March 10, 1969
Page 5722
OIL POLLUTION
Mr. MUSKIE. Mr. President, for the past 3 years, national and international attention has increasingly focused on the problem of oil pollution. The Torrey Canyon, the Ocean Eagle, and the offshore well in the Santa Barbara Channel have been only the outstanding disasters.
Thousands of oil discharges, in varying sizes from many different sources, occur every year. Vessels passing our coast and using our harbors, some known and others unknown, spill oil which can seriously alter the ocean ecology and ruin our beaches. Oil drilling and production rigs, pipelines, and refineries, as well as storage tanks, terminals, and a multitude of industries, dump oil into the waters of the United States.
Last year the Senate enacted legislation which would have enabled Government to deal quickly and effectively with these offenses, but it was defeated in the House. Again this year, legislation will be presented which, I hope, will again receive unanimous support.
In order that Senators may review the oil pollution situation, I urge that they read Mr. Edward Cowan's article entitled "Oil on the waters," published in the March 10 issue of the Nation. The article is an excellent summary of the situation with which we are all concerned.
I ask unanimous consent that the article be printed in the RECORD.
There being no objection, the article was ordered to be printed in the RECORD, as follows:
MANKIND'S FOULED NEST: OIL ON THE WATERS
(By Edward Cowan)
(NOTE.– Mr. Cowan, a foreign correspondent for the New York Times, now based in Toronto, covered the wreck of the Torrey Canyon for that paper and writes of it in great detail in Oil and Water: The Torrey Canyon Disaster (Lippincott).)
The escape of oil from Union Oil's offshore well opposite Santa Barbara, Calif, and the subsequent chain of events, political and natural, should be read as an object lesson in humility.
The leak, the difficulties in plugging it, and the quick dashing of hopes that the shore line would be spared serious pollution, are all reminders that man has repeatedly and injuriously lost control of his own inventions, usually when he least expects to.
Fred J. Hartley, the aggressive marketing man who is president of Union Oil Company of California (record 1968 profits of $151.2 million on $1.9 billion of sales), argued that the eruption that produced the leak could not reasonably have been anticipated. Perhaps not. Nor could the loss of a hydrogen bomb over Spain. Nor the 1965 Northeast power failure. Nor the stranding two years ago of the supertanker Torrey Canyon, whose captain ran her onto a well-marked granite reef off England in broad daylight, causing the biggest shipwreck and oil pollution ever. Nor, just a year after that, the stranding and breakup of another Liberian
flag tanker, the Ocean Eagle, at the entrance to San Juan harbor – hardly an uncharted shoal.
Surely no one could reasonably have expected in November, 1968, that an oil barge carrying more than 1 million gallons of heavy fuel oil would be torn loose from its tow by rough weather and grounded on Rehoboth Beach, Del., where Washingtonians soak up the summer sun. Or that, also last December, a Standard Oil of California hose would rupture and let 60,000 gallons of diesel oil pour in Humboldt Bay, not far from Eureka, Calif.
Who could reasonably be called on to anticipate that a 365-foot tanker would break in two in the Panama Canal in December, 1968, losing some of its cargo of fuel oil? Or that two days before Christmas, the little tanker Mary A. Whalen would run aground off Rockaway Point, N.Y., on the south shore of Long Island, hard by New York City's most heavily used stretch of beaches?
Or that on Christmas Day Japanese authorities would have to close the Naruto Strait because of the danger to ships from gasoline that had escaped from a grounded tanker? Who might reasonably be expected to warn the Coast Guard that quantities of what appeared to be heavy fuel oil would wash up onto the Rhode Island coast on Inauguration Day, 1969 – but that there would be no clue to the ship or shore plant from which it escaped?
As any lawyer can quickly point out, there are differences in the origins of these several disasters which are worth defining if one is concerned about writing useful public policy. There are acts of God, such as violent storms; there is human error, such as putting a tanker on a known reef; there is the inevitable breakdown in any man-made mechanical system, such as the tendency of . tankers with riveted sides (a construction technique largely discontinued about six years ago, according to one expert) to ooze oil around the rivets. That leakage may be only a barrel a day, but a barrel of crude oil, thick and persistent stuff, may be more than a drop in the ocean. In the Rehoboth Beach incident, the barge that was washed ashore lost, from a pipe that broke, a quantity of oil described by Interior Department officials as "very small," somewhere from 5 to 30 barrels. That "very small" dose of heavy oil, according to the officials, "marked" 2 to 3 miles of beach and caused substantial pollution to about three blocks of beach front.
