United States v. Hollywood Marine, Inc.

No. 80-1647 (5th Cir. August 25, 1980)

The Fifth Circuit Court of Appeals holds that under § 311 of the Federal Water Pollution Control Act, a tug will not be considered a "third party" in order to allow the owner of a discharging vessel to avoid liability for an oil spill occurring while the vessel is in the tow of the tug. Since United States v. Le Beouf Bros. Towing Co., 10 ELR 20548, reversed a contrary district court opinion that was relied upon by the lower court in the instant case, the United States is entitled to summary reversal of the lower court's judgment, 10 ELR 20569, disallowing any recovery of cleanup costs of an oil spill from appellee's barge.

Counsel are listed at 10 ELR 20569.

Before BROWN, POLITZ, and TATE, Circuit Judges.

[10 ELR 20718]

PER CURIAM.

The appellant, the United States, seeks summary reversal of the lower court judgment disallowing any recovery for the costs of the clean-up of an oil spill from the appellee, Hollywood Marine. The United States bases its motion on a recent opinion by this court, United States v. LeBeouf Bros. Towing Co., 621 F.2d 787 (5th Cir. 1980), which reversed a district court decision relied upon by the court below in the instant case. LeBeouf, which is factually similar to the case under consideration, involved the interpretation of a section of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1321(f)(1). The Fifth Circuit found that, under that section, a tug will not be considered a "third party" in order to allow the owner of a discharging vessel to avoid liability for an oil spill occurring while the vessel is in the tow of the tug.

The reversal of the district court opinion in LeBeouf, relied upon below, makes appropriate our grant of an order for summary reversal and remand. Thus, the expense of filing the record and the briefs in a case that would necessarily be reversed by this court on a hearing on the merits is avoided.

Hollywood Marine, appellee, properly points out to this court that a rehearing will be applied for in the LeBeouf decision, as a consequence of which (or of [10 ELR 20719] Supreme Court review) the initial LeBeouf ruling may be changed. However, should rehearing be granted in this court in LeBeouf, Hollywood's position will be adequately protected by its timely application for rehearing; for then ruling upon this application and issuance of mandate will be withheld until final action on LeBeouf in this court.

Accordingly, we GRANT the appellant's motion to reverse the judgment and to remand this case to the United States District Court for the Southern District of Texas for further proceedings in accordance with law.