By Michael A. Moore
From
well-capitalized international salvage companies to high technology, such as
remotely operated vehicles (ROV) and special software packages, diving and
salvage along the West Coast and worldwide is evolving rapidly.
The West Coast diving and
salvage business has changed a lot since Mick Leitz was in charge of salvaging
the Exxon Valdez. Mick is still in business with Portland's Fred Devine Diving
and Salvage Company – and still uses Fred Devine's designed and built for
salvage flagship, the M/V Salvage Chief with its
400-ton line pull.
The business these days is moving away from local masters of
the trade like Mick Leitz and his Alaskan counterpart Dan Magone, and toward
well-capitalized international big players – such as Resolve and Crowley – and
high technology, such as remotely operated vehicles (ROV) and special software
packages.
But big capital and high tech are not the biggest changes to
hit the salvage and commercial diving industry – nor are rough seas and deep
water the biggest challenges to successful salvage operations.
Mick Leitz says the legal shoals of myriad and often
conflicting regulations are the biggest challenges salvors face these days.
Some of those rules are a result of the Exxon Valdez grounding
and subsequent oil spill.
In fact, Leitz wonders if the Exxon Valdez operation
could be pulled off in today's regulatory climate. He says it was difficult
enough in those pre-OPA90 times.
"Harbors of refuge was a problem before theExxon
Valdez ," he says. "It's still a major problem."
Leitz says he had to write six different towing plans for taking the Valdez from
Alaska to San Diego before the seventh was accepted.
"None of the harbors of refuge that were capable of
handling the Valdez wanted anything to do with
it," he said. "The final plan was to keep the tow route more than 200
miles offshore." Leitz lets the question of what would have happened if a
problem arose during the tow remain unanswered.
Responder immunity is the biggest problem plaguing the
industry from the fallout of the Exxon Valdez grounding
says Leitz.
"It has to do with the way OPA90 is written," said
Leitz. "The way things are now, the salvor is potentially liable, whereas
environmental cleaners have responder immunity."
Leitz is referring to a responder immunity provision
Congress included in the post-Exxon Valdez OPA90 legislation
that was intended "to protect from liability those individuals or
corporations who provide care, assistance, or advice in mitigating the effects
of an oil spill."
"Unfortunately, the OPA 90 standard specific to
responders has proven inadequate to protect responders from becoming entwined
in such suits," writes Jonathan K. Waldron, a partner in law firm Blank,
Rome, LLP, in the Fall 2011 edition of Soundings, published by the American
Salvage Association. Waldron was referring to the legal problems encountered by
emergency responders to the Deepwater Horizon oil
platform disaster in the Gulf of Mexico.
"Immediately following the explosion on the Deepwater
Horizon, emergency response vessels rushed to the rig to save lives,
render assistance to those in peril and fight the fire.
"In the ensuing months, responder companies worked to
clean up the oil that was pouring into the gulf in an effort to mitigate the
spill. Notwithstanding these valiant efforts to help in the worst environmental
disaster in US history, these emergency and cleanup responders are entwined in
complex and protracted specialized multidistrict litigation (MDL) despite the
fact that protections were put in place following lessons learned from
the Exxon Valdez specifically to prevent such
occurrences.
"Salvors could find themselves in the same situation in
future incidents unless enhancements are made to current law," Waldron
said. "Congress intended that responses to oil spills be immediate and
effective and noted that without such a provision the substantial financial
risks and liability exposures associated with spill response could deter a
prompt, aggressive response.
"This immunity does not prevent any injured parties
from recovering their full damages resulting from the spill incident, as OPA 90
provides that the responsible party (RP) is liable for any of the removal costs
or damages that a responder is relieved of pursuant to this immunity consistent
with the OPA 90 'polluter pays' principle," he said.
"This immunity does not apply if a responder acts with
gross negligence or willful misconduct, or in cases involving personal injury
or wrongful death."
That last sentence is the loophole big enough to tow
the Exxon Valdez through when it comes to creating
legal liability to salvors.
