Petition — Shell Oil Co. v. United States

Supreme Court brief1981

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80-2044 3

CLERK

ALEXANDER L. STEVas,

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No.

SHELL OIL COMPANY

AND

HARBOR TOWING CORPORATION,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN HENRY LEWIN, Jr. JOHN T. WARD

JAMES K. ARCHIBALD Ober, Grimes and Shriver

Venable, Baetjer and Howard 1600 Maryland National Bank

1800 Mercantile Bank & Trust Bldg.

Bldg. Baltimore, Maryland 21202

Two Hopkins Plaza (301) 685-1120

Baltimore, Maryland 21201 Counsel for Petitioner

(301) 752-6780 Harbor Towing Corporation

Counsel for Petitioner

Shell Oil Company

Washington, 0.C. e CLB 2UBLISHERS’ e LAW PRINTING CO. e (202) 393-0625

a es

(i)

QUESTION PRESENTED

Whether a Government claim alleging a negligent viola-

tion of the Federal Water Pollution Control Act, 33 U.S.C.

§ 1321, (i.e., an oil spill) and seeking damages for injuries

resulting therefrom (i.e., clean-up costs) accrues, under the

tort limitations provisions of 28 U.S.C. §2415(b), when the

spill occurs or not until the clean-up has been completed?

(ii)

TABLE OF CONTENTS

QUESTION PRESENTED. ..........cccccccscccscceees i

TABLE OF CONTENTS. ........cccccccccccecccesccees ii

TABLE OF AUTHORITIES .........ccccccvcsccvescens iii

OPINION BELOW .....cccccccccccccccccccccccccccsecs

JURISDICTION 2. cccscccccsccccccesccccccvvcsccccccese

STATUTES INVOLVED .......ccccccccccccccccecccoes

STATEMENT OF THE CASE..........cccsccccccscees

REASONS FOR GRANTING THE WRIT..............

THE COURT’S DECISION THAT THE

GOVERNMENT’S CLAIM IN AN OIL SPILL

CASE DID NOT ACCRUE WHEN THE

SPILL OCCURRED CONFLICTS WITH THE

ESTABLISHED BODY OF LAW THAT A

CAUSE OF ACTION IN TORT ACCRUES

AT THE TIME A WRONG IS COMMITTED.

UNLESS CORRECTED NOW, IT WILL

CAUSE CONFUSION AND DISORDER

AMONG THE COURTS AND WILL CAUSE

EXTRAORDINARY INCONVENIENCE IN

THIS PARTICULAR CASE. THE ISSUE IS A

CLEAR-CUT AND IMPORTANT ONE

THAT IS FUNDAMENTAL TO THE FUR-

THER CONDUCT OF THE CASE ................

(iii)

TABLE OF AUTHORITIES

Cases

Ashley v. United States,

ee Fe Tere rere 11

Beech v. United States,

BEF Fe OE Ee Gls CUED ev ce sbnvecetseesscunns: 11

Ciccarone v. United States,

ee ee ee CE GA, SU COE eva ecececencsescvdenues: 11

Davies v. Krasna,

14 Cal.34 S02, 535 P.26 1161 (1975). ...caerccscccses 9

Estelle v. Gamble,

OPE ced aencedes soesetectcienssevees 11

Ford Motor Credit Co. v. Minges,

eee bE Le | nee 9

Gillespie v. United States Steel Corp.,

a Es sab kw ceendeaverecenteedeaseae 11

Harig v. Johns-Mansville Products Corp.,

284 Md. 70, 394 A.2d 299 (1978)..........cceeeeees 9

Hollywood Marine, Inc., v. United States,

No. 80-1169, cert. denied, May 18, 1981

Ge as SUED So cov dese sdeccscbncrdccsocconne 8

Hulver v. United States,

562 F.2d 1132 (8th Cir. 1977), cert. denied,

ee Cs petdnniscekicccenavenesxsawer ce 11

Kington v. United States,

396 F.2d 9 (6th Cir.), cert. denied,

ee ccc cee races edenneteaedes 11

Lynch v. United States Army Corps of Engineers,

474 F. Supp. 545 (D. Md. 1978), aff'd w/o

opinion, 601 F.2d 581 (4th Cir. 1979) .............5. 9

Nardone v. Reynolds,

ee ee Gy ROT i ccceacsdccecsccesanese 9

Portis v. United States,

ee en Ce NOTED ccc cdeccccasicdnccscas i)

