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United States v. M/V Big Sam

Citation: 8 ELR 20835
No. No. 78-86, 454 F. Supp. 1144/11 ERC 1741/(E.D. La., 05/09/1978) Denying motions to dismiss

The court denies motions to dismiss a suit for the recovery of civil penalties and cleanup costs for an oil spill following a collision between a tug and a barge on the Mississippi River. Plaintiff has stated causes of action against the tug and its owner in negligence for the maritime tort of oil pollution, under the Rivers and Harbors Act of 1899 for the discharge of refuse matter into navigable waters, and under § 311 of the Federal Water Pollution Control Act (FWPCA). A maritime lien has arisen against the tug in connection with each of these claims, and this lien thus cannot be limited to $31,000, the maximum that would be allowed under § 311(g) if the government's only claim against defendants were under the FWPCA. The court orders defendants to post $400,000 security in lieu of government seizure of the tug. The government's claim against the barge's owner and its insurer under the FWPCA cannot be dismissed on the ground that the unmanned barge could not have been at fault or that the spill was caused solely by a third party because the barge may have contained some defect in design or loading which resulted in needless spillage after the collision. The court rules further that the Rivers and Harbors Act of 1899 has not been superseded by the FWPCA Amendments of 1972, that oil qualifies as refuse under the former statute, and that it therefore represents a basis for governmental recovery of oil spill removal expenditures. The court also notes that the Rivers and Harbors Act imposes liability without regard to fault.

Counsel for Plaintiff
Leonard P. Avery, Ass'tU.S. Attorney
Federal Bldg., 500 Camp St., New Orleans LA 70130
(504) 589-2921

James A. Lewis
Civil Division
Department of Justice, Washington DC 20530
(202) 724-7292

Counsel for Defendants
Francis Emmett
Terriberry, Carroll, Yancey & Farrell
2100 International Trade Mart Bldg., New Orleans LA 70130
(504) 523-6451

Normand F. Pizza
Reuter & Reuter
1100 Tulane Ave., New Orleans LA 70112
(504) 581-2477

John Poitevent
Poitevent & Hanemann
Suite 1106, Hibernia Bank Bldg., New Orleans LA 70112
(504) 522-6737

Leonard N. Bouzon, Thomas J. Wagner
Phelps, Dunbar, Marks, Claverie & Sims
Hibernia Bank Bldg., New Orleans LA 70112
(504) 529-1311