Intern. Marine Carriers v. OIL SPILL LIAB. TRUST

• Decision Date: 18 July 1994
• Docket Number: Civ. A. No. H-93-2328.
• Citation: 1995 AMC 2072,903 F. Supp. 1097
• Parties: INTERNATIONAL MARINE CARRIERS, Plaintiff, v. The OIL SPILL LIABILITY TRUST FUND (also known as, The National Oil Pollution Fund), Defendant.
• Court: U.S. District Court — Southern District of Texas

903 F. Supp. 1097

1995 AMC 2072

INTERNATIONAL MARINE CARRIERS, Plaintiff, v. The OIL SPILL LIABILITY TRUST FUND (also known as, The National Oil Pollution Fund), Defendant.

Civ. A. No. H-93-2328.

United States District Court, S.D. Texas, Houston Division.

July 18, 1994.

COPYRIGHT MATERIAL OMITTED

Mark Cohen, Royston Rayzor Vickery & Williams, Houston, TX, for International Marine Carriers.

Gordon Speights Young, U.S. Attorneys Office, Houston, TX, Keith B. Letourneau, U.S. Dept. of Justice, Washington, DC, Eleanor A. Robinson-Gaither, Asst. U.S. Atty., Houston, TX, for Oil Spill Liability Trust Fund.

Keith B. Letourneau, U.S. Dept. of Justice, Washington, DC, for the U.S.

MEMORANDUM AND ORDER

ROSENTHAL, District Judge.

Plaintiff International Marine Carriers ("IMC") filed this suit appealing the denial of its claim for reimbursement of "removal costs" incurred under the Oil Pollution Act of 1990 ("OPA"), 33 U.S.C.A. §§ 2701, et seq. Pending before this court is a motion to dismiss under Rule 12(b)(1) filed by the United States (Docket Entry No. 6); IMC's motion for summary judgment or, alternatively, motion to remand to the agency for reconsideration (Docket Entry Nos. 12 and 13); and a cross-motion for summary judgment filed by the United States (Docket Entry No. 16). After careful review of the facts, the parties' submissions, and the applicable authority, the court DENIES the motion to dismiss and DENIES IMC's motion for summary judgment. The United States's motion for summary judgment is GRANTED, and this case is dismissed.

I. Background

On March 9, 1990, plaintiff IMC and the Department of the Navy entered into a contract under which IMC agreed to operate naval vessels, including the USNS SEALIFT ATLANTIC, on behalf of the United States Military Command. IMC also agreed to indemnify the United States for any oil pollution liability less than $100,000,000 which arose from its operation of the USNS SEALIFT ATLANTIC ("indemnity agreement").¹ (Docket Entry No. 6).

On April 13, 1991, IMC moored the USNS SEALIFT ATLANTIC at the Amerada Hess Terminal on the Houston Ship Channel to load jet and bunker fuels. The jet fuel was loaded without incident. Before transferring the bunker fuel, Jerry W. Stokes ("Stokes"), a dockman for the Amerada Hess Corporation, ("Amerada Hess"), and Allen H. Goings ("Goings"), Chief Engineer of the USNS SEALIFT ATLANTIC, executed a Declaration of Inspection. It is undisputed that the parties agreed that the USNS SEALIFT ATLANTIC would be loaded with a total of 3,000 barrels of bunker fuel at a rate of 1,500 barrels per hour. Transfer of the bunker fuel was to be performed in accordance with the Declaration, the Amerada Hess Terminal manual, and applicable regulations. The actual transfer of bunker fuel exceeded 3,000 barrels. Approximately twelve (12) barrels of bunker fuel spilled from the starboard fuel tank of the USNS SEALIFT ATLANTIC into the Houston Ship Channel. IMC, in accordance with the OPA oil spill response requirements, remediated the spilled bunker fuel, and paid cleanup costs in excess of $49,000.

On July 31, 1991, the Coast Guard issued the Amerada Hess Terminal a letter, faulting it for an untimely response to the spill. The Coast Guard also initiated a license revocation proceeding against Goings for negligent supervision of the bunker fuel transfer. On December 16, 1991, an Administrative Law Judge ("ALJ") issued an Opinion finding that Goings was not negligent in performing his duties as chief engineer and dismissing the license revocation proceeding against Goings with prejudice. (Docket Entry No. 1; Ex. B at 21). The Opinion also stated that during the fuel transfer procedure, Stokes negligently left the Amerada Hess Terminal dock shack for more than five minutes without first notifying Goings of his intent to leave and without establishing any means of communicating with Goings or the USNS SEALIFT ATLANTIC. Id.

