Empty pots

Local lobstermen are getting cut out of the settlement for the grounding of the North Cape

by Richard P. Morin

Off the coast of southern Rhode Island in the darkness of early morning, Bob Smith leans over the side of his 40-foot boat and plucks his first lobster pot of the day from the churning Atlantic. The pot is empty -- it won't be until his sixth trap that Smith and deckhand Dave Pendleton will hoist their first catch from Rhode Island's waters -- a small, one-pound lobster.

"This used to be one of my best spots. Before the spill, I would pull well over a hundred lobsters from this trawl [a string of lobster pots]," says Smith, referring to the 828,000 gallons of oil spilled by the grounded North Cape barge in January 1996. Today's catch: 11 lobsters.

"I could move this trawl, but I want to be able to show just how big of an impact the spill had on this area," says Smith. He writes down his catch in a ledger as water splashes over the sides of his bobbing boat and the sun rises in the distance.

Like dozens of other lobstermen in Rhode Island, Smith is still reeling from the North Cape oil spill. But he also feels the plight of his fellow lobstermen. As president of the Rhode Island Lobstermen's Association, Smith has watched friends lose their businesses and livelihood, and he has witnessed the $16-million-a-year lobstering industry in Rhode Island plummet into an emotional and financial tailspin.

Even more disheartening for Smith, he says, was hearing politicians claim victory for the people of Rhode Island three weeks ago, when they announced a $7 million fine ($3.5 million to federal agencies and $3.5 to state agencies) levied against Eklof Marine Corp., the owners of the North Cape. How could they claim victory, asks Smith, when the fine contains no money to compensate Rhode Island lobstermen, whose losses are estimated to be in the millions?

Bob Smith

Both US Attorney General Sheldon Whitehouse and Rhode Island Attorney General Jeffrey Pine say lobstermen can still pursue restitution through other means -- i.e., settlements or civil litigation with Eklof, as designated by the Oil Pollution Act of 1990. But that process, according to lawyers for the Lobstermen's Association, could take years, depending on Eklof's willingness to pay restitution to the lobstermen. This makes Smith angry and disillusioned by a system and government that were suppose to protect him.

"It is great that the federal and state government are getting their money, but that doesn't help the people who make their living in these waters," says Smith, the tension in his voice becoming more audible. "There are people suffering out here. People have lost their boats, deckhands have been laid off, and many of us are just holding on by a thread. They say the fines are for the damage done to the people of Rhode Island, but aren't we [lobstermen] the people of Rhode Island? It seems we are the first ones to get hurt by this spill and the last to be compensated."

The day the North Cape oil barge ran aground was supposed to be one of the happiest of John Sorlien's life. He had just returned from Maine, where he had watched the finishing touches being put on his new lobster boat, when he heard about the spill. A celebratory dinner with his wife was hastily replaced with a mournful visit to Moonstone Beach, where he was greeted by the sight of the North Cape hemorrhaging oil into the waters he fished.

"The smell was absolutely sickening," says Sorlien, recalling a moment later how he and Smith counted 7000 dead lobsters -- some as small as your pinkie -- in a two-square-foot patch of Moonstone Beach. "They were just everywhere. It was unbelievable how many of them there were."

Earlier that afternoon, the North Cape barge and the Scandia tugboat, captained by Gregory Aitken, had left New Jersey en route to Rhode Island despite several severe-winter-storm warnings. The North Cape had run aground in the waters of Rhode Island Sound after the tugboat pushing it had been disabled by a fire in its engine room. The spill -- 828,000 gallons of number-two home heating oil -- was twice the size of the World Prodigy, which ran aground in Narragansett Bay in 1989.

Later, authorities discovered that not only had the Scandia not been equipped with legally required fire-fighting equipment, but the North Cape barge had been without a properly functioning anchor, which could have prevented the barge from running aground in the first place. Workers, under the order of former Eklof president Leslie Wallin, had "jury-rigged" the anchor so that it could not be lowered properly.

To make matters worse, because of stormy weather and frigid waters, much of the oil spilled that day was driven into the ocean's water column, says University of Rhode Island researcher Mike Clancy. And much of this oil settled to the bottom, where millions of lobsters lived and bred.

