Power Authority of New York v. Tug M/V ELLEN S. BOUCHARD
| Decision Date | 27 March 2019 |
| Docket Number | 14 Civ. 4462 (PAC) |
| Citation | 377 F.Supp.3d 230 |
| Parties | POWER AUTHORITY OF the State of NEW YORK, Plaintiff, v. The TUG M/V ELLEN S. BOUCHARD, and the Barge B. No. 280, their engines, apparel, tackle, Boats, appurtenances, etc. in rem, and Bouchard Transportation Co., Inc., Motor Tug Ellen S. Bouchard, Inc. and B. No. 280 Corp, in personam, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Francis Robert Denig, Vincent J. Foley, Clayton Joseph Vignocchi, James H. Hohenstein, Holland & Knight LLP, New York, NY, for Plaintiff.
Gina Maria Venezia, Jan Petter Gisholt, John Joseph Walsh, Wayne D. Meehan, Freehill, Hogan & Mahar, LLP, New York, NY, for Defendants.
On January 6, 2014, Captain Daniel Yates was navigating the Motor Tug Ellen S. Bouchard (the "Tug") and Barge B. No. 280 (the "Barge"), owned by Bouchard Transportation Co., Inc., and B. No. 280 Corp (collectively, "Bouchard" or "Defendant"), in Long Island Sound. He decided to anchor in Hempstead Harbor, but Yates misread the navigation chart and negligently ordered the Barge to drop its 6,000-pound anchor in a cable area clearly shown in the chart.1 It is alleged that the drop of the Barge's anchor caused a rupture in a submarine cable (the "Cable") which in turn caused dielectric fluid to leak into Long Island Sound.
The Power Authority of the State of New York ("NYPA"), the owner of the Cable, responded to the leak by promptly notifying local and federal regulatory authorities and deploying an environmental response team to halt the leaking, remove the fluid from the water, and take measures to protect the surrounding environmental and coastal areas. The leaking of dielectric fluid, although significantly minimized by January 28, 2014, was not completely halted until February 27, 2014. NYPA bore all of the costs of this ongoing environmental response.
NYPA and Bouchard have various related proceedings before this Court. In this action, NYPA seeks spill response damages from Bouchard pursuant to the Oil Pollution Act, 33 U.S.C. §§ 2701 et seq. ("OPA") and the New York Oil Spill Laws, N.Y. Nav. Law §§ 170 et seq. ("NYOSL"). Bouchard also seeks to limit its liability to the value of the Tug and Barge and pending freight in a related proceeding pursuant to the Limitation of Liability Act, 46 U.S.C. §§ 30505 and 30511 (the "Limitation Act"). See 14-cv-1262 (the "Limitation Proceeding"). Although the commencement of a suit filed under the Limitation Act usually stays or enjoins all related claims against the Limitation plaintiff, Bouchard and NYPA stipulated that NYPA could pursue its OPA and NYOSL claims in this separate proceeding, without prejudice to any potential defenses raised by Bouchard. See 14-cv-1262, Dkt. 48.
The parties now cross-move for summary judgment. Bouchard moves for summary judgment dismissing all claims asserted under OPA and directing NYPA to pursue its remaining spill response claims within the Limitation Proceeding. NYPA moves for declaratory relief that: (1) the liability provisions of the OPA apply to the subject discharge of oil; (2) NYPA has established a complete defense to liability pursuant to 33 U.S.C. § 2703(a) ; (3) Bouchard is the liable third party and is the responsible party under OPA with regard to the subject discharge of oil pursuant to 33 U.S.C. § 2702(d) ; and (4) Bouchard is liable for all of NYPA's removal costs and damages, as defined by OPA and in an amount to be determined by the Court. Bouchard also moves in both this action and the Limitation Proceeding for partial summary judgment finding NYPA comparatively negligent under the spoliation doctrine for an alleged failure to accurately measure the Cable depth.
For the reasons that follow, Bouchard's motion dismissing all claims under OPA and ordering NYPA to pursue its NYOSL claim in the Limitation Proceeding is GRANTED and NYPA's motion is DENIED. Because the Court dismisses NYPA's OPA claims and directs NYPA to pursue its NYOSL in the related Limitation Proceeding, Bouchard's spoliation motion as it relates to this action is DENIED as moot.
The Court assumes familiarity with the details of the January 6, 2014 incident (the "Incident"), discussed at length in the order issued concurrently to this Order in the Limitation Proceeding (the "Limitation SJ Order"). The discussion here is limited to facts relevant to determining whether NYPA's environmental response costs are reimbursable by Bouchard under OPA.
The Cable that ruptured on January 6, 2014 is part of an electrical transmission system (the "Y-49 Cable System") owned by NYPA and primarily utilized to provide electricity to Long Island. Venezia Ex. B6, Fishman Tr. at 12-13.2 The Y-49 Cable System begins at a sub-station located in Sprain Brook, Westchester County, then runs through Westchester County by way of a buried pipe to a transition station located in the City of New Rochelle, where the transmission line becomes submerged cables, crosses Long Island Sound to a transition station in the Town of North Hempstead, Nassau County, and from there by way of a buried pipe through Nassau County to a sub-station located in Garden City, Nassau County. Foley Ex. 1, Bouchard's Responses to Cable Interests' First Set of Requests to Admit, dated December 29, 2017 ("RFA"), Nos. 20 & 22.
