Who Pays for Cleaning Up the Oil Spill? Recent Cases Examine Liability Issues Under Water Act

Given that the business of producing and transporting oil is "an enterprise which will eventually cause pollution,"¹ and that 60 percent of the oil produced in the world is transported on or across water,² it may not be surprising that an estimated 10,000 spills of oil and hazardous substances annually pollute the navigable waters of the United States.³ The recently aroused interest in off-shore oil production is certain to increase the incidence of oil spills.

A series of large and highly publicized spills in the 1960s brought the seriousness of the oil spill problem forcefully to the public eye and demonstrated to Congress the inadequacy of existing legal remedies.⁴ Congress reacted to the problem by enacting legislation which ultimately resulted in § 311 of the Federal Water Pollution Control Act (FWPCA), which makes it unlawful to discharge oil into the navigable waters of the United States.⁵ In addition, § 311(f) imposes upon dischargers liability for the cost of cleaning up spills of oil and hazardous substances, although a discharger can avoid such liability by showing, among other things, that the discharge was caused by a "third party."

A number of judicial opinions have recently positioned a spotlight on § 311 and the nature of the third party defense. Notable among them is Justice Rehnquist's rare public dissent from the U.S. Supreme Court's denial of certiorari in Hollywood Marine, Inc. v. United States⁶ which let stand a Fifth Circuit Court of Appeals ruling that a barge owner was liable for oil spill cleanup costs based on the conclusion that the operator of a tug in charge of the barge when it discharged the oil was not a "third party" for purposes of § 311.⁷ Justice Rehnquist concluded that the resolution of the issue of who was a third party was of such importance to the oil industry and would so surely arise again that plenary consideration was warranted.⁸ In addition, a number of circuit and district courts recently have attempted to resolve the confusion of who is a third party under § 311(f), though with only limited success.

Statutory Background

In the Water Quality Improvement Act of 1970,⁹ Congress for the first time required owners and operators of discharging facilities to notify the federal government of discharges¹⁰ and automatically subjected them to financial penalties.¹¹ In the 1972 amendments to the FWPCA, Congress revised and extended these provisions in what is now § 311.¹²

The purpose of § 311 is to prevent harmful spills and minimize the damage caused by them.¹³ In addition, § 311 is designed to promote the detection and rapid cleanup of oil spills. A critical element of this statutory scheme is § 311(b)(5), which requires any person in charge of a vessel or facility to immediately report any discharge to the appropriate agency and provides for criminal sanctions against persons in charge who fail to notify.¹⁴

Congress also imposed in § 311(b)(6) a mandatory penalty of up to $5,000 for all discharges of oil,¹⁵ the [11 ELR 10141] proceeds of which are used to support the government's oil spill prevention and cleanup program.¹⁶ No defenses are available to avoid paying the civil sanction; a strict liability standard is imposed.¹⁷

Section 311(f) also authorizes the federal government to remove oil spilled from a vessel or facility and to recover the cleanup costs from the discharger.¹⁸ Upon learning of a discharge, the federal government may initiate cleanup activities even where the discharger already has done so.¹⁹ Although § 311 requires owners and operators of a discharging vessel or facility to reimburse the government for the costs of cleaning up the oil spill, several factors may impede full recovery of costs. First, the difficulty of tracing spills makes it impossible to locate the responsible party in every case.²⁰ Second, ceilings are placed on cleanup cost liability unless the government can demonstrate that the spill resulted from willful negligence or willful misconduct within the knowledge of the owner.²¹ Third, the statute sets out four defenses to liability.²²

The most significant of the four defenses is the third-party defense. A third-party defense arises when the owner or operator of a vessel or facility, in response to a suit by the federal government for recovery of the cleanup costs, alleges that the discharge was caused solely by the act or omission of a third party. The controversy often is not a factual issue of whether a certain person is in fact responsible for the spill. Rather, the litigation typically involves the legal question of whether the person causing the spill is a "third party" for purposes of § 311. Basically, two types of persons are implicated byd defendants as third parties: those with whom the defendant has some type of business relationship, e.g., the owners of bargetowing tugs, and third parties who are identified only by the circumstantial evidence of the spill itself, e.g., vandals.

