[Congressional Record Volume 156, Number 162 (Thursday, December 9, 2010)]
[Senate]
[Pages S8683-S8685]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   UNANIMOUS CONSENT REQUEST--S. 3463

  Mr. LEAHY. Madam President, I have alerted the other side I am about 
to make a unanimous consent request on an important piece of 
legislation. Unfortunately, in the last couple of years we have gotten 
into this habit of: Nobody wants to vote yes or no, they want to vote 
maybe. It is easier to block things from even being considered.
  Frankly, in my State of Vermont people expect if they elect you to 
the Senate that you have the courage to vote yes or no, but not maybe.
  We just saw another example of this. We cannot even get a yes-or-no 
vote on Defense authorization at a time when our Nation is in two wars. 
We cannot get a yes-or-no vote; we get a maybe.
  I find it frustrating. Over and over we have done it today. People 
are prepared to vote yes or no, but the other side says, no; it is 
easier to vote maybe. Then you never have to explain anything.
  We all know what has happened in the Deepwater Horizon BP spill. A 
number of brave families' members were lost. I would note for the sake 
of the Senate, if they had been building the Deepwater Horizon drilling 
platform, and they were assembling it on land and something was 
negligently done and someone lost their life, they could recover for 
the value of the life. Because of a quirk in the law, because it 
happened at sea, even though it may have been caused by the same thing, 
these people--their lives are almost valueless. There is a way to fix 
them. We have drawn, after months of negotiation, a very tightly put 
together piece of legislation that will only affect the families of the 
11 hard-working men who died when the Deepwater Horizon was destroyed. 
I am going to make this so we can vote yes or no and not maybe.
  I ask unanimous consent that the Senate Committee on Commerce, 
Science and Transportation be discharged from further consideration of 
the Survivors Equality Act, S. 3463; that the Senate proceed to its 
immediate consideration; the Rockefeller-Leahy amendment that is at the 
desk be adopted; the bill, as amended, then be read a third time and 
passed; the motions to reconsider be laid upon the table; and all 
statements and the text of the amendment that has been hotlined for 
more than a week be printed in the Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. DeMINT. Reserving the right to object, this is a nation of laws 
not of men. It destroys that whole foundation of our legal system when 
we make retroactive law. This bill has not been vetted properly by a 
committee. Again, it undermines our whole system of the rule of law. So 
I am compelled to object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Vermont.
  Mr. LEAHY. Madam President, of course, this bill has been given an 
enormous amount of scrutiny by both Republicans and Democrats. Six 
months ago, I introduced the Survivors Equality Act, S. 3463, with 
Senator Durbin and Senator Whitehouse, to help the families of those 
who die on the high seas. In fact, the day of the hearing, we had 
Michelle Jones, pictured here, in our mind when we held that hearing.

[[Page S8684]]

