U.S. v. M/V Big Sam

• Decision Date: 13 December 1982
• Docket Number: No. 81-3127,81-3127
• Citation: 693 F.2d 451
• Parties: , 13 Envtl. L. Rep. 20,206 UNITED STATES of America, Plaintiff-Appellant, v. M/V BIG SAM, in rem, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 451

693 F.2d 451

18 ERC 1537, 13 Envtl. L. Rep. 20,206

UNITED STATES of America, Plaintiff-Appellant, v. M/V BIG SAM, in rem, et al., Defendants-Appellees.

No. 81-3127.

United States Court of Appeals Fifth Circuit.

Dec. 13, 1982.

Wendy M. Keats, Leonard Schaitman, Thomas W. Snook, Allen Van Emmerik, Dept. of Justice, Civ. Div., Washington, D.C., for plaintiff-appellant.

Normand F. Pizza, New Orleans, La., for M/V Big Sam and Zito Towing Co.

Leonard N. Bouzon, Thomas J. Wagner, Richard A. Sabalot, New Orleans, La., for Mission Ins. Co.

Machale A. Miller, New Orleans, La., for amicus Water Quality.

ON PETITIONS FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

(Opinion July 30, 1982, 5 Cir., 1982 681 F.2d 432)

Before WISDOM, RANDALL and TATE, Circuit Judges.

PER CURIAM:

The principal issues of this appeal relate to the proper statutory construction of section 311(g), (h), Federal Water Pollution Control Act, 33 U.S.C. Sec. 1321(g), (h). See panel opinion at 681 F.2d 432. The focus of the defendant parties' applications for rehearing is the alleged inconsistency of the panel's interpretation of these subsections (g) and (h), with prior interpretations of subsection (f), section 311(f), 33 U.S.C. Sec. 1321(f). The panel adheres to its construction of subsections (g) and (h), as based on the unambiguous statutory language that presumably reflects the unambiguous Congressional intent--especially since the legislative history gives no reason to doubt that the legislative words mean precisely what they say. Even assuming that the alleged inconsistency between subsections (f) and (g) is illogical, ¹ it is for Congress to correct the syllogism, not the courts.

I.

Subsections (f), (g), and (h) relate to liability for the costs of removing pollution of navigable waters of the United States caused by the discharge of oil or hazardous substances. Subsection (f) provides that the discharger will be liable without fault but only up to a limited amount specified by statute, ² except where the discharger can prove that the sole cause of the discharge was, inter alia, "an act or omission of a third party without regard to whether any such act or omission was or was not negligent." Subsection (g) similarly provides for strict (no fault) liability in limited amount for such sole-cause third party, with similar exceptions. Subsection (h) provides, however, that the liabilities established by the Act "shall in no way affect any rights" that the United States or other persons "may have against any third party whose acts may in any way have caused or contributed to such discharge."

The uncontroverted facts before the court show: The defendant vessel, BIG SAM, collided with a tank barge and caused an oil spill to be discharged from the latter. The sole cause of the collision was the negligence of BIG SAM, the non-discharging third-party vessel. BIG SAM and its owners contended that their exclusive liability for the cleanup costs was provided by the sole-cause strict liability provisions of subsection (g), under which (based on BIG SAM's 155 gross tons) liability was limited to $15,500. The panel held, however, that BIG SAM--undoubtedly liable as the "sole cause" third party, irrespective of negligence, under subsection (g)--was subject to liability for the damages ³ caused by its negligence and thus that subsection (g) "sole [no fault] cause " liability was not exclusive and did not relieve BIG SAM and its owners of their liability ⁴ under ordinary maritime tort principles. The panel so concluded, because of the unambiguous provision of subsection (h)(2) that the liabilities established by the Act

shall in no way affect any rights which ... the United States Government may have against any third party whose actions may in any way have caused OR contributed to the discharge of oil or hazardous substance. (Emphasis and boldface added.)

That the construction given by the panel to subsection (h) reflects its literal and unambiguous meaning is scarcely questioned by the rehearing applicants or the dissent from denial of an en banc rehearing. Furthermore, the rather scant committee reports concerning the provisions of the Act, as hammered out by a conference committee compromising conflicting approaches and interests, are silent of any reason to believe the words do not mean what they say. Nor has anything in the legislative history or debates called to our attention any concern about relieving nondischarging third parties of their liability under maritime tort principles for their negligence; ⁵ these sources reflect to the contrary, if anything.

