Chronos Shipping v. U.S. Coast Guard
| Decision Date | 13 March 1997 |
| Docket Number | Civil Action No. 96-5122. |
| Citation | 957 F.Supp. 667 |
| Parties | CHRONOS SHIPPING, et al., Plaintiffs, v. UNITED STATES COAST GUARD, Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Ann-Michele Higgins, Rawle & Henderson, Philadelphia, PA, for plaintiffs.
Mee Lon Lam, U.S. Dept. of Justice, Torts Branch, Washington, DC, for defendant.
AND NOW, this 13th day of March, 1997, upon consideration of Plaintiff's Motion for Summary Judgment, defendant's Motion for Summary Judgment, and the responses thereto, it is hereby ORDERED that the plaintiff's Motion is DENIED and the defendant's Motion is GRANTED.
On November 17, 1994, the Master of the M/V ARGONAFTIS, Captain Dovas, requested permission from the United States Coast Guard to proceed from Big Stone Anchorage, Delaware, up the Delaware River to the SUN Refinery at Marcus Hook, Pennsylvania to unload the rest of its cargo. R.O. at 168-170; R.M. at 195-197.1 The vessel's Tank Vessel Examination (TVE) Letter had expired. Id. Dovas assured the Coast Guard that all the ship's vital signs were satisfactory and that there were no known deficiencies; the Coast Guard then granted Dovas' request to travel up the Delaware River and receive its Tank Vessel Examination at the SUN Refinery. Id.
On November 21, 1994, the Coast Guard conducted the TVE on the vessel. Id. Before the Coast Guard began this examination, Dovas told the Coast Guard that there was a crack in the sideshell of the number four starboard wing tank. Id. Dovas told the Coast Guard that he had seen the crack while he was at Big Stone Anchorage. Id. A representative of plaintiff Chronos Shipping, the superintendent, was also present. He stated that he was made aware of the crack at 4 a.m. on November 21, 1994 when he was notified by Dovas. Id. Dovas did not notify the Coast Guard because he thought the superintendent would; the superintendent did not do so because he knew the Coast Guard would soon be on board to conduct the TVE. Id.
The Coast Guard eventually imposed civil penalties against both Dovas and Chronos for violating 33 C.F.R. § 160.215 which provides that
[w]henever there is a hazardous condition either aboard a vessel or caused by a vessel or its operation, the owner, agent, master, operator, or person in charge shall immediately notify the nearest Coast Guard Marine Safety office or Group office.
This regulation is promulgated pursuant to the Ports and Waterways Safety Act, which allows for civil penalties up to $25,000 to be assessed for each violation. See 33 U.S.C. § 1232(a); 33 C.F.R. § 160.1. The civil penalty assessed against Chronos was $10,000; the amount assessed against Dovas was $20,000. R.O. at 99-100; R.M. at 159-160.
Plaintiffs instituted this action, arguing that Chronos' and Dovas' failure to report the crack was a single violation for which a maximum penalty of $25,000 should have been assessed and that assessing more than $25,000 total was arbitrary and capricious, violated due process, and constituted Double Jeopardy. In Count II, plaintiffs contend that Chronos was the operator not the owner of the ship, and therefore, the regulation does not apply to it. The parties have filed cross-motions for summary judgment. For the reasons stated below, the defendant's motion is granted.
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). At the summary judgment stage, the court does not weigh the evidence and determine the truth of the matter. Rather, it determines whether or not there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The moving party has the burden of showing there are no genuine issues of material fact, Gans v. Mundy, 762 F.2d 338, 340-41 (3d Cir.1985), and, in response, the non-moving party may not rely merely upon bare assertions, conclusory allegations, or suspicions. Fireman's Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir.1982).
This court has jurisdiction pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 702. While the APA does not provide an independent grant of jurisdiction, the APA in combination with 28 U.S.C. § 1331 provides jurisdiction for this court to review the constitutionality of the Coast Guard's actions. See Lawrence v. United States, 631 F.Supp. 631, 638 (E.D.Pa.1982); see also Virgin Islands Hous. Auth. v. Coastal Gen. Constr. Servs. Corp., 27 F.3d 911, 915 (3d Cir.1994) ().
