Arsenault is among a group of attorneys who have been working with claims administrator, Kennth Feinberg, and the unprecedented $20 billion Gulf Coast Claims Facility set up by BP and the Obama administration.  This avenue may offer faster compensation, but it may also mean waiving your right to sue BP.  Arsenault is explaining these options to his clients in this “already extraordinary case.”

Read the article here.

Prof. Galligan, who recently co-chaired the Louisiana State Bar Association’s Gulf Coast Oil Spill Symposium with Neblett, Beard & Arsenault’s founder, Attorney Richard J. Arsenault, has written an editorial urging the passage of this bill:

Now is the Time to Change the Law
By: Professor Tom Galligan

The law ought to be fair, consistent, and up to date. It ought to make people whole for their losses and compensate them for the real damage they suffer. Now, in wrongful death cases on the high seas, it does none of those things but the U.S. Senate currently has a chance to fix this defect and it is time to do so.

11 men died in the initial explosion on the Deepwater Horizon. Their survivors have appeared before several Congressional committees and explained why the law today is unfair. It is unjust because neither the Jones Act nor the Death on the High Seas Act (DOHSA) – the maritime statutes that define survivors’ rights in the Deepwater Horizon tragedy-provide “loss of society” damages to compensate for the lost comfort, care and companionship of their deceased loved ones. The majority of American jurisdictions today do recognize these rights in wrongful death cases, but not under these maritime laws, both passed in 1920.

All of the survivors-two wives, a father, and a brother–eloquently described the terrible emotional loss they have suffered and the devastating effects of the deaths of their loved ones on the children of the deceased workers. Yet today, none of those very real emotional damages are recoverable under the applicable law. All that is recoverable is purely economic damage, such as loss of support, loss of services, and funeral expenses. But, the law treats the relationship itself—the essence of the connection between people—as worthless. In terms of the love and care lost, the lost life is treated as if it has no value. That fact is morally offensive and logically incoherent. Loss of society damages are, as noted, available in most tort cases on land and are available for the survivors of those killed in high season commercial aviation disasters. The law should be the same for all and it is time to make it so.

President Obama has met with some of the survivors and pledged his support, and Congress has held hearings to discern whether current laws adequately protect the victims of this catastrophe. On July 1, the House passed a bill, Rep. Conyers’ H.R. 5503, that would allow the survivors of someone killed on the high seas to recover loss of society damages. Now, the Senate can and should do the same thing. Legislation is already pending in the Senate that would implement the necessary change, Senator Patrick Leahy’s S. 3463. It is time to pass that law.

I have been honored to have appeared with the survivors before the U.S. House and Senate Judicial Committees and the U.S. Senate Committee on Commerce, Science, and Transportation. No one at those hearings spoke against the changes described above. Now, I have heard that there are companies who claim that allowing recovery of loss of society damages might increase the cost of doing business for some. If this change in the law would now force maritime actors to have to consider the real emotional costs of deaths they cause, so be it. Perhaps if they were forced to do so, the world would be a safer place and none of this would ever have happened.

Since then, the Interior Department has stopped approving any new drilling permits and suspended drilling at 33 wells already exploring for oil in the gulf. The government has said it needs time to do a thorough safety evaluation to ensure that disasters like BP’s blast don’t happen again. But Hornbeck Offshore Services, an oil services company based in Louisiana, filed a lawsuit challenging the moratorium. It argues that there’s no evidence that continued drilling poses any threat of future oil spills, and that halting such operations could cost Louisiana thousands of jobs and millions of dollars in lost wages. The lawsuit is backed by oil companies, Louisiana’s governor and other state officials.

U.S. District Judge Martin Feldman heard testimony from both sides in a two-hour hearing on Monday. He ruled that the Interior Department failed to give adequate reasoning for the moratorium, according to the AP, saying the department assumes that because one rig failed, all companies and rigs doing deep-water drilling are an imminent danger.

“The safeguards and regulations in place on April 20 did not create a sufficient margin of safety,” Justice Department stated at the hearing Monday.

Asked by Feldman why the U.S. government didn’t implement a similar moratorium after the 1989 Exxon Valdez spill, the Government called the Deepwater Horizon blowout a “game changer.”

Feldman, who was appointed by President Ronald Reagan in 1983, has called the case by Hornbeck Offshore Services LLC and other marine service and shipyard companies against the Interior Department a matter “of national significance” and that the case will proceed on a “highly expedited basis.” A federal judge from Houston with a similar case brought June 17 by rig operator Diamond Offshore Co. listened by telephone.