"This was by far the worst oil spill I've ever been associated with," says Clancy, who belongs to a team of researchers at URI working on a long-term assessment of the damage to marine life through field studies and computer models of the oil spill.

As a result of the spill's severity, the US Coast Guard closed a 105-square-mile area of prime fishing grounds, leaving many lobstermen confined to port and their unattended pots to the whims of the ocean's currents. Several days later, the lobstermen were allowed to collect their equipment, but by this time, much of it had been lost or severely damaged.

"It wasn't a green light to make money; it was a green light to work," says lobsterman Greg Duckworth of Wakefield.

Overall, it took several weeks before the lobstermen were allowed to begin fishing in the affected waters. And when they did return, they confirmed what they had dreaded all along -- the lobsters were gone. Because of the this, Rhode Island's lobstermen were forced to move their pots to waters not affected by the spill. And today, there are three and four lobstermen setting their pots in an area in which there used to be only one or two plying their trade. "People [lobstermen] have become like nomads out there at sea," says Sorlien.

After several months of negotiations between lawyers for Eklof and the federal and state government, Whitehouse announced the plea agreement at a press conference three weeks ago. It included not only a $7-million-dollar fine to be split between federal and state environmental agencies (the state has announced that its proceeds will go toward preventing and cleaning up future oil spills) but $1 million in mandated work to upgrade Eklof's shipping fleet and a $1.5 million voluntary contribution by Eklof to the Nature Conservancy.

The fine and compensation package was the third largest in US history and the largest ever in New England -- a fact that made the lobstermen all the angrier over their not being included in the plea agreement.

"The first time I heard about the plea agreement was from the newspapers," says Smith, navigating his boat toward a distant buoy. "I thought that, finally, we were going to get something. And then I found out we weren't even recognized in the fines, that we were cut out."

As part of the agreement, Aitken, Wallin, and owner Douglas Eklof pleaded guilty in US District Court in Providence to felony charges of illegally discharging oil -- a violation of the Oil Pollution Act of 1990. But despite the damage to Rhode Island's waters, assistant US Attorney Ira Belkin recommended that the three receive a "low-end" sentence. In fact, Whitehouse says that only Aitken, who lied to investigators about conditions on the Scandia, may serve actual jail time.

Outraged, Barry Hartman, an attorney for the Rhode Island Lobstermen's Association, immediately denounced the settlement. Pine and Whitehouse, Hartman says, had the power to seek restitution for the lobstermen as part of any criminal plea agreement with Eklof. "But they chose not to bother. They just assumed that it would just be too complicated," he says. "They had many options. But nobody ever called."

In their defense, Whitehouse and Pine say that seeking restitution for each individual claimant would have been too cumbersome in the criminal proceedings. Besides, they say, the procedures set forth under the Oil Pollution Act provide a much better alternative for Rhode Island lobstermen than the plea agreement.

Under the act, the lobstermen have three avenues to pursue restitution. The first is to reach an out-of-court settlement with Eklof. Then, if they are not satisfied with the settlement, the lobstermen can petition a federal trust fund for more money. After this, they can pursue civil litigation against Eklof.

"If we were to have tried to resolve the restitution issues of all the individual claimants, this proceeding and agreement would not have happened," said Whitehouse, standing outside of the courtroom in which Aitken, Wallin, and Eklof had just pleaded guilty to felony charges.

But while Whitehouse remains firm on the issue, Pine seems to be feeling the pressure from outside groups such as the Rhode Island Lobstermen's Association. Although he publicly agreed with Whitehouse that including restitution for lobstermen would have been too difficult, he did ask Justice Joseph Rodgers to consider the pleas of the lobstermen in the pre-sentencing report. (Rodgers has the ultimate say as to whether the plea agreement is accepted by the courts.)

Pine spokesman Greg Perry says it "is conceivable" that Rodgers will not accept the plea agreement as written and will instruct the lawyers to reach an agreement that includes restitution for the lobstermen. But Whitehouse says he is confident the plea will stand. He points out that the agreement, as well as the government-funded study of the oil spill's impact, will only help the lobstermen in any civil litigation.

