United States v. West of England Ship Owner's Mutual Protection & Indemnity Ass'n (Luxembourg)
United States v. West of England Ship Owner's Mutual Protection & Indemnity Ass'n (Luxembourg)
Opinion of the Court
The tug Aline B, towing a barge, headed northbound on a navigable stretch of the Atchafalaya River, outside a channel maintained by the Corps of Engineers. The barge struck an unmarked wreck and discharged oil. After the owner of the barge refused responsibility for the discharge, the United States removed the oil and sued the owner under 33 U.S.C. § 1321(f)(1) of the Federal Water Pollution Control Act for the cost of cleanup. The district court held the defendants liable, finding that the tug’s non-negligent decision to navigate outside the channel was a contributing cause of the oil discharge and that the defendants had therefore failed to prove that the discharge was caused solely by the act or omission of a third party. We affirm the judgment of the district court, holding that section 1321(f)(1) is causation-based, as opposed to fault-based, and that the district court’s finding that the tug’s choice of navigation, although non-negligent, was a contributing cause of the discharge was not clearly erroneous.
I.
On March 5, 1985, the M/V Aline B (“Aline B” or the “tug”), towing the T/B Hollywood 2006 (“Hollywood” or the “barge”), departed Morgan City, Louisiana, destined for Krotz Springs, Louisiana. The Hollywood carried a cargo of oil. Allen Boudreaux (“Boudreaux”), the captain of the Aline B, testified that at approximately 4:15 a.m. on the day of departure, the Aline B cleared the locks and that by 5:10 a.m.
Boudreaux stated that the Aline B proceeded upriver beyond Stouts Pass and entered a portion of the river called Six Mile Lake, which is located northwest of Morgan City. Within Six Mile Lake is a channel which the United States Army Corps of Engineers (“Corps of Engineers”) maintains.
At approximately 6:45 a.m. on March 5, 1985, the Hollywood struck an unmarked wreck, and as a result of this collision, the Hollywood discharged oil into the river. After the collision, the Coast Guard informed Hollywood Marine, Incorporated (“Hollywood Marine”), the owner of the Hollywood, that it was responsible for the cleanup of the oil, pursuant to section 1321 of the Federal Water Polution Control Act (“FWPCA”), 33 U.S.C. § 1321 (1986 and Supp. 1988). Hollywood Marine refused to clean up the oil, and the Coast Guard arranged for the removal of the oil at a cost of $89,189.25. Hollywood Marine was then billed for that amount on August 2, 1985. Hollywood Marine, again, denied responsibility. Meanwhile, the Corps of Engineers discovered the unmarked wreck between seventy-five and one hundred fifty feet off the right bank and removed it.
Because of Hollywood Marine’s refusal to pay for the oil cleanup, on December 5, 1986, the United States brought suit in federal district court against Hollywood Marine and West of England,
After the parties stipulated to the source of the oil discharge, the cost of the cleanup, and the lack of negligence on the part of the tug, the barge, and the government,
II.
A. Fault or Causation?
We first address the defendants’ argument that the district court erred in holding that section 1321(f)(1)(D)
The defendants argue that while the FWPCA is a strict liability statute, section 1321(f)(1) — consisting of four liability exceptions — relieves the discharger of strict liability. We agree that if a defendant can establish the existence of one of the four exceptions, it will be exempt from liability. See United States v. M/V Big Sam, 681 F.2d 432, 437 (5th Cir. 1982), cert. denied, 462 U.S. 1132, 103 S.Ct. 3112, 77 L.Ed.2d 1367 (1983). The defendants argue further that merely proving that the barge and tug were non-negligent
“[T]he starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980); accord American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982).
The defendants argue that Congress expressed a clear intent that section 1321 be fault-based in the following statement in the Senate Committee Report:
The committee determined that while the owner or operator should not be liable if he could prove that a discharge was caused by one of these acts [the four liability exceptions in section 1321], it was also necessary that such exceptions be allowed only when the owner or operator proved the discharge to be solely the result of one of the exceptions. Any culpability on the part of the owner or operator would vitiate the exception.