(iv)

R. J. Reynolds Tobacco Co. v. Hudson,

Be ae FPL CGE: BOOBs 5 Fei Sn cdc inde eceddcess 10

Robbins v. United States,

Ce ee OTe Lee Ge TPO vic ce ceecccescvccseves 11

Steele v. United States,

Be a LHe A EOFS ccc didicavcccecccvacs 9,11

Tessier v. United States,

ee ee CRIN ale SUED Wied rceveccosecssesaces 11

Triangle Underwriters, Inc. v. Honeywell, Inc.,

oe & ber de be. eee 11

United States v. City of Redwood City,

ey eee AE BUMPED ba vcccesccdveecsscteeee 7

United States v. General Motors Corp.,

Es a cln st snescsVestasheneescoes 11

United States v. Kubrick,

ee ee EP viccvivecssinnsdaceseevereveses 9

Statutes

a Stoo can ceGs Senohs EEORSaE erwaenss 4,5,6,7

SE cc civcacdwbassasseb ve Skesnseawesbotewes 8

ee ARE EME ii dadendpceccsdetneseccsvesess as

Other Authorities

Developments in the Law - Statutes of Limitations,

Gd Peerveees Ei They, LITT CIFSG) ce cccccccccccscctceses 9

Restatement (Second) of torts §899, Comment c

EL Saint ltintws chou seCdeRVA TAN Ae Si eskennebanes 9

H.R. Conf., Rep. No. 91-940, 91st Cong., 2nd Sess. 39,

reprinted i in [1970] U.S. Code, Cong. and Ad. News

PEE UG IGE ches bnonvereDiciwes nba este swede des 8

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1980

No.

SHELL OIL COMPANY

AND

HARBOR TOWING CORPORATION,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioners Shell Oil Company (“Shell”) and Harbor

Towing Corporation (“Harbor Towing’’) respectfully pray

that a writ of certiorari issue to review the order and opinion

of the United States Court of Appeals entered in this

proceeding on December 10, 1980.

OPINION BELOW

The opinion of the Court of Appeals, reported at 635 F.2d

1108 (4th Cir. 1980), appears in the Appendix hereto, p.

Al.

JURISDICTION

The order of the Court of Appeals for the Fourth Circuit

was entered (time of day not recorded) on December 10,

1980. Petitions for rehearing and suggestions for rehearing

en banc filed by Shell and Harbor Towing were denied on

March 6, 1981. Appendix, p. 15a. The Court’s juris-

diction is invoked under 28 U.S.C. §1254(1).

STATUTES INVOLVED

The statutes involved on this case are 28 U.S.C. Section

2415 (Statute of Limitations) and 33 U.S.C. Sections 1321

et seq. (the Federal Water Pollution Control Act of 1972).

The texts of the statutes are set forth in the Appendix hereto,

p. 16a.

STATEMENT OF THE CASE

The case is an action, brought in the United States District

Court for the District of Maryland, by the United States

under 33 U.S.C. §1321 (the Federal Water Pollution

Control Act of 1972 - “the FWPCA”’) for damages (the

costs incurred in cleaning up an oil spill) sustained as the

result of an alleged violation of the Act (a prohibited

discharge of oil). Jurisdiction rested on 28 U.S.C. 1331. The

spill occurred on August 10, 1975. More than three years

later, on September 6, 1978, the case was instituted.

