178-A - Responder immunity. - New York Statutes

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