Senate Comm, on Public Works, Federal Water Pollution Control Act [hereinafter the Senate Comm. Report], S.Rep. No. 351, 91st Cong., 1st Sess. 6 (1969) (emphasis added), reprinted in III EPA Compilation of Legal Authority [hereinafter EPA Compilation], Legislative History of the Federal Water Pollution Control Act at 1329 (1973). Although, in theory, we look to the legislative history only if the statutory language is unclear, Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984), in fact, the legislative history is often consulted where the language of the statute is clear (as it is here) for what might be called “further assurances.”
In evaluating the quoted language from the Senate Committee Report, we note that the final sentence does state that if an owner or operator is at fault, then it may not successfully claim a liability exception. The language does not state, or even imply, the reverse: that an owner or operator establishes the existence of a section 1321 exception, absolving itself from liability, once it proves that it was non-negligent. Moreover, in the preceding sentence, the Committee used causation language in explaining section 1321(f)(1) by stating that the exceptions will be allowed only when the discharge is solely the result of one of the exceptions.
Other language in the FWPCA’s legislative history reinforces our conclusion that an owner’s or operator’s proof of non-negligence alone does not satisfy the section 1321 liability exceptions. As we recognized in United States v. Dixie Carriers, Inc., 627 F.2d 736, 739 (5th Cir. 1980), the FWPCA represents a compromise between two proposed statutes, the House bill and the Senate bill. The proposed House bill prohibited the discharge of oil in navigable waters but imposed civil penalties and cleanup liability only on an owner or operator who willfully or negligently discharged the oil. The House bill also provided for a reverse burden of proof — the discharge established a prima facie case of liability
The Senate Committee Report, discussing the decision, stated:
The committee determined ... that some form of absolute liability should be imposed....
... [Marine] [insurance ... has been designed to protect people who either work for, use, own or operate a vessel. Were this the case with oil pollution, the imposition of liability based on negligence would not be questioned. However, the discharge of oil can and usually does affect the general public, and persons and property wholly unrelated to the vessel, who have no control over it, and who have no interest in it.
The public interest, it can be argued, can be completely protected only by absolute and unlimited liability; negligent and limited liability should protect only private interests....
Under absolute liability with limits, a vessel owner would be absolutely liable regardless of fault, but the injured party would be limited in the amount of the damages which could be collected. This approach avoids the difficult, if not impossible, task of proving negligence or rebutting the case for non-negligence made by the vessel owner. It also places the risk on the responsible party, not on the general public.
Id. at 5 (emphasis added).
The Senate Committee Report then discussed the limitations of the liability, stating the four liability exceptions that section 1321(f)(1) lists. The Senate’s approach of strict liability with limitations, as opposed to the House’s approach of negligence liability with a reverse burden of proof, was the one ultimately enacted.
Given its statutory language and legislative history, it is clear that section 1321(f)(1) is causation-based and not fault-based. Therefore, we reject the defendants’ argument that proof of non-negligence alone is enough to satisfy section 1321(f)(1)(D) and exonerate them from liability.
B. Sole Cause
The defendants next argue that even if section 1321(f)(1)(D) is causation-based and not fault-based, the oil discharge was caused solely by an act or omission of a third party.
Causation is generally a question of fact, Employers Ins. v. Suwannee River Spa Lines, Inc., 866 F.2d 752, 768 (5th Cir. 1989); Southern Nat’l Bank v. Crateo, Inc., 458 F.2d 688, 697 (5th Cir. 1972), and a
[A] finding is “clearly erroneous” when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been com-mitted_ If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, [we] may not reverse even though convinced that had [we] been sitting as the trier of fact, [we] would have weighted the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.... When findings are based on determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference to the trial court’s findings.
