In re Oil Spill by" Amoco Cadiz" Off Coast of France
| Decision Date | 17 October 1979 |
| Docket Number | MDL No. 376,No. 78 C 3693,79 C 2774 and 79 C 2775.,78 C 3693 |
| Citation | 491 F. Supp. 161 |
| Parties | In re OIL SPILL BY the AMOCO CADIZ OFF the COAST OF FRANCE ON MARCH 16, 1978. In the Matter of the COMPLAINT of AMOCO TRANSPORT COMPANY, Standard Oil Company (Indiana), Amoco International Oil Company, and Claude Phillips, for Exoneration from or Limitation of Liability. The REPUBLIC OF FRANCE, Plaintiff, v. STANDARD OIL COMPANY (Indiana) and Amoco International Oil Company, Defendants. CONSEIL GENERAL DES COTES DU NORD, et al., Plaintiffs, v. STANDARD OIL COMPANY (Indiana) et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
COPYRIGHT MATERIAL OMITTED
Frank Cicero, Jr., Samuel A. Haubold, Sydney Bosworth McDole, James A. Goold, Lawrence E. Strickling, Kirkland & Ellis, Chicago, Ill., for Amoco Transport Co., Standard Oil Co. (Indiana), Amoco International Oil Co., and Claude Phillips.
Donald M. Haskell, Warren J. Marwedel, Haskell & Perrin, Chicago, Ill., for the Commune of Ploughnerneau, and The Republic of France.
Warren Ingersoll, Lord, Bissell & Brook, Chicago, Ill., for Conseil Gen. Des Cotes Du Nord.
Edwin Longcope, Hill, Betts & Nash, New York City, for The Republic of France.
Counterclaims and/or third-party claims have been filed in several of the cases consolidated under multidistrict litigation docket number MDL 376. In Amoco Transport Company's limitation action, 78 C 3693, Amoco filed a counterclaim and third-party claim against the Republic of France on November 21, 1978, and against numerous French departments and communes on February 28, 1979.
In case number 79 C 2774, Amoco International Oil Company filed a counterclaim against the Republic of France on July 13, 1979. On July 23, 1979, Amoco International attempted to file the same counterclaim and a third-party claim against the Republic of France. Because the civil docket clerk noticed that the counterclaim had previously been filed, she did not file and docket the combined counterclaim and third-party claim on that date. This administrative contretemps, of course, in no way will affect the court's determination of the motion to dismiss the counterclaims and third-party claims. To remedy the error, the court will grant defendants in 79 C 2774 leave to file an amended counterclaim and a third-party claim nunc pro tunc July 23, 1979. The pleading proferred on July 23, 1979 to the docket clerk does not serve this purpose because it is not entitled "amended counterclaim and third-party claim".
In case number 78 C 2775, a third-party claim was filed by Amoco International against the Republic of France on July 13, 1979.
In summary, the state of the pleadings in 78 C 3693, 79 C 2774 and 79 C 2775 is as follows:
78 C 3693
Limitation plaintiff - Amoco Transport Co
Counter-plaintiff - Amoco Transport Co
Third-party plaintiff - Amoco Transport Co
Claimants - Numerous French communes
departments, organizations
and individuals
Third-party defendants
counter-defendants - The Republic of France and
numerous political subdivisions
79 C 2774
Plaintiffs - Republic of France, Department
of Finistere, numerous communes
Counter-defendant - Republic of France
Third-party defendant - Republic of France
Defendants - Amoco International, Standard
Oil (Indiana)
Counter-plaintiff - Amoco International
Third-party plaintiff - Amoco International
79 C 2775
Plaintiffs - Conseil General and numerous
communes
Defendants - Standard Oil (Indiana), Amoco
International, Amoco Transport,
Claude Phillips, Royal Dutch
Shell, Shell Industrial
Petroleum Co.
Third-party plaintiff - Amoco International
Third-party defendant - Republic of France
I A.
The counterclaims and third-party claims have a common factual basis. They seek indemnity and contribution under Rules 13 and 14, Fed.R.Civ.P. The allegations of these pleadings are as follows:
First, the Republic of France negligently failed to establish and to implement an effective and tested oil spill contingency plan. Second, the Republic of France knew by March 17, 1978, that an accident involving an oil tanker created potential for pollution, but took no effective initiatives to prevent such accidents. Although it assumed the responsibility for containment and cleanup, the Republic failed to protect the private parties and public entities suing here. In some instances, it is alleged, France and the other movants failed to take any action whatsoever in discharge of their duties.
