those vessels. And I don't know 
what that number is.
    Senator Hutchison. But, you have still not heard anything 
with your offer of skimmers, is that correct?
    Mr. McCallister. That's correct. We have not.
    Senator Hutchison. OK. With that, then, I thank you very 
much, all of you, for adding so much to our body of knowledge.
    Thank you.
    The Chairman. Thank you, Senator Hutchison.
    Senator Hutchison. Oh, Mr. Chairman, could I submit, for 
the record, the editorial from the New Orleans Times-Picayune 
today, saying, ``Cut Red Tape and Get More Skimming Vessels to 
the Oil Spill''?
    The Chairman. So ordered.
    Senator Hutchison. Thank you.
    [The information referred to follows:]

 Cut Red Tape and Get More Skimming Vessels to Oil Spill: an Editorial

                   The Times-Picayune--June 30, 2010

    U.S. Coast Guard Adm. Thad Allen talks like he understands how 
crucial skimming vessels are to removing oil from the Gulf of Mexico 
before it washes ashore.
    More skimming vessels are needed to remove oil from the Gulf of 
Mexico.
    ``Skimmers are our critical mass right now,'' he said recently. 
``We need to put those wherever we can get them. And we want to get 
them from wherever they are available.''
    But Adm. Allen, who is the national incident commander for the oil 
spill, hasn't backed up those words with action. According to BP's most 
recent estimate, 433 vessels are collecting oil from the runaway oil 
well, but only a third of them are designed specifically for oil 
skimming.
    In the meantime, vessels that could be used to clean up the massive 
amounts of oil are being blocked by a sea of red tape. There are 850 
skimmers in the southeast United States and 1,600 nationwide, but the 
Oil Pollution Act of 1990, which requires regions to maintain levels of 
equipment such as skimmers, is preventing some resources from coming to 
the Gulf. The Jones Act, a maritime law designed to promote U.S. 
shipping interests, is complicating efforts to get foreign boats here.
    ``It is hard to believe that the response is this anemic,'' Sen. 
George LeMieux of Florida said on the Senate floor last week. ``It is 
hard to believe that there is this lack of urgency or sense of purpose 
in getting this done.''
    The government isn't alone in showing a lack of urgency. BP has 
declined an offer from Shell to bring an oil recovery boat that is 
sitting idle in Alaska to the Gulf. ``Nothing would prevent it from 
working right now in the Gulf of Mexico,'' said Curtis Smith, a Shell 
spokesman. ``It remains available in the event that BP reconsiders.''
    BP's refusal to accept help from Shell is frustrating. Doug 
Suttles, BP America's chief operating officer, told The Times-Picayune 
last week that the company ``threw everything at'' the out-of-control 
well. But everything apparently doesn't include the Nanuq.
    As for the Oil Pollution Act, Adm. Allen says that discussions are 
going on within the administration about how to free up equipment. 
That's a change from the admiral's initial position, when he said that 
leaving other areas vulnerable was one of his biggest concerns. Given 
the scope of this disaster, it's hard to understand why the government 
hasn't moved more quickly from discussion to action.
    When it comes to the Jones Act, even less is happening. Adm. Allen 
has promised to process waivers to the act quickly, but so far none 
have been granted. The admiral has downplayed the effect of the law on 
the cleanup, but the experience of Ecoceane, a French company with a 
fleet of skimming boats, suggests that it is an impediment. Eric Vial, 
the company's President, said it sold nine boats to a Florida 
contractor so that the Jones Act wouldn't be a factor. Those boats 
could have been in the Gulf much sooner, he said.
    Sens. Kay Bailey Hutchinson and John Cornyn of Texas, along with 
Sen. LeMieux, have proposed legislation to temporarily waive the Jones 
Act for oil spill response vessels, and that's a reasonable step in the 
face of this disaster.
    Local officials who have been begging for more skimmers shouldn't 
have to wait for help because the Federal Government refused to deal 
with bureaucratic barriers.

