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United States v. M/V Big Sam

ELR Citation: 13 ELR 20206
Nos. No. 81-3127, 693 F.2d 451/18 ERC 1537/(5th Cir., 12/13/1982) Petition for reh'g denied

The Fifth Circuit denies petitions for rehearing of its ruling, 12 ELR 20994, that §311(g) of the Federal Water Pollution Control Act (FWPCA) does not bar the federal government's right under maritime tort law to recover oil spill cleanup costs from the owner or operator of a third-party vessel that negligently caused the discharge. The court reiterates that, since §311(h)(2) of the FWPCA provides that the Act does not affect the rights that the government may have against third parties, the government may assert other causes of action against third parties causing or contributing to an oil spill. It concludes that such an interpretation is not inconsistent with its ruling in United States v. Dixie Carriers, Inc., 10 ELR 20935, that §311(f) of the FWPCA is the government's exclusive remedy for recovery costs against a discharger since §311(h)(2) is expressly limited to third parties. The court also determines that, even assuming that Congress was inconsistent in providing an exclusive statutory strict liability remedy against dischargers while allowing a maritime tort remedy as well as the statutory strict liability remedy against third parties, it is required to apply the unambiguous provisions of §311 as written.

A dissent would grant the petitions for rehearing en banc to allow the court to resolve the fundamental conflict in principle between its two decisions.

Counsel for Plaintiff
Leonard Shaitman, Thomas Snook
Civil Division
Department of Justice, Washington DC 20530
(202) 633-3301

Counsel for Defendants
Norman R. Pizza
Reuter & Reuter
303 S. Broad St., New Orleans LA 70119
(504) 822-9748

Thomas J. Wagner
Phelps, Dunbar, Marks, Calverie & Sims
Hibernia Bank Bldg., New Orleans LA 70112
(504) 566-1311

Before WISDOM, RANDALLand TATE, Circuit Judges.

Before CHARLES CLARK, Chief Judge, BROWN, GEE, RUBIN, REAVLEY, POLITZ, RANDALL, TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLYand HIGGINBOTHAM, Circuit Judges.