Third, the counterclaims state that, when France and the other third-party and counter-defendants did act, they did so negligently. The counterclaims and third-party claims detail with some specificity the acts which are alleged to be the basis of liability between Amoco Transport and France.
Finally, the counterclaims conclude that, once assuming the responsibility or duty to contain and to clean up the oil spill, France discharged the duty in a negligent manner, causing or aggravating damages. The third-party claims conclude that, under Rule 14(c), the Republic of France and the other third-party defendants should be impleaded and compelled to defend directly against the claims filed against the Amoco parties.
The Republic of France and the other third-party and counter-defendants have responded by filing a motion to dismiss the counterclaims and the third-party claims. In support, movants state that the "claims" are only defenses to claims and not bases for the imposition of liability. Second, the motion states that the court lacks subject matter jurisdiction over the counterclaims and third-party claims as a result of the immunity conferred by the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1602 et seq., and because there has been no waiver of such immunity. Third, France, et al., contend that Rule 14(c) is inapplicable because France is already a party to these proceedings and thus cannot be impleaded. Finally, as an affirmative defense, movants contend that the pleadings filed against them fail to state a claim. An additional affirmative defense is based upon the Act of State Doctrine.
The first group of arguments for dismissal are addressed to both the counterclaims and the third-party claims. The Republic of France, et al., contend that their alleged failure to mitigate damages and acts which allegedly exacerbated or aggravated damages cannot be the basis of liability. Amoco, however, does not allege merely the failure to mitigate damages. Rather, it claims that counter-defendants and thirdparty defendants caused such damages to themselves, Amoco and other claimants. The elements of duty, breach, causation and damage are present. Thus, a cause of action in negligence for indemnification and contribution is stated.
In support of its position, the Republic of France cites Burgess v. M/V Tamano, 382 F.Supp. 351 (D.Me.1974), rev'd on other grounds, 564 F.2d 964 (1st Cir. 1977). In Tamano, the court dismissed a third-party complaint filed by the ship owner against the State of Maine, holding that, absent the allegation of a statutory or other source of duty, the state was not liable in tort for its actions with respect to cleanup operations after an oil spill. However, France fails to cite the full case history of Tamano, in which the court held that defendant did allege a duty and state a claim against the United States. 373 F.Supp. 839 (D.Me. 1974), aff'd, 559 F.2d 1200 (1st Cir. 1977); see ABA Code of Professional Responsibility E.C. 7-23, D.R. 7-102(A)(2), (3); see also D.R. 7-106(B)(1).
Contrary to France's representation that the situation regarding the State of Maine in Tamano is analogous to this case, that regarding the United States in Tamano is without question more analogous, even to the point of congruency and, in fact, supports Amoco's position.
Therefore, in light of the practice in admiralty to adjudicate all claims in one forum and the spirit of the Federal Rules of Civil Procedure permitting liberal joinder of claims and parties, this court finds that the counterclaims and third-party claims state cognizable causes of action for contribution and indemnification.
II B.
Next, the movants argue that a claim for contribution is not mature and cannot be asserted by counterclaim under Rule 13. While it is true that courts have held that, the right to contribution does not mature unless and until one has been compelled to pay damages in excess of his proportionate share under a comparative negligence theory, Stahl v. Ohio River Co., 424 F.2d 52 (3d Cir. 1970); Goldlawr, Inc. v. Schubert, 268 F.Supp. 965 (E.D.Pa.1967); Slavics v. Wood, 36 F.R.D. 47 (E.D.Pa.1964); the recent trend, and the more pragmatic approach, has been to permit counterclaims for contribution; Lynch v. Sperry Rand Corp., 62 F.R.D. 78 (S.D.N.Y.1973); Gilbert v. General Electric Company, 59 F.R.D. 267 (E.D.Va.1973); Atlantic Aviation Corporation v. Estate of Costas, 332 F.Supp. 1002 (E.D.N.Y.1971).
"This approach seems sound when as here the counterclaim is based on pre-action events and only the right to relief depends upon the outcome of the main action." 6 C. Wright and A. Miller, Federal Practice and Procedure, § 1411 p. 57 (1971) (hereinafter, "Wright and Miller").
Therefore, the court finds that the counterclaims state claims which may be asserted presently without waiting until after counterclaimant's liability is fixed.
II C.
The Republic of France next contends a third-party complaint under Rule 14(c) cannot be filed...
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