    The Chairman. Senator Wicker, you're next, but I also 
notice that Senator Thune has come, and he is Ranking on the 
relevant Subcommittee.
    So, when we come to you, you get an extra 2 minutes to sort 
of say something, and then also ask your questions.
    Senator Wicker.
    Senator Wicker. Well, thank you.
    And let me say, to Mrs. Anderson and Mrs. Roshto, we all 
appreciate your testimony, and we appreciate the difficulty 
that you must have had in coming here. You shouldn't have to be 
sitting there, talking about legal points. But, it has become 
necessary.
    I think everyone here would agree that you're entitled to 
equal treatment under the law. And to the extent that your 
claim is not deemed as valuable as the claim of other people in 
like circumstances, we appreciate the difficulty you had in 
coming here and bringing that to our attention, and we 
appreciate it. And I hope there is a remedy for you, and I 
believe there is.
    Let me just ask, with regard to Mr. McCallister's 
testimony, How long now have you been pursuing this waiver?
    Mr. McCallister. The waiver filing--first waiver filing, 
with Admiral Allen's office, was on June 16.
    Senator Wicker. OK, so 2 weeks. And how many different 
offices, corporate and government, have you contacted or been 
to?
    Mr. McCallister. Just a--probably a fairly accurate guess 
would be about eight.
    Senator Wicker. OK. And have you calculated the potential 
oil that could have been skimmed if these hurdles had not been 
in place, had you been able to skim at your capacity each day?
    Mr. McCallister. Well, Senator, I have not added that up 
entirely. The--each one of the skimmers that we proposed--and 
these are relative to the largest skimmers that can be made 
available, which we currently have available now, that's come 
available to us within the last 2 or 3 days--but, the skimmers 
that were proposed originally will skim about 3,500 gallons per 
hour, and we have a fleet of 25 of those that we proposed to be 
made available.
    So, in addition to that, there are very large skimmers with 
higher capacity. The skimmers are very efficient. They are 
specialized vessels that, you know, unlike what you see, which 
is dragging boom behind boats and gathering up and either burn 
or trying to siphon off the oil, these are skimmers that 
actually collect the oil in the belly of the vessel, run it 
through a weir system, and separate the oil from the water. So, 
these are highly efficient, specialized vessels.
    Senator Wicker. Now, once that separation is made, what is 
then done with the water?
    Mr. McCallister. Well, the water that's clarified can go 
back into the Gulf if it's--you know, meets the standards to go 
back into the Gulf. But, it--but, these particular vessels are 
not--they don't have centrifuges on them, like the--you know, 
like Kevin Costner's centrifuge that they're trying to get 
approved, so the water would have to be treated before it can 
go back in the Gulf. But, the bulk of the oil is separated, so 
you can treat lightly contaminated water, take the bulk oil and 
either process it or dispose of it, as appropriate.
    Senator Wicker. Yes. Well, you know, we've all developed a 
degree of expertise, which is growing daily in this two-and-a-
half-month tragedy. It seems astonishing to most people, but 
environmental statutes sometimes are preventing us from 
cleaning up the water, because not all of the water that is 
redischarged back into the Gulf is 100 percent oil-free. But--
--
    Mr. McCallister. Correct.
    Senator Wicker--to me, if we can accept a process where 100 
percent of the oil is taken out of the water and only--and the 
water that is put back in only contains 1 or 2 percent, then, 
to me, you have a 98 percent or 99 percent success rate.
    The Chairman. Senator Wicker, I----
    Senator Wicker. We ought----
    The Chairman--I don't----
    Senator Wicker--we ought to be----
    The Chairman--mean to disrespectful, sir--and you can ask 
any questions you want--but, it is fully my impression that 
this hearing is about the two young women, and others similarly 
suffering, and what--how they are to be treated, under 
different sets of laws, in a much more fair manner. I thought 
the point of this hearing was to have--to share in their grief, 
to share in their solution to the problem that they face, as 
opposed to an analysis of the environmental cleanup. I think 
that's the subject of the hearing, but it doesn't----
    Senator Wicker. Well----
    The Chairman--seem to me to be appropriate to their----
    Senator Wicker. Well, my questioning----
    The Chairman--suffering.
    Senator Wicker--my questioning is over, but I would simply 
point out to the Chair that a great deal of Mr. McCallister's 
testimony was about his frustration. And the Ranking Member 
also has expressed her frustration about the process. So, I was 
merely following up on comments that were already made. But, 
I----
    The Chairman. Well, we all share that.
    Senator Wicker. But, my questioning is over.
    The Chairman. We all share that. But, the point, to me, is 
the two very courageous young women who have no husbands.
    I thank you, and I go to Senator Isakson. He's not here.
    Senator Pryor? Not here.
    Senator Begich.

                STATEMENT OF HON. MARK BEGICH, 
                    U.S. SENATOR FROM ALASKA

    Senator Begich. Thank you. Thank you, Mr. Chairman. And 
thank you for redirecting the conversation, because that's what 
I came to at least hear and listen.
    I sympathize with your loss, your two losses, but also the 
nine other families that need also be recognized. And I 
sympathize with your story, because I lost my father in a 
tragic plane accident when I was 10. My mother was 34, had to 
raise six kids--four boys, the youngest being four. So, I 
sympathize with you a great deal.
    And so, today--and I'm glad, again, Mr. Chairman, you 
redirected the conversation, because I appreciate Mr. 
McCallister's issues, and I hope that the Administration works 
forward and moves all the equipment. They're doing an 
incredible job.
    But, I want to dive into the issue that we hear, and that 
is really, How do we ensure proper compensation? And there is 
no real compensation that can be done in numbers.
    Someone from Alaska, myself, I saw what the Exxon Valdez 
did. We had waited 20 years for resolution. We had no loss of 
life, but--except, we had loss of life over 20 years. Twenty 
percent of the people who waited patiently for their claims to 
be settled--took 20 years--twenty percent of them died in that 
process, waiting.
    I am hopeful, whatever we do here and on the floor of the 
Senate, that we do not have that same delay, not only for 
those, as you've mentioned in your testimony, of those who lost 
business in--impact--but specifically to the 11 families that 
lost life. And so, hopefully we will get focused on this issue 
in a way that really makes sure the laws are equalized.
    And I think, Professor, you gave an interesting comment, 
and I just want to ask you this question. And I'm a new member 
to the Senate. I'm going to claim this for as long as I'm here. 
And I'm from Alaska, so I get a double. And so--and I don't 
want to be cynical, but we're going to make a lot of great 
statements. People like me are very passioned about making sure 
people get just compensation. Because, I can tell you, in our 
loss, we did not. And that was, you know, 30-plus years ago, as 
an individual or a family. So, I'm anxious--and this will--
you're going to step--I'm going to ask you to step out a little 
bit here on it--and that is, even though the laws have not been 
changed in so many years, and we tinkered with them a little 
bit, some years ago, do you think there's the political will to 
get beyond the debate of liability caps and torts and all that 
that's--you know, ``trial lawyers versus corporate America'' 
debate that I have a feeling this will fall into, which is 
really too bad, because it's really about people? It's about 
ensuring that families get what they deserve with what's owed 
to them for their loss. Do you think, honestly, that we can 
get, in this political body, beyond that debate, which will be 
trial lawyers versus corporate America and who represents who?
    Dr. Galligan. I--you are asking me to step out----
    Senator Begich. Darn right. People who come and testify, at 
least while I'm here, and I'm sitting here, are going to do 
that.
    Dr. Galligan. I certainly hope that you can get outside 
that debate. I think the issue, when we talk about loss of 
society damages under the Death on the High Seas Act, or we 
talk about it under the Jones Act, or we talk about it on land, 
I couldn't speak more eloquently than Ms. Anderson and Ms. 
Roshto spoke about how real that loss is. So, I don't think 
that's about lawyers who represent primarily plaintiffs or 
lawyers who represent primarily defendants, and I don't think 
that's about business in corporate America. I think that really 
is about people and about holding other people accountable.
    I would say this--and now I'm really out on the limb--if 
there's----
    Senator Begich. I like that.
    Dr. Galligan--some other reason to protect some industry or 
some business, I don't think it's right--moral statement by the 
professor--to do it at the expense of people who suffer a very, 
very real loss. It should be a separate issue.
    Senator Begich. Well, I appreciate that. And I didn't mean 
to put you on the spot, but I am very sympathetic, and want to 
make sure these laws are corrected. Because it's unfair that, 
as very eloquently spoken, that, you know, on land versus on 
sea, there are two different methods, which doesn't seem 
logical at all. And I think to the American people it doesn't 
make sense--not only to the 11 families, but to the American 
people, in general, it just doesn't make sense. And sometimes 
things we do around this place don't make sense. And this is a 
moment, probably, that we can make some sense here, and do the 
right thing in quick order.
    Again, I come from two ends of the equation, someone who 
was 10 years old, who lost a father, to sitting here and 
looking back at what happened down at Exxon Valdez, and saw 
what it took, for 20 years. And then, when it finally made it 
to the Supreme Court, in my personal opinion, the victims got 
ripped off. They went from $5 billion down to 500 million. And 
then Exxon waited and argued over paying the interest that was 
due on that 20 years. So, that's just not right.
    And so, again, your two testimonies were passionate--
without doubt, convincing to me. And I recognize that you don't 
want to be lumped in, but you want to have that choice. You 
make that decision of how you will gather that compensation and 
that just result, but, at the same time, not in a delayed 
action. So, I really appreciate your two testimonies.
    Professor, thank you very much.
    Mr. McCallister, I didn't have anything for you, because I 
think we could take your issue off record and go figure it out. 
But, this is what I came to hear, were these three. So, no 
disrespect to you.
    Thank you all very much.
    The Chairman. Thank you, Senator.
    Senator LeMieux.