Looking back over the two years since the Torrey Canyon disaster alerted the public and governments to the dangers inherent in the transportation of vast quantities of crude oil, it is startling to observe how many pollution incidents and near misses there have been; the list just recited is far from exhaustive.
It was instructive, for example, to learn from a trade publication this winter of two tanker casualties off southern Africa in the spring of 1968. On April 29, about 3 miles off the Cape of Good Hope, the Esso Essen struck an underwater obstruction and cut herself open at three points.
She lost about 30,000 barrels of Arabian heavy crude oil. Esso said it applied its new dispersant, Corexit, "with great success." In the other reported casualty, the tanker Andron, whose owner is listed as a Greek company, split a seam in heavy seas. After discharging her cargo of Kuwait crude, she underwent temporary repairs at Durban, reloaded the oil, resumed her voyage for Venice, and sank about 10 miles off Southwest Africa. Exactly what happened to her cargo of about 16,000 tons (117,000 barrels) is not fully known but there are only two possibilities; immediate or gradual pollution of the sea.
In short, with the world's consumption of petroleum products – in homes, factories, office buildings, schools, chemical plants, aircraft, ships, motor vehicles and electric generating stations – increasing by 7.5 per cent a year (it is now seven times what it was in 1938), the water-borne shipment of oil has become an industry in itself. Twenty-five years ago, the T-2, workhorse tanker of world war II, carried about 16,000 tons. By the early 1960s, Japanese shipyards, emerging as the world's busiest, were building ships to carry more than 100,000 tons and were "stretching" smaller ships. The Torrey Canyon, for example, built at Newport News, Va., to carry 67,000 tons, was jumboized in Japan to carry 118,000 tons. By keeping her original power plant and propulsion system, the most expensive part of a tanker, the Torrey Canyon, at only a slight sacrifice of speed, nearly doubled her delivery capacity. The saving worked out to roughly a penny a barrel. Show any international oil company how to add a penny a barrel to profits and it can make you very rich by cutting you in for only a few daubs of the extra icing.
The same economic logic lifted tanker size to 312,000 tons by 1968 with the launching of the Universe Ireland, first of six such ships to be operated by Gulf. Last November the Japanese yard that built her, Ishikawajima-Harima Heavy Industries Co., got an order for a 370,000-tonner, to cost between $22 million and $25 million. Disputing some industry experts, the buyer, Tokyo Tanker Co., said it thought that economies of scale would persist as capacity approached 500,000 tons.
The 370,000-ton tanker will carry three times as much oil as did the Torrey Canyon. The 50,000 tons or more of oil that she spilled contaminated 140 miles of English coast and a considerable stretch of Brittany's northern shore, 110 miles from the wreck.
Could a Torrey Canyon disaster occur again? Like today's new supertankers, she was well made and equipped with modern navigational aids. She stranded solely as the result of her captain's bad seamanship – an "aberration," one expert mariner called the performance. If it seemed too incredible to happen more than once in a lifetime, one had only to wait a year for the captain of the Ocean Eagle, which split in two, to fracture her bottom on the ocean floor in front of San Juan harbor.
Britain's aerial bombing of the Torrey Canyon (an attempt, successful said Whitehall, to burn the oil remaining in her tanks) and the struggle by troops and civilians to remove inches of oil from beaches and harbors attracted hundreds of newsmen. Overnight, governments, editors and the public discovered how much oil a single ship can carry; how persistent, noxious and, for waterfowl, lethal, crude oil can be; how emotional can be the argument about how to clean it up,
with tourism-minded merchants advocating chemicals for a quick, thorough wash, and fishermen and naturalists preferring mechanical methods, how unprepared, in law and in practical arrangements, national states are to cope with, much less put an end to, oil pollution.
In the United States, the Torrey Canyon episode and unrelated instances of pollution to the New Jersey and Cape Cod shores a few weeks later dramatized not only the enormity of the (infrequent) major disaster but the fact that coastal oil pollution is an everyday problem. Despite efforts of the big tanker fleets to dispose of their residues innocuously, there is a lot of clandestine bilge washing by countless freighters, trawlers and tankers.
