§ 178-A — Responder immunity

§ 178-a. Responder immunity. 1. Definitions. For the purposes of this\nsection only, the following terms shall have the following meanings:\n (a) "response efforts" means rendering care, assistance, or advice in\naccordance with the national contingency plan, the state oil spill\ncontingency plan, or at the direction of the federal on-scene\ncoordinator or the commissioner or his designee, in response to a\ndischarge or threatened discharge of petroleum into or upon the\nnavigable waters.\n (b) "responsible party" and "navigable waters" shall have the meanings\nset forth in section 1001 of the Federal Oil Pollution Act of 1990 (33\nU.S.C. 2701 et seq.).\n 2. Notwithstanding any other provision of law, (a) a person is not\nliable for cleanup and removal costs or damages which result from\nactions taken or omitted to be taken in good faith in the course of\nrendering care, assistance or advice consistent with the national\ncontingency plan or as otherwise directed by the federal on-scene\ncoordinator or by the commissioner or his designee, in response to a\ndischarge or threatened discharge of petroleum into or upon the\nnavigable waters.\n (b) A person holding a master's or a towing vessel operator's license,\nthe owner, and operator of a vessel operated by such person are not\nliable for cleanup and removal costs or damages which result from\nactions taken in good faith in the course of rendering assistance, in an\nemergency situation, at the request of the owner or operator of a vessel\nattempting to prevent the substantial threat of a discharge of petroleum\ninto or upon the navigable waters; provided, however, that reasonable\nefforts are made to notify the federal on-scene coordinator or the\ncommissioner or his designee prior to such assistance being rendered or,\nif that is not practicable, as soon as possible thereafter.\n 3. However, the provisions of subdivision two of this section shall\nnot apply to: (i) a responsible party, (ii) liability for personal\ninjury or wrongful death, (iii) cleanup and removal costs and damages\nresulting from such person's gross negligence or willful misconduct,\n(iv) negligence in the operation of a motor vehicle as defined in\nsection one hundred twenty-five of the vehicle and traffic law, and (v)\nany physical actions taken that are not in or near the area of cleanup\nand removal of a discharge or threatened discharge.\n 4. The provisions of subdivision two of this section shall not apply\nto any response efforts undertaken by a person later than one hundred\ntwenty days after a discharge has been stopped. Thereafter, such person\nshall not be strictly liable without regard to fault, but the liability\nof such person for personal injury or property damage shall be limited\nto acts or omissions of the person during the course of such response\nefforts which are shown to be the result of negligence, gross\nnegligence, or reckless, wanton or intentional misconduct.\nNotwithstanding any other provision of law, when (i) a verdict or\ndecision on a claim for injury to persons or property caused by response\nefforts, occurring after such one hundred twenty day period has ended,\nis determined in favor of the claimant in an action involving such\nperson's response efforts and any other person or persons jointly\nliable, and (ii) the liability of the person related to such response\nefforts is found to be fifty percent or less of the total liability\nassigned to all persons liable, and (iii) the liability of the person\nrelated to such response efforts is not based on a finding of reckless\ndisregard for the safety of others or of intentional misconduct, then\nthe liability of such person to the claimant for injury to property and\nfor non-economic loss relating to injury to a person shall not exceed\nthe equitable share of such person as determined in accordance with the\nrelative culpability of each person causing or contributing to the total\nliability. Provided, however, the culpable conduct of any person not a\nparty to such action shall not be considered in determining any\nequitable share if the claimant was unable, with due diligence, to\nobtain jurisdiction over such person in said action. As used in this\nsection, "non-economic loss" includes but is not limited to pain and\nsuffering, mental anguish, loss of consortium or other damages for\nnon-economic loss. However, nothing herein shall alter, modify, or\nabrogate the liability of any person for breach of warranty or to an\nemployee of such person pursuant to the workers' compensation law, or to\nrelieve from liability any person who is responsible for a discharge in\nviolation of section one hundred seventy-four of this article.\n 5. In addition to any other liability, a responsible party shall be\nliable for any cleanup and removal costs and damages that another person\nis relieved of under subdivision two or four or both of this section.\n 6. Nothing in this section affects (i) the obligation of a discharger\nto respond immediately and to cleanup and remove a discharge; or (ii)\nthe liability of a discharger under other provisions of this article or\nthe environmental conservation law.\n