U.S. v. Dixie Carriers, Inc.

• Decision Date: 10 October 1980
• Docket Number: No. 79-3043,79-3043
• Citation: 627 F.2d 736
• Parties: , 10 Envtl. L. Rep. 20,935 UNITED STATES of America, Plaintiff-Appellant, v. DIXIE CARRIERS, INC., and Water Quality Insurance Syndicate, in personam and M/V Dixie Buccaneer and T/B ABC 2311, in rem, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 736

627 F.2d 736

15 ERC 1017, 10 Envtl. L. Rep. 20,935

UNITED STATES of America, Plaintiff-Appellant, v. DIXIE CARRIERS, INC., and Water Quality Insurance Syndicate in personam and M/V Dixie Buccaneer and T/B ABC 2311, in rem, Defendants-Appellees.

No. 79-3043.

United States Court of Appeals Fifth Circuit.

Oct. 10, 1980.

Allen van Emmerik, Torts Branch, Civil Div., Dept. of Justice, Washington, D. C., for plaintiff-appellant.

Frederick William Bradley, New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before THORNBERRY, ANDERSON and THOMAS A. CLARK, Circuit Judges.

THORNBERRY, Circuit Judge:

This interlocutory appeal from partial summary judgment for the defendants in a suit brought by the government to recover oil spill cleanup costs presents a single issue: whether the Federal Water Pollution Control Act of 1972, 33 U.S.C. § 1321(f)(1), prevents the government from recovering its oil spill cleanup costs under additional legal theories. Because we conclude that Congress intended for the Federal Water Pollution Control Act (FWPCA) to provide the exclusive legal remedy for the government to recover its oil spill cleanup costs, we affirm the decision of the district court.

On June 22, 1974, a tugboat operated by appellee Dixie Carriers, Inc., lost control of its tanker barges in tow. One barge struck the Huey P. Long Bridge near New Orleans and discharged about 1,265,000 gallons of oil into the Mississippi River. After notifying the appropriate authorities, Dixie arranged for cleanup operations to commence. Dixie discontinued the cleanup operation when its cleanup expenses totalled $121,000, Dixie's maximum liability, calculated at $100 per ton of the barge, under section 1321(f)(1) as then in effect. The government contracted for cleaning up the remaining oil at a cost of over $954,400.

In July 1977 the government sued Dixie to recover the amount of its cleanup costs under section 1321(f)(1), and also under the Refuse Act, 33 U.S.C. § 407, and under common law theories of public nuisance and maritime tort for negligence. Dixie moved for partial summary judgment on the ground that the FWPCA provides the exclusive remedy for the government's claim, and forecloses actions based on other legal theories. The judge granted partial summary judgment to Dixie, and this interlocutory appeal under 28 U.S.C. § 1292(b) followed because the order below involves a controlling question of law as to which there is substantial ground for difference of opinion, and this appeal will materially advance the ultimate termination of this litigation. The district court did not decide, and we do not consider, whether Dixie's voluntary payments toward cleaning up the oil spill should be credited against its liability to the government for at least a portion of the government's cleanup costs. See 462 F.Supp. 1126, 1127 n. 1. Neither did the district court decide whether Dixie acted willfully to cause the oil discharge in this case. See 462 F.Supp. at 1128.

On appeal the government contends that it should be allowed to recover under additional legal theories because the FWPCA does not expressly repeal the Refuse Act nor supersede common law remedies. The government asserts that additional recoveries under the Refuse Act or common law would be consistent with the general policy of the FWPCA to prevent discharges of oil upon the navigable waters of the United States. 33 U.S.C. § 1321(b)(1).

Dixie contends that the language, legislative history, and general statutory scheme of the FWPCA demonstrate Congress' intent to provide an exclusive and comprehensive remedy for the government to clean up oil spills and to recover cleanup expenses. Because the FWPCA allows the government to recover only a limited amount under strict liability, and to recover an unlimited amount only upon proof of a willful discharge, Dixie asserts that the FWPCA embodies a balanced compromise which will be destroyed if the courts now allow the government to recover an unlimited amount under the Refuse Act or common law.

