Parsell v. Shell Oil Co.

• Decision Date: 19 October 1976
• Docket Number: Civ. No. B-700.
• Citation: 421 F. Supp. 1275
• Court: U.S. District Court — District of Connecticut
• Parties: Walter PARSELL et al. v. SHELL OIL COMPANY et al.

421 F. Supp. 1275

Walter PARSELL et al. v. SHELL OIL COMPANY et al.

Civ. No. B-700.

United States District Court, D. Connecticut.

October 19, 1976.

Daniel Shepro, Bridgeport, Conn., George G. Kilarjian, New York City, for plaintiffs.

G. Whitney Biggs, Bridgeport, Conn., for defendants.

RULING ON MOTION TO STRIKE DEMAND FOR JURY TRIAL

NEWMAN, District Judge.

Defendants' motion to strike plaintiffs' jury demand in this oil spill case raises important questions concerning the availability of federal jurisdiction for water pollution claims. The plaintiffs in this action claim damages for injuries arising out of an oil spill in Bridgeport harbor in 1970. The complaint alleges that while a cargo of oil was being pumped off a cargo ship to a terminal operated by the defendant Buckley Bros., an improper alignment of a valve caused a discharge of 655,000 gallons of oil into the navigable water of the harbor.

A previous motion to dismiss for lack of federal jurisdiction has been denied, the magistrate finding that whatever other bases of jurisdiction may exist, the complaint at least alleged a cause of action in admiralty. Further consideration of available bases of federal jurisdiction is now required by defendant's motion to strike the demand for a jury trial. For if the sole basis for federal jurisdiction is admiralty, the plaintiffs have no right to a jury trial, while if a separate and independent basis for federal jurisdiction exists to support a claim for damages at law, the jury demand must be honored.¹ Fed.R.Civ.P. 28; 7A Moore's Federal Practice ¶ 0.593. Since there is no diversity of citizenship, it is necessary to examine plaintiffs' claim that jurisdiction may be founded on 28 U.S.C.A. § 1331.

Section 1331 clearly does not provide federal question jurisdiction for an admiralty claim, Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). Plaintiffs argue, however, that they have stated a cause of action arising under the laws of the United States within the meaning of § 1331 for two separate reasons. First, they assert that they have an implied federal civil remedy under § 13 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C.A. § 407. Second, they argue that they have a claim arising under a federal common law of water pollution, which may be recognized for the purpose of § 1331 under the doctrine of Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972).

Do the plaintiffs have an implied private right of action under 33 U.S.C.A. § 407?

The federal statute that plaintiffs allege affords them a basis for federal jurisdiction makes it unlawful to discharge refuse matter into navigable waters.² Although private parties have brought suits under § 407 and companion sections of the Rivers and Harbors Appropriation Act, their success in previous cases is not controlling on the present issue. Many of the cases invoking § 407 were brought in admiralty and thus did not require consideration of whether a federal question claim at law existed.³ In general these cases invoked the Act to support a standard of care rather than to provide a cause of action arising under federal law.

The cases finding a private right of action under other sections of the Rivers and Harbors Appropriation Act⁴ are not controlling on the question of the existence of such a right under § 407. The statutory provisions involved in these cases, 33 U.S. C.A. §§ 401, 403, and 406, contain an express grant of jurisdiction to the district courts to grant injunctive relief for violations of those provisions. The absence of such a remedy in § 407 renders these cases doubtful authority for finding an implied right of action under this provision.

