United States v. Bear Marine Services, Civ. A. No. 79-3331.

• Decision Date: 18 December 1980
• Docket Number: Civ. A. No. 79-3331.
• Citation: 509 F. Supp. 710
• Parties: UNITED STATES v. BEAR MARINE SERVICES et al.
• Court: U.S. District Court — Eastern District of Louisiana

509 F. Supp. 710

UNITED STATES v. BEAR MARINE SERVICES et al.

Civ. A. No. 79-3331.

United States District Court, E. D. Louisiana.

December 18, 1980.

COPYRIGHT MATERIAL OMITTED

Leonard P. Avery, Asst. U. S. Atty., New Orleans, La., Thomas W. Snook, T.A., Torts Branch-Civil Division, U. S. Dept. of Justice, Washington, D. C., for the United States.

Henry J. Read, Machale A. Miller, Montgomery, Barnett, Brown & Read, New Orleans, La., Sheldon A. Vogel, Bigham, Englar, Jones & Houston, New York City, for Consolidated Towing Co. and Bear Marine Towing.

Francis Emmett, New Orleans, La., for Bear Marine Towing.

William E. O'Neil, Mark L. Ross, Lemle, Kelleher, Kohlmeyer & Matthew, New Orleans, La., for International Matex Terminals.

ARCENEAUX, District Judge.

Exerting a purely maritime claim, the United States seeks to recover oil clean-up costs from International Matex Tank Terminal ("IMTT"). The costs were incurred when a barge, in the tow of the Tug Frances Twitty and owned by Bear Marine Services, was holed when it struck a dolphin owned by IMTT. IMTT moved to dismiss the claim, asserting the exclusivity of the Federal Water Pollution Control Act, as amended by the Water and Environmental Quality Improvement Act of 1970, P.L. 224 of the 91st Congress, 84 Stat. 91, amended and recodified at 33 U.S.C. §§ 1251-1376 (hereinafter referred to for convenience as the "F.W.P.C.A."). The government resists the motion, asserting that Subsection (h) of the Act (33 U.S.C. § 1321) affords to the Government a maritime tort-based remedy under the circumstances present here.

THE ISSUE PRESENTED

The narrow issue before the Court is: Does the United States have a right, either implicit in the F.W.P.C.A. or independent of it, to bring a negligence action under general maritime law to recover oil spill clean-up costs, or, are the statutory remedies with their limited recovery provisions exclusive?

To answer this question, the Court must look to the statute itself, 33 U.S.C. § 1321, accompanying legislative history, and any case law which might be illuminative.

There are three areas of the statute relevant to our present inquiry; all lodged in 33 U.S.C. § 1321 — Subsections (f), (g) and (h). But stating the focus of the possible source of resolution accomplishes nothing towards solving the problems of interpretation presented. The task of unravelling the statutory scheme is complicated by the drafters' lack of clarity and the generally obfuscated nature of the structure within which the two Houses of the Congress have chosen to lodge the product of their respective wills. The statute was essentially drafted by a Conference Committee which had before it two separate legislative approaches to the problem of governmental recovery of oil clean-up costs. The resultant statutory product reflects the "give and take" of the legislative process, and the imprecision of group-undertaken drafting. While neither the language of the Act itself nor the accompanying legislative history is dispositive of the issues presented, it is the task of this Court to discover the Congressional intent, using the devices available to us — the language of the Act, its legislative history, and the process of statutory construction. We must also look to the time frame in which the statute was enacted, for the events of history often color the tapestries of legislation.

The 1960's had seen the advent of the super tanker; at the same time, our nation, growing more conscious of the need for a clean environment, sought to devise means of maintaining ecological balance in the face of constantly increasing threats of environmental damage, particularly to the waters of the United States and its adjacent coastal waters.

The magnitude of the problem had outstripped the viability of available legal remedies, particularly the traditional concept of the maritime tort. The ultimate problem of a discharger's financial inability to pay even minimal amounts of the often-vast sums required to clean up the results of an oil spill required a fresh legislative response. Against this background, the 1970 Amendments to the F.W.P.C.A. became law.