Under § 311(g), if the owner or operator of the discharging vessel or facility alleges that the discharge was caused by a third party, the owner or operator must pay the actual costs of removal, but is entitled to subrogation to all rights of the United States government to recover these costs from the responsible third party.²³ If the owner or operator of a vessel or facility proves that a third party caused the discharge, however, the third party, not the owner or operatlor, is liable for the cleanup costs incurred by the government.²⁴

As part of the policy of cleaning up and mitigating the damage from oil spills as quickly as possible, § 311(i) allows owners and operators to recover their cleanup costs for oil spills from their vessels and facilities upon a showing that they were not at fault. If the owner or operator can show that the discharge was caused solely by (1) an act of God, (2) an act of war, (3) negligence on the part of the federal government, or (4) an act or omission of a third party, they are entitled to recover the reasonable costs of cleanup.²⁵

Third Party Defense under § 311(f)

The first case to raise the third party liability issue under § 311(f) reached the federal courts in the mid-1970's. In Burgess v. M/V Tamano,²⁶ the owner of a tanker from which oil was discharged sought to avoid liability for the cleanup costs on the ground that at the time of the incident the ship had been piloted not by the ship's captain but by an individual in the employ of the local port authority, [11 ELR 10142] as required by law. The local pilot was alleged to be a third party for purposes of § 311(f). The First Circuit Court of Appeals disagreed with the tanker owner, holding that the pilot was the agent of the shipowner and thus was not a "third party." The court narrowly construed the third-party defense and found that since the pilot, even if considered an independent contractor, was subject to the commands of the ship's owners, the owners must be held accountable.²⁷ The court stated that the dispositive issue is whether the shipowner retains "ultimate control" over the alleged third party, though it left unanswered the question of what constitutes "ultimate control."

The tug owner-barge owner case soon became the most typical situation in third-party defense cases. In Tug Ocean Prince v. United States,²⁸ the court had to determine liability for the cleanup costs following an oil spill caused by an oil-carrying barge striking a submerged rock while under tow. The Second Circuit Court of Appeals accepted without comment the district court's finding that the tug operator was a third party for purposes of § 311(f)(1)(D) and held the barge owner not liable for the oil spill cleanup costs. Similarly, in United States v. LeBeouf Bros. Towing Co.,²⁹ the owner of a tug which was towing a barge that spilled oil was found to be a third party for purposes of § 311(f)(1)(D). Two years later, in United States v. Hollywood Marine, Inc.,³⁰ a district court in Texas agreed that the owner of a tug which was towing a barge from which oil was discharged was an independent contractor and thus a third party for the purposes of § 311(f)(1)(D).³¹ Relying on Burgess and LeBeouf Bros. for the proposition that the purpose of the third-party defense is to relieve the proprietor of a vessel of responsibility for acts done by third parties who are in excluslive control of the offending vessel,³² the court concluded that since the oil spill occurred while the barge was under the exclusive control of the towing company, the barge owners were not liable for the cleanup costs.³³

Thus, as of early 1980, it appeared that the determining factor in applying the third-party defense was ultimate control over the alleged third party, i.e., the defense could be successfully invoked by the owner of a discharging vessel if it could be established that full responsibility for navigating the vessel had been conveyed to the third party. In Tug Ocean Prince, Le Beouf Bros., and Hollywood Marine, the courts had held that actual physical control was the divining factor and allowed the barge owners to contract away their liability simply by giving the tug owners a relatively free hand in the execution of the towage contract. In Burgess, on the other hand, the shipowners continued to share navigational responsibility with the compulsory pilot and therefore could not escape liability under § 311(f)(1)(D).

