United States v. M/V BIG SAM

• Decision Date: 09 May 1978
• Docket Number: Civ. A. No. 78-86.
• Citation: 454 F. Supp. 1144
• Parties: UNITED STATES of America v. M/V BIG SAM, in rem, Tri-Capt, Inc., Zito Towing, Inc., ABC Insurance Co., T/B Butane, in rem, Keith S. Edwards, and Water Quality Insurance Syndicate.
• Court: U.S. District Court — Eastern District of Louisiana

454 F. Supp. 1144

UNITED STATES of America v. M/V BIG SAM, in rem, Tri-Capt, Inc., Zito Towing, Inc., ABC Insurance Co., T/B Butane, in rem, Keith S. Edwards, and Water Quality Insurance Syndicate.

Civ. A. No. 78-86.

United States District Court, E. D. Louisiana.

May 9, 1978.

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Gerald J. Gallinghouse, U. S. Atty., Leonard P. Avery, Asst. U. S. Atty., New Orleans, La., James A. Lewis, Admiralty & Shipping Sec., Dept. of Justice, Washington, D. C., for plaintiff U. S.

Francis Emmett, New Orleans, La., for defendants Keith S. Edwards d/b/a Delta Barge Line, Water Quality Ins. Syndicate, and Keith S. Edwards d/b/a Delta Barge Line as claimant of the Barge BUTANE.

Normand F. Pizza, Reuter & Reuter, New Orleans, La., for defendants M/V BIG SAM and Zito Towing, Inc.

Poitevent & Hanemann, John Poitevent, Trial Atty., New Orleans, La., for Tri-Capt. Inc.

Phelps, Dunbar, Marks, Claverie & Sims, Leonard N. Bouzon, Thomas J. Wagner, Trial Attys., New Orleans, La., for Mission Ins. Co.

HEEBE, Chief Judge.

This cause came on for hearing on a previous day on the (1) motion of defendants M/V Big Sam and Zito Towing, Inc., to enjoin seizure of vessel or in the alternative to set bond; (2) motion of defendants M/V Big Sam and Zito Towing, Inc., to dismiss causes of action one and two against the M/V Big Sam; (3) motion by defendant Zito Towing, Inc., to dismiss causes of action one, two and three against Zito Towing, Inc.; (4) motion of defendants Keith S. Edwards d/b/a Delta Barge Line, Water Quality Insurance Syndicate, and Keith S. Edwards d/b/a Delta Barge Line as claimant of the Barge Butane to dismiss or for summary judgment.

The Court, having heard the arguments of counsel and having studied the legal memoranda submitted by the parties, is now fully advised in the premises and ready to rule. Accordingly,

IT IS THE ORDER OF THE COURT that the motion of defendants M/V Big Sam and Zito Towing, Inc., to enjoin seizure of vessel or in the alternative to set bond, be, and the same is hereby, GRANTED to the extent that seizure of the vessel is enjoined but only if defendants M/V Big Sam or Zito Towing, Inc., post security of $400,000.00.

IT IS THE FURTHER ORDER OF THE COURT that the motion of defendants M/V Big Sam and Zito Towing, Inc., to dismiss causes of action one and two against the M/V Big Sam, be, and the same is hereby, DENIED.

IT IS THE FURTHER ORDER OF THE COURT that the motion of defendant Zito Towing, Inc., to dismiss causes of action one, two and three against Zito Towing, Inc., be, and the same is hereby, DENIED.

IT IS THE FURTHER ORDER OF THE COURT that the motion of defendants Keith S. Edwards d/b/a Delta Barge Line, Water Quality Insurance Syndicate, and Keith S. Edwards d/b/a Delta Barge Line as claimant of the Barge Butane to dismiss or for summary judgment, be, and the same is hereby, DENIED.

REASONS

This action was brought by the United States in admiralty to recover civil penalties and the expense of oil removal resulting from a discharge of oil by T/B Butane after a collision on April 25, 1975, between M/V Big Sam and T/B Butane in the Mississippi River.

Defendant M/V Big Sam is a tugboat of 155 gross tons, presently owned by defendant Zito Towing, Inc. Defendants Tri-Capt, Inc., and Zito Towing, Inc., were and presently are incorporated and doing business in Louisiana and were the owner, operator and charterer of M/V Big Sam on April 25, 1975. Defendant T/B Butane is a barge of 1,324 gross tons, presently owned by defendant Keith S. Edwards. Defendant Keith S. Edwards d/b/a Delta Barge Line was and now is an individual domiciled in the State of Texas and doing business in Louisiana and was the owner and operator of T/B Butane on April 25, 1975.