             STATEMENT OF HON. GEORGE S. LeMIEUX, 
                   U.S. SENATOR FROM FLORIDA

    Senator LeMieux. Thank you, Mr. Chairman.
    I want to extend my condolences to you, Mrs. Anderson and 
Mrs. Roshto, and thank you for being here. I know it must have 
been incredibly difficult for you to talk today about your loss 
and how much your husbands mean to you. And, to echo the 
comments of my colleague from Mississippi, Senator Wicker, we 
all believe that there should be equal justice under the law. 
There is no reason that your losses should be treated 
differently than losses that occur when someone has a tragedy 
like this on the land versus on the water.
    So, I hope that we can work, Mr. Chairman, in a bipartisan 
way to address that, going forward.
    Now, Mr. Chairman, we do have Mr. McCallister here. And if 
you will indulge me, I do want to speak to him about this issue 
of skimmers, because, this tragedy is an ongoing tragedy that 
has been described by some as ``a slow hurricane.'' And the 
reason why is that, for a state like mine, in Florida, this oil 
is washing onshore. We are creating victims every day, maybe 
not as pronounced as Mrs. Anderson and Mrs. Roshto's 
experiences. But, for example, domestic violence is going 
through the roof in northwest Florida right now, because of the 
stress that this situation is causing on people. People have 
anguish in their eyes.
    When I was in Pensacola on Monday, I talked to people there 
who are seeing all this oil wash up on the beach and ruin their 
way of life. People move to Florida because they love the 
water. And it's not just a recreational thing for us, it's part 
of who we are in Florida, like it is in many other Gulf states.
    I have tremendous frustration about the lack of these 
skimmers. Now, I've been talking about it for weeks. And this 
is not a Democrat or Republican issue. This is an issue of 
getting the job done.
    Now, you talked about trying to get a waiver of the Jones 
Act. Senator Hutchison and I have legislation to waive the 
Jones Act. We've been told by the Coast Guard, we don't need 
it. But, the truth is, is that there have been 64 offers of 
foreign assistance, and 7 accepted. The Coast Guard now says 
that they will be accepting 22 offers. We have 2,000 skimmers 
in this country, domestically, yet only 400 are in use. The 
Coast Guard and EPA signed an Executive Order, which I'm 
thankful for, yesterday, to waive the restrictions on domestic 
skimmers to bring them to the Gulf of Mexico. But, that's 70 
days into this. And we need more help.
    There's a ship right now that's steaming to the Gulf--it's 
actually, probably in the Gulf, that you probably have seen on 
television, called ``A Whale.'' It's the world's largest 
skimmer. It's bigger than an aircraft carrier. It can do more 
work in a single day than half of the skimmers that are out 
there, combined. And it doesn't yet have approval to do this 
work.
    So, I want to thank you, Mr. McCallister, for bringing this 
issue. I want to thank our Ranking Member for having you come 
and testify here today, because this oil, Mr. Chairman, is 
going to have profound effects upon the Gulf Coast states. It's 
not going to just affect them for months. It's going to affect 
people for years.
    It's not only people losing their ability to make their 
wages. You know, in Florida and other Gulf states, these folks 
make their living, for the whole year, between Memorial Day and 
Labor Day. And no one is coming to the beach anymore because of 
this. Plus, what's it going to do to the seafood industry? 
What's it going to do to the folks who work on these offshore 
rigs? Are they going to be able to continue their way of life?
    This disaster is having a profound effect upon my state, as 
well as Mississippi, Alabama, Louisiana, and Texas. And we just 
need to see some more urgency, Mr. Chairman.
    So, if today is not the day to talk about this, I would 
ask, and I think other colleagues would join me, sir, that we 
have another hearing to talk about the lack of response, and 
what we can do to create a sense of urgency. I know it's 
something that you care about. And you've been passionate, Mr. 
Chairman, about this government, when it has the responsibility 
to do its job, whether it's a coal mine disaster or this 
disaster, that the government does its job.
    So, I would respectfully suggest that maybe on another day 
we could have a hearing to talk about that more fully.
    And I thank you for calling this hearing today.
    The Chairman. Thank you Senator.
    And, Senator Lautenberg, you're next.
    Senator Lautenberg. Thank you, Mr. Chairman.
    And, once again, we appreciate the difficulties, to Mrs. 
Roshto and Mrs. Anderson, in having to review your personal 
pain. But, we thank you for doing it. And each of you has made 
a comment--OK, point it in the right direction--the--each of 
you--Mrs. Roshto, you said that your husband said that he was 
worried about all the mud they were losing from the well, and 
pressure the men felt to deliver more oil quickly. I quote you 
correctly here. Mrs. Anderson, husband said, Jason, that 
``There's a bunch of stuff going on, and I can't talk about it 
now. The walls are too thin. I will talk to you when I get 
home.''
    So, each one of your husbands worried about the safety of 
the rig. Fair enough? Do you think that your husbands would 
have been--thought they would have been punished for speaking 
out about this?
    Mrs. Anderson?
    Mrs. Anderson. I don't know if he would have--Jason would 
have been punished, per se, if he had spoken out. I know that 
Jason would have spoken out if he felt like he wasn't going to 
be able to come home. He would not have done anything that 
would have prevented him from coming home. He would have not 
done anything that would have harmed anyone.
    Senator Lautenberg. OK. But, he was--but, said that he 
``can't talk about it.'' So, he indicated that there was 
concern about----
    Mrs. Anderson. There--yes. He very much so indicated that 
he was concerned about something, and just didn't want me to 
worry about it. He didn't give----
    Senator Lautenberg. Mrs. Roshto----
    Mrs. Anderson--want to give me something else to worry 
about.
