Jump to Navigation
Jump to Content

In re In re Oswego Barge Corp.

Citation: 12 ELR 20119
No. No. 81-6084, 664 F.2d 327/16 ERC 1777/(2d Cir., 10/20/1981)

The Second Circuit Court of Appeals rules that § 311 of the Federal Water Pollution Control Act (FWPCA) preempts the federal government's right under § 13 of the Rivers and Harbors Act (Refuse Act), common law nuisance, and maritime tort law to recover from the owner of a discharging vessel the cost of cleaning up an oil spill in U.S. waters but not its right to recover monies paid to Canada for cleanup of its waters. After appellee's barge discharged oil into the Saint Lawrence Seaway appellee commenced this Limitation of Liability Act proceeding, in which appellant filed claims to recover the costs it incurred in cleaning up American territorial waters and in reimbursing Canada for its expenses in cleaning up Canadian waters. Its claims under § 311 of the FWPCA were dismissed without prejudice. Initially, the court rules that both of appellant's nonstatutory theories of recovery are based upon liabilities arising from nonstatutory maritime law and that appellant's theory of recovery based upon the Refuse Act involves a judicially created maritime remedy and therefore is also grounded in nonstatutory maritime law. The court notes that the Supreme Court has applied the presumption of statutory preemption less forcefully to nonstatutory maritime law than to nonmaritime federal common law. In addition, the court concludes that the force of the presumption of preemption is further reduced when dealing with judicially created remedies in aid of statutes like the Refuse Act. The court finds, however, that neither the language of § 311 of the FWPCA, the Act's savings clauses, nor the Act's legislative history rebut the presumption that nonstatutory maritime liabilities and remedies for the federal government's costs for cleaning up oil spills in U.S. waters have been preempted. The court looks to recent Supreme Court cases holding that the FWPCA's effluent discharge provisions preempt the federal common law of public nuisance for interstate water pollution and concludes that appellant's maritime nuisance tort theory is preempted by the Act's comprehensive and detailed provisions regarding government recovery of oil spill cleanup costs. In addition, to the extent that the judicially created remedies for violation of the Refuse Act include recovery based upon strict liability, such remedies would be inconsistent with the FWPCA since the FWPCA's strict liability remedy is subject to dollar limitations while recovery under the Refuse Act is not. Appellant's maritime negligence remedy is also preempted by the FWPCA since the Act contains no express provision allowing the court to impose judicially created remedies falling within the scope of and significantly complicating the remedies specified in the Act. Therefore, the court holds that appellant's nonstatutory maritime law remedies against a discharging vessel for the costs of cleanup of U.S. waters are preempted by § 311(f) of the FWPCA. Finally, the court rules that appellant's claim for recovery of its costs in reimbursing Canada has not been preempted by the FWPCA since the language and legislative history of the Act indicate that its coverage is limited to the cleanup of pllution in U.S. waters.

Counsel for Appellant
Allan van Emmerick; Thomas S. Martin, Acting Ass't Attorney General
Civil Division
Department of Justice, Washington DC 20530
(202) 724-7290

George H. Lowe, U.S. Attorney
369 U.S. Cthse. & Fed. Bldg., 100 S. Clinton Sq., Syracuse NY 13201
(315) 423-5165

Counsel for Appellee
John C. Koster, Allen A. Baillie, William N. France
Healy & Baillie
29 Broadway, New York NY 10006
(212) 943-3980

Joined by Van Graafeiland and Dumbauld,* JJ.