In July 1980, however, the notion that barge and ship owners could contract away their liability was quieted.In United States v. LeBeouf Bros. Towing Co.³⁴ and United States v. Hollywood Marine, Inc.,³⁵ the Fifth Circuit Court of Appeals reversed the lower courts and held that the owners of barges from which oil was discharged could not escape liability for cleanup costs on the ground that the owners of the tugs towing the barges were independent contractors and thus third parties within the meaning of § 311(f)(1)(D).³⁶ The court reasoned that only a narrow interpretation of the term "third party" is consistent with the statutory purpose of preventing and ensuring the cleanup of oil spills. The statutory scheme would be undermined if barge owners could escape strict liability merely by hiring out their operation to tugs as independent contractors. A narrow interpretation also is consistent with Congress' intent to limit the third-party defense to situations such as when a third-party ship collides with an unrelated oil-carrying vessel.³⁷ Moreover, this interpretation promotes the goals of traditional tort policy because it encourages barge owners to select tugs carefully in order to guard against potential losses.³⁸ Although in these cases the tugs were operated by independent contractors, the barge owners held ultimate control over them in hiring them in the first place, specifying their itineraries, and retaining them throughout the jobs. Thus, LeBeouf and Hollywood Marine established that "ultimate control" encompasses not only "physical control" but also contractual relationships. They stand as the leading authorities in this line of cases and suggest that barge owners may be unable to avoid liability under § 311(f) even if they are not at fault in an oil spill incident.

Other Third-Party Issues

Another category of potential third parties under § 311 are those who have no formal relationship with the owner [11 ELR 10143] of the offending vessel or facility and yet are alleged to be the cause of the discharge. An example would be vandals or thieves who damage onshore facilities and cause spills.

In Chicago, Milwaukee, St. Paul & Pacific R.R. v. United States,³⁹ the court allowed the owner and operator of an onshore facility which was burglarized and discharged oil to recover from the United States the cleanup costs it incurred on the ground that the discharge was caused solely by a third party. The court found that since the owners had exercised reasonable care to prohibit or deter the criminal acts, they had not created a situation conducive to vandalism and were not in any way responsible for the spill.⁴⁰

Similarly, in Union Petroleum Corp. v. United States,⁴¹ the court allowed plaintiff to recover its oil spill cleanup costs under § 311(i) for a spill caused by third-party vandals. Relying on the "reasonable care" standard to find that plaintiff was not a contributor to the crime, the court held that the third-party vandals were the sole cause of the oil spill.⁴²

In contrast, in United States v. Remington,⁴³ an action brought under § 311(f), the court held defendant liable for the cleanup costs resulting from an oil spill from defendant's onshore facility caused by vandals. The court found that defendant had not shown that he took reasonable care to prevent the vandals from entering the property and causing the discharge. Therefore, since defendant was a contributing cause of the oil spill, the third-party vandals were not the sole cause of the spill under § 311(f)(1)(D).⁴⁴

Another area in which the third-party issue is important is § 311(g), which provides that a third party who is solely responsible for a spill is liable for the cleanup costs.⁴⁵ In United States v. City of Redwood City,⁴⁶ the federal government sought to recover oil spill cleanup costs from the owner and operator of the Port of Redwood City, the place where a barge discharged oil, and the owner and operator of a private police company which provided security at the port. Relying on the stated purpose of § 311 to prevent oil spills and the plain meaning of § 311(g), which provides that "[t]he United States may bring an action against a third party …," the Ninth Circuit Court of Appeals held that the United States may proceed directly against the third party to recover oil spill cleanup costs. Further, the court held that third party liability is not limited to situations where the third party's conduct was willfully negligent.⁴⁷

Most recently, in United States v. M/V Big Sam,⁴⁸ a case where the owner of a third-party vessel that collided with an oil-carrying barge had chartered the vessel to the operator of the vessel at the time of the collision, the Fifth Circuit Court of Appeals held that the third-party vessel owner was not liable for the oil spill cleanup costs. The court found that unlike § 311(f), § 311(g) is not based on strict liability. The narrow reading of § 311(f)'s third-party defense that the Fifth Circuit articulated in LeBeouf Bros. was inappropriate in the context of § 311(g), under which the defendant's fault must be shown. Since the owner of the third-party vessel had proved that the operator was the sole cause of the spill, the owner had met the burden of proof to escape liability.⁴⁹

Conclusion

In § 311 of the FWPCA Congress combined various maritime, tort, and environmental theories into a complex scheme of policies, procedures, and remedies.⁵⁰ Given this complexity, it was inevitable that there would remain unanswered many of the practical questions such as who would be liable for certain oil spill cleanup costs, under what circumstanes liability can be avoided, and how liability is to be shared by an distributed among the various actors.