    Senator Lautenberg. Thank you.
    Mrs. Roshto, your husband indicated that he was worried 
about the mud they were losing from the well, and felt that it 
was unsafe for them--those on the rig. Is that correct to 
conclude?
    Mrs. Roshto. I don't think he ever felt personally unsafe, 
per se, to the point to where he would have----
    Senator Lautenberg. Endanger, yes.
    Mrs. Roshto. Yes, endangered. But, he did, numerous times--
the last time he was home, the weeks leading up to the accident 
that he was on the rig. There were many conversations that we 
had that we had never had before. He had never shown more 
concern on the rig than he had on this hole.
    Senator Lautenberg. Thank you.
    Mr. McCallister, hundreds of American vessels have 
responded to the cleanup. A number of foreign vessels also 
assisting in the cleanup efforts. However, there are a number 
of American vessels standing by, waiting to be called. Now, do 
you think that we ought to give preference to American vessels, 
American workers in the Gulf Coast cleanup, or should we look 
to competition between foreign flags and American flags?
    Mr. McCallister. Senator, to the extent that we have the 
types of vessels and the quantities of vessels that are U.S.-
hulled, we should use them. We have to keep in mind that there 
are a couple of factors.
    One is that the types of vessels that we're talking about 
are not commonly available in the U.S.----
    Senator Lautenberg. Well, I----
    Mr. McCallister--specialized----
    Senator Lautenberg.--I think it's fair to say that Admiral 
Allen, who is making the decisions about that--and everyone 
seems to agree that he's really thorough, that he's on the job. 
I know him, as the Coast Guard Commandant, for some years. He's 
a man whose judgment is beyond question. So, do you think he's 
wrong here to say that we ought to move over to the foreign 
vessels?
    You know, I was stunned to read--to reflect on your 
testimony--``Ships could carry 500 workers or more, with all 
the amenities of a cruise ship.'' Well, that strikes me as not 
being very impressive, I must tell you. I was on a cruise ship, 
and they--someone who's working every day to get something done 
as important as removing this oil doesn't need those amenities. 
And I think that it's quite clear that we're looking, here, at 
bringing this large cruise ship to house workers--say the Jones 
Act is the only reason this proposal has been rejected. But, 
that doesn't seem to be the case. It's not because the Jones 
Act has its limitations to a couple of miles off coast, and 
they can be called upon. But, I think the challenge to Admiral 
Allen's judgment, who has shown incredible leadership in this 
terrible situation, leaves us scratching our head and wondering 
what it is.
    Do you have any experience in operating--I know you work 
for a fund, or own a fund, however, do you have any experience 
in operating or owning skim vessels or cruise ship vessels?
    Mr. McCallister. No, sir.
    Senator Lautenberg. Mr. Chairman, we have problems here. 
And we have two women who survived enormous pain. My mother was 
37 when my father died. I had already enlisted in the Army; I 
was 18. And the pain of my father's death was incalculable in 
any way. He didn't make much money. It wasn't his money, it was 
his presence that counted. It was his part of the family. It 
was being dad to two kids. That's what it was. And not to 
recognize pain and suffering at--if some is working at sea or 
someone's working on land--strikes me as being incredulous.
    Thank you very much, Mr. Chairman.
    Thank you both, again, for your testimony.
    The Chairman. Thank you, Senator.
    And now Senator Thune.

                 STATEMENT OF HON. JOHN THUNE, 
                 U.S. SENATOR FROM SOUTH DAKOTA

    Senator Thune. Thank you, Mr. Chairman. I want to thank you 
and our Ranking Member for holding today's hearing.
    And I also want to thank our witnesses for joining us. In 
particular, Shelley Anderson and Natalie Roshto, who are 
testifying today.
    As we look for ways to stop and clean up this spill, we 
cannot lose sight that not only is this an economic and an 
environmental tragedy, but it's a human tragedy, first and 
foremost. And we can't lose sight of the 11 lives that were 
lost during the explosion of that rig.
    So, we thank the two wives for being with us today and for 
honoring their husbands' memories by joining us as we look for 
ways to improve the industry and the government response to 
this tragedy.
    Mr. Chairman, British Petroleum has publicly declared that 
they are the responsible party. It's critical that they be held 
to account for the environmental/economic damages caused by the 
ongoing oilspill in the Gulf. Victims, like the two wives who 
are with us today, must be made whole as fairly and quickly as 
possible. Beaches and marshes must be cleaned, and local 
economies put back on strong economic footing.
    It is equally important that the Federal Government 
response is adequate to address the ongoing concerns in and 
around the Gulf. And we also need to look at ways that we can 
cut through the red tape, some of which has been mentioned 
today, and provide as much flexibility as possible to local 
governments as they are dealing with this tragic spill.
    It's important, Mr. Chairman, that Congress take the 
necessary steps to prevent such an accident from occurring in 
the future. And of course, it's widely discussed that Congress 
may turn to an oilspill response bill soon after the 4th of 
July break. I'm hopeful that we can find bipartisan policy 
solutions that will speed up the cleanup efforts, minimize 
potential for future spills, and address the concerns that are 
raised here today by the wives of the two gentlemen who were 
lost.
    So, Mr. Chairman, I don't have any questions. I think the 
subjects have been covered fairly well here. I just wanted to 
express my condolences to these two ladies, and welcome the 
other members of the panel, as well, and thank them for the 
input that they provided on what is a very difficult and 
ongoing and tragic circumstance for, not only that area of the 
country, but our entire country.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Thune.
    Senator Vitter.

