Saturday, March 12, 2011

Tsunami and the Law

When great disasters such as Tsunamis hit, they tend to dominate the news on every channel such as been the case with the recent Japanese tsunami. This large tsunami which was caused by an earthquake in the Pacific Ocean near Japanese shores, measuring 9.0 on the Richter scale, drove large waves inland, causing people, vehicles and buildings to be washed away, and causing substantial damage to the Japanese nuclear facilities.

Tsunami is a Japanese phrase which literally means "ocean waves." In English literature, this phenomenon is sometimes referred to as a "seismic sea wave" or a "tidal wave." It is often caused by submarine earthquakes which occur less than 30 miles (50 kilometers) beneath the ocean floor, although it may also be caused by submarine volcanic eruptions or submarine landslides.
This article focusses on the legal ramifications of a tsunami. Although there may not be a per se body of law on tsunamis, the law can perhaps be guided from the related elements--earthquakes and water waves--around which a developed body of law exists.

California is an earthquake prone state and California's west coast borders the Pacific Ocean. However, earthquake insurance is not automatically included in homeowners' insurance policies. There are porperty owners who take the risk of not purchasing the earthquake coverage. In 1994, when the great Northridge earthquake occured, a large number of properties suffered structural damages. Those who did not have insurance coverage were forced to pay for the damages out of their own pockets, or simply abandon their properties. The Japanese 9.0 magnitue "megathrust" was many times larger that the Northridge 6.8 magnitude earthquake. What if (God forbid) that magnitude tsunami were to hit the California coasts? What would the uninsured do? Better yet, is tsunami damage even covered under earthquake policies? Would it be covered under flood insurance policies?

Tsunami's often exert such a large force that fundamentally affect the structure of the Earth. Due to the recent tsunami, the axis of the Earth has shifted, and the main island of Japan has moved approximately 8 feet (2.4 meters) closer to the United States' west coast. The question is, who lost those 8 feet of land? Altough I don't believe this question has ever been legally addressed, a similar issue received substantial attention in early American law. During the 18th and 19th Centuries, many relied on waterways as a transportation source and water source. Land that bordered on water was substantially more valuable, and hence, land was often subdivided in way that each parcel would receive water rights (so-called "riperian rights"). However, water tends to change course over a period of time, resulting in phonomena referred to as accession and avulsion. "Accession" is when the water leaves deposits on a shore, and "avulsion" is when water washes away soil from a shore. As a result, water may move outside the borders of one land and move further inside another land. American courts addressing such disputes often ruled to readjust the property lines to the center of the current waterway, therefore allowing all lands to maintain water access.

The recent tsunami caused large damages to the Japanese nuclear power plants. Fear of nuclear leakage not only caused several Japanese cities to turn into ghost towns, they also raised panic amongst people living as far away as California. People wondered whether such debris can truly travel so far away, and if they do, can they truly pose a danger to California residents? If these fears are confirmed, would there be any legal recourse? I am not aware of any case law on point, although existing cases may lead the way by analogy. Traditionally, the cause of action for "trespass" dealt with visible objects travelling from one boundary to another. An example would have been on person's cattle crossing over to a neighbor's farm without permission. By contrast, a cause of action for "nuisance" traditionally dealt with invisible matters, such as excessive noise from a neighboring land. In Indiana Harbor Belt Railroad Co. v. American Cyanamaid Co., 916 F.2d 1174 (7th Cir. 1990), Judge Posner set a new standard by allowing a neighboring landowner to sue freight carrier for trespass concerning invisible gas fumes that travelled to his land as a result of derailment. By analogy, California residents may have a cause of action against the Japanese government for trespass, should sufficient nuclear particles reach their lands from the Japanese reactors.

An interesting question may arise if a tsunami moves a part of the shore under water, or washes additional soil ashore causing a distance between the shore and what used to be beachfront properties. Would the courts extend the old case law to such cases?
For additional information refer to articles by CNN, New York Times, Los Angeles Times, Associatged Press,, Encyclopedia Britannica, and Wikipedia. For additional information run a search on Google.

Robin Mashal is a Los Angeles business attorney. He can be reached at (310) 286-2000.