The Act represents a compromise between competing interests which, on the one hand, demanded unlimited liability for dischargers whose proven fault caused water pollution, and those which, on the other hand, would have imposed liability subject to a reverse burden of proof to show lack of fault.¹ From these two competing concepts there emerged, by way of the Conference Committee, the present legislative scheme which, in essence, imposes liability to the United States for clean-up costs upon a discharger without the necessity of proving fault, but limits the recovery to certain tonnage formulae amounts, set forth in the statute, unless certain conditions are met which, if present, can produce unlimited liability.

In addition, the law provides for certain instances when no liability shall be imposed, such as discharges resulting from an act of God, or an act of war, etc.

The statute is applicable not only to discharges from vessels, but also to discharges from certain offshore and onshore facilities. However, since the facts now before us involve vessel-originating discharges, we shall deal with the issues presented by referring to "vessels" as the discharging entity, realizing that, in appropriate circumstances, the rationale of these findings may be pertinent to the other classes of discharge sources contemplated by the statute.

We also approach this task with an additional caveat. This opinion does not purport to deal with matters beyond those presented by the pending motion, and, while certain factual conclusions may perhaps be intimated from the discussion which follows, this opinion is limited to the legal issues which are herein determined. This Court is dealing solely with the interpretation and applicability of the statute vis-a-vis the defendant's motion to dismiss, and nothing contained herein is determinative of any factual issues inherent in the pending suit.

HOW THE STATUTE WORKS

I. Generally

The thrust of the statute comprised, as we have previously stated, of three essential subsections — (f), (g) and (h) — is, first, towards the discharging entity; that is, the fact of a discharge automatically produces statutory liability, which is visited upon the owner or operator of the discharging vessel — (f)(1), onshore facility — (f)(2), or offshore facility — (f)(3).

II. Subsection (f)

When a vessel is the source of a discharge of oil, its owner or operator becomes strictly liable for the cost of clean-up, as limited by the tonnage formulae established in the Act.² Four exceptions, set forth in the statute, allow a discharger to absolve itself of liability, but these exceptions are based upon some other party or event being the sole cause of the discharge. The legislative history makes it clear that the exceptions are to be strictly construed and that they must, in fact, be sole causes of the discharge. The discharger must be totally free of fault; any fault on the part of the discharger vitiates the "sole cause" exceptions.³ Further, should it be found that a discharge was the result of willful negligence or willful misconduct within the privity and knowledge of the owner, such owner or operator becomes liable to the Government for the full costs of clean-up, without benefit of the otherwise applicable statutory limitations.

III. Subsection (g)

Consistent with Subsection (f)'s applicability to the discharger is Subsection (g), which extends the same statutory scheme to a third party when a discharger effectively proves that such third party was the sole cause of the discharge. United States v. LeBeouf Bros. Towing Co., 621 F.2d 787 (5th Cir. 1980). As noted above, Subsection (f) allows a discharger to escape liability if it can show that some other party, act or event was the sole cause of the spill; there can be no fault, however slight, on the part of the discharger. This same "escape route" is available to a Subsection (g) third party. Thus, if a third party can establish that one of the enumerated exceptions was the sole cause of the discharge, then such third party is likewise absolved of liability.

The respective limitations on liability made applicable to a discharger are likewise applicable to a "sole-cause" third party, but, as in the case of dischargers, those limitations do not apply when the spill was caused by willful negligence or willful misconduct within the privity or knowledge of the third party.

Subsections (f) and (g) separately affect, then, three discernible categories of dischargers:

1. One whose fault is the sole cause of the discharge, and who will be liable up to the limitations enumerated in Subsections (f) and (g).

2. One who, because of "willfulness" loses the limitation benefits — that is, those limitations will be broken if the Government proves that the discharge was caused by willful negligence or willful misconduct within the privity or knowledge of the owner.

3. Sole cause third-party liability can be substituted for a discharger's liability, but such "third party cause" must be the sole cause of the discharge. Otherwise, the discharger will be responsible as specified in the statute when its fault — no matter how slight — is a causative element of the discharge, and even though it may operate in conjunction with great third-party fault.

There remains, however, yet another category of persons whose liability is not dealt with or affected by the statute — that is, persons who are not Subsection (f) "dischargers", and who are not Subsection (g) "sole cause" third-parties whose actions subject them to Subsection (f) discharger liability by virtue of the "substitution of liability" provisions contained in Subsection (g). In effect, this category is comprised of those who are not:

dischargers — for, if they were, they would be subject to Subsection (f), and the attendant

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