After reading this article, I was initially confused about the reason behind the fishermen’s anger. After all, the compensation from BP, being meted out by Feinberg, is for lost wages, correct? So if you’re being paid for working on the oil clean-up, then you do not have lost wages, at least not for the time you’ve been working. It would be like if I was collecting unemployment insurance while working a 9-to-5 job. In other words, “double-dipping”.
But then I winnowed through the crazy responses below the article and discovered some reasonable comments that helped me see the fishermen’s perspective. Why should they have done all that back breaking labor in the first place if sitting on their asses would have garnered them more money? In other words, their work for BP should be treated separately from the settlement pay-out. It would be like if I had won a suit against McDonald’s for serving me an E. coli hamburger, and they had subtracted out of the settlement the wages I’d earned as a teenaged fry-jocky.
So, as is often the case, I can see both sides simultaneously and can’t make up my mind who’s “right”. I sympathize with the fishermen, but if they didn’t lose wages, then they shouldn’t get money meant for compensation of lost wages. But it also doesn’t make sense to give those fishermen less money than those who just sat at home, waiting for a check to come.
So, are the fishermen right to be angry? I guess I’m still confused.
I guess I am too. I can’t see how that logic works out. If you file a claim and say, “I would have made $100,000 last year if the spill hadn’t closed the shrimp beds.” And BP says, “Fine, we paid you $30,000 to work on cleanup so here’s a check for $70,000.” And another captain says, “I would have made $100,000 last year.” And BP says, “You didn’t work for us, here’s $100,000.” Aren’t they both even?
Of course, the second captain didn’t put any wear on his boat, but he also didn’t have anything coming in until the end of the claims process. The wear on the boat is the price of current money vs. future money.
At least that’s how I see it, but maybe I’m missing some nuances here.
I agree with Feinberg (i.e., the recovery received by a fisherman that leases his boat to BP should be reduced by the amounts received). The legal principle here is mitigation of damages, and the fact that the boat was leased to BP to clean up the oil spill is a complete red herring. I would imagine that the recovery would be reduced by any amounts received by the fisherman for leasing his boat (although the story doesn’t say this).
To illustrate: Say a fisherman makes $1,000 a day with his boat during the period in which the oil spill occurred. So, if he can’t fish, he’s out $1,000 a day, and that’s what BP should pay him. If he does something else with his boat and earns $1,000 a day, then he can’t recover from BP because he hasn’t suffered any damages. The fact that the “something else” was working with BP to clean up the oil spill doesn’t matter–the damages have still been mitigated.
Also, before someone comes along to out-lawyer my ass, there are other theories of damages that presumably a fisherman could bring up in litigation against BP. It appears from this article that Feinberg is looking at damages only in the lost revenue per day model used above.
Also, another principle I should bring up is that typically a person in the role of the fisherman here would have a duty to mitigate their damages–they can’t just sit on their ass and let their damages pile up. This is why there’s no unfairness vis-a-vis the other fisherman that sat on their asses and didn’t work for BP–those other fisherman had a duty to mitigate their damages, so at some point they would stop getting paid to sit on their asses.
IANAL, but if BP offered both captains employment and Captain 2 declined could BP then deduct $30,000 (what he would’ve earned working for them) from his settlement on the grounds that by refusing employment he failed to make a reasonable effort to mitigate his damages?
How does this work? Define your “duty” to not sit on your ass?
I just do not get this.
BP will pay you $1,000/day (just continuing your example…have no idea of the real numbers) for not being able to fish.
Now, maybe you can take camera crews out to see the oil spill and they will pay you $1,000. Do you HAVE to do that? Maybe you can cut lawns to make some money. Since you aren’t on the boat you could do that and while it won’t make you a $1,000/day it will mitigate your losses so do you HAVE to do that to ease the burden on BP? Maybe you could go clean toxic mess on the beach and put your health at risk to make some money. Do you HAVE to do that?
I do not know how the law deals with this (IANAL) but seems to me if you shit can my livelihood you are responsible for damages for doing that. That I can perhaps do something else has nothing to do with it. Anyone can “do something else”. Because that is a truism they MUST find other work to mitigate the damages you owe them for destroying their previous income stream?
Well, I’m not sure if you aren’t getting the general concept or are just having trouble with the particulars.
Here’s an example of the general concept: I own an airplane and I make money flying banners around the city. I make $100 a day. You intentionally destroy my airplane.
Do you think I should be able to collect $100 a day from you? I bet you do, and I agree. But should I be able to collect it forever? What if I am 20 years old and live to be 100, should I be able to collect 80 years’ worth of hundred bucks a day from you because you destroyed my airplane?
With respect to the particulars, the law of course varies in each jurisdiction, but I don’t think a fisherman would have to do absolutely anything that came their way. But they couldn’t just sit on their ass for an extended period of time either. This is why we have lawyers and judges–this stuff is difficult and depends on all the facts and circumstances.
