Louisiana Personal Injury Lawyer Blog
Despite BP’s best efforts, clean-up volunteers will be able to file legal claims against the oil company if they arise. BP tried to force volunteer responders to promise they will not file claims but a federal judge has determined that will not be allowed. George Barisich, President of the United Commercial Fisherman’s Association in Louisiana asked for an emergency restraining order against BP, comparing the request to:
Demanding that a person running into their own burning home sign a release limiting or giving up their claims against the arsonist who caused the fire…At best it is an ill-conceived approach to the crisis at hand and has the unforeseen consequences of causing further–and irreparable–injury to the citizens of Louisiana. At worse, it is a dastardly effort to compromise the rights of those citizens when they are the most vulnerable.
U.S. District Judge Helen G. Berrigan agreed with Barisich and granted the restraining order, finding that the agreements are unconscionable and that any agreements that had already been signed are null and void.
The BP oil plume already has covered over 4,000 miles of seawater and coastal areas, threatening fish, oysters, crabs, shrimp, birds, and their habitats. As such, the need for volunteers to stem the tide of destruction is high and the attempt by BP to force volunteers to sign these agreements has stood in the way. According to Barisich, before BP let him assist in protecting his own livelihood it demanded he sign a master vessel charter agreement, the same agreement it was forcing all volunteers to sign. Because fishermen are providing emergency cleanup services in their own boats, they are “vessel owners” in BP’s charter agreement with BP serving as the “charterer.” Under the charter agreement, if the vessel owner has a claim against the charterer or is aware of potential claims, they must provide written notice within 30 days. If a claim is not addressed within 30 days it will be released. The agreement also provides that the vessel owner will not hold the charterer liable for anything connected to BP’s performance, including the vessel owner’s death. The agreement holds fisherman to the same standard of oil-spill remediation experts when they are actually laymen and victims. In addition, any fishermen who sign the agreement are not allowed to disclose any information discovered during the cleanup regarding the oil spill, including sharing information with other disaster victims.
Judge Berrigan found that the charter agreements limited potential plaintiffs’ rights too much and therefore cannot stand. In contract law, an unconscionable agreement is one with terms that are unfair to one of the parties to the contract (here either BP or potential plaintiffs). Contracts that are entered into with inadequate consideration (payment exchanged for something else) may be held unconscionable. This is particularly relevant if there is evidence that one party to the contract has superior bargaining power to the other and could therefore insert provisions into the contract that overwhelmingly favor the interests of that party.
In the case of this incident, BP, as a huge multinational corporation, has superior bargaining power to lay-fisherman trying to assist in efforts to clean up contaminated areas and protect their businesses. As such, BP could exert their influence over the fisherman and other volunteers and essentially force them into signing agreements that make them give up much more (legal rights, the opportunity to sue BP) than they are getting (the chance to help clean up). In finding contracts unconscionable, courts have flexibility to determine how to best correct the situation. They may insert fairer provisions into the contract itself, or, as happened here, simply declare the contract void.