U.S. v. Rafael, No. CIV.A. 03-10230-JGD.
| Decision Date | 20 December 2004 |
| Docket Number | No. CIV.A. 03-10230-JGD. |
| Citation | 349 F.Supp.2d 84 |
| Parties | UNITED STATES of America, Plaintiff, v. Carlos RAFAEL, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
John A. Markey, Moses Smith and Markey LLC, Bedford, MA, for Carlos Raphael.
Peter G. Myer, Torts Branch Civil Division, U.S. Department of Justice, Washington, DC, for USA, Plaintiff.
This is an admiralty case in which the plaintiff, United States of America, seeks to recover costs that it incurred in the removal of a sunken fishing boat owned by the defendant, Carlos Rafael ("Rafael"), from the Herman Melville Shipyard in New Bedford, Massachusetts. The Herman Melville Shipyard is part of New Bedford Harbor, which, at all relevant times, was a designated Superfund cleanup site. The matter is before this court on the "United States' Motion for Summary Judgment" (Docket No. 12). By its motion, the United States seeks a judgment in its favor on Count I of its Amended Complaint (Docket No. 2), wherein it contends that Rafael is liable to the United States, pursuant to sections 15 and 19 of the Rivers and Harbors Act of 1899, 33 U.S.C. §§ 403 and 409, for all costs, damages and disbursements incurred by the government in removing Rafael's sunken boat, plus prejudgment interest.1 For the reasons detailed below, this court finds that the United States is entitled to the requested relief, and the Motion for Summary Judgment is ALLOWED.
This case, involving the government's right to recover the costs of removing a sunken vessel owned by Rafael, is governed by the Rivers and Harbors Act of 1899, 30 Stat. 1151 et seq., as amended, 33 U.S.C. §§ 401-416. As detailed further below, 33 U.S.C. § 409 makes it unlawful for a vessel owner to sink or permit the sinking of a vessel in navigable waters, and requires the vessel owner to remove such a wreck immediately. Pursuant to 33 U.S.C. § 414, if the vessel owner fails to act and the vessel has obstructed or endangered navigation for at least 30 days (or fewer if the abandonment of the vessel is legally established in less time), the United States may remove the vessel and then recover its costs from the vessel owner. In the instant case, the undisputed facts establish that Rafael's boat sank, that it remained sunken for more than 30 days, and that the United States removed it. Rafael challenges the government's right to recover the costs of removal on the grounds that the ship was not in navigable waters, it was not obstructing or endangering navigation, the government did not provide Rafael with sufficient notice of its intent to remove the ship, and the costs incurred by the United States were excessive.
While Rafael argues that there are disputed issues of fact, as detailed herein, this court finds that the material facts are not in dispute, and that the United States is entitled to judgment as a matter of law.
In September 1983, the United States Environmental Protection Agency ("EPA") designated the New Bedford Harbor in New Bedford, Massachusetts as a Superfund site pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended ("CERCLA"), 42 U.S.C. §§ 9601 et seq.3 (See PF at 1). In the mid-1990s, under the authority of CERCLA, the United States began planning for the large-scale environmental cleanup of a section of New Bedford Harbor known as the Herman Melville Shipyard. (See PF at 1). The plans included a strategy to dredge sediment containing dangerously high levels of polychlorinated biphenyls ("PCBs") from the Shipyard floor, permanently isolate the sediments from the public and marine environment, and ultimately achieve the goal of facilitating economic development of the New Bedford Harbor waterfront. (See Pl.Ex. B at 1). While the cleanup project remained in its planning stage, the New Bedford Harbor Development Commission ("HDC") leased waterfront space in the Shipyard to private companies. (See PF at 1-2). One of those companies was Carlos Seafood, a wholesale fishing venture owned by the defendant, Carlos Rafael. (See id. at 2; DF at ¶¶ 2, 4).
In conjunction with his business, Rafael owns, operates and maintains several fishing boats. (See DF at ¶¶ 3, 6). In December 1998, Rafael obtained a license from the HDC that allowed him to store and repair fishing vessels in the Herman Melville Shipyard. (See DF at ¶ 5; Def. Ex. 6 at 1). Rafael made lease payments to the HDC for use of a parcel within the Shipyard from December 1998 through at least December 2001. .
On January 8, 2001, Rafael purchased the fishing vessel ("F/V") JUST A GIRL. (See DF at ¶ 7). Three days later, he towed it from Fairhaven, Massachusetts to the leased parcel at the Herman Melville Shipyard, where it remained docked along the shoreline, in one to four feet of water, awaiting repair. (See DF at ¶¶ 7, 8, 13; Pl.Ex. A at 26). Because the F/V JUST A GIRL leaked, Rafael had to pump water out of it every two or three days to keep it afloat. (See Pl.Ex. A at 34-35).
