BP’s Fate Rests With Ex-Maritime Lawyer Who Represented Sailors
How much BP Plc (BP) will pay for the 2010 explosion of a Gulf of Mexico oil rig that killed 11 people and caused the largest offshore spill in U.S. history may rest with a former maritime lawyer who began his career representing sailors in personal-injury cases.
U.S. District Judge Carl Barbier of New Orleans can draw on that experience as he oversees the first phase of the case against London-based BP (BP) and other companies over the blast on the Deepwater Horizon drilling rig and subsequent oil spill. The trial is to begin Feb. 27 amid continuing settlement talks between BP and the U.S., a person familiar with the talks said.
“He knows maritime law backward and forwards, and that’s one of the reasons he got this case,” said Val Exnicios, a New Orleans lawyer representing a group of commercial fishermen suing BP, Transocean Ltd. (RIG) and other firms involved in operations at the rig. “You want a judge who knows this area of the law cold, given the complexities.”
A judicial panel assigned Barbier, 67, all federal litigation over the BP spill in August 2010. The judge, who declined requests for an interview, is slated to preside over a three-month, nonjury trial that will apportion blame and determine exposure to punitive damages for the blast.
The April 2010 Macondo well blowout sent almost 5 million barrels of oil spewing into the gulf, according to a U.S. government report issued in September.
Hundreds of Lawsuits
The accident spawned hundreds of lawsuits against BP and its partners, including Transocean, the Vernier, Switzerland- based owner and operator of the drilling rig, and Houston-based Halliburton Co. (HAL), which provided cementing services on the facility.
The lawsuits include pollution claims by federal and state governments and consolidated cases brought by thousands of commercial fishermen, seafood processors, property owners and tourism-related businesses harmed by the spill.
Barbier grew up in the West Bank, a cluster of suburbs, small cities and unincorporated towns straddling the border of the Orleans and Jefferson parishes, across the Mississippi River from the city of New Orleans. He went to high school in Harvey, a residential neighborhood of single-family homes that sprung up around the oilfield services industry and the Harvey Industrial Canal.
Barbier won a football scholarship to Southeastern Louisiana University, where he played on the offensive and defensive lines.
His father, Walter Louis Barbier, worked as a marine diesel engineer for Mississippi River Bridge Authority and the Louisiana Department of Transportation & Development, according to state officials.
After earning a business degree in 1966, Barbier worked as a high school teacher and accountant, including stints at Boeing Co. and Shell Oil Co. (RDSA), while attending law school, according to testimony to the U.S. Senate in 1998 after he was nominated to the bench by President Bill Clinton.
After finishing law school at Loyola University in 1970, Barbier clerked for state and federal judges before entering private practice, representing seamen and other plaintiffs suing under federal maritime statutes. He went on to start his own law firm.
Recoveries for his clients include a $325,000 settlement for a welder injured when a Greek tanker slammed into a fleet of barges moored on the Mississippi River in 1992, according to his Senate filing.
He also represented a driller who fell through an unsecured grating on an oil platform, winning him $300,000 in a case that was later cited by the Louisiana Supreme Court in another matter, according to the Senate questionnaire.
“He has an understanding of the fellow who has been hurt as a seaman,” Blake Jones, a New Orleans-based plaintiffs’ lawyer who handles maritime suits. Jones is representing a business owner in the spill case who contends BP’s oil damaged 18,000-acres of his oyster beds.
Barbier has planned two subsequent nonjury trials focusing on the size of the 2010 spill and efforts to contain it. Test jury trials on damages are to follow.
“The judge has already done a good job of whittling down the case to make it more manageable,” said Edward Sherman, a Tulane University Law School professor in New Orleans who teaches classes on complex litigation and mass-tort law. “Many times, judges are reluctant to make tough pretrial rulings that narrow the focus of an environmental disaster or mass-tort case.”
The case is being tried under U.S. maritime law, which covers shipping and navigation activities in inland and coastal waters. Judges can choose to hear maritime disputes without juries. Maritime law requires owners and operators of drilling platforms to conduct safe operations that don’t damage the environment, plaintiffs suing BP and other defendants contend in court filings.
Barbier initially set the first phase of the trial as a limitation-of-liability action. The trial was to consider Transocean’s effort to cap its financial exposure over the spill under an 1851 law designed to protect ship owners. He later expanded that to include claims of fault for the disaster against all defendants.
BP and some defendants also are facing claims from the U.S. government under both the Oil Pollution Act and the Clean Water Act as part of the liability trial.
Under the law, a well owner is considered the responsible party and is liable for damages and cleanup costs. BP already has acknowledged that it’s among those responsible under the act. Barbier must decide who else may be liable for the spill.
The Clean Water Act governs pollution discharges into bodies of water and allows regulators to seek fines of as much as $1,100 a barrel for oil spilled through simple negligence and as much as $4,300 a barrel against parties found to have been grossly negligent.
On Feb. 22, Barbier held BP and Anadarko strictly liable under the Clean Water Act, allowing the U.S. to seek as much as $1,100 from them for every barrel spilled. Transocean’s liability is to be determined at trial.
The trial also will determine whether the companies were grossly negligent, which could boost the possible maximum fines under the Clean Water Act to the $4,300-a-barrel limit. Barbier would set the fines after a later trial.
If Barbier finds BP and other defendants’ handling of drilling operations and the spill grossly negligent, he can also award punitive damages to businesses and property owners under maritime law, said Tulane’s Sherman.
“The trial will address all allocation-of-fault issues that may properly be tried to the bench without a jury,” Barbier has said. That includes “the negligence, gross negligence, or other bases of liability of, and the proportion of liability allocable to the various defendants, third parties, and non-parties,” he has said.
Before his elevation to the federal bench, Barbier served as the head of the Louisiana Trial Lawyers Association, a group made up primarily of plaintiffs’ attorneys.
As head of the group, Barbier successfully lobbied against Louisiana Governor Mike Foster’s bid to have lawmakers create a no-fault car-insurance system for the state, which would have restricted motorists’ right to sue over accidents, according to the New Orleans Times-Picayune newspaper.
Barbier said in 2010 that he sold Transocean and Halliburton bonds he held in his investment portfolio “so there is no perception of a conflict in these cases.” The judge’s work as a trial lawyer prompted some critics to question his impartiality in BP spill decisions.
Melissa Landry, executive director of Louisiana Lawsuit Abuse Watch, a nonprofit watchdog group, criticized his December ruling ordering 6 percent of settlements set aside as potential fees for plaintiffs’ lawyers overseeing consolidated claims in the spill cases.
The fee set-aside is “ludicrous and absolutely unjust,” Landry said in a January interview. “It certainly calls into question his impartiality and it certainly reminds one of his previous life.”
Exnicios, the plaintiffs’ lawyer, said Barbier has issued rulings that have displeased both sides in the case.
As part of the trial, Barbier will be called on to sift through hundreds of thousands of pages of reports, depositions and exhibits to decide what companies are liable for spill damage and who can recover.
He “understands who his boss is, which is a relatively conservative Fifth U.S. Circuit Court of Appeals,” Jones said. “I don’t think he will stray too far off the leash.”
The case is In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico on April 20, 2010, MDL-2179, U.S. District Court, Eastern District of Louisiana (New Orleans).
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