The problem, of course, is that many Rhode Island lobstermen can't wait for civil litigation to wind its way through the courts. "We can't wait two years, we need help now" says Sorlien. Indeed, because of a Coast Guard regulation designed to prevent frivolous lawsuits, the lobstermen cannot get even their legal fees paid for by Eklof, despite the shipping company's admission of guilt.

"The government gets their legal bills paid for, but we got to pay our own bills to get money for something we never asked for [the oil spill]," says Smith. "Meanwhile, the Nature Conservancy, which was not affected by this spill, gets over a million dollars. Where is the justice in all that?"

Because of the lobstermen's shaky finances, Hartman, who prosecuted the Exxon Valdez case in Alaska and helped write the 1990 Oil Pollution Act, is trying to avoid going to court to achieve restitution for his clients. "I may be a good lawyer, but they have a lot of good lawyers on their side," he says, alluding to the potential for a lengthy court battle with Eklof.

The fishermen are not without some political backing, however. Congressmen Patrick Kennedy and Robert Weygand, for instance, are sympathetic to their cause. Both junior members of the Ocean State's congressional delegation have expressed their dismay over the plea agreement's lack of support for the fisherman.

In a statement released last week, Weygand says that "this agreement fails to alleviate the hardship incurred by one of our state's most valuable sources of income -- the fishing industry. I'm disappointed that hundreds of local fisherman, left without their livelihood for months, fell through the cracks when this agreement was signed."

Kennedy took his concerns about the plea agreement directly to Whitehouse and Pine. In a letter to both attorneys general, he wrote that "the agreement neglects the human victims of Eklof's criminal behavior."

Kennedy also has voiced concern about how Eklof's insurance company has treated lobstermen. In a letter to Turnabout Services, Ltd., Kennedy accused the insurance company of using stall tactics, refusing to pay well-documented cases, requesting reams of unnecessary paperwork, and low-balling offers. "Worse yet, it [Turnabout] receives these claims and never responds to them, leaving hard-working small businessmen to bear the full brunt of the loss for an injury they did not cause," Kennedy wrote.

To date, Hartman says, Eklof has paid less than one-third of the $1.5 million in immediate losses claimed by Rhode Island's lobstermen. "They have strung them along, and those they have paid have had to sign away their future claims to restitution for long-term damages," he says. As a result, Hartman has begun to file claims with a federal trust fund established under the Oil Pollution Act.

Eklof spokesmen Mike Doyle denies any wrongdoing on the part of the shipping company -- Eklof and its representatives are moving ahead judiciously in processing claims, he says. Doyle also denies that short-term settlements would in any way endanger lobstermen's future claims.

"Eklof has acted in good faith in addressing these claims," he says. The problem is that most claims are being held up until the environmental-impact assessment is complete. (Claude Cote, deputy director of legal services for the state Department of Environmental Management, says the report will be completed within the next month.)

Hartman, however, contends that Eklof has been trying to avoid paying the lobstermen for as long as possible. He says that Eklof's flotilla of lawyers even filed a motion in New York, where the company is based, to invoke a little-known law that would have limited its liability for the oil spill -- and cut out money to the lobstermen as a result. Fortunately, the motion was squashed after government officials discovered it.

"The Attorney General speaks of Eklof's good-faith efforts, but if you look at how they have treated the lobstermen, they have not operated in good faith," says Hartman.

Duckworth says that Eklof's insurance people acted in good faith in the beginning, but now they are putting him off about long-term claims. "They were nice. I presented them my paperwork for my short-term losses, and they gave me what I thought was a fair amount," he says. "The last time I was there, they almost didn't want to talk with me."

Prior to the spill, Duckworth was doing so well that he decided to buy a second boat. Now he wishes he hadn't. His catches are off so much that in the first year after the spill, he couldn't pay his bills, including the low-interest loan he'd received from the government to tide him over during his time off the water.

"I have bills, people sending me dirty letters saying `You always paid on time, what's happening now?' What's happening now is the oil spill," he says.