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Like much litigation, what we hear from the trial lawyers clamoring for large verdicts (and correspondingly large attorney fees) is often at odds with later-revealed facts. For the past several months, we have heard nothing but talk of the billions of dollars in negligence claims that will be filed against BP for allegedly causing the oil spill. But what if BP was not the proximate cause of the oil spill? Reports are now surfacing that the the U.S. Coast Guard may have been an intervening cause of the sinking of the Deepwater Explorer. This could significantly weaken claims against BP pertaining to the oil spill.
The Role of "Proximate Causation"
Proximate causation refers to the last negligent act that contributes to an injury, without which such injury would not have resulted. It is often determined by applying the "but for" test, which examines whether, but for the negligent act, the injury would have occurred. An "intervening act" that breaks the chain of causation and may relieve the first actor of responsibility for the injury. In other words, for BP to bear responsibility for the spill, its negligent conduct must be the proximate cause of the injury, without any intervening causes which interrupted the natrual sequence of events.
The Coast Guard's Role in the Chain of Causation
The initial story of the BP GUlf oil spill was that BP's negligence led to an explosion and fire on the Deepwater Horizon oil rig, which caused the rig to list and sink, and which further caused the oil riser to snap and begin pouring oil into the Gulf of Mexico. However, a new story is beginning to emerge concerning the Coast Guard's role in causing the oil spill. According to evidence obtained by the Center for Public Integrity, a nonpartisan and nonprofit organization dedicated to investigative journalism, the Coast Guard is currently investigating whether the massive quantity of water sprayed on the burning oil platform overran the ballast system, changed the platform's weight distribution, and caused it to list and break the oil riser. In fact, this is precisely the allegation in a lawsuit filed not against BP, but against the owners of the boats participating in the firefighting effort. The complaint alleges that “With little or no time taken to assess the damage and condition of the Deepwater Horizon, Defendants’ fireboats began inundating the rig with water,” and that the rig's “upper compartments began to fill, resulting in a shift of the center of gravity of the rig … As a result of the flooding of the rig by the fireboats, the rig began to sink.”
What Lessons Can Be Learned?
Principally, the lesson that should be learned is that liability is rarely so clear-cut as plaintiff lawyers or the media may suggest. Despite the demonizing of BP, it turns out that the oil disaster may have actually been caused by the Coast Guard and private vessels. This does not mean that BP is not negligent nor does it mean that BP would not be responsible for some damages. What it would mean is that, under our system of laws, BP may not be liable for all of the damages that the plaintiffs' bar is presently attempting to extract.
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