While there are still issues to resolve,⁵¹ the recent efforts of the courts have produced some discernible trends that appear to effectuate reasonably the policies underlying § 311. With respect to the issue of third party liability under § 311(f)(1)(D), the First Circuit in Burgess and the Fifth Circuit in LeBeouf Bros. and Hollywood Marine have established that "ultimate control" over the alleged third party is the touchstone. Under this formulation, the owner of an offending barge cannot deflect liability to the owner of a tug having complete navigational responsibility over it; the continuing business relationship between the two negates the complete independence necessary to establish the third-party defense. While the Second Circuit Court of Appeals in Tug Ocean Prince appears to have reached a different result on essentially identical facts, the § 311(f)(1)(D) issue was never addressed directly by that court. In any event, the later opinions appear to represent a more reasonable interpretation of the Act in light of the congressional policy to impose a relatively [11 ELR 10144] high standard of strict liability on members of the industry.

The courts' venture into § 311(i) reflects something less than this strict standard. Chicago, Milwaukee, St. Paul & Pacific R.R. and Union Petroleum Corp. demonstrate that in order to recover oil spill cleanup costs from the government, the defendant must show that it took reasonable care to prevent the spill and that the defendant was not, either directly or indirectly, a causal contributor. In those cases, reasonable preventative measures had been taken and vandals were held to constitute third parties. Remington, on the other hand, shows that the standard of reasonable care may be relatively difficult to achieve and that a failure to prevent vandals from causing spills may result in liability.

Finally, the recent exploration of § 311(g) in M/V Big Sam shows that in those circumstances where the operator but not the owner of the third-party vessel is at fault, the owner will not be held liable. That decision indicates that if the third-party owner is truely faultless, liability under § 311(g) will not be imputed even if a business relationship exists between it and the operator. This holding mirrors Congress' intent to internalize the costs of transporting and producing oil within the oil industry through the strict liability scheme of § 311(f), while employing traditional tort standards of culpability in imposing liability on third parties under § 311(g).

From an environmental perspective, it matters little whether the barge owner, the tug operator, or the federal government bears the costs of cleaning up the oil spill, provided it is in fact cleaned up. The opinions discussed above do not concern whether oil spills must be cleaned up, nor do they question the government's right to recover its cleanup costs. The essential question is one of risk distribution: "Who pays?"

Given the existence of consistently applied rules in this area, there appears to be no reason why industry cannot minimize the risk of heavy liability by appropriately designed contractlual provisions and insurance protection. Therefore, the recent wave of decisions under § 311 should, by reducing the uncertainty in the law, make it easier for the industry to structure its activities and contractual relationships accordingly. Although the Fifth Circuit's narrow construction of the third-party defense in § 311(f) may appear to work a hardship on the barge owner in that case, the dominant impact of the ruling, over the long run, will be to give effect to Congress' goal of internalizing cleanup costs within the industry.

1. United States v. Tex-Tow, Inc., 589 F.2d 1310, 1314, 9 ELR 20006, 20007 (7th Cir. 1978).

2. A. REITZ, ENVIRONMENTAL PLANNING: LAW OF LAND AND RESOURCES, ch. 19 at 19-28 (1974) [hereinafter cited as ENVIRONMENTAL PLANNING].

3. Comment, Spilling Oil May Be Hazardous To Your Wealth, 19 NAT. RESOURCES J. 735 (1979) [hereinafter cited as Spilling Oil]. See also 1 F. GRAD. TREATISE ON ENVIRONMENTAL LAW § 3.01, 3-15 (1973); ENVIRONMENTAL PLANNING, supra note 2, at ch. 19, 19-31.

