WASHINGTON, DC (February 27, 2008) - When the United States Supreme Court heard oral arguments today in the Exxon Shipping Co. v Baker case, which is the result of the 1989 Exxon Valdez oil spill in Alaska, some of the exhibits the High Court had before it for review included photographs by Seattle's Natalie Fobes.
The case is before the Supreme Court 14 years after the verdict in the original suit because the oil company now claims that under maritime law it is not required to pay $2.5 billion in punitive damages to 33,000 commercial fishermen, residents, Native Alaskans and others who won the settlement in court.
The 987-foot supertanker Exxon Valdez ran aground in Prince William Sound in March, 1989, spilling more than 11 million gallons of crude oil. Fouling 1,200 miles of coastline, it remains the largest oil spill in North America. The effect on the eco-system was tragic: hundreds of thousands of animals and birds were killed in the first few months after the spill.
The photographs by Fobes of the aftermath and clean up and rescue efforts were originally published in National Geographic magazine, and the photographer says they've been published "in almost every major magazine since that time." She was on the scene the day after the spill and hitched a ride with fisherman who were sailing to the beginning of the spill, which was 25 miles out.
“It was one of the most difficult assignments I’ve had,” said Fobes. “The dead and dying wildlife and the emotional toll on the people haunts me to this day.”
Fobes says that she hitch-hiked her way around the Sound on fishing boats and mail planes while many photographers and journalists were stuck in Valdez waiting for a plane or helicopter charter. Over the next few months she lived with the fishermen, Native families, and clean-up workers while documenting the impact on wildlife and people.
During the original federal trail in Anchorage in 1994 the photographer was a witness for the plaintiffs, showing photographs and describing what she saw during the two months she shot the story for National Geographic. She also showed photographs taken in 1993 and 1998 that are part of her documentary project on Prince William Sound after the oil spill.
Fobes has been an NPPA member since 1977.
Attorney Mickey H. Osterreicher, NPPA's general legal counsel who is also a member of the U.S. Supreme Court Bar Association, says that what is at issue before the high court today is whether the amount awarded as punitive damages was excessive, and that it also a case of age-old maritime law versus the Clean Water Act.
"While Exxon officials claim that the company already paid more than $3.4 billion in compensatory damages, opponents say that amount is a drop in the bucket when comparing the present value of money with the 1994 decision," Osterreicher sad. "At that time the jury found that Exxon’s liability was $5 billion but the 9th Circuit Court of Appeals subsequently reduced that amount to $2.5 billion."
Court watchers who witnessed today's oral arguments think the Supreme Court may be included to reduce the $2.5 billion punitive damages award after several justices indicated that they think the figure approved by a federal appeals court is too high. Justices Anthony Kennedy and David Souther suggested today that a possible figure for punitive damages could be twice the amount of money Exxon has paid to compensate victims for economic loss. Exxon's attorneys told the court the oil company has paid about $500 million in such costs.
Photographs from the spill may play a key role in the court's decision. "Because so much time has passed since the incident, which created world-wide attention, the plaintiffs believe it is important for the High Court to be reminded of the magnitude of the spill," Osterreicher said. "Jeffrey L. Fisher, the lawyer who will argue the case for the plaintiffs, has taken the unusual step of including with his briefs exhibits such as a DVD containing photos and news footage taken at the time of the spill. In another uncommon occurrence the Court has also extended the time for oral arguments to 90 minutes."
Osterreicher sees some irony in photojournalism playing a key role in a possible Supreme Court decision. "In a Court that still refuses to acknowledge the importance of visual images by barring cameras in its courtroom it will be interesting to see if the justices in any way reference the images taken by Natalie Fobes."
"A year ago to the day the Court hear the case of Scott v. Harris, in which the justices heard arguments as to whether or not a county sheriff's deputy in Georgia used reasonable force when he rammed his patrol car into a vehicle during a high-speed chase, causing it to careen down an embankment and leaving the driver (who was only being pursued for speeding) paralyzed from the neck down. What made that case of particular interest is that during oral argument the justices kept referring to a six-minute video of the chase taken by dashboard cameras in the police cars involved. While the video was not played in the courtroom, it was apparent by the questions being asked that most of the justices had viewed it," Osterreicher said.
"In a statement that could be applied to the pending case, as well as cameras in the courtroom. Justice Stephen Breyer commented that he had been 'shifting back and forth' while reading the briefs in that case 'and then I looked at the tape,' he said. In an apparent reference to the adage 'seeing is believing' he later made reference to a clip from the Marx Brothers' classic movie 'Duck Soup' when he quoted Chico Marx, who said, 'Who are you going to believe, me - or your own eyes?'"
"One can only hope that this glacial movement in the evolution of jurisprudence will lead the justices to 'connect the pixels' and allow the public the same benefit by permitting cameras in its courtroom," Osterreicher said.
Justice Samuel Alito, who owns Exxon stock, is not taking part in the case. A 4-4 split would leave the damages award in place.
