Burgess v. M/V Tamano

• Decision Date: 22 March 1974
• Docket Number: 13-115,Civ. No. 13-111,13-114,13-120 and 13-184.,13-156
• Citation: 373 F. Supp. 839
• Parties: Ernest E. BURGESS et al., Plaintiffs, v. M/V TAMANO et al., Defendants and Third-Party Plaintiffs, v. UNITED STATES of America et al., Third-Party Defendants. STATE OF MAINE et al., Plaintiffs, v. M/V TAMANO et al., Defendants and Third-Party Plaintiffs, v. UNITED STATES of America, Third-Party Defendants. Mark SNOW et al., Plaintiffs, v. M/V TAMANO et al., Defendants and Third-Party Plaintiffs, v. UNITED STATES of America et al., Third-Party Defendants. Calvin E. DOUGHTY, Jr., et al., Plaintiffs, v. M/V TAMANO et al., Defendants and Third-Party Plaintiffs, v. UNITED STATES of America, Third-Party Defendants. Messrs. Wilhelm WILHELMSEN, Plaintiff, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. Charles C. DUNBAR, Jr., et al., Third-Party Defendants.
• Court: U.S. District Court — District of Maine

373 F. Supp. 839

Ernest E. BURGESS et al., Plaintiffs, v. M/V TAMANO et al., Defendants and Third-Party Plaintiffs, v. UNITED STATES of America et al., Third-Party Defendants.

STATE OF MAINE et al., Plaintiffs, v. M/V TAMANO et al., Defendants and Third-Party Plaintiffs, v. UNITED STATES of America, Third-Party Defendants.

Mark SNOW et al., Plaintiffs, v. M/V TAMANO et al., Defendants and Third-Party Plaintiffs, v. UNITED STATES of America et al., Third-Party Defendants.

Calvin E. DOUGHTY, Jr., et al., Plaintiffs, v. M/V TAMANO et al., Defendants and Third-Party Plaintiffs, v. UNITED STATES of America, Third-Party Defendants.

Messrs. Wilhelm WILHELMSEN, Plaintiff, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. Charles C. DUNBAR, Jr., et al., Third-Party Defendants.

Civ. Nos. 13-111, 13-156, 13-114, 13-115, 13-120 and 13-184.

United States District Court, D. Maine, S. D.

March 22, 1974.

COPYRIGHT MATERIAL OMITTED

Theodore H. Kurtz, John A. Graustein and Richard A. Spencer, Portland, Me., for Ernest E. Burgess, John S. Norton and Alberto L. DiMillo and others.

Jon A. Lund, Atty. Gen., Martin L. Wilk, Asst. Atty. Gen., Augusta, Me., for State of Me.

Charles W. Smith, Saco, Me., James R. Flaker, Portland, Me., for Mark Snow, Fred Ahearn and others.

Michael B. Latti, Boston, Mass., Frederick T. McGonagle, Gorham, Me., for C. E. Doughty and A. L. Gibbons.

Benjamin Thompson, Thomas R. McNaboe, and James P. Lansing, Portland, Me., for M/V Tamano and Wilhelman.

Fred C. Scribner, Jr., and Ralph I. Lancaster, Jr., Portland, Me., for Texaco, Inc.

Allen vanEmmerick, and Emmet B. Lewis, Admiralty & Shipping Section, Dept. of Justice, Washington, D. C., Peter Mills, U. S. Atty., Portland, Me., for U. S. A.

Joseph C. Smith, New York City, John A. Mitchell, Portland, Me., for Charles Dunbar, Jr. and Portland Pilots Inc.

Morris D. Katz, Boston, Mass., Norman S. Reef, Portland, Me., for Madsen.

Warren E. Winslow, Portland, Me., for Warren and Barbara Paul.

David G. Armstrong, Cape Elizabeth, Me., for Jane S. Armstrong.

OPINION AND ORDER OF THE COURT

GIGNOUX, District Judge.

These six consolidated actions arise out of the discharge into the waters of Casco Bay of approximately 100,000 gallons of Bunker C oil by the tanker M/V TAMANO when, while passing through Hussey Sound en route to the port of Portland early on the morning of July 22, 1972, she struck an outcropping of "Soldier Ledge." Civil Nos. 13-111, 13-115, 13-120 and 13-156 are class actions brought on behalf of owners of shore property, boat owners, commercial fishermen and commercial clam diggers alleged to have been damaged by the spill, and Civil No. 13-114 is an action brought by the State of Maine to recover damages claimed to have been sustained by the State as a result of the spill. Variously named as defendants in all these actions are the TAMANO, her owners and her captain (hereinafter jointly referred to as "Tamano"); the TAMANO's pilot and the Portland Pilots Association (hereinafter jointly referred to as "Portland Pilots"); the TAMANO's charterer, Texaco, Inc.; and the United States of America. In each action, Tamano has impleaded the United States as a third-party defendant.¹ In addition, Tamano has filed a direct action against the United States, Civil No. 13-184.

Presently before the Court is the motion of the United States pursuant to Fed.R.Civ.P. 12(b)(1) and (6) to dismiss all claims asserted against it by plaintiffs and Tamano,² except those asserting negligence in the buoyage of Hussey Sound or negligence in activities undertaken by the United States to contain the flow of oil from the TAMANO or to clean up the spilled oil, for which negligence the United States concedes that it may be found liable under the principle of Indian Towing Co., Inc. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955).