That same day, June 8, the Judiciary Committee held a hearing on the 
liability cap that harms victims' families. We heard testimony from 
Michelle Jones's brother-in-law, Chris Jones. He is the brother of 
Gordon Jones, one of those who died aboard the Deepwater Horizon. It 
was very moving testimony. I think everybody, both parties, felt the 
emotion in that room.
  A few weeks later, the Commerce Committee also held a hearing on the 
same matter. I think it is unfortunate and a slam to the families to 
say that this matter has not been vetted. The Commerce Committee also 
had a hearing. Then we had months and months of work, Republicans and 
Democrats meeting, trying to make as tightly drawn piece of legislation 
as possible.
  After these months and months of work, I hope the Senate is finally 
going to do justice to the families of the men who died when the 
Deepwater Horizon exploded in the Gulf of Mexico. At least stand up and 
say yes or no. Vote either to give them justice or vote not to give 
them justice. Do not do this unfortunate habit we are getting into of 
voting maybe. Let's not vote on this bill. Let's not take a position 
one way or the other. We will object to the bill coming up.
  It allows everybody to be a maybe. It allows people to go and say: 
Well, we are so sympathetic for your family. We wish we could help your 
family. Certainly, if the bill comes up, I may vote.
  Well, we have a whole lot of people ready to vote for the bill. Vote 
yes; vote no. That is what I have been trying to do since that 
catastrophic event. We did have a lot of negotiations, and we did have 
to whittle it back at the request of people on the other side of the 
aisle. The proposal has been so narrow that it will help only the 
families of the 11 hard-working men who died when the Deepwater Horizon 
oil rig exploded last April.
  So by saying there are a lot of things that can be done for them if 
one second before that oil rig left land when it was being constructed, 
if it exploded there and they lost their lives, but it is a different 
rule if you have gone 100 yards further, a few seconds later, and you 
are at sea.
  That is why I came to the floor today to seek the Senate's consent to 
pass this legislation without further delay. It is designed to provide 
a more equitable remedy under the Death on the High Seas Act, the Jones 
Act, for the survivors of those killed on Deepwater Horizon. When I 
refer to it as the difference between when it is on land or on sea, as 
the law is now, the families will be given far less protection simply 
because their loved ones died on the open seas rather than if they had 
died in a well, for example, if they are working at a well and there is 
an explosion, but the well is on land.
  That is not fair. It reminds me of an earlier era in our history. The 
law should be modernized for those families without further delay. Of 
course, I would like the modernization to be broader, to cover victims 
on cruise ships, for instance. Some here in this body have objected to 
covering victims on cruise ships.
  That is why I said: OK. You might not be willing to cover victims in 
other accidents on the high seas, but at least the U.S. Senate should 
not turn its back on the families of these 11 men.
  I am also concerned about timeliness. These victims' families' claims 
have been unnecessarily delayed because they are thoughtlessly lumped 
in with thousands of other claims for economic damage. It should be 
pretty easy to spot the 11 where the people died. This legislative 
proposal, on which I have worked with Senators Rockefeller, Whitehouse, 
and others, would ensure fairness and timeliness for these families. We 
have had strong bipartisan support. We have a number of Republicans who 
support this legislation. Senators on both sides of the aisle have 
heard from these families. They understand the inequities they face. 
The proposal has been circulating through the Senate for more than a 
week. It should not be stopped. Let us vote yes or no. If you don't 
like this legislation, vote against it. But don't vote maybe. Don't 
have the Senate give that kind of procedural slap in the face to these 
families by saying: We don't have the courage to vote yes or no so we 
are going to vote maybe.
  Time is running out for these 11 families to know they are going to 
be treated fairly and not be forced to wait for years to see if their 
losses are addressed. The legislation only applies to the Deepwater 
Horizon disaster, the largest oil spill in our Nation's history. Let us 
act for the widows and children of these men before we head home to be 
with our own families during the holiday season. They need our help 
now. We should at least be able to agree to this limited fix. Again, 
vote yes or vote no. Don't vote maybe. Stop the months of delay. There 
is no justification for the failure to act on this deeply personal 
tragic issue. It has been pending for months. Both sides have been 
running hot lines on it for more than a week. It is a 5-page proposal. 
It is easy to understand.
  I will never forget the testimony of Chris Jones before the Judiciary 
Committee. His father was sitting there. He talked about his brother 
losing his life and meeting his brother's widow Michelle Jones. 
Michelle has lost the love of her life, but her two young sons have 
lost their father.
  This is not about politics. This should not be partisan. This is 
about justice for these kids who are facing a Christmas without their 
fathers, justice for widows who want closure, who are bravely fighting 
for their families.
  Can we not at least once in this body not vote maybe but have the 
courage to vote yes or no, not hide behind an objection to a bill 
coming up that many Republicans and Democrats support, at least allow 
people to be on record?
  Look at this family, say: I am going to vote yes or no, not, gee, I 
don't have time. We just voted maybe. I think it is unfortunate. It 
shows disdain for these families. I regret the objection.
  I ask unanimous consent that the draft of the Rockefeller, Leahy, and 
Schumer amendment be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Strike out all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Fairness in Admiralty and 
     Maritime Law Act''.