                STATEMENT OF HON. DAVID VITTER, 
                  U.S. SENATOR FROM LOUISIANA

    Senator Vitter. Thank you, Mr. Chairman.
    I'll be brief, as well. But, I just wanted to express three 
things.
    First of all, I join with everyone in expressing our deep 
condolences to Mrs. Roshto and Mrs. Anderson. You have helped 
highlight that there is a clear injustice here. So, I look 
forward to working with others to solve that on a bipartisan 
basis. But, we certainly continue to hold you all up in our 
prayers, and your families, and the families of the other 
victims, very, very much so.
    Second, I certainly want to join with Senator LeMieux in 
suggesting that it would be an appropriate topic for a further 
hearing to talk about the Federal response. I think, in many 
different ways, the Federal response has been, and remains, 
inadequate. I don't think we have enough assets on the problem. 
That's one of the major inadequacies. And I don't think that's 
fundamentally a Jones Act issue. I think that's an 
aggressiveness/Federal-response issue, because I talk to a lot 
of folks, with significant assets ready and waiting to go, who 
have not been deployed. And 90-plus percent of those are 
domestic assets. So, I join with Senator LeMieux in suggesting 
we look further into that, Mr. Chairman, because, 
unfortunately, that's an ongoing issue.
    And third, and finally, I have a particular concern and, I 
guess, question for Mr. McCallister about the cruise ship 
proposal. My experience in coastal Louisiana is that there are 
businesses right on the coast, from the Texas border to the 
Mississippi border, devastated economically by this event. They 
certainly include a lot of hotels, a lot of catering services, 
and a lot of folks who can provide, right on the coast, all of 
those resources. And I think it's fair and reasonable that we 
look to them first to mitigate their losses, before we do 
anything else. So, I am really at a loss for the immediate need 
for major use of cruise-ship-type vessels.
    Mr. McCallister. May I respond, Senator?
    Senator Vitter. Certainly. And I'm sorry I missed your 
testimony, but if you can lay out what the evidence is, or the 
study is, that supports the need for that.
    Mr. McCallister. Well, I appreciate your raising the 
question again, because it's--even though I may have used the 
term ``cruise ship amenities,'' what we're talking about here 
is a vessel that has boarding accommodations and also has a 
ferry deck. And the reason that this particular vessel could be 
useful in the Gulf is that you have a very large parking area 
on the bottom that could be used for equipment storage, boom 
transportation, boat storage, animal rescue, that type of 
thing.
    And it was also--this particular vessel was submitted, 
initially, in response to a request for boarding vessels. So, 
you know, we didn't conceive that this was a vessel that was 
needed, of our own design, and try to throw it at them. This 
was actually something that was an out-bound request from BP 
through environmental--U.S. Environmental Services. And so, we 
tried to respond with a vessel that could house people with 
respectable accommodations, but also provide an excellent work 
platform that could move up and down the coast, as necessary.
    I agree, 100 percent. You know, taking away jobs or taking 
away economic opportunity is not a good thing. These vessels 
can be manned by local labor force and local workers, and that 
would be the intention. But, certainly, if this type of vessel 
is not needed by BP, you have no argument from me. I'm not 
trying to push it on anyone. They requested a boarding vessel. 
We did the work, brought them something for them to consider.
    Senator Vitter. Well, just two things. First of all, I 
understand your description of the vessel. We're not talking 
about cruise ships----
    Mr. McCallister. No.
    Senator Vitter--or two shows nightly. I get that.
    Mr. McCallister. Exactly.
    Senator Vitter. Second, quite frankly, the fact that BP put 
out some solicitation about some category of ships doesn't 
boost my confidence.
    And I'll tell you this anecdote. Very early on in the 
event, when I was in Grand Isle, which is our only inhabited 
barrier island, they had just closed the beaches on Grand Isle 
during the summer, at their peak season, because of this event. 
So, at their peak economic season, Grand Isle was being shut 
down. At the same time, BP starts pulling in temporary 
housing----
    Mr. McCallister. Right.
    Senator Vitter--to put on Grand Isle, when every hotel and 
motel in sight has just been emptied out. So, I just offer you 
that one anecdote to suggest that the fact that BP may have 
asked for it at some point doesn't necessarily bolster my 
confidence. And I would encourage us all, again, to look to the 
areas and the people hit economically by this event, and give 
them the business first, and mitigate their losses first.
    Thank you very much, Mr. Chairman.
    The Chairman. Thank you, Senator Vitter.
    I want to return to the two people who I think this is--or, 
the three people who I think this hearing is about.
    And I have to, in a sense, apologize. I understand the 
Ranking Member--people have rights to ask who they want to a 
committee hearing, but this was not my idea of what the 
Committee hearing was going to be. My idea was, it was going to 
be about you two fine young women. And the professor here, who 
knows about the law, and how we can make this right, which is 
our business as a committee. The other is also our business as 
a committee, but it was not, in my judgment, our business 
today. And I apologize, if you feel others have been sort of 
talking past you, because that's not fair. I've been to many 
coal mine disasters in my life, and when you're dealing with 
people who are hurting, you focus on the people who are 
hurting, and the investigations take place, and all of that 
happens, but you focus on the people first. That's my--at 
least, that's my code of conduct.
    I want to ask something which doesn't make a lot of sense 
to me. There's a sort of difference in emphasis. A lot of 
people have said that Transocean spent a lot of time and money 
on safety training for their employees. Transocean says that 
its safety goal is an incident-free workplace, all the time and 
everywhere.
    They evidently were--they won a safety award in 2008, were 
about to receive an award for going 7 years without a lost-time 
accident. Then--so, that's sort of over here.
    Then over here, what we're trying to do now is to figure 
out what went wrong on April 20. The investigations aren't 
complete, but what we are trying to learn is that--BP and 
Transocean, with the approval of Mineral Management Service, 
MMS, that particular government agency that nobody had ever 
heard of until this oilspill, and now everybody has heard of 
