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United States v. West of Eng. Ship Owner's Mut. Protection & Indem. Ass'n

Citation: 19 ELR 20952
No. No. 87-3787, 872 F.2d 1192/29 ERC 1992/(5th Cir., 05/05/1989)

The court holds that the Federal Water Pollution Control Act's (FWPCA's) liability provision, § 311(f), is causation-based, not fault-based, and that the third-party defense of § 311(f)(1)(D) requires that an oil spill be unforeseeable. A tugboat pulling an oil barge had struck an unmarked wreck outside a navigation channel in a Louisiana river, causing an oil spill. The court first holds that merely proving that the tugboat and barge crew were not negligent does not establish the third-party defense of § 311(f)(1)(D). The provision requires that the discharge be caused solely by a third party, and neither the language of the provision nor its legislative history leads to the conclusion that the crew's fault plays a role. The court next holds that the decision to navigate outside the regular channel was a contributing cause of the oil discharge. The liability exemptions listed in § 311(f)(1) should be construed narrowly so that the FWPCA's strict liability scheme will be effective. For the third-party exemption's requirement that the spill be solely caused by the third party, "solely" is given its common definition of "singly" and "alone," and causation depends on the foreseeability of the harm. An oil spill resulting from navigation outside the regular channel, although not caused by negligence, was foreseeable enough to result in FWPCA § 311(f) liability. Moreover, under FWPCA § 311(f) "sole cause" is not the same as "proximate cause," so that even if the submerged wreck proximately caused the oil spill, it was not the sole cause.

Counsel for Plaintiff-Appellee
Thomas J. Donlon
Torts Branch, Civil Division
U.S. Department of Justice, P.O. Box 14271, Washington DC 20044-4271
(202) 724-9377

Counsel for Defendants-Appellants
John M. Woods
Thacher, Proffitt & Wood
Two World Trade Center, 29th Fl., New York NY 10048
(212) 912-7672

Before THORNBERRY, KING and JONES, Circuit Judges.