Gulf of Mexico Oil Spill

Gulf of Mexico Oil Spill: Will this Affect You and What are Your Rights?
On April 20, 2010, the Deepwater Horizon oil rig exploded in the Gulf of Mexico resulting in what is being labeled the largest environmental disaster in U.S. history.  As I write this, an estimated 200,000 barrels of oil spew out into the Gulf of Mexico each day.   According to the latest data, the oil has spread over a 150 square mile area of surface area and that does not account for vast sub-surface plumes which scientists speculate have dispersed through deepwater currents throughout the Gulf of Mexico.

The environmental impact of the oil and the chemical dispersants are unknown.  Only time will tell the true ecological impact of this tragedy will have on what is considered the nursery grounds of the Northern Atlantic, Gulf of Mexico, and Caribbean Sea fisheries.  The oil's convergence with the marshes, mangroves and coral reefs could result in disastrous effects to what is already a very fragile ecosystem and nursery area for nearly all of the fish that swim in our oceans.

With three of Team Fiasqo members serving as lawyers first and fisherman second, immediately following the incident we started receiving a multitude of phone calls from our friends in Venice, Louisiana.  The message was clear: "The Gulf is shut down, we can't fish and there are more lawyers than Tuna at the Marina." News of the Spill spread fast as our friends received one call after another with clients cancelling fishing charters and lodging reservations. For those who have never travelled to Venice, Louisiana and its roundabouts, fishing is basically the only show in town. We immediately set forth to gather all the information we could to protect our friends' rights.

Fast forward five weeks later and a few haphazard relief methods, the oil is still gushing uncontrollably into the Gulf of Mexico.  The situation has changed from bad to unimaginable as the entire Gulf Coast, especially the Florida Keys, brace for the unexpected. We have been receiving the same frantic phone calls from our fishing friends from Key West to Stuart wondering if the oil will come to Florida and will it affect them. Commercial fishermen, dive boat operators, charter boat operators, captains, crew members, marina owners, restaurant owners, hotel operators, and other business owners throughout the Florida Keys have indicated that the tourists who flock to this sandy paradise during the summer months have already been cancelling fishing charters and hotel reservations. 
Understand, we tell all of our friends the same thing about our profession: hopefully you will never have to call us unless it's to meet at the dock to go fishing.  We are all cautiously optimistic that the powers at be stop the catastrophic oil spill.  After speaking to our friends from Louisiana to the Florida Keys, we understand everybody's concerns that their livelihood may be in jeopardy. Accordingly, the following is an elementary discussion regarding your rights in the unfortunate event that your business is affected by the Gulf Oil Spill:

How Will The Oil Spill Affect The Fishing Industry?
The Gulf of Mexico and its coastal regions ranks as one of the most productive U.S. fisheries, especially for shrimp, accounting for more than 70 percent of a nationwide catch.  Additionally, a third of the United States' oil comes from the Gulf of Mexico as does nearly all of its seafood. The massive oil spill comes at vulnerable time for the seafood industry, coinciding with the very start of the shrimp season and the busier than expected hurricane season.  

Given the location of the oil spill and the Loop Current, the coastal regions of Louisiana, Florida, Mississippi, and Texas are all significantly affected. The Loop Current is an ocean current that transports warm Caribbean water through the Yucatan Channel between Cuba and Mexico. The current flows northward into the Gulf of Mexico, then loops southeastward through the Florida Keys and into the Bahamas. Here, the waters of the Loop Current flow northward along the U.S. coast and become the Gulf Stream.  In turn, the Loop Current will transport tar balls and toxic dispersants throughout the Florida coastal regions.
Numerous commercial fisherman, recreational anglers, and charter captains have been affected by large closures of fertile fishing grounds in the Gulf of Mexico as well as the detrimental effect caused by the public's perception of the oil spill. Our initial reaction is to avoid thinking about these indirect impacts, but they are just as real. For example, the family of four that cancelled fishing trip in the Florida Keys will affect the charter captain, crew members, the boat owner, the marina owner, the tackle shop, the hotel, the restaurants, and so on. In sum, from the commercial fisherman to the hotel operator, almost everyone will feel the effects of the disastrous oil spill.