them, and they've heard of them with an enormous amount of 
disapproval--but, they decided, in a sense, to cut corners to 
get the job done quickly--BP and Transocean.
    The drilling project was, in fact, behind schedule, and it 
was, in fact, over budget. So, BP wanted it done, because it 
was losing money--my interpretation of it. So, my question to 
each of you would be, Do you have any thoughts about whether 
oil rig workers get pressured to cut corners or engage in 
unsafe practices?
    And I ask this question because it's exactly what happens 
in coal mine country. It's just exactly what happens.
    Mrs. Anderson. I think if anybody is going to be in 
business, they're going to be in business to make money or 
they're not going to be in business very long. As far as my 
specific husband being pressured to do anything, I don't know 
that for a fact. I would--I do know that my husband, Jason, 
would not do something that would prevent him from coming home. 
If he knew about it, and he knew that it would prevent him from 
coming home, which is his number-one goal every time, is to--
just to come home, he wouldn't participate in something that 
would prevent him from coming home.
    The Chairman. Mrs. Roshto?
    Mrs. Roshto. I personally don't think Transocean acted 
unsafely on purpose. My husband never--he had actually stopped 
a job, not too long ago, because of some things that were going 
wrong. And he did not lose his job. He always felt he could go 
to Transocean.
    Now, let me say--Did I say BP? No. He went to Transocean, 
and told Transocean, you know, there was a problem. And he was 
able to stop the job.
    Now, the weeks leading up to the accident, I do believe 
that Shane felt unsafe at times. He never--the words never came 
out of his mouth, and he never said, ``I feel unsafe.'' From 
the conversations that we had, I gathered that he was unsafe.
    I don't think that it was intentional on behalf of 
Transocean or BP. I believe that calls that were being made 
from higher above were forcing Transocean to have to cut 
corners, because of the contract they have. I do believe that 
it was coming from higher above, and the trickle-down effect 
was causing Transocean to have to cut corners.
    The Chairman. Ms. Anderson, would you agree with what she 
said?
    Mrs. Anderson. Yes, sir, mostly. I just would like to say 
that if somebody was cutting corners, and they think that the 
price of my husband's life is worth a battery not being changed 
or a boatload of drilling mud being unloaded sooner, they are 
strongly mistaken.
    The Chairman. Yes, see, because, to me, it doesn't--it 
really doesn't matter if there is pressure.
    Mrs. Anderson. That's right.
    The Chairman. If it comes from on the rig, from the people 
there, or if it comes from, you know, Great Britain, or 
anywhere else. Pressure that comes from within a corporation 
comes from within a corporation, and the corporation is 
responsible, if that pressure does come, no matter in what way 
it comes. And that's why I think the consideration of how you 
are to be treated is so incredibly important.
    I make the assumption that there was unsafe practice. I've 
just heard too much evidence. I'm not a scientist, I'm not--you 
know, but we have people on this committee, behind me, staff, 
who are experts in these matters, and I think there's a concern 
that there was unsafe hurry.
    What I would ask to you, Professor Galligan, is to sum up 
what you think we ought to do, as a committee, to solve the 
problems as best as we possibly can--and of course, we can't do 
that entirely, but financially we can--of these two very 
courageous young women.
    Dr. Galligan. Well, I think, first and foremost, you ought 
to take a look at the Death on the High Seas Act, which does 
not allow recovery of loss to society damages for the survivors 
of victims who are killed on the high seas. And you ought to 
change that to allow loss of society damages to be recoverable, 
as Senator Leahy's bill proposes.
    I would also encourage you to take a look at the Jones Act, 
as Representative Conyers' bill, which is in the House side, 
amends the Jones Act to also allow loss to society damages for 
seamen, and that would really line up everything so that it 
really was consistent.
    I would urge you to seriously consider Senator Schumer's 
bill on the Limitation of Liability Act, and ask yourselves 
whether or not that Act, passed 160 years ago, when the world 
was a very different place, is still needed, is still 
essential, is still fair, and whether America ought to be a 
leader in saying, ``We need to hold the maritime industry 
accountable.'' I would point out, on that regard, that we have 
many foreign ships who come to our courts and seek to limit 
their liability under the Limitation of Liability Act.
    And third, I would ask you to consider the Exxon case, and 
the one-to-one ratio between punitive damages and compensatory 
damages in maritime punitive damages cases. That case decided 
an issue solely of maritime law. And let me repeat what I said 
before. The majority opinion says, ``If Congress thinks another 
rule is appropriate, it is within Congress's power to 
articulate that rule.'' So, it is within your power.
    And I would also remind you, as you well know, that that 
decision was uttered about 2 years ago, before something like 
the Exxon Valdez happened again. And now it has happened again.
    The Chairman. I thank you for that, very much. It's a 
phenomenon, and an unfortunate one--and maybe it's not just us, 
in America, maybe it's people elsewhere--but, we--as a country, 
we do hold lives to be precious. We are shamed when things go 
wrong. We do find wrongness in companies. And it's always after 
something bad has been affected. I come from West Virginia, 
where the whole coal mining situation is--you have a disaster, 
and then, all of a sudden, people get together and we pass mine 
safety laws. And we did that several years ago. And there was 
the first Federal mine safety laws in 30 years. I'm embarrassed 
by that fact. Now we've had another disaster, with 21--now 31 
people--or, actually 29, in that particular incident, but 31, 
in effect--have died. And once again, we're going to pass mine 
safety legislation.
    And you ask, ``Why can't we do it before?'' And what I 
think you discovered, partly, is that there is tremendous 
pressure on corporations to make profits, and that that has its 
consequences--that has its consequences. And the consequences 
have been eloquently expressed by these two distinguished and 
courageous women.
    I would now ask unanimous consent to put two statements in 
the record of the hearing. I ask that--and this will be done--a 
short statement by Shelley Anderson's lawyers, Ernest Cannon 
and Ben Barnes be put in the record.
    [The information referred to follows:]

