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26 Austl. & N.Z. Mar. L.J. 89 (2012)
The Regulation of Marine Pollution Arising from Offshore Oil and Gas Facilities - An Evaluation of the Adequacy of Current Regulatory Regimes and the Responsibility of States to Implement a New Liability Regime

handle is hein.journals/ausnewma26 and id is 89 raw text is: THE REGULATION OF MARINE POLLUTION ARISING FROM OFFSHORE OIL AND GAS FACILITIES - AN EVALUATION OF THE ADEQUACY OF CURRENT REGULATORY REGIMES AND THE RESPONSIBILITY OF STATES TO IMPLEMENT A NEW LIABILITY REGIME Shane Bosma* 1 Introduction The recent large scale pollution events arising from the explosion and sinking of the Deepwater Horizon oil rig on the Macondo well blowout in the Gulf of Mexico on 20 April 2010 and the separate explosion on the Montara wellhead platform in the Timor Sea on 21 August 2009 have thrown into sharp relief the legal framework regulating offshore oil and gas facilities and governing oil spill liability from such facilities.i The enormity of the stakes involved with any oil pollution caused by offshore oil and gas facilities is self- evident from the sheer magnitude of each of the Macondo and Montara incidents and the size and complexity of the legal claims that have arisen from each of these incidents. Following the explosion and sinking of the Deepwater Horizon oil rig at the Macondo field in the Gulf of Mexico on 20 April 2010, eleven people tragically lost their lives and a total estimated 4.9 million barrels of oil spilled into the environment until the well was effectively killed five months later on 19 September 2010, making it the world's worst release of oil ever.2 Literally hundreds of lawsuits have been commenced against the operator of the field, BP, and integrated into the one case3 before the US District Court in New Orleans.4 BP has also commenced legal proceedings against each of Halliburton, the well services contractor, Transocean, the Deepwater Horizon's owner and operator, and Cameron International, the manufacturer of the blowout preventer, seeking recovery of USD40.9 billion set aside last year by BP for the spill-related costs it has incurred.' BP's joint venture partners in the Macondo field, Anadarko and Mitsui, also commenced legal action against BP for alleged breaches of the joint operating agreement governing their relationship, adding yet a further layer of complexity to the already complicated framework of legal proceedings arising from the incident. In a similar incident following the explosion on the Montara wellhead platform on 21 August 2009, oil spilled into the Timor Sea and continued leaking until 3 November 2009 (in total 74 days), making it one of Australia's worst ever oil spills and giving rise to a AUD2.4 billion compensation claim by the Indonesian government against the Thai-owned oil company, PTTEP.7 PTTEP has not accepted the claim on the basis that 'no verifiable scientific evidence' had been presented to the company to support the Indonesian government's claim for * LLB (Hons), BA, Postgrad Dip (Finance), Postgrad Dip (Maritime Law), MBA, MIB, LLM (Maritime Law). This paper was initially submitted as a dissertation in partial satisfaction of the requirements for the London Metropolitan University/Lloyds Academy Master of Laws (Maritime Law) programme. The author acknowledges the excellent referencing assistance of Ms Bianca Kabel, the invaluable support and guidance of Ms Susan Hawker, Course Director, and the time and effort of Ms Harma Bosma and Mrs Vanessa Krunic in reviewing and commenting upon the earlier and final drafts of this paper. The text represents the law as atAugust 2011. 1Nathan Richardson, 'Deepwater Horizon and the Patchwork of Oil Spill Liability Law' (2010) Resources for the Future <http://www.rff.org/rff/documents/RFF-BCK-Richardson-OilLiability.pdf> at 10 December 2010; N Butterly, 'Oil industry shake-up in Montara report', The Western Australian (online), 23 November 2010. <http://au.news.yahoo.com/thewest/business/a/-/wa/8371846/oil-industry-shake-up-in-montara-report/> at 10 December 2010. . 2 'Harry Weber, 'Blown-out BP well finally killed at bottom of Gulf, Associated Press (Yahoo Neiws Company) (online), 19 October 2010 <http://news.yahoo.com/s/ap/20100919/ap on bi ge/us gulf oilspill> at 12 December 2010; Campbell Robertson, 'Gulf Spill Is the Largest of Its Kind, Scientists Say', The New York Times (online) <http://www.nytimes.com/2010/08/03/us/03spill.html? r=l&fta-y> at 12 December 2010. 'Re: Oil Spill by the OilRigDeepwater Horizon in the GulfofMexico on April 20, 2010 MDL-2179, (US District Court, Eastern District of Louisiana (New Orleans), 2010). Noah Brenner, 'Pair sue BP over tragedy' Upstream (Singapore) 22 April 2011, 10. Guy Chazan, 'BP sues Gulf of Mexico Partners for USD40bn' The Australian (online), 2011 <http://www.theaustralian.com.au/business/news/bp-sues-gulf-of-mexico-partners-for-us40bn/> at 25 April 2011. 6 Brenner, above n 4, 10. 'WA oil spill 'one of Australia's worst', ABC Neivs (online), 24 August 2009. <http://www.webcitation.org/513RrgF24>; Paige Taylor, 'Jakarta 'wrong' on spill damage' The Australian (online), 11 November 2010, <http://www.theaustralian.com.au/news/nation/jakarta-wrong-on-spill-damage/story-e6frg6nf-1225951388832>. (2012) 26 A&NZ Mar LJ 89

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