Which is what happened to emergency responders following the
2010 Deepwater Horizon explosion, which resulted in the
deaths of 11 and injuries to 17 men working on the platform, plus the discharge
of approximately five million barrels of oil.
Deepwater Horizon required thousands of
responders working several months to contain and clean up under challenging
conditions – numerous claims and lawsuits were filed.
"Unfortunately, the OPA 90 standard specific to
responders has proven inadequate to protect responders from becoming entwined
in such suits," said Waldron. "In these cases, plaintiffs have been
successful in simply alleging gross negligence (without providing any
supporting facts), and to cast "exposure" claims resulting from
alleged exposure to released oil or from approved dispersants used to treat
that oil as personal injury claims falling outside the scope of the specific
responder immunity provisions."
The cases have been catalogued into pleading bundles called
"Master Complaints" under various categories – including one bundle
that named as defendants all the owners and/or operators of the rescue vessels
that answered the Deepwater Horizondistress call and
responded to the fire emergency after the explosion. This is similar to suits
that could have been filed against salvors had there been salvage actions
related to the incident, said Waldron.
Mick Leitz's way of dealing with the increased potential for
lawsuits and liability in today's new world of marine salvage law is to be very
selective about the jobs he takes on and the way the contracts on those jobs
are worded.
"You try to protect yourself contractually, but you can
still end up in court," said Leitz.
Leitz believes the increased regulatory and liability
climate is counterproductive to the real mission of the salvor. "The
sooner you get the vessel out of the water, the better – but the regulations
slow you down," he said. "In the old days, you would use a sling to
pick up a vessel and get rid of it.
"The risk the salvor runs now is if you get two drops
of oil on the water, you are liable to get sued. Anything goes wrong, debris,
paint chips, oil – you can spend five years in court for a week's work."
Leitz's solution is to work for state agencies as much as
possible. He says the states have funds to get rid of derelict vessels and they
provide an umbrella of protection if something goes wrong.
Dan Magone took another tack to solving the perfect storm of
challenges he found himself facing after more than 33 years of sailing into
Alaska's wintry, storm-tossed seas to rescue fishing boats and other vessels in
distress.
"We never had any competition until the big companies
started to notice this neck of the woods," said Magone.
"Climate change and petroleum are bringing a lot larger
vessel traffic up through Alaska's waters. The Arctic passage is spurring
growth – next year they will be laying cable through the passage from Norway to
Tokyo," he said.
Magone decided it was better to join the big salvage and
diving companies than to compete with them. He joined forces this last August
with Florida-based Resolve Marine Group.
"The result will be a greatly expanded, emergency
response and marine services company that combines the long-standing, deep and
local expertise massed by Magone Marine's Alaskan salvors with the extensive
resources, personnel, and vast salvage & wreck removal experience of
Resolve Marine Group," states the joint press release on the venture.
"This newly-formed business will be named Resolve-Magone Marine Services
(Alaska) and coincides with increased vessel traffic now in the
environmentally-sensitive Aleutian Chain."
Magone's decision to hitch up with Resolve was not made on
the spur of the moment.
"I decided to join forces with the best – plus I am
friends with the co-owner of Resolve," he said. "We are like-minded
guys, and had been discussing this move for several years. I knew I couldn't
ante up to the level it's going to take to do business with the increased
competition and regulations.
"We did all the wreck removals for the fishing fleet
for 20 years. The big shipping companies that are coming up are way beyond my
scope."
Magone says that another challenge his company and the rest
of the industry is facing is finding reliable trades people and vessel crew.
Meanwhile, back in sunny Southern California, Richard Barta
has built a niche for Long Beach-based Muldoon Marine Services.
"We do mostly ship repair and maintenance
inspections," he said. "When we do emergency work it's with OPA90
partners. You have to have pollution insurance.
"It's the nature of the beast – when something happens,
someone has to respond. Even with a small job like boat salvage, it can be a
mess," he said.
Barta's strategy is to work as a member of a larger OPA90
responder team.