With the recent growth of environmental litigation in the federal courts, attempts to find some sort of private right of action implied under the 1899 statute have increased.⁵ Our circuit left this disputed issue open in Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81 (2d Cir. 1972). But other cases that have recognized or denied a private right of action under federal regulatory statutes shed light on whether such a right can be found in § 407. See, e. g., J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964); Reitmeister v. Reitmeister, 162 F.2d 691 (2d Cir. 1947); Fischman v. Raytheon Mfg. Co., 188 F.2d 783 (2d Cir. 1951); Fitzgerald v. Pan American World Airways, 229 F.2d 499 (2d Cir. 1956); Colonial Realty Corp. v. Bache & Co., 358 F.2d 178 (2d Cir. 1966); Ivy Broadcasting Co. v. American Telephone & Telegraph Co., 391 F.2d 486 (2d Cir. 1968). These cases set forth a general doctrine "which, in the absence of contrary implications, construes a criminal statute, enacted for the protection of a specified class, as creating a civil right in members of the class, although the only express sanctions are criminal." Reitmeister v. Reitmeister, supra at 694. But they also make clear that "contrary implications" may be found in "the nature of the particular rule and its place in the regulatory scheme." Colonial Realty Corp. v. Bache & Co., supra at 182. The Supreme Court set forth the proper standards for judging a particular statute in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975):

In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff "one of the class for whose especial benefit the statute was enacted," — that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? citations omitted.

Consideration of the statute in light of these criteria makes it clear that even though the statute explicitly condemns certain conduct, Congress intended to place responsibility for its enforcement somewhere other than in private hands.

Section 407, which makes discharge of refuse illegal, must be read together with the companion sections of the Rivers and Harbors Appropriation Act providing for enforcement. Section 411 of the Act provides that a violation of § 407 shall be punished by fine or imprisonment or both, and also provides that one-half of such fine shall be paid to the person or persons giving information leading to conviction.⁶ Section 413 of the Act makes it the duty of the Department of Justice to enforce the Act and the duty of United States attorneys to prosecute whenever requested to do so by certain designated officials.⁷ This statutory scheme evinces an intent to lodge enforcement responsibility solely in the Department of Justice, which can make discretionary prosecutorial decisions taking into account the effects of other federal water quality legislation.⁸ Congress has not authorized "private attorneys-general" to enforce this section. For this reason every court which has considered the question has denied to private plaintiffs the right to bring an action under the Act to recover in a qui tam action the percentage of the fine which they might have been entitled to receive as informers if an offense had been prosecuted to conviction.⁹ Our circuit has taken this position in Connecticut Action Now, Inc. v. Roberts Plating Co., supra, stating: "It is hard to look at the statutory pattern except as a mandate that the Federal Government is to be the initiator of the proceeding." 457 F.2d at 85. See also Hooper v. United States, 331 F.Supp. 1056 (D.Conn.1971); Morris v. Tennessee Valley Authority, 345 F.Supp. 321 (N.D.Ala.1972).

While the Second Circuit reserved decision on the question of a private right of action for compensatory damages, its reasoning on the issue of a private suit for the informer's half of the fine is persuasive as to damages as well. Many of the persons in possession of information that could help the Government convict violators would be injured persons as well. If they could bring their own private suit for compensation, it would seem to follow that the informer's reward should be granted in the same proceeding, since all issues of law and fact with the exception of burden of proof would be the same or closely related. Yet it is the unanimous opinion of the federal courts that have considered the question that the Department of Justice must be the initiator of the proceeding. The informer's status as injured person has not enhanced his rights under the statute.¹⁰

Several courts have directly confronted the question of an implied right of action in favor of a private party personally injured by a violation of § 407. Guthrie v. Alabama By-Products Co., 328 F.Supp. 1140 (N.D.Ala.1971), aff'd, 456 F.2d 1294 (5th Cir. 1972), cert. denied, 410 U.S. 946, 93 S.Ct. 1352, 35 L.Ed.2d 613 (1973); Lavagnino v. Porto-Mix Concrete, Inc., 330 F.Supp. 323 (D.Colo.1971); and Chambers-Liberty Counties Navigation District v. Parker Bros. & Co., 263 F.Supp. 602 (S.D.Tex.1967),¹¹ declined to find a private right of action under § 407, at least where the allegations of the complaint did not include obstruction of navigation. Justification for limiting any private right of action to cases involving navigation was found in the legislative history of the 1899 Act. As in these cases, there is no allegation of obstruction of navigation in the present case.¹²

Under the standards set by the Supreme Court in Cort v. Ash, supra, it would be inappropriate to find a private right of action implied under § 407 of the Rivers and Harbors Appropriation Act of 1899. The "class for whose especial benefit ...