On December 26, 1991, IMC filed a claim with the Coast Guard, National Pollution Funds Center, pursuant to section 2713 of the OPA. The claim sought reimbursement from the Oil Spill Liability Trust Fund (the "Fund") of $49,048.19, IMC's OPA "removal costs." (Docket Entry No. 1, Ex. C). On March 3, 1992, the Fund denied IMC's claim on the ground that IMC could not assert any third-party defense to liability under OPA section 2703. (Docket Entry No. 1, Ex. D). IMC did not dispute that it is an OPA "responsible party."

IMC appealed the denial of its claim on April 21, 1992. (Docket Entry No. 1, Ex. E). Commander Richard Cool, on behalf of the Fund, denied IMC's appeal in an Opinion Letter dated December 16, 1992. That letter found that IMC failed to establish a section 2703 defense, in part because there was a contractual relationship between IMC and the Amerada Hess Terminal. (Docket Entry No. 1; Ex. F).

On July 28, 1993, IMC filed suit over this final agency action. The complaint asserts jurisdiction under section 2717(b) of the OPA and section 10(a) of the Administrative Procedure Act ("APA"), 5 U.S.C. § 702. IMC seeks reimbursement of $50,043.19 for "costs associated with the cleanup of the spill"; attorney's fees as provided by the Equal Access to Justice Act, 28 U.S.C. § 2412; and interest and costs.

The defendant Fund filed a motion to dismiss under Rule 12(b)(1), asserting five grounds: (1) sovereign immunity bars IMC's claim against the Fund/United States; (2) the Fund is not a proper party defendant; (3) IMC lacks standing because its indemnity agreement with Amerada Hess precludes recovery; (4) IMC's claim is not ripe because the Contract Disputes Act governs the determination whether the indemnity agreement bars reimbursement from the Fund; and (5) the USNS SEALIFT ATLANTIC is a public vessel excluded from the OPA reimbursement scheme. Defendant also sought summary judgment on the ground that the action of the agency in denying IMC's claim was not arbitrary, capricious, or an abuse of discretion.

IMC filed a motion for summary judgment or, alternatively, motion to remand to the agency for reconsideration on two grounds: (1) IMC is entitled to assert the OPA section 2703 third-party defense because no contractual relationship existed between it and the Amerada Hess Terminal at the time of the discharge; and (2) the United States Navy-IMC contract was outside the agency record and therefore irrelevant to IMC's claim for reimbursement.

II. Standard of Review

A federal court will dismiss a case for "lack of jurisdiction over the subject matter." Fed.R.Civ.Pr. 12(b)(1). Under Rule 12(b)(6), "a claim may not be dismissed unless it appears certain that the plaintiff cannot prove any set of facts in support of her claim which would entitle her to relief." Benton v. United States, 960 F.2d 19, 21 (5th Cir.1992); Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). In a motion to dismiss, the allegations of the complaint must be accepted as true, Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081-82, 31 L.Ed.2d 263 (1972), and the complaint construed favorably to the pleader, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).

Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. A fact is "material" if its resolution in favor of one party might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. An issue is "genuine" if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. If the evidence rebutting the motion for summary judgment is only colorable or not significantly probative, summary judgment should be granted. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511; see Lewis v. Glendel Drilling Co., 898 F.2d 1083, 1088 (5th Cir.1990), cert. denied, 502 U.S. 857, 112 S.Ct. 171, 116 L.Ed.2d 134 (1991).

Under Fed.R.Civ.P. 56(c), the moving party bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Leonard v. Dixie Well Serv. & Supply, Inc., 828 F.2d 291, 294 (5th Cir.1987).

Where the moving party has met its Rule 56(c) burden, the nonmovant must come forward with "`specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1356 (quoting Fed.R.Civ.P. 56(e)) (emphasis in original); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Leonard, 828 F.2d at 294. To sustain the burden, the nonmoving party must produce evidence admissible at trial. Anderson, 477 U.S. at 255, 106 S.Ct. at 2514; Thomas v. Price, 975 F.2d 231, 235 (5th Cir.1992). In deciding a summary judgment motion, "the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. If reasonable minds can differ regarding a genuine issue of material fact, summary judgment should not be granted. Anderson, 477 U.S. at 250-51, 106 S.Ct. at 2511.

III. Defendant Fund's Motion to Dismiss

IMC asserts subject matter jurisdiction under section 2717(b) of the OPA and section 10(a) of the APA, 5 U.S.C. § 702. IMC contends that OPA section 2712, 2713(e), or 2715, and APA section 10(c), waive sovereign immunity for actions seeking review of denial of claims against the Fund. The Fund concedes...