Named as defendants were the Petitioners herein, Harbor

Towing (the owner of the barge from which the oil spilled)

and Shell (the supplier of oil to the barge).'.

The Complaint alleged that in August of 1975 about

3,224 barrels of oil overflowed from the barge SHAM-

ROCK while it was being loaded at Wagner’s Point in

Baltimore, Maryland at a petroleum terminal owned and

operated by Shell. The Government, it is alleged, cleaned up

the spill “at a cost to it of $462,098.62.”

Both Shell and Harbor Towing, in the Complaint, were

accused of tortious conduct. With respect to Shell, the

Complaint alleged that it was:

“willfully negligent with privity and knowledge . . . [in

that] (d) Shell Oil knew that its dockman slept on duty

and did not make proper rounds of inspection, but did

nothing to insure the keeping of an alert watch [and]

knowingly overworked its dockman.”

The Complaint further alleged, as to Shell, that ‘Shell

Oil’s dockman was careless, incompetent, and inattentive to

his duties,” that he was “overworked and fatigued’’ and

“slept on duty during loading.”

'Two other defendants — the barge SHAMROCK and Water Quality

Insurance Syndicate — were named in the Complaint. Neither was ever

served with process. The listing naming all parent companies, subsidi-

aries (except wholly owned subsidiaries) and affiliates of Petitioners, as

required by Rule 28.1, is set forth in the Appendix, p. 42a. .

With respect to Harbor Towing and the SHAMROCK,

the Complaint alleged that they were:

“willfully negligent with privity and knowledge . . . [in

that] (a) Harbor Towing knew that the SHAMROCK

was undermanned, but did nothing to man her properly;

(b) Harbor Towing knew that both its tankerman and

Shell Oil’s dockman slept during oil transfer, but did

nothing to insure that its tankermen was alert on watch

[and] knowingly overworked its tankermen.”

The Complaint further alleged, as to Harbor Towing, that

the SHAMROCK was unseaworthy and that Harbor

Towing was otherwise negligent.

With respect to causation, the Complaint alleged that the

discharge of oil was caused by the noted negligent or willful

acts or omissions of the defendants and “‘was not caused or

contributed to in any way by plaintiff United States.”

During discovery, Shell and Harbor Towing served

interrogatories upon the Government which inquired as to

the date on which the Government contended its cause of

action accrued. The Government’s answer (which it never

amended or sought to amend) to those interrogatories was:

“August 10, 1975, by reason of the fact that oil from Shell’s

facility entered the Patapsco River on that date.”

In due course, Petitioners moved for summary judgment

on the ground that the Government’s claim was barred by the

applicable statute of limitations. 28 U.S.C. §2415(b).

Section 2415(b) mandates that any action for money

damages brought by the United States which is founded

upon a tort shall be barred unless the complaint is filed within

three years after the right of action first accrues.

On July 16, 1979 summary judgment was entered by the

District Court in favor of Petitioners, on the basis that the

Government’s claim was barred by limitations. In granting

the judgment the late Judge Blair remarked:

“It would not be a fair reading of the law to hold that

where Congress spoke of ‘negligence’ and ‘willful

misconduct’ it was not talking about tort. Accordingly,

the statute of limitations which applies to tort actions

brought by the United States, 28 U.S.C. §2415(b),

bars the government from recovering its expenses

incurred in cleaning up the defendants’ spilled oil under

33 U.S.C. $1521 ()....”

On appeal, the Fourth Circuit (by a divided panel)

reversed. In reversing, the majority agreed with the Gov-

ernment’s contention (first raised on appeal) that the cause

of action, even though “founded upon a tort’’ and therefore

subject to the limitations provisions of Section 2415(b), did

not accrue when the injury (i.e., the oil spill) occurred, but

rather at a later date.

