U.S. v. M/V Big Sam

• Decision Date: 30 July 1982
• Docket Number: No. 81-3127,81-3127
• Parties: , 12 Envtl. L. Rep. 20,994 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 432

681 F.2d 432

17 ERC 2169, 12 Envtl. L. Rep. 20,994

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.

July 30, 1982.

Wendy M. Keats, Leonard Schaitman, Attys., Civ. Div., Appellate Staff, Dept. of Justice, Thomas W. Snook, Allen Van Emmerick, Civ. Div., Torts Branch, Dept. of Justice, Washington, D. C., for plaintiff-appellant.

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

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

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

Before WISDOM, RANDALL and TATE, Circuit Judges.

TATE, Circuit Judge:

The United States appeals from the dismissal of its suit against the Motor Vessel BIG SAM and its owner to recover oil spill cleanup costs. It is conceded that the sole fault of the accident was the negligent operation of the BIG SAM, which struck a tanker barge and caused the discharge of substantial quantities of oil. The district court held that liability for the cleanup costs was exclusively governed by section 311(g) of the Federal Water Pollution Control Act ("the Act"), 33 U.S.C. § 1321(g), and that under this section the sole party responsible was the insolvent bareboat charterer of the BIG SAM.

We reverse, holding (1) that both owner and charterer of the sole-fault, non-discharging vessel are liable under § 1321(g), (2) that this statutory section does not exclude an in rem remedy, and (3) that any maritime tort remedy of the United States against the negligent vessel is not pre-empted by § 1321(g), in view of the express provision of 33 U.S.C. § 1321(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."

Factual Context of the Issues

The case originated out of a collision in the Mississippi River between the M/V BIG SAM and the T/B BUTANE, April 25, 1975, which resulted in hull damages to and oil spill from the BUTANE. The BIG SAM is a twin screw towboat, 155 gross tons, which at the time of the collision was owned by Zito Towing, Inc. and bareboat chartered by Tri-Capt, Inc. Due to negligent navigation and an inexperienced pilot, the BIG SAM collided with the tank barge BUTANE, owned and operated by Delta Barge Line. The collision caused 280,000 gallons of oil to be discharged from the BUTANE. Delta Barge Line immediately began cleanup operations. After spending over $50,000 in cleaning up and protecting water intakes, Delta turned the operation over to the U. S. Coast Guard, which spent almost $300,000 more to finish cleaning up the spill.

The United States brought this suit against the BIG SAM (in rem), Zito (its owner), and Tri-Capt (the vessel's bareboat charterer), ¹ alleging causes of action based upon (a) § 1321(g) of the Act, (b) the Refuse Act, 33 U.S.C. § 407, and (c) general negligence (maritime tort law), to recover its cleanup costs. The findings in litigation between the private parties were stipulated, ² under which the sole cause of the collision was the negligence of the BIG SAM the non-discharging third-party vessel. The district court held that liability was determined exclusively by § 1321(g); that under that section no in rem remedy against the vessel was recognized; and that under § 1321(g) Tri-Capt, the bareboat charterer (by now insolvent), was solely at fault and that it alone was thus liable in the amount of $15,500, the limit of liability under the circumstances as provided by § 1321(g). ³

The government contends that the district court erred in not affording an in rem remedy against the solely negligent vessel, and in its holding that § 1321(g) of the Act provided the exclusive remedy against a third-party non-discharging vessel solely at fault. Before reaching these contentions, we will set forth briefly an overview of sections of the Act relevant to the issues before us.

The Statutory Scheme

The issues before us on this appeal are essentially ones of statutory construction. Involved are not only what remedies were intended by Congress in passing the Act, but as well what remedies were foreclosed.

The Act, 33 U.S.C. §§ 1251-1376, was originally enacted as the Water Quality Improvement Act of 1970, Pub.L.No.91-224, with relevant provisions reenacted as part of the Federal Water Pollution Control Act Amendments of 1972. ⁴ The Act prohibits the discharge of oil into the navigable waters of the United States, 33 U.S.C. § 1321(b)(1). The government is authorized to clean up any oil spill not properly removed by the discharger, 33 U.S.C. § 1321(c)(1), including the emergency power to remove, and if necessary destroy, the discharging vessel, 33 U.S.C. § 1321(d).

