The most recent Senate proposal to change maritime liability limits in response to the Deepwater Horizon disaster is a departure from the clear lifting of maritime liability immunities that the U.S. House passed on July 1 through the “SPILL Act,” H.R. 5503. In an effort to persuade Senators from those states with strong commercial shipping and fishing interests, Senate leadership introduced S. 3663, the Clean Energy Job and Oil Company Accountability Act of 2010, which folds changes in maritime liability law into a broader energy bill. First, the good news about those sections in the Senate bill that end decades of discrimination between sea-based and land-based accidents:

1. The bill amends the Death on the High Seas Act to enable families to recover non-pecuniary losses, such as for the loss of a loved one and a decedent’s pre-death pain and suffering, for victims of negligence on sea-based oil rigs and cruise ships. Victims of land-based oil rig accidents have never faced the federal limit in DOHSA suffered by sea-based victims, and this bill would end the inequitable treatment.

2. The bill repeals the maritime punitive damages ratio established in Exxon Shipping Co. v. Baker, 128 S.Ct. 2605 (2008), which unfairly limited punitive damages in general maritime law to a 1:1 ratio with compensatory damages.

3. The bill exempts oil spill claims from the liability limit under the Limitation on Liability Act.

Now for the bad news:

1. The Senate bill leaves the Jones Act intact and doesn’t enable seamens’ surviving family members to recover noneconomic damages for loss of care, comfort and companionship. This unfairly discriminates between workers in land-based shipping, who face no artificial federal liability limit, and seamen, who would continue to see their 7th Amendment rights obstructed by this special interest legislation.

2. The Senate bill completely exempts commercial fishing from any change in liabilitity limits. The CDC annually reports that commercial fishing is the most dangerous job in America, yet the bill discriminates against them. Commerical fishermen would thus also continue to see their 7th Amendment rights obstructed.

3. The bill doesn’t repeal LOLA, not even for personal injuries and wrongful deaths,but merely increases the liability limit to an amount equal to three times the value of the vessel. But a maritime oil rig is completely worthless after it sinks, as indicated in a federal court filing by Transocean, claiming a rig value equal only to the costs of raising it from the ocean floor. By not repealing LOLA, the bill leaves open the possibility that the families of Deepwater Horizon workers killed in the rig explosion will receive no compensation. In essence, they might be able to exercise their 7th Amendment rights, but without an equitable remedy.

Few or no Republicans support S. 3663, because of the energy legislation in it. A month after seeing a voice vote on the floor of the House in support of the SPILL Act, we now have little momentum to pass this Senate bill or any other which would assist the BP victims and end the discriminatory maritime liability limits, a huge letdown. Here is a summary of the bill and a section-by-section analysis.