"Part of OPA90 is that ship operators of vessels over a
certain size have to have an OPA90 responder," he said. 'We have worked
with Marine Response Alliance – there are others, like Titan and Resolve.
"If something happens in LA or some other place like
Ensenada, they call in small groups to help get the job done. We worked on the
APL Panama."
Barta is referring to the hard grounding of the
containership APL Panama in December of 2005 when it was attempting to enter
the harbor at Ensenada, Mexico and missed the ship's channel.
"On big jobs, a large contractor steps in and brings in
everyone who's got the right equipment and who can get there the fastest."
The salvage of the Costa Concordia by
Crowley Maritime subsidiary Titan Salvage is the latest and greatest example of
multi-contractor teamwork on a difficult salvage job.
Titan teamed up with Italian engineers Microperi – Titan
brought its experience as a salvor and Microperi contributed their expertise at
underwater construction and engineering.
The task of bringing the gigantic ship – which is twice the
size of the Titanic – upright and off the rocks in one
piece required the talents of 450 specialists from 19 countries working around
the clock seven days a week. The project team included more than 100
specialized divers from more eight countries – who could only work 45 minutes
at a time at the 150-foot depths before entering a hyperbaric chamber for
decompression.
At the same time Titan and Microperi were taking care of the
physical work, specialist representatives from Costa Crociere, Carnival
Corporation, London Offshore Consultants and Standard P&I Club, with the
collaboration of RINA and Fincantieri, worked behind the scenes to ensure that
the project had the financial, legal and governmental support needed to move
forward to a successful conclusion.
The final cost for the salvage of the Costa
Concordia was approximately $400 million, according to Crowley.
Crowley's history in responding to maritime emergencies also
goes back to the Exxon Valdez – Crowley Marine Services
was the first on scene with high horsepower tugs positioned alongside the
stricken tanker and these tugs were also used to assist Marine Pollution
Control during the transfer of oil from the stricken tanker to lightering
vessels.
That was the first step in a working partnership that
eventually became today's Marine Response Alliance – Crowley's MRA partners
include Marine Pollution Control, Titan Salvage, Marine Hazard Response and
McAllister Towing.
Seattle-based Global Diving and Salvage may be closer to the
new model for small and medium size salvors going forward.
The company's work mix consists of marine casualty response,
marine construction and offshore support for the oil and gas industry. Global
Diving has worked on projects from Alaska to Saudi Arabia.
Technology combined with top professionals and teamwork is
the company's formula for confronting the challenges and minimizing the risks
associated with marine emergency response and salvage operations.
"There have been a lot of technical changes in this
industry," said Frank Immel, Global Diving's marketing director. " We
use remotely operated vehicles (ROV) to do initial recons in salvage situations
instead of risking a diver.
"We can put an ROV down to do a visual inspection and
gather information that allows us to develop a salvage plan."
A major part of Global's salvage plan development involves
the use of a software system that was developed for the design and evaluation
of all types of ships and floating structures. The software addresses
flotation, trim, stability and strength by calculating the forces involved
using mathematical/geometrical models of the vessels.
"You could say we use the software in a reverse
mode," said Immel. "Instead of using it to design a vessel, we input
a shape for the hull line and other parameters – this enables weights and
stability to be calculated to a greater degree of accuracy.
"This is really important when using a crane to do a
vertical lift. You want to know where is the center of gravity, where do you
connect for the pick, what's the weight of the vessel? The software makes the
whole process more consistent and reliable," he said.
Global prefers to use cranes instead of lift bags when the
water is deeper than 15 or 20 feet.
"A lift bag is great in shallow water," said
Immel. "But you can't forget the laws of physics as you go deeper – you
pressurize a lift bag at depth – as it rises the bag wants to go faster. It can
get out of control – the bag comes up and then wants to go back down. With
cranes you have more control, there is no volumetric expansion to deal
with."
Immel says that Global's objective in every aspect of their
operations is to minimize risk.
"Our first job is to minimize risk to keep people
alive," Immel said. "We put people where they are not supposed to
be."