     SEC. 2. AMENDMENT OF SHIPOWNERS' LIABILITY ACT OF 1851.

       (a) General Limit of Liability.--Section 30505(c) of title 
     46, United States Code, is amended to read as follows:
       ``(c) Claims Not Subject to Limitation.--Subsection (a) 
     does not apply--
       ``(1) to a claim for wages; or
       ``(2) to a claim for personal injury or wrongful death 
     arising from the blowout and explosion of the mobile offshore 
     drilling unit Deepwater Horizon that occurred on April 20, 
     2010.''.
       (b) Conforming Amendment.--Section 30511(c) of title 46, 
     United States Code, is amended by inserting ``that are 
     subject to limitation under section 30505'' after 
     ``question''.

     SEC. 3. AMENDMENT OF THE DEATH ON THE HIGH SEAS ACT.

       (a) Cause of Action.--Section 30302 of title 46, United 
     States Code, is amended by inserting after the first sentence 
     the following: ``If the death was attributable to the blowout 
     and explosion of the mobile offshore drilling unit Deepwater 
     Horizon that occurred on April 20, 2010, the action may be 
     brought in law or in admiralty.''.
       (b) Amount and Apportionment of Recovery.--Section 30303 of 
     title 46, United States Code, is amended by adding at the end 
     the following: ``If the action under this chapter arises from 
     the blowout and explosion of the mobile offshore drilling 
     unit Deepwater Horizon that occurred on April 20, 2010, the 
     recovery may include fair compensation for nonpecuniary loss, 
     plus a fair compensation for the decedent's pain and 
     suffering. In this section, the term `nonpecuniary loss' 
     means the loss of care, comfort, companionship, and 
     society.''.
       (c) Death of Plaintiff in Pending Action.--Section 30305 of 
     title 46, United States Code, is amended by adding at the end 
     the following: ``If a civil action in law is pending in a 
     court of the United States to recover for personal injury 
     caused by wrongful act, neglect, or default described in the 
     second sentence of section 30302 of this title and the 
     individual dies during the action as a result of that 
     wrongful act, neglect, or default, the personal 
     representative of the decedent may be substituted as the 
     plaintiff and the action may proceed under this chapter for 
     the recovery authorized by this chapter.''.

     SEC. 4. AMENDMENT OF JONES ACT.

       Section 30104(a) of title 46, United States Code, is 
     amended by adding at the end the following: ``If the action 
     under this chapter arises from the blowout and explosion of 
     the mobile offshore drilling unit Deepwater Horizon that 
     occurred on April 20, 2010, the recovery for a seaman who 
     dies may include fair compensation for nonpecuniary loss, 
     plus a fair compensation for the decedent's pain and 
     suffering. In this section, the term `nonpecuniary loss' 
     means the loss of care, comfort, companionship, and 
     society.''.

[[Page S8685]]

     SEC. 5. MULTIDISTRICT LITIGATION FOR CERTAIN CIVIL ACTIONS.

       (a) In General.--Chapter 303 of title 46, United States 
     Code, is amended--
       (1) by redesignating section 30308 as section 30309; and
       (2) by inserting after section 30307 the following:

     `` 30308. Multidistrict litigation for certain civil actions

       ``(a) In General.--A plaintiff in a covered civil action 
     brought under chapter 301 or this chapter may elect to have 
     the claims of that plaintiff--
       ``(1) severed from all other claims in the covered civil 
     action; and
       ``(2) not be subject to section 1407 of title 28 or any 
     similar provision of State law.
       ``(b) Covered Civil Action Defined.--In this section, the 
     term `covered civil action' means a civil action for damages 
     for personal injury or wrongful death arising from the 
     blowout and explosion of the mobile offshore drilling unit 
     Deepwater Horizon that occurred on April 20, 2010.''.
       (b) Conforming Amendment.--The table of contents for 
     chapter 303 of title 46, United States Code, is amended by 
     striking the item relating to section 30308 and inserting the 
     following:

``30308. Multidistrict litigation for certain civil actions.
``30309. Nonapplication.''.