In February 2001, a contractor for the United States Army Corps of Engineers commissioned an archaeological survey of sunken boats and other debris at the Shipyard. (See PF at 2). The survey identified, inspected for historical value, and catalogued the wrecks of nine wooden fishing boats, six steel vessels and a concrete barge. (See id.). At that time, the F/V JUST A GIRL remained afloat in the Harbor. (See id.).
On November 6, 2001, EPA sent Rafael a letter notifying him that the agency would need to occupy his leased property "on or about February 6, 200[2] to remove abandoned fishing vessels and to dredge PCB-laden sediment from the harbor floor." (Def. Ex. 7 at 1).4 The letter also mentioned EPA's role and responsibilities in the Harbor cleanup project, and explained Rafael's potential right to assistance relocating his business as a "displaced person" under federal law. (See id. at 1-2; DF at ¶ 9). One day later, on November 7, 2001, EPA formally requested that Rafael grant the agency access to the leased property in order to conduct environmental remediation activities. (See DF at ¶ 10; Def. Ex. 8). Rafael complied with EPA's request. (See DF at ¶ 10).
On January 18, 2002, EPA sent Rafael a copy of a letter notifying the Director of the HDC that the government intended to begin mobilizing for the abandoned vessel demolition at the Herman Melville Shipyard on or around February 11, 2002, and that any HDC tenants would have to be vacated by that time. (See PF at 3). According to the letter, the project was to involve the demolition and removal of junked vessels from the site. (See Pl.Ex. E).
Sometime thereafter, EPA held meetings with Rafael and spoke with him by telephone regarding the agency's plans to proceed with the demolition of abandoned vessels and derelict barges at the Herman Melville Shipyard, and its need for Rafael to remove his business operations from the site. (See Pl.Ex. F; Def. Ex. 9 at 1). Subsequently, on March 13, 2002, EPA sent Rafael another letter via certified mail, fax and hand delivery in which it notified him of the agency's intent to initiate an enforcement action against him if he did not remove his operations from the Shipyard immediately because the government's contractors "had mobilized to carry-out the abandoned vessel demolition [.]" (Def.Ex. 9). The letter states, in part:
While EPA fully anticipates, based on your discussions with the [Army Corps of Engineers], that you will be off the site by this weekend, I am still providing you notice that if all your materials, equipment and debris are not removed by the close of business on March 18, 2002, under the authority of CERCLA, EPA will initiate an enforcement action either administratively or judicially to compel removal of your operations from the site. This action may include the levying of penalties and the recovery of the Government's cost due to the delay in implementing the clean up action. However, these measures will be unnecessary if all of your material, equipment and debris are removed by March 18th.
(Id. at 2).
Rafael removed cranes, compressors, welding machines, and one of his fishing boats from the Shipyard. (See Pl.Ex. A at 37-38; DF at ¶ 11). Although the precise date when Rafael accomplished these activities is not specified in the record, it is clear that Rafael removed his equipment by the March 18, 2002 deadline. (See DF at ¶ 11 — Rafael complied with the EPA removal request; DF at ¶ 12 — within days of receiving the March 13, 2002 notice, the boatyard was fenced in and Rafael could no longer gain access). Rafael did not, however, remove the F/V JUST A GIRL. (DF at ¶¶ 11-13).5
According to the United States, as of March 18, 2002, the F/V JUST A GIRL had sunk. (PF at 3; Pl.Ex. C at 69-70). It bases this contention on the fact that in or around January 2002, government contractors had identified ten sunken wooden boats, as opposed to the nine which had been identified a year earlier in February 2001. (See PF at 3). At that time, however, the government did not know the identity or owner of the tenth sunken ship. (PF at 3).
Rafael contends that the F/V JUST A GIRL was still afloat at the time he removed his other equipment in March 2002. (See DF at ¶¶ 11, 14; Def. Ex. 2 at ¶¶ 12-13). Rafael claims that when he removed his other equipment, the F/V JUST A GIRL was in one to four feet of water in the northern end of New Bedford Harbor, beyond the commercial traffic area and over 200 yards outside the navigable channel.6 (See DF at ¶ 14; PF at 3-4). According to Rafael, when he...
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United States v. Rafael, No. 05-1447 (Fed. 1st Cir. 11/21/2005)
...that we are in agreement with the magistrate judge's thoughtful and thorough assessment of the facts and law. See United States v. Rafael, 349 F. Supp.2d 84 (D. Mass. 2004). "[W]hen a trial court accurately sizes up a case, applies the law faultlessly to the discerned facts, decides the mat......