The submarine portion of the Y-49 Cable System consists of four parallel, self-contained, dielectric fluid-filled, 345,000-volt electrical transmission cables (collectively, the "Submarine Cables"). Foley Ex. I - RFA, No. 20. The dielectric fluid in the Submarine Cables is a hydrocarbon, petroleum-based oil which acts as a coolant and lubricant to the electrical components of the Submarine Cables and is necessary to their operation. Foley Ex. 36 - Dosso, Tr. at 22; Foley Ex. 37 - Kahabka, Tr. at 16-17; Foley Ex. 1 - RFA, No. 30. The total storage capacity of the four Submarine Cables is 10,000 gallons of dielectric fluid, 2500 gallons per cable. Venezia Ex. B3. The pressure of dielectric fluid in the Submarine Cables is maintained by land-based storage tanks with pumping stations (or pressurization plants) on either side of the submerged portion, each with a storage capacity of approximately 10,000 gallons. Foley Ex. 30 - Dasso Ex. I (NYPAY49-0055713). The storage tanks and pumping stations maintain positive pressure on the dielectric fluid at all times during operation of the Submarine Cables, including the Cable. Id.
The Environmental Protection Agency ("EPA") regulates NYPA's Submarine Cables as a "Non-Transportation Related Offshore Facility" and requires NYPA to maintain a Spill Protection Control and Countermeasure Plan ("SPCC") to plan for and respond to a leak. Venezia Ex. B2, Y-49 Submarine Cable SPCC Plan; 40 C.F.R. pt. 112.7 ; 40 C.F.R. pt 112. Although NYPA's SPCC notes that the Submarine Cables form part of a larger electrical transmission system, NYPA's obligations under the SPCC are limited to responding to incidents that involve the four Submarine Cables. SPCC at 3. Notably, while the SPCC defines the "submarine portion" of the Y-49 Cable System as including both the Submarine Cables and the two land-based pressurization plants, it goes on to delegate responsibility for the land-based pressurization plants to other entities, stating: Id. at 4.
At 7:02 a.m. on January 6, 2014, the Y-49 Cable System experienced an electrical fault in one of its four Submarine Cables. Foley Ex. 19 - Zuccarelli Tr. at 131-65. The nature of the alarm indicated a catastrophic fault, and NYPA's engineers understood the alarm to mean that dielectric fluid was leaking from the Cable into the water. Id. at 50-53. NYPA responded by notifying the United States Coast Guard and the New York Department of Environmental Conservation of the spill and commencing steps to implement its SPCC. Foley Ex. 39 - Kahabka, Tr. at 32 - 34; Foley Ex. 2 - Schwabe, Tr. at 93 - 95; Foley Ex. 40 - Gomez, Tr. at 15. On January 8, 2014, the United States Coast Guard also visited the Tug and issued Bouchard a "Notice of Federal Interest for an Oil Pollution Incident" informing Bouchard that under OPA, it may be liable for removal costs and damages associated with the spill. Foley Ex. 53 - Yates 30.
NYPA ultimately notified its environmental response contractor, Miller Environmental Group ("Miller"), and Miller mobilized personnel, divers, equipment, and materials to protect the environment and coastal areas from the incursion of oil, remove the discharged oil from the water, and locate and secure the source of the discharge. Foley Ex. 33 - Kahabka, Tr, pp. 22-34, Foley Ex. 25 - Schwabe Ex. 10. The Cable was ultimately located on January 16, 2014. Foley Ex. 25 - Schwabe Ex. 10 (NYP A Y 49-0007812); Foley Ex. 46 - Michalski Tr.at 67; Foley Ex. 47 - Michalski Ex. 18.). From January 16th through the 25th, the divers followed the Cable north and south looking for the fault/rupture location, which they found on January 25, 2014. Foley Ex. 25 - Schwabe Ex. 10 (NYPA49—0007812-16); Foley Ex. 46 - Michalski, Tr, pp. 102.
Upon locating the rupture point, NYPA and Miller decided that to completely secure the leak, the Cable had to be "cut and capped" - a process that involved raising the Cable to the surface and cutting out a section including the rupture point and then capping the two severed ends. Foley Ex. 51 - Collins Tr. p. 75; Foley Ex. 52 - Pease Tr. p. 34. In the interim, the Cable was clamped, and an oil collection drum was placed over the clamp to partially contain the fluid that was still leaking from the Cable. Foley Ex. 25-Schwabe Ex. 10 (NYPA...
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...State of New York ("the Authority"), alleges that the dropped anchor of the Barge B. No. 280, which was being towed by the tugboat M/V Ellen S. Bouchard , ruptured the cable, which the Authority owns and operates. Following the containment and remediation of the oil discharge, the Authority......