Coast Guard increases OPA 90 maximum Liability Limits

January 27, 2023

In a move identified by the U.S. Coast Guard as a necessary reflection of the substantial increase in the Consumer Price Index since 2019, a new regulatory rule has been issued by the agency to increase the limits of liability for vessels, deepwater ports, and onshore facilities under the Oil Pollution Act of 1990. The new limits take effect March 23, 2023.

Pursuant to OPA 90, the responsible parties for any vessel or facility from which oil is discharged, or which poses a substantial threat of discharge of oil, into or upon the navigable waters (or adjoining shorelines/exclusive economic zone) of the United States, has strict liability for removal costs and damages that result from such an incident. OPA 90 places statutory limits on liability for a responsible party, except in cases of gross negligence, willful misconduct, and/or a violation of an applicable federal safety, construction, or operating regulation.

Regulatory inflation increases to the limits of liability are statutorily required by OPA 90 and the Coast Guard has explained that such increases are necessary to preserve the deterrent effect and “polluter pays” principle contained in OPA 90. The rule change is nondiscretionary for the Coast Guard and the calculation of the increase in the liability limits is a ministerial task reflected by the change in CPI and the need to respond to inflation. The Coast Guard followed 33 CFR 138.240 in setting the methodology and formula for the increase. In short, the agency calculated an applicable annual percent increase in the CPI of 7.91, percent which has been applied uniformly across all types of vessels, deepwater ports, and onshore facilities to increase the maximum limit of liability. For vessels, the adjusted limits are as follows:

Source Category	Previous Limit	New CPI-Adjusted Limit
For a single-hull tank vessel greater than 3,000 gross tons.	The greater of $3,700 per gross ton or $27,422,200.	The greater of $4,000 per gross ton or $29,591,300.
For a tank vessel greater than 3,000 gross tons, other than a single-hull tank vessel.	The greater of $2,300 per gross ton or $19,943,400.	The greater of $2,500 per gross ton or $21,521,000.
For a single-hull tank vessel less than or equal to 3,000 gross tons.	The greater of $3,700 per gross ton or $7,478,800.	The greater of $4,000 per gross ton or $8,070,400.
For a tank vessel less than or equal to 3,000 gross tons, other than a singlehull tank vessel.	The greater of $2,300 per gross ton or $4,985,900.	The greater of $2,500 per gross ton or $5,380,300.
For any vessel other than those listed above, including for any edible oil tank vessel and any oil spill response vessel.	The greater of $1,200 per gross ton or $997,100.	The greater of $1,300 per gross ton or $1,076,000.

The maximum limit of liability for Deepwater Ports and Onshore Facilities was also increased by 7.91 percent to $725,710.800 (up from $672,514,900). The estimated number of vessels affected by these increases is expected to be minimal (i.e. less than three (3) vessels per year are anticipated to have an OPA 90 incident which would exceed the existing limit of liability). The Coast Guard also estimates that the CPI adjustments will not result in an increase in responsibility guarantor insurance premiums across the industry.