          Prepared Statement of Ernest Cannon and Ben Barnes 
                     on Behalf of Shelley Anderson
    We have a sincere concern about the rights of those who died and 
were injured aboard the Deepwater Horizon. Almost a century ago, 
Congress enacted the ``Jones Act'' to protect those who were injured 
working on offshore vessels because of their hazardous occupation and 
because of their vital service to our economy. The Supreme Court of the 
United States and many appellate courts have recognized the need to 
protect seaman as wards of the court for these very same reasons.
    Unfortunately, there are those who caused the explosion, the deaths 
and the injuries who are attempting to use other legislation called 
multidistrict litigation to frustrate the rights given by the Jones Act 
and the courts and to delay the injured and the families of the dead 
from enforcing those rights.
    In the two months since this tragedy occurred, BP and Cameron have 
done everything in their power to prevent the victims from pursuing 
their rights in the forum of their choice and have instead filed 
motions to stay all proceedings against them until a committee called a 
MDL committee meets in Idaho in July. They have asked that committee to 
join all of the seaman's cases to those of the commercial fishermen, 
landowners and countless municipal and states claims. Instead of the 
judge or judges that were randomly assigned the cases, BP and Cameron 
want one judge appointed by that committee to hear all of the cases. It 
is reported that they have even lobbied for one judge by name. They are 
so convinced that their tactics will work that they have filed court 
papers saying it is a virtual certainty that these cases will be 
consolidated into the MDL.
    If BP and Cameron get the results they want to achieve, it will be 
many years before any of these families are able to enforce the rights 
which Congress has given to them. Combining the families' cases with 
thousands of other cases in front of one judge cannot possibly serve 
the ends of justice.
    We cannot allow these claims to be combined with commercial claims 
such as the claims in the Exxon Valdez tragedy which 20 years later are 
still not resolved. We cannot allow these claims to be combined with 
all other claims in an MDL as was done in the Toyota acceleration cases 
where the dead and injured will not see a courtroom for years.
    The only solution is to allow Jones Act Seaman and their families 
the right to choose whether they want to be a part of the MDL. 
Therefore, I propose that seaman can opt-in or out of the MDL. This is 
the only way to fairly protect the rights of those who have given their 
lives and their livelihood as result of this tragedy.

    The Chairman. Is Senator Klobuchar coming in? Otherwise, 
I'm going to give closing remarks.
    [Pause.]
    The Chairman. I'm going to give closing remarks.
    This oilspill----
    Senator Klobuchar, you're welcome to say what you want.
    [Pause.]