You should expect me to replace your airplane and pay you $100/day till it is replaced. Once replaced and you can fly banners around again great…I can stop the daily payments.
So too with the fishermen. Once they are able to resume their livelihood BP is off the hook even if a fisherman decides to not go fishing.
I guess this is another area where I get morally confused. I agree that the fishermen should get a settlement. Most definitely. But let’s say this is a decades long disaster, as some people say it will be. And let’s say the economy booms over that time and other kinds of careers open up for those who are currently unemployed. How is BP still responsible for these people if they choose to not pursue any other work?
I use to do research in salt marshes as a grad student, so I know a lot of graduate students’ dissertation projects are absolutely ruined because of this mess. Imagine investing four to seven years in a field project, only for the whole thing to be destroyed. Are they eligible for compensation? Or is there an expectation that they should pursue something else and cut their losses? Where is the dividing line between one person’s livelihood and another’s “way of life”? When exactly should the latter be expected to think like the former?
To be clear IANAL and what I am about to relate is what my dad (who was a lawyer and a good one) told me in the 80’s. That in no way makes me an expert or authority; just relating what I was told. So, take it with a large grain of salt. I’d ask my dad now but he passed away several years ago so can’t.
He told me if I injured you such that you could no longer work (say I made you a quadriplegic) damages would be assessed by adding up what you could have been expected to make over the course of your whole lifetime. It does not matter that maybe you could write a book or something and earn money. That I took away your livelihood I am responsible for the income you would have received presuming your chosen career continued apace. Add in medical bills and punitive damages (maybe). AFAIK there was no consideration of “other stuff” you “might” do to earn money.
Again, things may have changed, IANAL, take it FWIW.
Whack-a-Mole, that’s a different thing. The concept we’re dealing with here (well, there are two, but we’ll get to the second in a minute) is reasonable effort at mitigation. There is no reasonable mitigation for quadriplegia. A better example is the common household lease. If I sign a leasehold contract for 12 months, and move out after two, the landlord is contractually entitled to the remaining 10 months of rent – but he’ll never get that from a court because he’s going to rent to a new tenant as soon as I’m gone, and he doesn’t get to double-dip at my expense, the contract notwithstanding. If he doesn’t even try to rent it out, he doesn’t get rewarded for that inactivity – he gets the same payment he’d have gotten if he had jumped right on it.
Where the BP spill and the fishermen are concerned, fishermen seeking redress would also be expected to make a reasonable effort at mitigation, if such is available – but is it? Is there a reasonable expectation that a fisherman should be expected to work for BP, or do something other than fishing with his boat? Well, yes there is; anyone facing a period without work should be expected to seek other work. But he may not be expected to find it in a short time, he may not be expected to find equally remunerative work, and he may not be expected to forgo the expense of maintaining his boat and other equipment in a state of readiness to resume his business. On the other hand, for any livelihood, there’s a threshold beyond which it’s not reasonable to anticipate earnings or losses, and I expect that BP will be off the hook after some number of years, during which a reasonable person would be expected to make arrangements for his livelihood, and during which he might reasonably have expected some other setback anyway.
The issue with the fishermen complaining right now is that “other thing” I mentioned: they DID mitigate their damages, and are not not entitled to enrich themselves beyond their losses – especially not when the money they made ALSO came from BP. Any additional award would be punitive, and while I think that’s appropriate, that’s not what the fund is for. Other fishermen who didn’t want to work for BP, or were too crushed to think of alternatives, or were just plain too dumb or unimaginative to do anything but what they did before, are not being “rewarded” for their inactivity; they simply did what was expected, and nothing more, and that’s where the baseline is.
There’s this idea that people should see some reward for extra work, and that’s fair, but there’s never been a guaranty. The courts can’t provide fairness, only justice.
Certainly, those fishermen who were actually doing work during the time period of the spill should get more than those fishermen who weren’t actually doing work: Otherwise, there’s no incentive for the work. But that still leaves two options: On the one hand, we could have BP compensate them for the full amount of what they would have earned, and then additionally pay the folks who worked on the cleanup for that work. On the other hand, we could have BP figure the amount they would have paid for cleanup work, and deduct that from everyone whose fishing was damaged, regardless of whether they actually worked for BP or not. I’m torn over which of those two is more appropriate, but I’m leaning in the direction of BP taking greater responsibility for their mistakes.
I’m wondering if all of this was explained to the fishermen before they signed up to work for BP. Because if not, I don’t blame them for feeling cheated, even if legally they weren’t.
I’m guessing the incentive is what Zakalwe kinda said. Those who worked for BP got money NOW. That means light bills were paid, groceries bought, and loan/credit cards payments made. If you didn’t work and waited, then you’d have to dip into savings or rack up debt.
Still seems smarter not to have worked, but there were some incentives for working for BP, I guess.
People don’t work just for money. They may feel a desire to clean what BP spoiled. They may feel good for doing their part in cleaning the environment. Saving the birds might give them good vibes.
That too is incentive.
