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OPA 90 Limits of Liability Increased by USCG

News & Insights 9 January 2023

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On 23 December 2022[1], the United States Coast Guard issued a final rule in the Federal Register to adjust the limits of liability under the Oil Pollution Act of 1990 (OPA 90) to reflect the increase in the Consumer Price Index...

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On 23 December 2022[1], the United States Coast Guard issued a final rule in the Federal Register to adjust the limits of liability under the Oil Pollution Act of 1990 (OPA 90) to reflect the increase in the Consumer Price Index (CPI) since the limits were last adjusted in 2019.[2] The coast guard is required by statute to adjust the limits of OPA 90 not less than every three years to account for increases in the CPI. The intent of the adjustments is to prevent the statutory limits of liability from depreciating due to inflation.

OPA 90 proscribes that the responsible parties or facility from which oil is discharged or which poses a substantial threat of discharge of oil, into or upon navigable waters or the adjoining shorelines are strictly liable, jointly and severally under 33 U.S.C. 2702. The coast guard is responsible for adjusting the limits of liability for ships, deepwater ports and onshore facilities. The procedure for determining the amount of adjustment is defined by the coast guard's regulations and found at 33 CFR 138.240. The table below lists some of the previous and new OPA 90 limits of liability for ships.

Members should note that the responsible party, as defined under OPA 90, will lose the right to limit liability if the discharge was caused by gross negligence or wilful misconduct or if there was a violation of federal safety, construction, or operating regulation by the responsible party, agent employee or contractual privy. A responsible party will also lose the right to limit liability if it fails to report the incident, provide reasonable cooperation and assistance with removal of the spill as requested or comply with the authority's orders.

OPA 90 Limits of Liability
Vessel Type Previous limit of liability Current limit of liability
Non-Tank Vessel The greater of $1,200 per gross ton or $997,100 The greater of $1,300 per gross ton or $1,076,000
Tank Vessel Single Hull* <3,000/GRT The greater of $3,700 per gross ton or $7,478,800 The greater of $4,000 per gross ton or $8,070,400
>3,000/GRT The greater of $3,700 per gross ton or $27,422,200 The greater of $4,000 per gross ton or $29,591,300
Double Hull <3,000/GRT The greater of $2,300 per gross ton or $4,985,900 The greater of $2,500 per gross ton or $5,380,300
>3,000/GRT The greater of $2,300 per gross ton or $19,943,400 The greater of $2,500 per gross ton or $21,521,300

*Note that tank vessels not equipped with a double hull can no longer operate on waters subject to the jurisdiction of the US, including the EEZ carrying oil in bulk as cargo or cargo residue. However, OPA 90 continues to specify limits of liability for single hull tank vessels so the United States Coast Guard continues to adjust those limits of liability for inflation.

[1] The final rule becomes effective on 23 March 2023.

[2] Consumer Price Index Adjustments of Oil Pollution Act of 1990 Limits of Liability-Vessels, Deepwater Ports and Onshore Facilities, 87 Fed. Reg. 78,860 (Dec. 23, 2022), https://www.federalregister.gov/d/2022-27750

Category: Pollution

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