Id. at 573-75, 105 S.Ct. at 1511-12. For the reasons set forth below, we find no clear error in the district court’s finding of fact that the decision to navigate outside the channel was a contributing cause of the oil discharge. We recognize, however, that the challenge levelled by the defendants to the district court’s finding may also be viewed as a challenge to the legal sufficiency of the decision to navigate outside the channel as a “cause” of the discharge and to the resulting denial of the exception to liability provided by section 1321(f)(1)(D). As such, we will also review it as a question of law, de novo, and we hold that the navigation decision was a “cause” of the discharge within the meaning of section 1321(f)(1)(D).
Liability exceptions under section 1321(f)(1) must be narrowly construed to effectuate Congress’ strict liability scheme. LeBeouf, 621 F.2d at 789; Burgess v. M/V Tamano, 564 F.2d 964, 982 (1st Cir. 1977), cert. denied, 435 U.S. 941, 98 S.Ct. 1520, 55 L.Ed.2d 537 (1978); 115 Cong.Rec. 28957, reprinted in IV EPA Compilation at 1771 (1973) (Senator Boggs stated, “[S]uch exemptions have the effect of protecting the public in nearly every case, while safeguarding private interests at rare times of great disaster”) (emphasis added). As we previously stated, for a discharger to avoid liability, the act or omission of a third party must be the sole cause of the discharge. The FWPCA, however, does not define the terms “solely” and “caused.” As for the term “solely,” we will assume its common definition: “without an associate: singly, alone.” Webster’s Third New International Dictionary 2168 (1976); see City of Pawtucket v. United States, 211 Ct.Cl. 324, 546 F.2d 430 (1976) (assuming the common definition of “solely” contained in section 1321(i)(l)). If the tug’s choice of navigation was a proximate cause of the oil spill, then it necessarily follows that the act or omission of a third party was not the sole cause. See Seaboard Air Line R. Co. v. Deese, 185 F.2d 290, 291 (5th Cir. 1950). Concerning the term “caused,” we turn to legislative history, tort law,
It is axiomatic that cause in fact is essential to liability. W. Prosser & P. Keeton, Prosser and Keeton on Torts § 41 (5th ed. 1984) [hereinafter Prosser & Keeton]. Under the infamous “but for” test, the tug’s decision to navigate outside the maintained channel is a cause in fact of the oil spill. “[Although causation [cause in fact] is essential to liability, it does not determine it.” Id. More than “but for” causation is necessary for the defendants to be liable.
In Tex-Tow, the Seventh Circuit held a discharger liable for civil penalties under section 1321(b)(6) (1986). Although section 1321(b)(6) does not include a third party defense, we find Tex-Tow helpful in ascertaining the boundaries of proximate cause. In Tex-Tow, an oil barge was being loaded with gasoline, and as it was loaded, it sank deeper into the water and punctured its hull on an underwater steel piling that was part of the dock structure. The Seventh Circuit recognized that neither the owner nor the operator was negligent even though the presence of the barge was the cause in fact of the spill. Furthermore, the court stated that the mere presence of the barge was not enough to satisfy proximate cause. Nevertheless, the court held that the defendant’s actions were the proximate cause of the spill because actual pollution occurred and the possibility of such pollution as a result of the heavy loading of the barge was foreseeable. Tex-Tow, 589 F.2d at 1312-14.
As in Tex-Tow, the oil discharge in the present case was sufficiently foreseeable to result in liability under section 1321(f)(1), even if not sufficiently foreseeable to result in liability for negligence. Cano, whose testimony the district court found to be “quite credible,”
The defendants argue, however, that such a holding is tantamount to holding that a vessel underway will always be liable because its choice to navigate will always be a contributing cause. We cannot agree. The government concedes and we recognize that underway status alone is not an automatic proximate or contributing cause to an oil spill. Merely choosing to navigate, however, is not the only factor involved in the present case. The choice made was not simply a choice to navigate, but it was a choice to navigate outside a maintained, marked channel. The non-negligence of such a choice does not insulate the choice from being a proximate or contributing cause under the statute.