4. See note, Oil Spills and Cleanup Bills: Federal Recovery of Oil Spill Cleanup Costs, 93 HARV. L. REV. 1761 (1980) [hereinafter cited as Oil Spills].

5. Section 311(b)(3), 33 U.S.C. § 1321(b)(3), ELR STAT. & REG. 42133.

6. No. 80-1160, 49 U.S.L.W. 3858, 11 ELR 20679 (May 18, 1981).

7. United States v. Hollywood Marine, Inc., 635 F.2d 524, 10 ELR 20718 (5th Cir. 1980).

8. Hollywood Marine, Inc. v. United States, 49 U.S.L.W. at 3859, 11 ELR at 20679.

9. Pub. L. 91-224, 84 Stat. 91.

10. Id. § 11(b)(4).

11. Id. § 11(b)(5). Liability prior to 1970 was based on commonlaw and admiralty principles, international treaties, and state and federal statutes. Garrett, Federal Liability for Spills of Oil and Hazardous Substances Under the Clean Water Act, 12 NAT. RESOURCES LAW. 693 (1979) [hereinafter cited as Federal Liability]. See also W. RODGERS, ENVIRONMENTAL LAW 517-24 (1977). The first statute to deal with oil discharges was the Rivers and Harbors Act of 1899, ch. 425, §§ 13, 16, 30 Stat. 1152, 1153 (1899) (codified at 33 U.S.C. §§ 407, 411), which defined refuse to include oil. The Oil Pollution Act, Act of June 7, 1924, ch. 316, §§ 1-5, 7, 8, 43 Stat. 604-06, specifically dealt with oil discharges from vessels. In 1948, Congress passed the Water Pollution Control Act, ch. 758, 62 Stat. 1155, followed by the Water Quality Act of 1965 (establishing water quality standards for interstate waters), Pub. L. 89-234, 79 Stat. 903. The Clean Water Restoration Act of 1966, Pub. L. 89-753, 80 Stat. 1246, was superseded by the Water Quality Improvement Act of 1970, which was amended by the 1972 FWPCA Amendments, Pub. L. 92-500, 86 Stat. 816. The FWPCA Amendments adopted largely the same measure of damages as the 1924 act. Spilling Oil, supra note 3, at 736.

12. Federal Liability, supra note 11, at 693. The 1972 Amendments also extended § 311 to cover harmful discharges of "hazardous substances." Section 311(b)(6) of the FWPCA was amended in 1978 to give the Administrator of the Environmental Protection Agency the option of bringing a separate civil action against the discharger. Section 311(b)(6)(B), 33 U.S.C. § 1321(b)(6)(B), ELR STAT. & REG. 42133. See Comment, Eleventh Hour Amendment to the FWPCA Resuscitates EPA's Hazardous Substance Discharge Program, 8 ELR 10229 (1978).

13. United States v. LeBeouf Bros. Towing Co., 537 F.2d 149, 152, 6 ELR 20708 (5th Cir. 1976). See also Spilling Oil, supra note 3, at 737.

14. Section 311(b)(5), 33 U.S.C. § 1321(b)(5), ELR STAT. & REG. 42133. See Spilling Oil, supra note 3, at 741. The validity of the self-notification scheme has been challenged almost constantly since its inception. See Comment, Supreme Court Settles Circuit Split, Validates Oil Spill Penalties Based on Self-Notification, 10 ELR 10148 (1980) [hereinafter cited as Supreme Court Settles Split]; Comment, Water Act's Oil Spill Notification Rule Survives Constitutional Challenge, 6 ELR 10011 (1976).

15. Section 311(b)(6)(A), 33 U.S.C. § 1321(b)(6)(A), ELR STAT. & REG. 42133. Money collected is deposited in a revolving fund, § 311(k), 33 U.S.C. § 1321(k), ELR STAT. & REG. 42135, that is intended to remedy the shortfall in cleanup costs collected under § 311(f).

16. A series of additional justifications for the civil penalties have been propounded. See generally Comment, Liability Without Fault Under the Federal Water Pollution Control Act, 19 NAT. RESOURCES J. 687, 692 (1979) [hereinafter cited as Liability Without Fault].