Every court that has considered this issue has held that the FWPCA provides the government's exclusive remedy for recovering oil spill cleanup costs. See Steuart Transportation Co. v. Allied Towing Corp., 596 F.2d 609, 614-18 (4th Cir. 1979); United States v. Tug J. P. McAllister, Civ. No. 76-462 (D.P.R. Apr. 3, 1980); United States v. Hollywood Marine, Inc., No. 77-1870 (S.D.Tex. May 3, 1979); United States v. Hollywood Marine, Inc., 487 F.Supp. 1211 (S.D.Tex.1979), reversed, 625 F.2d 524 (5th Cir. 1980); United States v. M/V Big Sam, 480 F.Supp. 290 (E.D.La.1979), vacating 454 F.Supp. 1144 (E.D.La.1978); In re Oswego Barge Corp., 1979 A.M.C. 333 (N.D.N.Y.1978); Valley Towing Service, Inc. v. S. S. American Wheat, Civ. No. 75-363 (E.D.La. Dec. 19, 1978). See also Tug Ocean Prince, Inc. v. United States, 584 F.2d 1151, 1162 (2d Cir. 1978), cert. denied, 440 U.S. 959, 99 S.Ct. 1499, 59 L.Ed.2d 772 (1979) (dicta). But see Comment, Oil Spills and Cleanup Bills: Federal Recovery of Oil Spills Cleanup Costs, 93 Harv.L.Rev. 1761 (1980) (suggesting that FWPCA should exclude Refuse Act recovery, but not recovery under maritime tort or public nuisance).

The FWPCA is in part a modification and reenactment of the Water Quality Improvement Act of 1970 (WQIA), Pub.L. No. 91-224, 84 Stat. 91, amended and recodified at 33 U.S.C. §§ 1251-1376. When Congress passed the WQIA in 1970, the government had no effective remedy for recovering cleanup costs from oil spills on navigable waters. The government had possessed no remedy at all until 1966, when Congress amended the Oil Pollution Act of 1924, ch. 316, 43 Stat. 604, to provide that the government could obtain a recovery, but only for grossly negligent or willful discharges. Act of Nov. 3, 1966, Pub.L.No. 89-753, § 211(a), 80 Stat. 1246, 1253. In section 108 of the WQIA Congress expressly repealed the Oil Pollution Act.

The government argues that Congress' failure to use similar express language to repeal any right of the government to recover under the Refuse Act or common law indicates Congress' intent to preserve these additional remedies for the government. We do not attach such significance to Congress' failure to repeal these remedies because at the time the WQIA and FWPCA were enacted-as at the time of our decision today-the government had never recovered oil spill cleanup costs under either the Refuse Act or common law. Congress' failure to repeal the Refuse Act provides especially weak evidence for the government because, unlike the Oil Pollution Act, the Refuse Act does not even provide the government with a cause of action to recover its cleanup costs. The Refuse Act imposes only fines up to $2500 and possible imprisonment for persons who discharge refuse upon navigable waters without permission of the Secretary of the Army. 33 U.S.C. § 411. No court has found an implied cause of action under the Refuse Act for the recovery of oil spill cleanup costs by the government.

Because the Oil Pollution Act did not provide an effective means for the government to recover its oil spill cleanup costs Congress enacted section 1321(f)(1), which, as in effect at the time of the spill in this case, provided in pertinent part that the

owner or operator of any vessel from which oil or a hazardous substance is discharged in violation of subsection (b)(3) of this section shall, notwithstanding any other provision of law, be liable to the United States Government for the actual costs incurred . . . for the removal of such oil or substance by the United States Government in an amount not to exceed $100 per gross ton of such vessel or $14,000,000 whichever is lesser, except that where the United States can show . . . willful negligence or willful misconduct . . ., such owner or operator shall be liable to the United States Government for the full amount of such costs.

We note initially that the phrase "notwithstanding any other provision of law" can be interpreted to mean that the remedial scheme provided in section 1321(f)(1) is exclusive. See Tug Ocean Prince, Inc. v. United States, 584 F.2d at 1162; In re Oswego Barge Corp., 1979 A.M.C. at 337-39 (by implication). The government would interpret this phrase to mean only that the limitation of liability provision in the statute should not be further limited by other laws, such as the Limitation of Liability Act of 1851, 46 U.S.C. §§ 181-188, which would limit the vessel owner's liability for most tort claims to the value of the vessel after the accident and its freight then pending. The government's interpretation of the phrase receives some support from a committee report which remarks that section 1321(f)(1)'s "limitation on liability is intended to be the only limitation on liability for discharge of oil or matter under this section, notwithstanding any other provisions of law." H.R. Rep. No. 91-127, 91st Cong., 1st Sess. 11 (1969), reprinted in (1970) U.S. Code Cong. & Admin. News, pp. 2691, 2702. Because the phrase "notwithstanding any other provision of law" supports at least two conflicting interpretations, this language alone cannot resolve the controversy about whether the statutory remedy is exclusive. See Steuart Transportation Co. v. Allied Towing Corp., 596 F.2d at 615.

Although the express language of the statute provides little guidance to indicate Congress' intent, the structure of the remedies in section 1321(f)(1) suggests that Congress intended for those statutory remedies to be exclusive. The statute allows the government to recover only a limited amount of its cleanup costs under a strict liability theory. The government can then obtain additional, unlimited recovery of its cleanup costs only if it can prove willful negligence or willful misconduct with regard to the discharge.

Congress' intent to achieve a balanced and comprehensive remedial scheme...