Government lawyers said the Interior Department has demonstrated industry regulators need more time to study the risks of deepwater drilling and identify ways to make it safer. “The safeguards and regulations in place on April 20 did not create a sufficient margin of safety,” argued the Justice Department.

During Monday’s hearing, Feldman asked a government lawyer why the Interior Department decided to suspend deepwater drilling after the rig explosion when it didn’t bar oil tankers from Alaskan waters after the Exxon Valdez spill in 1989 or take similar actions in the wake of other industrial accidents. “The Deepwater Horizon blowout was a game-changer,” said the Government. “It really illustrates the risks that are inherent in deepwater drilling.”

These will be followed by payments of $1.25 billion per quarter until the $20 billion has been paid in, BP said. The fund will be available to satisfy legitimate claims including natural resource damages and state and local response costs. Fines and penalties will be excluded from the fund and paid separately, BP said. BP agreed to set aside an additional $100 million for workers who lost their jobs as a result of a deep-water drilling moratorium imposed by The President. The size of the spill was again revised upward, as the latest government figures released estimate 35,000 to 60,000 barrels is gushing from the mile-deep well in the Gulf daily. The rate of oil spewing out daily was originally estimated in April at 1,000 barrels and has been updated several times.

At the convention, Arsenault will also chair two other programs 1. Recent Tort and Maritime Developments and 2. The Gulf Coast Oil Spill Litigation.

Last month, Arsenault and Galligan co-chaired the Louisiana State Bar Association’s Gulf Coast Oil Spill Litigation Conference in New Orleans, which attracted hundreds of attorneys from across the country as well as members of Bloomberg Business Week and the Wall Street Journal.

Later this month, Arsenault will serve as Chair of the HarrisMartin Publishing’s Oil Spill Symposium in New Orleans. In addition, he was recently named Co-chair of the American Association for Justice’s Gulf Oil Spill Litigation Group, where he will lead educational programs and provide litigation support to attorneys who represent victims of the Deepwater Horizon disaster. The Litigation Group will hold its first meeting at the AAJ Annual Convention in Vancouver, British Columbia this July.

With a diverse career spanning three decades, Richard Arsenault is recognized as a leading lawyer in the areas of maritime law, serious personal injury and mass tort/complex litigation. He is a frequent speaker and has published numerous articles on various legal topics. Because of his unique experiences and expertise, Arsenault has been featured by the Associated Press, Wall Street Journal, New York Times, Reuters, NPR, CBS, BBC and other major media.

Congressional investigators have found that the BOP suffered from leaking hydraulic fluid, a dead battery and an inadequate design. “The answer is no,” Salazar said in response to a pointed question from about the government standards on the device. “I think there is additional work that should have been done on blowout preventers.”

Blowout preventers are massive devices that sit at the top of a well and are designed to slam pipes shut in the event of an emergency. However, they cannot shear thick sections of pipe.

A House investigation found last week that the device on the Deepwater Horizon suffered from multiple problems that may have prevented it from working correctly a mile beneath the Gulf. The U.S. Government is now a defendant in the oil spill litigation. The National Law Journal reports, “As lawsuits over the BP oil spill mount, a group of conservationists and fishermen have a new target: the US Department of Interior’s Minerals Management Service. A lawsuit has been filed in federal court against the federal agency.

The suit — Gulf Restoration Network and Sierra Club v. Salazar — charges that the agency violated federal law by exempting oil companies that drill in the Gulf of Mexico from disclosing blowout and worst-case spill scenarios as well as plans for dealing with them before approving the companies’ offshore drilling plans.

Lawyers for Transocean filed the request to take advantage of the Limitation of Liability Act, a maritime law that allows vessel owners to limit their liability to the value of the vessel and its freight. Transocean said through a spokesman that the action was taken on instruction from its insurers. Quietly, Transocean has already been paid over $400 million by its insurers for the loss of the Deepwater Horizon rig.

So now we have a hugely profitable drilling company who is now compounding the misery of the victims of the explosion for the sole and selfish reason to protect the company’s owners and investors. Despite the very public pronouncements by the companies involved that they will pay for the damages the explosion has caused, their actions show a more self-centered approach. Reports have already surfaced of survivors being forced to sign affidavits upon reaching shore that they were not injured and knew nothing about the cause of the explosion, affected fishermen being offered one time cash payments which included a hidden waiver of liability, and now this run to the courthouse for liability protection.

Somehow I doubt the families of the survivors of the explosion get a warm, fuzzy feeling about the ultimate outcome of their claims when they see the companies begin to take actions to protect their bottom lines instead of adequately and quickly compensating the victims.