17. Section 311(b)(6)(A), 33 U.S.C. § 1321(b)(6)(A), ELR STAT. & REG. 42133. The U.S. Coast Guard, the agency charged with administering § 311(b)(6)(A), has interpreted the statutory criteria broadly in setting its enforcement policy. See United States v. LeBeouf Bros. Towing Co., 377 F. Supp. 558 (E.D. La. 1974), rev'd on other grounds, 537 F.2d 149, 6 ELR 20708 (5th Cir. 1976), where the formal policy statement is reprinted as an appendix. Alternatively, as discussed above, supra note 12, a large penalty may be imposed by EPA under § 311(b)(6)(B), 33 U.S.C. § 1321(b)(6)(B), ELR STAT. & REG. 42133.

18. Section 311(c) & (f), 33 U.S.C., 33 U.S.C. § 1321(c) & (f), ELR STAT. & REG. 42133, 42134. See Oil Spills, supra note 4, at 1761. On occasion, when the cleanup costs have exceeded those limits, the government has attempted to supplement its FWPCA claim with an action for recovery under other statutory and common law theories. In six relatively recent decision, however, four different circuits have held that the FWPCA is the federal government's exclusive remedy to recover its cleanup costs. See generally Oil Spills, supra note 4, at 1761-62. See also Comment, FWPCA — The Federal Government's Exclusive Remedy for Recoupment of Oil Spill Cleanup Costs, 53 TUL. L. REV. 1421 (1979).

19. Section 311(c), 33 U.S.C. § 1321(c), ELR STAT. & REG. 42133. In addition to removal, the government may "act to mitigate the damage to public health or welfare caused by such discharge" and assess these costs to the discharger. See §§ 311(b)(6)(C) & 311(c), 33 U.S.C. §§ 1321(b)(6)(C) & 1321(c), ELR STAT. & REG. 42133. See also Federal Liability, supra note 11, at 717.

20. Supreme Court Settles Split, supra note 14, at 10148-49.

21. Section 311(f)(1), 33 U.S.C. § 1321(f)(1), ELR STAT. & REG. 42134. One potential limitation on liability has been held not to limit recovery under the FWPCA. Under the shipowners' Limited Liability Act, 46 U.S.C. § 181 et seq., the owner is liable for the damage to the ship or cargo only to the extent of the value of the ship after the accident. This act, however, does not limit the right of the federal government to recover oil spill cleanup costs. In re Hokkaido Fisheries Co., 506 F. Supp. 631, 11 ELR 20657 (D. Alaska 1981).

22. The four enumerated defenses are (1) an act of God, (2) an act of war, (3) negligence or omission of the United States government, and (4) an act or omission of a third party without regard to whether any such act or omission was or was not negligent. Section 311(f)(2), 33 U.S.C. § 1321(f)(2), ELR STAT. & REG. 42134.

23. Section 311(g), 33 U.S.C. § 1321(g), ELR STAT. & REG. 42134.

24. Id.

25. Section 311(i), 33 U.S.C. § 1321(i), ELR STAT. & REG. 42134.

26. 564 F.2d 964 (1st Cir. 1977), cert. denied, 435 U.S. 941 (1978). In 1972, the Norwegian supertanker M/V Tamano struck a buoy and a submerged ledge in Casco Bay, Maine, causing an oil spill of 100,000 gallons. The district court in Maine found the United States solely responsible and liable for the oil spill. 373 F. Supp. 839, 4 ELR 20505 (D. Me. 1974). The First Circuit vacated and remanded the district court opinion. 564 F.2d at 983.

27. The court contrasted the facts in that case with the hypothetical of a vandal opening a ship's valve as an example of a valid third-party defense. If the valve were to fail, however, because of the negligence or act of the installer of the valve, the installer would not be a "third party" because the installer would have been acting for the ship and the shipowner. Id.