The Act imposes liability for cleanup costs on "dischargers," and cleanup costs incurred by the government are recoverable under § 1321(f)(1), (2), (3) ⁵ from the discharging vessel or facility. If, however (as here), the sole cause of the accident is the act or omission of a third party, the government is permitted to recover its cleanup costs from such sole-cause third-party. § 1321(g) ⁶. The Act also expressly provides that the liabilities thereby provided "shall in no way affect any rights" that a discharging vessel or facility, or the United States, may have against any third party whose acts "may in any way have caused or contributed to the discharge." § 1321(h) (emphasis supplied). ⁷

A primary issue of this appeal is the interrelationship between subsections (f), (g), and (h), with regard to the liability of a sole-cause non-discharging vessel. These subsections, as re-enacted in 1972 by the Act, are essentially the same as those originally enacted by section 11(f), (g), and (h) of the Water and Environmental Quality Improvement Act of 1970, Pub.L. 91-224, 84 Stat. 91. Committee reports ⁸ and debates relating to the enactment of these predecessor provisions have been considered as the source of the legislative history of these subsections (f), (g), and (h), although the 1972 committee reports also referred to them without illuminating expression. ⁹

Subsection (f) imposes a strict liability standard under which the United States may recover from a discharger its cleanup costs up to stated limits without a showing of fault. The discharger may, however, escape this strict liability if he shows that the discharge was caused solely by an act of God, an act of war, negligence on the part of the United States-or an act or omission of a third party. On the other hand, if the United States proves that the discharge "was the result of willful negligence or willful misconduct within the privity and knowledge of the owner," the owner is liable to the United States for the full amount of the cleanup costs.

Subsection (g) comes into play when the discharger proves that the discharge "was caused solely by an act or omission" of a third party "without regard to whether such act or omission was or was not negligent." If the discharger can so prove, then the third party is liable for cleanup costs up to stated limits (a strict liability, without fault)-in the case of a vessel, as of 1975 the statutory liability of the "owner or operator ... shall not exceed $100 per gross ton of such vessel or $14,000,000, whichever is the lesser." However, if the United States can prove that the discharge was "the result of willful negligence or willful misconduct within the privity and knowledge of such third party," then the United States may recover from the third party for the full amount of its cleanup costs. Subsection (g) (see note 6) does not expressly recognize an in rem remedy for cleanup costs as a maritime lien, as does subsection (f)(1) (see note 5) with respect to the discharging vessel.

Subsection (h) relates only to third parties whose acts "in any way" caused or contributed to the discharge. It provides that the liabilities established by the Act "shall in no way affect any rights" against such third party that either the discharging vessel-facility or the United States may have.

Subsection (g), third-party liability.

The principal issue raised with regard to third-party liability is whether subsection (g) provides the exclusive remedy for the government's recovery of oil-spill cleanup costs. Before reaching that issue, however, we will first decide two subsidiary issues of statutory interpretation with regard to that subsection's imposition of strict (no fault) liability upon a third-party vessel whose act or omission was the sole cause of a discharge: (1) whether the Act contemplated that either the owner of the non-discharging vessel or the operator (the bareboat charterer) shall be so liable, or whether instead the statutory terms contemplate joint and several liability; and (2) whether subsection (g)'s silence as to an in rem remedy against a non-discharging third-party vessel, precludes an admiralty court from affording one to the government? No decision cited to us has touched upon these issues other than the opinion of the district court in the present case.

(1) Liability of "owner or operator" : Subsection (g), which emerged from the 1970 Congressional conference committee without explanation, speaks in terms of the liability of the "owner or operator" of the non-discharging third-party vessel. Noting that this liability is expressed in the disjunctive, the able district court interpreted it as "giving a choice of parties, depending on the existing facts." 505 F.Supp. at 1033. Finding that under the existing facts the only third-party whose act or omission caused the discharge was Tri-Capt (the bareboat charterer, in exclusive control of the vessel), the district court held that within the meaning of the statute that Tri-Capt was the only third par...