Why would that be needed? Because BP would face limited responsibility for covering costs beyond cleanup and containment. Under provisions of the Oil Spill Liability Trust Fund – a rainy day piggy bank for handling the immediate costs of dealing with disasters- operators of the offshore rig face no more than $75 million in liability for non-cleanup and containment damages. The actual damages to Gulf Coast industries will easily soar well beyond that total. The Oil Spill Trust Fund Act was passed in response to the Exxon Valdez spill in Alaska, and although well-intentioned, unfortunately included liability limits that are woefully inadequate.

In addition to forcing oil-spillers to cover the costs of economic recovery, the legislation would require companies like BP to spend future revenues on cleanup and containment costs that exceed the Oil Spill Liability Trust Fund’s $1.6 billion. It would also eliminate the $1 billion cap on individual claims against the fund and allow community responders to access the fund for “preparation and mitigation up front.” All of which is desperately needed by the many victims of BP’s ever-growing Gulf oil slick.

In a closed door proceeding on Tuesday a senior B P executive conceded that the ruptured well could conceivably spill as much as 60,000 barrels a day, more than 10 times the present estimate of the flow.

Controlling the oil flow is time critical and any reduction of flow into Gulf is a plus at this stage. Favorable tides and winds have thus far kept the oil from hitting the coast and as of today the oil has only reached some of the barrier islands. Sadly, it is only a matter of time before the onslaught of oil will make its way onshore wrecking havoc on the marine life and the fishermen who make their living from the sea. The lifestyle of the whole Gulf region could change dramatically if the flow of is not stopped soon. Property owners from Louisiana to Florida are already experiencing cancellation for the upcoming tourist season. This in the wake of the Gulf region recent rebound from hurricanes Katrina and Rita has been disheartening. Any reports of progress are welcome news and we can only hope that they will be successful.

Today, the United States Supreme Court handed down a decision holding that punitive damages have long been an accepted remedy under general maritime law, and that punitive damages for the willful and wanton disregard of the maintenance and cure obligation remain available as a matter of general maritime law.  The maintenance and cure obligation dates back centuries as an aspect of general maritime law, and the failure of a seaman’s employers to provide adequate medical care  was the basis for awarding punitive damages in cases decided in the 1800′s.

The Supreme Court has since registered its agreement with such decisions and has subsequently found that in addition to wages, “maintenance” includes food and lodging at the ship’s expense and “cure” refers to medical treatment.  Miles v. Apex Maine Corp, 498 U.S. 19 does not require eliminating the general maritime remedy of punitive damages for the willful or wanton failure to comply with the duty to pay maintenance and cure.

In July 2005, Edgar Townsend was injured while working aboard the tugboat Thomas.  His employer, Atlantic Sounding Co., Inc., sought declaratory judgment in a Federal District Court to determine its obligations toward him.  Townsend counter-claimed in part, alleging arbitrary and willful failure to pay maintenance and cure for his injuries, and sought punitive damages.  The District Court denied the Motion to Dismiss the punitive damage claim.  The United States Court of Appeals for the 11^th Circuit affirmed.     The U.S. Supreme Court ruled 5-4 in Atlantic Sounding v. Townsend that an injured seaman may recover punitive damages for the willful failure of his employer to pay “maintenance” and “cure”.  Thomas, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, And Breyer,JJ, Joined.  Alito, J., filed a dissenting opinion, in which Roberts, C.J., and Scalia and Kennedy, JJ.,  Joined.

The highway is a major thoroughfare for the offshore industry making its way to the oil rigs in the Gulf of Mexico through Port Fourchon.  The sponsor of the resolution stated that everyday traffic has the added challenge of competing against more than 30,000 18-wheelers making their way to Port Fourchon.  The Legislator stated, “Our biggest problem, pound for pound, is an 18-wheeler coming to a yellow light and deciding whether to slam on the brakes or go for it.”

Compounding the problem is the development along the highway including numerous subdivisions.  Louisiana State Police have handled 287 crashes, including 10 fatalities, in the LA 3235 area over the past three years.  These statistics dictate that the Department of Transportation should immediately act to reduce the speed for all vehicles, including the 18-wheelers and hotshot drivers servicing the oil industry.

Proper training and safety procedures are critical if we are to see any reduction in offshore accidents related to these functions. Often workers who survive loading accidents find themselves physically disabled and in need of long term care from accidents which could be prevented through proper training and the enforcement of standard safety protocols.

His lawsuit alleges that the company’s failure to provide a safe work environment resulted in his exposure to benzene and other hazardous and toxic chemicals which caused disabling injuries and disability. The complaint notes that Kirby Inland Marine failed to provide a respirator when the mechanic worked with dangerous chemicals and faults the company for not covering the medical expenses as required under the Jones Act