The defendants finally argue that an act or omission of the owner or operator of the unmarked wreck was the proximate cause of the oil spill, and they define the proximate cause as “the dominant and efficient cause of the loss and not a merely incidental cause which may be nearer in time to the casualty.” The defendants in effect urge that we equate “the proximate cause” with “the sole cause,” but the defendants point to nothing in either the statute or the legislative history to support the proposition that Congress intended to equate the term “the sole cause” or “caused solely by” with the term “the proximate cause.” Indeed, our reading of the statute and the legislative history suggests that when there are multiple causes of a discharge and one cause is the dominant or proximate cause, to view that dominant or proximate cause as being the sole cause of the discharge would not be faithful to Congressional intent. See also Southern Nat’l Bank, 458 F.2d at 697 (the terms proximate cause and sole cause do not have the same legal meaning); Phoenix Indem. Co. v. Givens, 263 F.2d 858, 861 (5th Cir. 1959) (same).
Congress’ strong concern for the nation’s water resources is apparent in the language
III.
For the foregoing reasons, we hold that section 1321(f)(1) is causation-based and that simply proving non-negligence on the part of a discharger will not satisfy the liability exceptions listed in section
. The Corps of Engineers maintains the channel by taking reconnaissance surveys — soundings of the channel — to discover obstructions in the channel. The Hydrographic Bulletin, which is available to the public, publishes the information from the surveys quarterly.
. Hollywood Marine and West of England are collectively called the defendants.
.The actual stipulation concerning the government’s lack of negligence stated that the "existence of the wreck was unknown to ... the government of the United States or any of its agents.” The defendants’ counsel expounded on this stipulation during the trial and stated: "The government did not have a duty to mark this wreck because prior to the casualty it did not know of the existence of the wreck. That’s why that has been stipulated.”
. In addition to the cleanup cost and the prejudgment interest, the district court assessed the defendants a six percent late payment penalty and a $12.00 per month administrative charge.
. The district court stated in its oral decision that the United States carried the burden of proving that the oil discharge was not caused solely by an act or omission of a third party, i.e., "that the defendants] [were] a contributing cause of the oil spill in question.” Given the wording of section 1321(f)(1), see infra note 6, however, the defendants, not the United States, carry the burden of proving that one of the four liability exceptions under section 1321(f)(1) exists.
. 33 U.S.C. § 1321(f)(1) provides in pertinent part:
(f) Liability for actual costs of removal (1) Except where an owner or operator can prove that a discharge was caused solely by (A) an act of God, (B) an act of war, (C) negligence on the part of the United States Government or (D) an act or omission of a third party without regard to whether any such act or omission was or was not negligent, or any combination of the foregoing clauses, such owner or operator of any vessel from which oil or a hazardous substance is discharged in violation of subsection (b)(3) of this section shall, notwithstanding any other provision of law, be liable to the United States Government for the actual costs incurred under subsection (c) of this section for the removal of such oil or substance by the United States Government in an amount not to exceed, in the case of an inland oil barge $125 per gross ton of such barge, or $125,000, whichever is greater, and in the case of any other vessel, $150 per gross ton of such vessel (or, for a vessel carrying oil or hazardous substances as cargo, $250,000), whichever is greater, except that where the United States can show that such discharge was the result of willful negligence or willful misconduct within the privity and knowledge of the owner, such owner or operator shall be liable to the United States Government for the full amount of such costs.
. The tug’s non-negligence is important because the tug does not constitute a third party within the meaning a section 1321(f)(1)(D). United States v. LeBeouf Bros. Towing Co., 621 F.2d 787 (5th Cir. 1980), cert. denied, 452 U.S. 906, 101 S.Ct. 3031, 69 L.Ed.2d 406 (1981).