Instead, the panel's construction is attacked as being inconsistent with the judicial construction given almost identical language in subsection (f) concerning the strict liability of discharger itself. In United States v. Dixie Carriers, Inc., 627 F.2d 736 (5th Cir.1980), a panel of this court held that, with regard to a discharger--admitting that "the express language of the statute provides little guidance to indicate Congress' intent," 627 F.2d at 739--subsection (f) provided the exclusive remedy for the government to recover cleanup costs, and that a remedy against the discharger for ordinary negligence in maritime tort seems to have been excluded "by a balanced and comprehensive remedial scheme in section 1321(f)(1) by matching limited recovery with strict liability and unlimited recovery with proof of willful conduct." Id. In support of this ultimate conclusion, however, Dixie Carriers pointed out instances in the Act where other specific remedies were allowed--including that the Act "does not affect rights which the United States may have against a third party whose actions caused an oil spill," citing subsection (h), 627 F.2d at 742--and pointed out that, as against a discharger, "[n]o such express language allows the government to recover its cleanup costs under the ... common law." ⁶ 627 F.2d at 742. Thus, in Dixie Carriers we in part relied upon subsection (h)'s provision, expressly preserving maritime tort remedies as against third parties (without an equivalent preservation against dischargers), as supporting the construction that such maritime tort remedies were not preserved but were instead supplanted as against dischargers themselves by the strict-liability remedy of subsection (f).

The panel thus perceives no inconsistency in the respective constructions given by it to subsections (g) and (h) and by Dixie Carriers to subsection (f), given the different and additional statutory provision expressly applicable to third parties alone by subsection (h) and expressly relied upon both by this panel and by Dixie Carriers in explaining their respective constructions of subsections (f) and (g).

II.

The complaint as to the panel's construction of subsections (g) and (h) is thus not directed to any error in construing or overlooking unambiguous language of the statute, nor is it in truth directed at any inconsistency between our holding and that in Dixie Carriers.

The complaint, rather, is that Congress was inconsistent in providing an exclusive strict liability remedy against dischargers by subsection (f) (if correctly construed by Dixie Carriers, which admitted the ambiguity of the statute in that regard ⁷), but in permitting against negligent third parties a maritime tort remedy as well (whether concurrent or cumulative, see note 4 supra ). We who are not Congressmen might think it is illogical to permit the Act's strict liability remedy to supplant maritime tort remedies against a negligent discharger who created the bulk of the risk, but not against a negligent non-discharging third person who causes a discharge. ⁸

However inconsistent we may think this disparate treatment, however much we may be of the view that we could tidy up the statute and make of it what to us seems to be more sense, it is simply not part of our function as judges to re-write, in the guise of statutory construction, unambiguous statutory language in order to cure what to us seems to be statutory deficiencies. Last Term, the Supreme Court so admonished on at least two occasions.

In American Tobacco Company v. Patterson, --- U.S. ----, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982), reversing a circuit court's interpretation of unambiguous statutory language to different effect, the Court noted that while "[s]tatutes should be interpreted to avoid untenable distinctions and unreasonable results where possible," --- U.S. at ----, 102 S.Ct. at 1538,

[a]s in all cases involving statutory construction, "our starting point must be the language employed by Congress," Reiter v. Sonotone Corp., 442 U.S. 330, 337, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931 (1979), and we assume "that the legislative purpose is expressed by the ordinary meaning of the words used." Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962). Thus "[a]bsent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2055, 64 L.Ed.2d 766 (1980). ⁹

--- U.S. at ----, 102 S.Ct. at 1537.

Again, in Griffin v. Oceanic Contractors, Inc., --- U.S. ----, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982), the Supreme Court reversed this circuit and its line of decisions that had "sensibly" construed a statute provision contrary to its unambiguous expression, and the Court explicitly enjoined against creative judicial interpretation of an unambiguous statute in order to accord with its supposed purpose (despite absence of any legislative history indicating any intention other than that expressed by the unambiguous wording):

"There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes." United States v. American Trucking Assns., Inc., 310 U.S. 534, 543, 60 S.Ct. 1059, 1063, 84 L.Ed....