REASONS FOR GRANTING THE WRIT

THE COURT’S DECISION THAT THE

GOVERNMENT’S CLAIM IN AN OIL

SPILL CASE DID NOT ACCRUE WHEN

THE SPILL OCCURRED CONFLICTS

WITH THE ESTABLISHED BODY OF

LAW THAT A CAUSE OF ACTION IN

TORT ACCRUES AT THE TIME A WRONG

IS COMMITTED. UNLESS CORRECTED

NOW, IT WILL CAUSE GENERAL CON-

FUSION AND DISORDER AMONG THE

COURTS AND WILL CAUSE EXTRAOR-

DINARY INCONVENIENCE IN THIS

PARTICULAR CASE. THE ISSUE IS A

CLEAR-CUT AND IMPORTANT ONE

THAT IS FUNDAMENTAL TO THE FUR-

THER CONDUCT OF THE CASE.

“We can have no equal justice when a citizen must bring

his grievance into court against the Government within a

specified period of time — if we do not impose similar time

limits on the Government’s claims against its citizens.” So

spoke President Lyndon Johnson in July of 1966 upon

signing the statute of limitations legislation now codified in

28 U.S.C. §2415. The effect of the ruling as to which review

is sought here, however, is to create a time limit on the

Government’s tort claims against its citizens different, and

longer, than that allowed in actions by private parties. The

ruling is contrary to the intent of the limitations statute and

contrary to the established body of law in this country that a

cause of action in tort accrues at the time a wrong is

committed. Unless corrected now, this erroneous holding

wili create disorder among the courts and other litigants and

undue hardship in this case.

The opinion is a bizarre one. It may be because the

majority of the panel made a crucial finding of fact as to the

accrual date - “‘a matter contested by the parties and not even

considered by the district court.” 635 F.2d at 1113-14

(dissenting opinion). It may be because the majority of the

panel, having concluded that it would be “‘unjust’” to apply

limitations in this instance’, clutched upon an ersatz theory

thrown up by the Government for the first time on appeal.

The district court did not consider the issue because it was not raised

by the Government. Instead, the Government, on the record before the

trial court, conceded under oath that its cause of action had accrued on

August 10, 1975, when the oil entered navigable waters. 635 F.2d at

1113-14.

The result-oriented approach of the majority is typified by the

penultimate sentence of their opinion: “I< would be unjust to impose the

costs on the government which was in no way involved in the spill while

wee the perpetrators of the damage to escape liability.” 635 F.2d

at 1111-12.

What the majority of the panel did was to adopt (and rest

its opinion solely on) the Government’s assertion that “even

if the three year time bar for torts [of 28 U.S.C. §2415(b)] is

applicable [to actions brought under the FWPCA|I, the

complaint was timely filed on September 6, 1978.” 635

F.2d at 1110. By adopting the three year tort action

limitation period for the claim, the majority was compelled to

locate an accrual date later than the date of the spill in order

to achieve its desired result. It did so by disguising the case as

an “action for recouping expenses incurred by the govern-

ment” instead of forthrightly acknowledging it to be a pure

tort action.‘ Having muddled the nature of the cause, the

majority then held that (as such) it did “‘not fully accrue* until

the government [had] completely exercised its ‘option’ and

completed the clean-up operation.” 635 F.2d at 1110.

This “disguising” of the action as one for recoupment

cannot be supported. The Government did not perform any

‘It did not hold that the action was founded upon a contract or quasi-

contract, a point for which the Government argued a six year limitation

period was applicable. That the cause of action is founded in tort, with

the damages being the clean-up costs, is emphasized in United States v.

City of Redwood City, 640 F.2d 963, 969-70 (9th Cir. 1981) (“Oil

pollution in navigable waters has been deemed a tort for which the

United States is entitled damages.”’).