               STATEMENT OF HON. AMY KLOBUCHAR, 
                  U.S. SENATOR FROM MINNESOTA

    Senator Klobuchar. I'm sorry. I was at the Supreme Court 
hearing.
    Thank you. And thank you for your patience. Thank you, 
Chairman Rockefeller, for your patience.
    I did an event in my state last week, and it was a little 
unrelated to the liability issues here you're talking about 
today. But, in some ways, it's completely related. And it was 
about the migratory birds, which no one's really dealt with 
yet, but we have 13 million birds, many of them from my State, 
and a half a million that are going to be heading down to the 
Gulf. That's where they make their home in the winter. As the 
oil goes into the marshes, we have no idea the effect it's 
going to have on all of these waterfowl. And the concern here 
is that they won't react to oil in a marsh. They react to 
predators, but not to oil in a marsh. And we can't exactly hold 
up a sign and said, ``Go to Texas instead, or go to Mexico 
instead.'' So, it's just one example of what you don't expect 
to be happening.
    And obviously, there are much greater losses. And I 
appreciate--I heard, from my staff, about your testimony, and 
thank you very much for that. And I'm very, very sorry for your 
loss.
    What I wanted to ask about, actually, was something that 
has a strange relationship to Minnesota. And that was the Exxon 
Valdez case, because it was a Minnesota law firm that 
represented the fishermen in that case. And so, I'm very well--
there's a--aware of it. There's, in fact, a book, that I helped 
to edit at one point, called ``Cleaning Up,'' about that trial 
and what happened with that case.
    And I know that it took over 20 years, and 32,000 people 
saw damages delayed and slashed. Eight thousand of plaintiffs 
died before they ever got paid. I know Senator Begich asked 
some about that.
    But, my question is if you think that there is a way to 
structure the law that we're looking at so that the companies 
are incentivized to pay claims in a timely manner?
    Any ideas? Dr. Galligan?
    Dr. Galligan. Well, I--I'll start by saying that one way is 
to make the law clear. And so, the clearer the law is, the 
better able a company is to pay damages. So, if a company faces 
law that's unclear, then it doesn't know what the damages are. 
I think the Death on the High Seas Act here today presents an 
excellent example. People know there are bills that are 
pending, but they haven't been passed yet, and so, I think 
they're probably waiting to consider what Congress does. So, 
moving quickly on that would be important.
    Another way, Senator, is to make punitive damages available 
for the arbitrary or willful failure to pay claims on time. 
Maritime law does that in the case of what's called 
``maintenance and cure,'' which is when a seaman is hurt and 
she or he has a right to recover a payment for maintenance and 
medical expenses until they reach maximum medical cure. If the 
employer arbitrarily or willfully doesn't make those payments, 
then punitive damages are available.
    It's a little bit, Senator, like in bad-faith insurance 
cases in many States, when an insurer doesn't pay a claim, that 
there are penalties or attorney's fees that will be available.
    So, those are certainly all vehicles that you could 
consider to use to encourage the timely resolution and fair 
settlement of claims.
    Senator Klobuchar. Mr. McCallister, do you have anything to 
add?
    Mr. McCallister. No.
    Senator Klobuchar. OK.
    Mrs. Anderson. I do----
    Senator Klobuchar. OK.
    Mrs. Anderson--if you don't mind.
    Senator Klobuchar. No, that would be very good.
    Mrs. Anderson. With my husband and what we have gone 
through, our loss was absolutely instant. And in 20 years, my--
if I've done my job correctly, my kids are going to be self-
supportive in 20 years. They're going to be 25 and 21. They 
should be able to be fine by themselves. We don't want to be 
lumped in with everyone else. We want the choice to go where we 
want to go to file our claims. And our loss was instant.
    I'm not a lawyer, I don't know about the laws, but it seems 
to me the easiest way to pay all this is to get your checkbook 
out and write the check and be done.
    Senator Klobuchar. I would agree.
    Mrs. Roshto. Can I say something----
    Senator Klobuchar. And I know we need to do some amending 
of the Death on the High Seas Act, as well, given the 
difference with--we had a hearing on this in my Judiciary 
Committee--but, about the difference with the airlines, and how 
that's handled, and use those same standards over--which I 
think would be helpful.
    Yes, Mrs.----
    Mrs. Roshto. Thank you.
    Senator Klobuchar--Mrs. Roshto.
    Mrs. Roshto. The core of all this--I mean, really, I 
think--we lost 11 men that day, 11 men that we cannot bring 
back, 11 men that all had children, that their children will 
never be able to have fathers again. But, if--after this law is 
passed and it is made clear to these companies--not just BP, 
not just Transocean, any offshore drilling company--if it made 
clear to them that they, from the very begin with, will be held 
accountable in the end for these men's lives, I think that if 
they know that from the very begin with, that they will be 
safer, to begin with. Because they knew--they knew the law. 
They knew that they could just throw these men out there and 
just, you know, give them a little safety every now and then. 
And if something happened, they didn't think that we would be 
sitting here today, doing this.
    Senator Klobuchar. Right. So, it goes into a cost-benefit--
--
    Mrs. Roshto. Right.
    Senator Klobuchar--analysis.
    Mrs. Roshto. That's right. If you make them know, from the 
very begin with, that they have to be safe, I think that our 
men ultimately would be here today, in the end.
    Senator Klobuchar. Yes. I thought about this when we had a 
hearing--Chairman had a hearing on the Toyota issue, and--
remember, with their brakes, and that they--they actually 
calculated in and were cheering when they had to pay less money 
when they worked with the regulatory agency on how much they 
owed. And it was a really good example of how companies 
actually make a cost-benefit analysis and think, ``Oh, it's 
going to cost me less. So, that's great, so I don't have to 
worry about it anymore.'' And I think you're exactly right, 
that we look at this right now, understandably, to compensate 
Mrs. Anderson and others for their losses, and the wildlife of 
Minnesota, and everything else. But, we have to also look at it 
as a preventative measure. So.
    All right. Well, very good. I really appreciate it. I don't 
want to hold up the Chairman any longer.
    And thank you so much for being here today. We look forward 
to working with you.
    The Chairman. Thank you, Senator Klobuchar.
    And you did, in fact, come over from a rather important 
hearing. So, we're glad that you cared enough to come.
    Let me just--in closing remarks, we earlier talked about 
Courtney Kemp, and I have now, as you know, put her statement 
in the record, but it's interesting what she says in her 
testimony. She says, ``It is my belief that this terrible 
tragedy could have been prevented, if only proper safety 
procedures had been followed,'' close quote. Pretty direct.
    The cost of following safety rules--these are my words, not 
hers--have been a few dollars--would have meant a few dollars 
for BP and Transocean. Cost of cutting corners and rushing the 
job was 11 human lives and goodness knows what other kind of 
tragedy for those who were injured.
    Ms. Kemp asks us to, quote--says to us, ``How is it that 
the almighty dollar has become more important than a human 
life?'' and that closes her quote.
    So, what I would say to the two of you, and then, Mr. 
Galligan, to you, over the next few weeks we're going to be 
working very hard on legislation to address this problem that 
we've been discussing this morning, and to come to a 
resolution, such as you have all, in different ways, suggested 
to us, because it's a matter of national necessity, and it has 
everything to do with the quality of lives, the way others look 
at their futures, not just--and also the way you look at your 
future in--which will be more painful than for others.
    Various committees will be working on this, and it will be 
difficult to juggle that. But, I think our focus on this will 
be very clear. This committee obviously will be playing a key 
role in this process.
    So, our top priority is to make sure that safety always 
comes first on an oil rig--and elsewhere, for that matter, over 
what we have jurisdiction. And if safety doesn't come first, 
and people are injured or killed, we're going to update our 
laws to make sure that companies can be held fully accountable. 
That is the view of this particular Senator and, I think, the 
view of the great majority of those on this committee.
    I thank all of you for taking your time to come here. You 
came distances. You've testified quite marvelously in public. 
You've done an enormous amount of--I would say, especially to 
the two wonderful young women, you've done an enormous favor to 
everybody who works in the businesses that your husband worked 
in. And you've--what you've spoken about, I think will be a 
comfort to all families, whether their husbands died or were 
injured or not, simply by the way you said what you said, the 
passion and the righteousness and the rightness of what you 
said.
    And so, know that, as you go home. Really understand that, 
that you made a tremendous difference here today.
    We will do the right thing by you, I promise you that.
    This hearing is adjourned.
    [Whereupon, at 11:50 a.m., the hearing was adjourned.]