These events fired up a mood of reform in Washington. President Johnson directed the Secretaries of Transportation and Interior to make a study of oil pollution and recommend legislation. A number of Congressmen – and lobbyists – began to gird themselves for another round in the continuing conflict between public and private interests. In London, meanwhile, an emergency session of the Inter-Governmental Maritime Consultative Organization (IMCO), a UN body, had been convened at Britain's request. It began deliberations on two conventions to supplement existing international law. One would establish the right of a state to take action against a foreign-owned ship lying offshore, but in international waters, to protect the state's coast from pollution. (Britain, despite the readiness of the Royal Navy to try to fire the leaking Torrey Canyon immediately, stood aside for ten days of fruitless salvage attempts, in part because there was no legal authority or precedent for destroying someone else's property on the high seas.) The other convention would establish liability of ship owners for pollution damage. With uncommon dispatch, IMCO also adopted a package of recommendations to national states on technical safety matters and on tougher enforcement of anti-pollution law.
Another aspect of the tanker business that was illuminated by the Torrey Canyon and Ocean Eagle casualties is the role of the Republic of Liberia as the world's leading country in registered merchant marine tonnage. In 1947, because of difficulties with Panamanian consuls who, owners said, sought to collect "fees" every time a Panamanian-flag ship cleared their ports, United States shipping interests were looking for a new flag of convenience (or flag of necessity, depending on how one chooses to approach the wage and tax argument). That need coincided with the engagement of the late Edward R. Stettinius, Jr., to assist Liberia's economic development. The result was the drafting by three wall Street law firms of legislation, duly enacted in Monrovia, that put Liberia in the business of registering ships.
In the ensuing twenty years, Liberia has taken great pains to rebut trade union accusations that hers is a "runaway flag," flown by unsafe, leaky old tubs whose crews are virtually galley slaves and incompetent, too. Without getting into that argument, it can be said that the jumbo tankers which today fly the Liberian flag are well-made vessels. The African state has what seem to be exacting regulations governing seaworthiness, loading and safety equipment. It issues officers' papers either reciprocally or after an applicant passes examinations which Liberia says are tougher than those of other countries. Liberia, says Albert J. Rudick, an American lawyer who is employed full time in New York with a staff of forty as Liberian Deputy Commissioner of Maritime Affairs, tries to make a ship owner's responsibilities commensurate with the benefits (no corporate income tax) of the Liberian flag.
Nevertheless, the Liberian maritime program remains very much as it was conceived – an affair for the benefit of American ship owners and quietly managed by them and their lawyers who decide, without "benefit" of public scrutiny or debate, how to balance private and public interest. (Mr. Rudick argued that there is meaningful debate in Liberia's Congress but he was unable to name the relevant committees or their chairmen.)
When the Torrey Canyon's board of investigation met, it had no rules of procedure to follow. Its mandate was a regulation for inquiries which stresses the possible negligence of the crew and thereby underplays the possible role in a casualty of the ship's mechanical condition or of acts or omissions by its owners. No wonder that the board failed to mention in its report certain things it learned about the condition and equipping of the ship – matters now very relevant to damage suits by Britain and France against the Torrey Canyon's owner (a phantom Liberian corporation with head office in Bermuda) and operator, Union Oil. Nor, one supposes, is it surprising that nearly a year after the Ocean Eagle casualty the report of investigation had not been released by Monrovia, where, it was explained, they have been very busy this winter celebrating William V. S. Tubman's twenty-fifth anniversary as President.
Similarly, Liberia has not released for discussion changes in its laws and regulations, soon to be put into effect. Surely, the maritime rules of the foremost "seafaring nation" are of interest outside Monrovia; but, except in wall Street where the proposed changes were drafted, they are generally unknown.
The overriding issue posed by the Torrey Canyon disaster, the Ocean Eagle episode, the eruption of the well opposite Santa Barbara, and lesser instances of pollution is that of responsibility.
Shall a tanker, drilling rig, shore installation (e.g., refinery, transshipment terminal, depot, etc.) or other oil facility be responsible for damage done by its oil? Shall it be responsible absolutely, that is, regardless of whether or not it is at fault, or only if negligent? And if liable shall it pay the full damages, or only up to a limited amount?