This court, however, does not have jurisdiction under the Ports and Waterways Safety Act, 33 U.S.C. § 1221 et seq., as the plaintiffs contend. See Am.Compl. ¶ 3. Plaintiffs contend that this court has jurisdiction pursuant to 33 U.S.C. § 1232(d). Section 1232(d) provides:
(d) Injunctions
The United States district courts shall have jurisdiction to restrain violations of this chapter or of regulations issued hereunder, for cause shown.
The plain language of the provision clearly indicates that this section gives district courts jurisdiction to enjoin those who violate Coast Guard regulations — not those who contest the Coast Guard's assessment of civil penalties against them. Indeed, if there was to be a grant of jurisdiction within the PWSA for review of this sort of action, it should be found within § 1232(a) — the civil penalty provision. No such grant can be found within that section. Indeed, in a different factual context, the Third Circuit has held that the PWSA does not contain a waiver of sovereign immunity and thus does not create a private remedy. See Patentas v. United States, 687 F.2d 707, 712 (3d Cir.1982). The court noted that the civil and criminal penalty provisions "do not suggest that a private remedy is available." Id.
Plaintiffs contend that the APA does not apply, citing to United States v. Florida East Coast Ry., 410 U.S. 224, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973), United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 92 S.Ct. 1941, 32 L.Ed.2d 453 (1972), and United States v. Independent Bulk Transp., Inc., 480 F.Supp. 474 (S.D.N.Y.1979). Their reliance on these cases is misplaced. These cases held that the stricter procedural requirements of §§ 556 and 557 of the APA do not apply in the absence of specific statutory language. For example, in Independent Bulk, the plaintiff argued that the adjudicatory proceeding was not in accordance with these sections of the APA. 480 F.Supp. at 476. The district court held that these sections were inapplicable because "another statute [did not require] that they be utilized." Id. at 477. The district court still reviewed the Coast Guard's adjudication to ensure that it was neither arbitrary nor capricious. Id. at 476; see also Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574-75 (10th Cir.1994) (). This court may also review the Coast Guard's actions, and under the cases cited by plaintiff, it may not hold the Coast Guard to the stricter procedural standards mandated by §§ 556 and 557.
In reviewing the Coast Guard's actions, this court shall "hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In making this determination, the court must consider whether there has been a clear error in judgment and whether the decision was based upon consideration of all the relevant factors. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Id.
An agency's interpretation of its own regulations is entitled to "substantial deference." Olenhouse, 42 F.3d at 1575. Under 5 U.S.C. § 706(2)(B), this court may also review the constitutionality of the Coast Guard's actions. This review is de novo. Bennett v. National Transp. Safety Bd., 66 F.3d 1130, 1136 (10th Cir.1995); Western Energy Co. v. United States Dept. of the Interior, 932 F.2d 807, 809 (9th Cir.1991).
Plaintiffs contend that the regulation is unconstitutionally vague as "hazardous condition" is not defined, and therefore, they did not have adequate notice of what would constitute a violation of the regulation. See 33 C.F.R. § 160.215 ().
"Hazardous condition" is defined within the regulations, however. 33 C.F.R. § 160.203 defines "hazardous condition" as
any condition that may adversely affect (1) the safety of any vessel, bridge, structure, or shore area or (2) the environmental quality of any port, harbor, or navigable waterway of the United States. It may — but need not — involve collision, allision, fire, explosion, grounding, leaking, damage or injury or illness of a person aboard, or manning-shortage.
Thus, plaintiffs are simply incorrect in their assertion that the term is not defined.
Moreover, the term, "hazardous condition," as defined by the regulations, passes constitutional muster. The purpose of the void for vagueness doctrine is to ensure that a statute or standard gives "fair warning" of what constitutes prohibited conduct. See San Filippo v. Bongiovanni, 961 F.2d 1125, 1135 (3d Cir.1992). "[A] statute which...
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Wilmina Shipping As v. U.S. Dep't of Homeland Sec.
...authorizes the Coast Guard to order a vessel to anchor pending correction of deficiencies. They also cite Chronos Shipping v. U.S. Coast Guard, 957 F.Supp. 667, 669 (E.D.Pa.1997), which upheld the imposition of civil penalties for a violation of the PWSA for failure to report a cracked hull......