The complaint of the United States alleges six causes of action. The first cause of action alleges that defendants M/V Big Sam, Tri-Capt, Inc., and Zito Towing, Inc., and their officers, agents and employees were negligent in the operation of M/V Big Sam, that the negligence caused the discharge of oil into the river, and that the United States is entitled to damages for the expense of oil removal ($278,648.36). The second cause of action alleges that M/V Big Sam and T/B Butane are liable under the Rivers and Harbors Act of 1899, 33 U.S.C. §§ 407, 411-412, for, respectively, causing a discharge and discharging of refuse matter (oil) into the navigable water of the United States and that both are liable in damages for the expense of removal and the M/V Big Sam is additionally liable for a penalty from $500.00 to $2,500.00 to be fixed by the Court. The third cause of action alleges liability by all defendants for plaintiff's expense of oil removal under the Federal Water Pollution Control Act of 1972, 33 U.S.C. § 1251, et seq., arising against defendants T/B Butane and Keith S. Edwards d/b/a Delta Barge Line for discharge of oil into navigable waters and against defendants M/V Big Sam, Tri-Capt, Inc., and Zito Towing, Inc., for causing oil to be discharged in navigable waters. The fourth and fifth causes of action are brought pursuant to the Louisiana Direct Action Statute, LSA-R.S. 22:655, against ABC Insurance Company and Water Quality Insurance Syndicate, the Protection and Indemnity Insurers respectively, of M/V Big Sam and its owners and operators and of T/B Butane and its owners and operators on April 25, 1975, against the risk of claims alleged in the complaint, for the expense of removal of oil from the river. The sixth cause of action seeks a $500.00 penalty against Tri-Capt, Inc., for failure of the operator of the M/V Big Sam to hold a license for the section of the river around mile 103 AHOP in violation of 46 U.S.C. § 405.

1. The causes of action against the M/V Big Sam.

While the vessel M/V Big Sam has three causes of action alleged against it (negligence maritime tort, Refuse Act violation 33 U.S.C. § 407, and violation of Federal Water Pollution Control Act Amendments of 1972 33 U.S.C. § 1251, et seq.), its motion is to dismiss only the negligence and Refuse Act claims. Since it does not appear "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," these causes of action cannot properly be dismissed. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

a. The negligence claim alleges that the M/V Big Sam negligently collided with T/B Butane and caused the discharge of an estimated 210,000 gallons of crude oil from T/B Butane into the Mississippi River. Defendants deny that any such cause of action or right of action exists.

In evaluating these contentions, we observe that a cause of action for negligence traditionally has four elements:

1 — A duty or obligation recognized by the law requiring the actor to conform to a certain standard of conduct for the protection of others against unreasonable risks.

2 — A failure on his part to conform to the standard required.

3 — A reasonable close causal connection between the conduct and the resulting injury. This is what is commonly known as "legal cause," or "proximate cause."

4 — Actual loss or damage resulting to the interests of another.

See, Prosser, Law of Torts, § 30 (4th Ed. 1971).

While it is not clear which element or elements the defendants contend to be legally nonexistent, the law seems to embody all of these elements.

First, there is the question of whether or not there is a duty under law by a vessel operating on the navigable waters of the Mississippi River to use due care with respect to the United States in avoiding oil spillage which the United States might become liable to clean up. Both existing jurisprudence and wise public policy dictate this Court's conclusion that the United States is owed such a duty. As stated in State Department of Fish and Game v. S. S. Bournemouth, 307 F.Supp. 922, 929 (C.D. Cal.1969):

"Oil pollution of the nation's navigable waters by seagoing vessels both foreign and domestic is a serious and growing problem. The cost to the public, both directly in terms of damage to the water and indirectly of abatement is considerable. In cases where it can be proven that such damage to property does in fact occur, the governmental agencies charged with protecting the public interest have a right of recourse in rem against the offending vessel for damages to compensate for the loss."

While the United States does not own the waters of the Mississippi River into which the oil was spilled, the federal government does have constitutional and statutory responsibility to preserve, protect and maintain the country's navigable waters, including the Mississippi River. This includes the "inherent power to protect the public welfare by bringing common law suits" for damages for oil pollution, recognized in State of Maryland v. Almerada Hess Corp., 350 F.Supp. 1060, 1066-1067 (D.Md.1972). "The federal courts have long considered oil pollution as a maritime tort for which damages may be awarded." American Waterways Operators, Inc. v. Askew, 335 F.Supp. 1241, 1247 (D.Fla.1971), rev'd on other grnds., 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280, reh. den., 412 U.S. 933, 93 S.Ct. 2746, 37 L.Ed.2d 162. These cases are predicated on the existence of proximately caused actual damage to the United States.

Defendant contends that there would be an inconsistency between the existence of a maritime tort for oil spillage and the delineation of the rights of the United States in 33 U.S.C. § 1321(g), setting third party owner or operator liability at $100.00 per gross ton of the vessel, or $14,000,000.00, whichever is lesser. However, this contention flies in the face of 33 U.S.C. § 1321(o), which clearly preserves any existing obligations for damages in the following language:

"(1) Nothing in this section shall affect or modify in any way the obligations of any owner or operator of any vessel, or of any owner or operator of

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