How Will the Oil Spill Impact Recreational Activities and Property Values? 
From Venice, Louisiana to Key West, the cities surrounding the Gulf Coast are densely populated as a plethora of recreational activities and related facilities have been developed for fishing, boating, scuba diving, swimming, nature parks and preserves, beaches, and other resident and tourist attractions.  Oil waste that invades and pollutes these precious areas and negatively affects human activities can have devastating and lasting effects on the local and national economy. Similar to a domino-effect reaction, property values for housing and marine property tend to decrease, regional business activity declines, and future investments bear risky. Most residents will incur present and future expenses as clean-up costs are specifically excluded in most homeowners insurance or personal property insurance.  In short, if you own a business based on tourism, you will be affected.

What Should an Affected Individual or Business Do?
The best thing to do if you have been affected by the oil spill or anticipate being affected by the oil spill is to properly document your economic losses immediately.  At this specific juncture we cannot predict the impact the recent disaster will have on your business. However, it is critical to capture any cancellations with appropriate and supportable documentation to withstand any future audits.  The process must be properly documented and communicated to necessary employees. Additional recommended procedures to be implemented include but are not limited to the following:

• Document the reasons for cancelled reservations. Note the date, time, client, and person making the entry as it is done.  
• Businesses should identify any group discounts they offer to appease a group with complaints due to the oil spill.
• Document any extra expenses incurred for marketing promotion or additional advertising to offset any economic losses due to the oil spill.
• Document any subsequent drops in reservations or occupancies from historical levels attributable to the oil spill.
• Document any increases in costs of running your business due to the oil spill

Dedicated record keeping and consistent application is vital to documenting the economic effects of the oil spill to your business.

What Are My Rights Under the Law?
The principal governing legislation to the recent oil spill is the Oil Pollution Act (OPA), which was signed into law in 1990 following the Exxon Valdez environmental disaster.  The OPA promulgates the regulations governing the timely response and necessary resources of responsible parties to respond to oil spills.  Pursuant to OPA, responsible parties are liable up to $75 million, unless gross negligence, willful misconduct or a violation of federal construction or operating requirements can be proven.  British Petroleum has been deemed the "responsible party" for the damages resulting from the ongoing oil discharge caused by the April 20th oil rig explosion.   BP is responsible not only for the clean-up and physical injuries to Gulf Coast and Florida residents but also the effects on the marine industry and all property affected by the oil spill.  

Fishermen and other aquaculture producers whose livelihood has been significantly affected by the oil spill may obtain financial assistance in the interim. Claims for interim, short-term damages representing less than the full amount of damages to which an individual may ultimately be entitled is allowed under OPA. Additionally, a loan program has been set up by the federal government to provide alternative interim assistance to fishermen and aquaculture producers, who have claims pending for damages, but have not received an interim payment on their claims. The loan must: have flexible terms, be for a period that is the later of either five years after the date on which the loan is made or the date on which the fisherman or aquaculture producer received payment, and be at a low interest rate.

Although it is difficult to ascertain the extent of those who will be affected by the largest environmental disaster in U.S. history, I can say with great certainty that commercial fisherman, charter captains, and marine business owners in Florida will be affected for years to come. Precious fishing grounds have been quarantined. The market price for seafood has already increased as businesses are forced to import greater supply. Marina, hotel, and charter fishing business have all been severely impacted as cancellations have mounted to unprecedented levels.

It has been glaringly obvious that powerful and well-funded companies such as those who may be responsible for this disaster will erect as many legal barriers as possible in order to limit their liability and deny responsibility. Multiple class actions suits have already been filed in Louisiana, Mississippi, and Florida.  Since every case is unique, you should contact a qualified attorney for sound disaster recovery advice and to determine what course of action is best for you or your business.