‘The focus on when the action “fully” accrued is itself error since the

statute speaks in terms of when a cause of action “first accrues” - not

when it fully accrues. 28 U.S.C. §2415(b). This theory and the

unsupported “‘option” concept were taken from the Government’s brief.

action which any statute made Petitioners responsible for

performing. °

The majority’s holding that the cause of action did not

accrue until September 12, 1975, the date suggested by the

Government on appeal as the last day of the clean-up

operation, was clearly wrong. This conclusion, conflicting

with the established body of law in this country that a cause

of action in tort accrues at the time a wrong is committed, as

noted above, will cause havoc with the courts, and create

undue hardship in this particular case, unless corrected

now.’

The cause of action against the Petitioners was for the

actual amount of the removal costs based upon their alleged

“willful negligence”. Hence, there was no necessity to wait

for a determination of the total costs since all costs were

recoverable. Willful negligence was alleged in an effort to

circumvent the limitation of liability provisions of the

FWPCA, which, in the case of Harbor Towing at least,

limited the SHAMROCK’ liability to $57,500.00.

‘Unlike the “wreck statute”, 33 U.S.C. § 407, the FWPCA does not

create a duty on the part of a spiller to clean up spilled oil. That duty is

placed on the President, who can permit the spiller to do the clean-up if

the spiller wishes to and jf the President determines that the clean-up

“will be done properly” by the spiller. Judge Blair relied upon the

legislative history of the FWPCA and observed that “. . . the primary

duty to take steps to abate pollution rests with the President not with the

polluter.” H.R. Conf., Rep. No. 91-940, 91st Cong., 2nd Sess. 39,

reprinted in [1970] U.S. Code, Cong. and Ad. News 2712, 2723. (“The

Conferees wish to make it clear that the basic responsibility for

necessary cleaning up in these situations is placed upon the President.”’)

™r. Justice Renquist, of course, has noted recently the importance

of the FWPCA, suggesting review of an interpretation of the Act even

absent a conflict. Hollywood Marine, Inc. v. United States, No. 80-

1169, cert. denied, May 18, 1981 (49 U.S.L.W. 3858).

The universally recognized rule of law is that when an

injury coincides with a negligent act, and some damage is

discernible at that time, the cause of action accrues and the

statute of limitations starts running. United States v.

Kubrick, 444 U.S. 111 (1979); Portis v. United States,

483 F.2d 670 (4th Cir. 1973); Ford Motor Credit Co. v.

Minges, 473 F.2d 918 (4th Cir. 1973); Steele v. United

States, 599 F.2d 823 (7th Cir. 1979); Lynch v. United

States Army Corps of Engineers, 474 F. Supp. 545 (D. Md.

1978), aff'd w/o opinion 601 F.2d 581 (4th Cir. 1979);

Harig v. Johns-Mansville Products Corp., 284 Md. 70, 394

A.2d 299 (1978).

Where an injury is sustained in consequence of the

wrongful act of another, limitations attach at once. The fact

that the full extent of the damages cannot be determined at

the time of the wrongful act does not postpone the running of

the statute of limitations. Portis v. United States, supra;

Nardone v. Reynolds, 508 F.2d 660 (Sth Cir. 1975); Lynch

v. United States Army Corps of Engineers, supra; Davies v.

Krasna, 14 Cal.3d 502, 535 P.2d 1161 (1975). The

Government’s “‘option” concept, of course, was simply an

effort to avoid the bar created by this legal rule.

The Restatement concludes that a statute of limitation

does not begin to run until the tort is complete, i.e., when

there has been “‘an invasion of a legally protected interest of

the plaintiff.”’ In a negligence action, where damage is the

last essential element of the tort, the “cause of action for

negligently harming a person or thing is complete when the

harm occurs.” Restatement (Second) of Torts, §899,

Comment c. at 441 (1979). Accord, Developments in the

Law - Statutes of Limitations, 63 Harvard L. Rev. 1177,

1201 (1950) (“If harm is deemed the gist of the action, the

occurrence of harm marks the beginning of the period”’). The

harm on which the Government’s present action is founded,

the entry of the oil into navigable waters of the United States,

occurred on August 10, 1975, and it was on that date on

which the Government’s cause of action accrued.