I Summary of the Pleadings

Plaintiffs' Claims. All plaintiffs, invoking the admiralty and maritime jurisdiction of the federal courts,³ assert liability of Tamano on theories of negligence, unseaworthiness, trespass and nuisance, and under Section 13 of the Rivers and Harbors Act of 1899, 33 U. S.C. § 407, and Section 11(b)(2) of the Water Quality Improvement Act of 1970, 33 U.S.C. § 1161(b)(2). The class action plaintiffs⁴ allege liability of the United States because of negligent buoyage, negligent containment of the oil escaping from the TAMANO and negligent cleanup of the spill. Plaintiffs seek to recover as against all defendants the damages sustained by them from the spill.

Tamano's Claims. The grounds on which Tamano bases its claims against the United States are set forth in identical counts in its third-party complaints and in its direct action. These are:

Count I. This count alleges negligence by the United States Coast Guard in the positioning and maintenance of the Hussey Sound buoy marking Soldier Ledge. The third-party complaints seek contribution and/or indemnity for all amounts for which Tamano may be found liable to the original plaintiffs. The direct action seeks not only contribution and/or indemnity, but also recovery for hull damage, loss of use and cleanup costs.

Count II. This count alleges negligence by the Coast Guard in failing to comply with the national and regional contingency plans for the removal of oil promulgated pursuant to the Water Quality Improvement Act. The third-party complaints seek contribution and/or indemnity. The direct action seeks contribution and/or indemnity, and also recovery of cleanup costs.

Count III. This count alleges negligence of the United States in the drafting of the national and regional oil contingency plans. The same damages are sought as in Count II.

Count IV. This count alleges negligence in the conduct of containment and cleanup operations undertaken by the Coast Guard. The same damages are sought as in Count II.

Count V. This count alleges breach of a warranty of workmanlike performance in the conduct of containment and cleanup operations by the Coast Guard. It seeks the same damages as in Count II.

Count VI. This count alleges that the discharge was caused solely by the negligence of the United States and seeks recovery under Section 11(i)(1) of the Water Quality Improvement Act, 33 U.S.C. § 1161(i)(1). The direct action seeks recovery of Tamano's own cleanup costs, as well as contribution and/or indemnity for cleanup costs incurred by plaintiffs for which Tamano may be found liable to them. The third-party complaints seek only contribution and/or indemnity.

Count VII. This count, which appears only in the third-party complaints, seeks, pursuant to Fed.R.Civ. P. 14(c), to hold the United States directly liable to the original plaintiffs by reason of the derelictions alleged in the first six counts.

II Jurisdiction

The parties agree that this Court has exclusive jurisdiction of these claims, except for Tamano's claim for cleanup costs, under the Suits in Admiralty and Public Vessels Acts, 46 U.S.C. §§ 741-752 and 46 U.S.C. §§ 781-790, respectively. The United States raises, however, two caveats. First, it places the plaintiffs on notice that the Admiralty Extension Act, 46 U.S.C. § 740, appears to require the filing of an administrative claim for shore damage before suit may be brought. See Hahn v. United States, 218 F.Supp. 562 (E.D.Va. 1963). Second, the United States asserts that, if Tamano's cleanup expenses are ultimately shown to have been occasioned solely by negligence of the United States, the Water Quality Improvement Act provides that the Court of Claims has exclusive jurisdiction of any suit to recover such costs. Section 11(i)(1), (n), 33 U.S.C. § 1161(i)(1), (n). Plaintiffs and Tamano contest both assertions. Because this litigation involves many claims beyond shore damage and bare cleanup costs, the Court will defer resolution of these jurisdictional issues until the issue of fault has been determined by trial.

III The Motion to Dismiss Plaintiffs' Claims

In their amended complaints, all the class action plaintiffs allege that the proximate cause of the grounding of the TAMANO was the negligence of the United States Coast Guard in positioning and maintaining the Soldier Ledge buoy, with the result that the buoy was off-station. They further allege that after the grounding the Coast Guard undertook the responsibility for containing the oil within the TAMANO and for cleaning up the oil which escaped from the TAMANO, and that the proximate cause of the escape and spread of oil from the TAMANO was the negligence of the Coast Guard in the conduct of its containment and cleanup operations. Plaintiffs seek recovery of their resulting damages on Indian Towing principles. In Civil No. 13-111, plaintiffs assert that the United States is also liable to them under Section 13 of the Rivers and Harbors Act and Section 11(b)(2) of the Water Quality Improvement Act.

Liability of the United States on Indian Towing Principles

If the grounding of the TAMANO was caused by negligence of the Coast Guard in positioning and maintaining the Soldier Ledge buoy, or if the Coast Guard undertook responsibility for stemming the flow of oil from the TAMANO and for the cleanup operation, and the Coast Guard negligently discharged such assumed responsibilities, it is clear, as the United States concedes, that the United States may be found liable for any resulting damage on Indian Towing principles. Indian Towing Co. v. United States, supra; Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957); United States v. Sandra & Dennis Fishing Corp., 372 F.2d 189 (1st Cir.), cert. denied, 389 U.S. 836, 88 S.Ct. 52, 19 L. Ed.2d 98 (1967); Afran Transport Co. v. United States, 309 F.Supp. 650 (S.D. N.Y.1969), aff'd, 435 F.2d 213 (2d Cir. 1970); Kommanvittselskapet Harwi (R. Wigand) v. United States, 305 F.Supp. 882 (E.D.Pa.1969), aff'd, 467 F.2d 456 (3rd Cir. 1972), cert. denied, 411 U.S. 931, 93 S.Ct. 1898, 36 L.Ed.2d 391...