. The Supreme Court in American Tobacco Co. stated that the plain meaning of the statutory language is particularly compelling where the
. The act or omission of a third party which the defendants assert caused the oil spill was that the owner or operator: (1) caused the wrecked barge to sink, (2) failed to mark the wrecked barge, or (3) failed to raise the wrecked barge. We note in passing that the record is virtually devoid of information about the circumstances of the sinking of the wrecked barge and the failure to mark it.
. In its oral ruling at the conclusion of the trial, the district court used the term "contributing cause” to refer to the tug’s decision to navigate outside the channel. We recognize that there is a distinction between the proximate cause of an event and a contributing or a proximate cause of an event. A proximate cause imposes a lesser burden of proof, and the defendant’s acts do not have to be the dominant factor which caused the injury. Throughout the remainder of the opinion, the term proximate cause or contributing cause will refer to a proximate cause or a contributing cause, unless otherwise indicated.
. In this context, we are using tort law principles "not to establish [fault] but rather to affix legal responsibility despite the absence of fault ... and also to limit the scope of that liability.” United States v. Tex-Tow, Inc., 589 F.2d 1310, 1314 (7th Cir. 1978) (stating that foreseeability was being used to affix legal responsibility despite an absence of fault).
. This statement is supported by the legislative history. The Senate Committee Report gave a hypothetical example of a discharge which would be caused solely by an act of a third party. "Among such acts would be a discharge caused when a vessel collided with another vessel which was secured to a dock.” Senate Comm.Report, S.Rep. No. 351, 91st Cong., 1st Sess. 6 (1969), reprinted in III EPA Compilation 1329 (1973). If only a “but for” causation was
. The legislative history indicates that an owner or operator will be exempt from liability under section 1321(f)(1) when the discharge is beyond his control. Senate Comm.Report, S.Rep. No. 351, 91st Cong., 1st Sess. 5-6 (1969), reprinted in III EPA Compilation 1328-29 (1973). Although the Senate Report used the phrases "no control" and “beyond the control of’ to refer specifically to an act of war and an act of God, the phrases give some guidance to the word “caused" and to the exceptions as a whole. The Senate Report further defined “beyond the control of,” when referring to an act of God, by stating "[a]nother area which the committee believed to be beyond the control of an owner or operator would be any discharge caused solely by an act of God about which the owner could have no foreknowledge, could make no plans to avoid, or could not predict.” Id. at 6. This language — "no foreknowledge,” "make no plans to avoid," and "could not predict” — supports the use of foreseeability as a means of setting the parameters of the term "caused” as used in section 1321(f)(1).
. In its oral opinion, the district court stated: "I found Mr. Cano's testimony to be extremely helpful and quite credible on the question of channel markings, ability to remain in the channel, and where this wreck was located, namely outside of the channel in his view. I can’t — the documents of the Coast Guard are obviously entitled to some deference, but they are not subject to cross-examination, as was Mr. Cano, and I believe that Mr. Cano’s testimony was certainly quite credible and believable.”
. We are not here presented with, and we do not address, a situation in which a discharge is a direct but unforeseeable consequence of the defendants' conduct, see Prosser & Keeton, supra, at § 42, which was apparently the situation presented to the Court of Claims in Reliance Ins. Co. v. United States, 230 Ct.Cl. 390, 677 F.2d 844 (1982).
. Congressional policy is set forth directly in section 1321(b)(1) which provides: "The Congress hereby declares that it is the policy of the United States that there should be no discharges of oil or hazardous substances into or upon the navigable waters of the United States....” 33 U.S.C. § 1321(b)(1) (1986).
Reference
- Full Case Name
- United States v. WEST OF ENGLAND SHIP OWNER'S MUTUAL PROTECTION & INDEMNITY ASSOCIATION (LUXEMBOURG), Hollywood Marine, Inc., in Personam, as Owner/Operator of the TANK BARGE HOLLYWOOD 2006
- Cited By
- 4 cases
- Status
- Published