     SEC. 6. EFFECTIVE DATE.

       The amendments made by this Act shall apply to--
       (1) causes of action and claims arising after April 19, 
     2010; and
       (2) actions commenced before the date of enactment of this 
     Act that have not been finally adjudicated, including 
     appellate review, as of that date.

  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Madam President, I ask unanimous consent to engage 
the chairman in a brief colloquy regarding this legislation.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WHITEHOUSE. I thank him for his leadership, for his compassion. I 
was proud to join him as a cosponsor of his legislation. It is 
disturbing to me that his effort to speak for these families who have 
lost their loved ones has fallen on deaf ears and on a procedural 
objection that could just as easily have not stood. As we stand here in 
this empty room, where right now we could be voting on help for these 
11 families, instead, we are milling about, killing time and waiting 
for something to happen.
  I want to ask the chairman: If this oil rig that exploded and burned 
had been on land and these same 11 workers had been killed, would they 
be treated differently and far more generously, and would their 
families be treated differently and far more generously than in this 
actual case just because it happened to be out in the ocean as a 
deepwater drilling rig?
  Mr. LEAHY. Madam President, the Senator is absolutely correct. When 
we held these hearings, he was an indispensable part. This is an 
inexplicable anomaly of the law that reflects a different era. Had they 
been assembling, for example, this oil rig, had they had it on land and 
it exploded, they would be able to recover as anybody could. If it was 
an onshore oil rig--of course, we have many in this country and 
throughout the world--if they had been working on that and there had 
been an explosion and they lost their lives, there would have been 
remedies available. But because it was at sea and even if it is just 
barely at sea, the remedies are entirely different. To put it in 
laymen's terms, they are basically limited to the value of what is 
left. Of course, there is nothing left.
  Mr. WHITEHOUSE. Under the circumstances of this case, I know the 
objection was founded upon concern that this would defeat the 
expectations of potential defendants who might otherwise have to pay 
this verdict. As I understand it, the two most likely responsible 
parties--indeed, the one already decreed by the government for 
pollution purposes to be the responsible party--are BP and Halliburton, 
two enormous multinational corporations. If I am not mistaken, what we 
have done today is to send 11 American families, whose father, brother, 
or husband was lost through no fault of that individual from a tragic 
accident that has been described as being the result of real ineptitude 
and very poor safety practices out on that rig by big corporations, we 
are now taking the side of BP and Halliburton against those 11 families 
here on the eve of the Christmas holidays, taking away rights they 
would have if this accident had happened on the land.
  My question is, don't we think that BP and Halliburton could afford 
this? It is not as though it is the little Sisters of Mercy whom we are 
going to put out of business if we allow this to go forward.
  Mr. LEAHY. The Senator is correct. Basically what the Senate has said 
is, we will protect British Petroleum and Halliburton over the rights 
and needs of the families of 11 men who died because of negligence. Is 
this what the Senate has come to? Is this what it has come to? By our 
failure to even vote, our unwillingness to stand up and vote, our 
effort to do a maybe instead of a yes or no, we are sending a Christmas 
present. I suppose we should say Merry Christmas, British Petroleum, 
Merry Christmas, Halliburton. We protected you and saved you from 
having to pay for your negligence. That is a pretty cold signal to send 
to these families of the 11 men who died.
  Frankly, as I have often said, the Senate should be the conscience of 
the Nation. How do we express our conscience when we don't even have 
the courage to vote yes or no on a matter of this significance?
  Mr. WHITEHOUSE. I thank the chairman for his leadership and for his 
compassion. I am proud to join him today in this effort.
  I yield the floor.

                          ____________________