28. 584 F.2d 1151 (2d Cir. 1978) cert. denied 440 U.S. 959 (1978). After an oil barge under tow in a channel of the Hudson River collided with a submerged rock and caused an oil spill, the United States brought suit against the tugowner for pollution cleanup costs. The trial court held that the owner of the barge was not responsible for the oil spill and dismissed the U.S. claim against it. All parties appealed.

29. 1978 A.M.C. 2195 (E.D. La. 1978).

30. 487 F. Supp. 1211, 10 ELR 20569 (S.D. Tex. 1980).

31. 487 F. Supp. at 1213, 10 ELR at 20570.

32. 487 F. Supp. at 1212-13, 10 ELR at 20570.

33. Id.

34. 621 F.2d 787, 10 ELR 20548 (5th Cir. 1980) rehearing denied, 629 F.2d 1350 (5th Cir. 1980).

35. 625 F.2d 524, 10 ELR 20718 (5th Cir. 1980).

36. 621 F.2d 787, 10 ELR 20548, and 625 F.2d 524, 10 ELR 20718 (5th Cir. 1980). In Hollywood Marine, the court, in a per curiam opinion, held that since the district court had relied on United States v. LeBeouf Bros. Towing Co., 1978 A.M.C. 2195 (E.D. La. 1978), rev'd, 621 F.2d 787, 10 ELR 20548 (5th Cir. 1980), rehearing denied, 629 F.2d 1350 (5th Cir. 1980), the United States was entitled to a summary reversal.

37. 621 F.2d at 787, 10 ELR at 20548, quoting from S. REP. NO. 91-351, 91st Cong., 1st Sess. 6 (1969).

38. 621 F.2d at 787, 10 ELR at 20548. It should be noted that LeBeouf Bros. does not go so far as to suggest that the Act might be interpreted to render void a contractual agreement through which such liability is transferred from vessel owner to the third party navigating it. Indeed, the court explicity noted that the barge owner was not without a remedy; it could seek indemnification from the tug owner for any losses attributable solely to the tug owner's conduct. Id.

39. 575 F.2d 839, 8 ELR 20348 (U.S. Ct. Cl. 1978).

40. 575 F.2d at 843, 8 ELR at 20350.

41. __ F.2d __, 11 ELR ___ (U.S. Ct. Cl. June 3, 1981).

42. __ F.2d at __, 11 ELR at ___.

43. 8 ELR 20675 (D. Or. 1978).

44. Id.

45. Section 311(g), 33 U.S.C. § 1321(g), ELR STAT. & REG. 42134. See text at note 23, supra.

46. __ F.2d __, 11 ELR 20341 (9th Cir. Feb. 23, 1981).

47. 11 ELR at 20343.

48. __ F.2d __, 11 ELR 20502 (E.D. La. Jan. 22, 1981).

49. 11 ELR at 20503.

50. At the same time, there are significant gaps in the Act's coverage. See United States v. Bear Marine Services, 509 F. Supp. 710, 11 ELR 20659 (E.D. La. 1980), where the court noted that the FWPCA does not address the liability of those persons who in some manner contributed to the discharge but were neither the source (i.e., not a discharging vessel or facility) nor the sole cause of the discharge. The court held that § 311(h)(2), 33 U.S.C. § 1321(h)(2), ELR STAT. & REG. 42135, preserves the right of the federal government to pursue nondischarging, nonsole-cause "third parties" under usual maritime tort theories to recover oil spill cleanup costs. 509 F. Supp. at 719, 11 ELR at 20663.

51. For example, in April 1981, the Fifth Circuit was again called upon to wrestle with the third-party issue, albeit in a slightly different context. In United States v. Coastal States Crude Gathering Co., __ F.2d __, 11 ELR 20438 (5th Cir. Apr. 27, 1981), the court modified and affirmed the imposition of the automatic civil penalty under § 311(b)(6), 33 U.S.C. § 1321(b)(6), ELR STAT. & REG. 42133, upon the owner of an oil pipeline from which oil was discharged into navigable waters of the United States. The parties agreed, and the court concurred without comment, that the pipeline was damaged by a vessel owned by an unknown third party.