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A federal judge’s dismissal of claims against the operators of emergency rescue boats that responded to the fire on the Deepwater Horizon oil rig has “delighted” the defense but seemed likely to provoke an appeal by the plaintiffs. Meanwhile, they have begun fighting over what the judge actually meant. The ruling on Oct. 12 was the first by U.S. District Judge Carl Barbier dismissing claims entirely from the multidistrict litigation against BP PLC and other defendants over the April 10, 2010, explosion and subsequent oil spill. Previously, Barbier has issued partial dismissals. “We’re very delighted with the judge’s ruling,” said Michael Lyle, managing partner of the Washington office of Weil Gotshal & Manges, who represented several of the rescue operators. “When people come to the rescue and do the right thing, they ought not to find themselves in court defending their rescue efforts.” Lead plaintiffs’ attorney Lloyd Frischhertz, managing partner of Frischhertz Poulliard Frischhertz Impastato in New Orleans, said he planned to appeal to the U.S. Court of Appeals for the 5th Circuit. “I think it’s a very poor decision,” he said. “I think it was wrong.” Barbier has not issued a final judgment. He gave both sides until Oct. 31 to propose language for that document, which when finalized would allow the unhappy party to appeal. But the lawyers began sparring over the details — in particular, whether the judge had exonerated the emergency responders for negligence or whether he had simply declared that they were not liable for damages. Also unresolved was whether the plaintiffs should pay the responders’ legal costs. “Clearly, there is disagreement over what the substance of the judgment order should be,” Lyle said. The emergency responder cases make up a small portion of the more than 535 cases filed against BP and additional defendants in the multidistrict litigation coordinated before Barbier. The 13 plaintiffs in those cases — a group of landowners, commercial fishermen and employees in the oil and gas industry — sued six emergency responders, alleging that they should have known that the water they sprayed for 36 hours on the Deepwater Horizon would cause the rig to sink, uncapping a riser pipe and allowing oil to gush into the Gulf of Mexico. The plaintiffs filed a proposed class action seeking economic and property damages under general maritime law and the U.S. Oil Pollution Act of 1990. Additionally, they claimed negligence under Louisiana state law. Barbier concluded that the Oil Pollution Act claims should be dismissed because the oil had discharged from the Deepwater Horizon, not the emergency responder vessels. He ruled that federal maritime law pre-empted the claims under Louisiana law. As for negligence under general maritime law, Barbier concluded that, “even assuming Defendants’ actions fell below the standard of care, a reasonable person in Defendants’ situation would not foresee that spraying water from one vessel onto another vessel in apparent hopes of extinguishing a fire would cause oil to discharge continuously from the latter vessel’s drill pipe, which would probably result in the economic and property damages allegedly incurred by onshore Plaintiffs over fifty miles away.” “One of our main arguments was that there was no way that our vessel captains, under the circumstances, rescuing and lending a hand, who were responding to this emergency, could foresee that responding in the way they had, that spraying water would ultimately lead to economic harm to plaintiffs located some 50 miles away onshore,” Lyle said. With Theodore Tsekerides, a partner at Weil Gotshal’s New York office, he represented Seacor Holdings Inc. and several of its subsidiaries. “And Judge Barbier accepted those arguments.” Frischhertz insisted that a catastrophic outcome was foreseeable by most of the emergency responders. “These are sophisticated operators that are very informed about oil production, deepwater production and risks of oil spills,” he said. “They are attuned to this.” In any event, he said, such a determination should be made later in the case, following discovery, not on a motion to dismiss. The dismissal was with prejudice, but plaintiffs still could file their claims against BP PLC and some of the other defendants, according to Barbier’s order. Frischhertz said he planned to do just that. The emergency responders submitted a proposed judgment to Frischhertz on Oct. 26, and filed it with the court five days later. In it, they argued that Barbier had exonerated them of negligence, and that all costs should be paid for by the plaintiffs. Frischhertz disputed that the judgment should include costs, since Barbier had not addressed that issue in his ruling. In an Oct. 28 objection to the proposed judgment, Frischhertz wrote that the court made its determination as to damages, not negligence, against the emergency responders. “Defendants were circulating a judgment that suggested that he court ruled that their fire boats were not negligent — and that’s not what the court ruled,” he said. “Mr. Frischhertz misses the boat there,” said Robert McCleskey, a partner at Phelps Dunbar in New Orleans who represents defendants Nautical Solutions LLC and Island Ventures II LLC and whose firm served as local counsel to all the defendants. “The court never got to whether the actions were negligent because we owed no duty, and you can’t be negligent under a matter of law unless you owe a duty. He is not focused on what the court actually ruled on.” Another partner at McCleskey’s firm, William Riviere, represented defendants Monica Ann LLC, JNB Operating LLC and Gulf Offshore Logistics LLC. Contact Amanda Bronstad at [email protected]

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