The questions are being debated in London at IMCO meetings of legal experts and in Washington in hearings before the subcommittee on air and water pollution of the Senate Public works Committee. One of the conventions that IMCO experts hope will be completed at Brussels next November would deal with the liability of tankers for oil damage. The Brussels conference will have to decide how sweeping the liability shall be. A slight majority of the deliberating nations, including the United States, is said to favor absolute liability. More likely, the process of accommodation will produce liability based on fault, with the burden of proof on the ship.
The amount of liability will be limited, partly because it traditionally has been and partly because of the expense and difficulties of getting insurance for unlimited liability. How high the limitation should be will also be resolved at the conference. The United States has proposed two to four times the 1957 liability convention limit of $67 a gross registered ton, with a maximum of $15 million. (Washington has never signed that convention.) The International Maritime Committee, a small, little-known, powerful Antwerp-based network of lawyers, which has drafted several important maritime conventions, is expected to press for its 1957 formula or not much more. Undoubtedly, all opening positions on this point were taken for bargaining purposes.
The issue may be argued as one of how much damage can be reasonably expected, with cleanup costs from various spills offered in evidence. At bottom, it is a matter of tanker owners and operators trying to minimize their extra insurance costs. Washington estimates the convention may add 10 per cent to a tanker's normal insurance costs, or about 2 per cent to operating costs. A 2 per cent rise in operating costs in any business is not trivial.
The same question has arisen before the Senate subcommittee, which is considering legislation (S. 7) sponsored by its chairman, Senator Muskie. It would, among other things, authorize the government to clean up oil spills in inland and territorial waters and require the tanker to pay the costs. The legislation proposes a limit of $450 a ton up to $15 million. Asserting that these levels would "amount to a denial of ship owners' right to limitation of liability," the Maritime Law Association of the United States, representing some 2,000 admiralty lawyers (who generally work for ship owners) urged the Congress to return to the $67 a ton and $5 million limits written in legislation passed by the Senate and weakened by the House Public works Committee (where an oil man and a shipping man held sway) in 1968. The American Petroleum Institute proposed $100 a ton up to $10 million. Last year it proposed $250 a ton up to $8 million. It changed its mind, it said, to go along with the limits, adopted by seven major oil companies which have established a voluntary cleanup plan (which will come into effect only if a lot more tanker owners adhere). An API tabulation showed that the most expensive cleanup on record – for the tanker General Colocotronis in the Bahamas a year ago – was $800,000. Conveniently, the API explicitly excluded the Torrey Canyon, whose cleanup expenses it put at $8 million (half the claims of Britain and France), because of "technological progress over the past two years and many of the mistakes made in the Torrey Canyon incident would not be repeated, and, of course, research on cleanup methods is continuing." Those few words hardly justify ignoring $7.2 million of an $8 million cleanup bill.
The Maritime Law Association, seeking to establish limitation as something close to divine right, argued that it "is rooted in the universally recognized principle that it is of paramount consideration for maritime nations to preserve the continuity of maritime commerce as a matter of vital national interest." The association, noting that Congress granted limitation in 1851 (the legislation has not been significantly altered since then), went on to cite an 1871 Supreme Court decision which recognized that the law's object was "to induce capitalists to invest" in ships.
The argument could hardly be less relevant. Even if the asserted "paramount consideration" exists, it does not necessarily follow that it applies to the United States or that commerce cannot be sustained in foreign-flag bottoms, which are sent to sea to make a buck and presumably will be available. As for any national security argument, there is good reason (if only the multiplicity of pressures Washington can bring to bear) to believe that American-owned ships under foreign flags would be available in time of urgent need. As for persuading that legendary capitalist to invest in ships, the argument antedates common use of the corporation, when the investor was personally liable for the ship's damage, and the development of today's broad, deep, versatile insurance market. Because of these changed economic conditions, limitation is not so just, necessary or immutable as its beneficiaries argue. According to some qualified lawyers, the courts are moving away from it.
The Santa Barbara mishap and Senator Muskie's bill are forcing the Nixon Administration to review offshore drilling policy and regulation, and also what is known about materials and techniques for cleaning up spilled oil on sea and land without harming natural life. With the oil industry itself accepting Senator Muskie's principle that the government should be reimbursed for cleaning up spills arising from private commerce, it would seem likely that the President will sign the bill – if it is not stranded on one of those hidden shoals in the House Public works Committee.