A plaintiff's injury provides adequate notice to him of the

possibility that his legal rights have been invaded. The

Government in this case was aware of the spill on August 10,

1975 and the statute of limitations began to run from that

date. R. J. Reynolds Tobacco Co. v. Hudson, 314 F.2d 776,

781-82 (5th Cir. 1963). All the facts which were needed to

prove this tort occurred on August 10, 1975.

The conclusion of the majority of the Fourth Circuit panel

that this cause of action did not accrue at the time when harm

occurred, but rather at a later arbitrarily selected and

unproven date, flatly conflicts with established state and

federal law.*®

*See Tessier v. United States, 269 F.2d 305 (ist Cir. 1959) (There

was a legal wrong as soon as the metal fragments were abandoned in him

“and suit thereon was not suspended because of any duty imposed on the

United States to remove the fragments.’’) id. at 309; Triangle Under-

writers, Inc. v. Honeywell, Inc., 604 F.2d 737 (2d Cir. 1979) (“Cause of

action accrues when acts or omissions constituting negligence produce

injury”) id. at 744; Ciccarone v. United States, 486 F.2d 253 (3d Cir.

1973) (‘The two year statute of limitations begins to run when a trauma

coincides with the negligent act and some damage is discernible at the

time. . .”) id. at 256; Beech v. United States, 345 F.2d 872 (Sth Cir.

1965) (“‘where the trauma coincides with the negligent act and some

damage is discernible at the time.’’) id. at 874; Kington v. United States,

396 F.2d 9 (6th Cir.) (accrued at the time death occurred and not when

the precise cause of death was learned) cert. denied, 393 U.S. 960

(1968); Steele v. United States, 599 F.2d 823 (7th Cir. 1979) (“{If]

some damage is discernible at tha\ time, the cause of action accrues and

the statute of limitations begins to run immediately”’) id. at 828; Hulver

v. United States, 562 F.2d 1132 (8th Cir. 1977) (“[O]ne who knows he

(continued)

Petitioners are well aware of “the Court’s normal practice

of denying interlocutory review.” Estelle v. Gamble, 429

U.S. 97, 114 (1976) (Stevens, J., dissenting). But, ex-

ceptions are made where there is some important and clear-

cut issue of law that is fundamental to the further conduct of

the case. Estelle, supra; United States v. General Motors

Corp., 323 U.S. 373, 277 (1945); Gillespie v. United States

Steel Corp., 379 U.S. 148, 155 (1964). Such an issue exists

here.

(footnote continued from proceeding page)

has suffered from medical malpractice may not postpone an action until

the full extent of his damage is ascertained.’’) id. at 1137, cert. denied,

435 U.S. 951 (1978); Ashley v. United States, 413 F.2d 490 (9th Cir.

1969) (accrued at time injury occurred not at the time plaintiff learned

the full extent of the damages); Robbins v. United States, 624 F.2d 971

(10th Cir. 1980) (“{A] legally cognizable injury or damage begins the

running of the statutory period of §2401 (b) even though the ultimate

damage is unknown or unpredictable.”) id. at 973.

CONCLUSION

For the reasons stated above, the Court is asked to grant

certiorari in the instant case.

Respectfully submitted,

JOHN HENRY LEWIN, JR.

JAMES K. ARCHIBALD

Venable, Baetjer and Howard

1800 Mercantile Bank

and Trust Building

2 Hopkins Plaza

Baltimore, Maryland 21201

(301) 752-6780

Counsel for Petitioner

Shell Oil Company

JOHN T. WARD

Ober, Grimes and Shriver

1600 Maryland National

Bank Bldg.

Baltimore, Maryland 21202

(301) 685-1120

Counsel for Petitioner

Harbor Towing Corporation

APPENDIX

UNITED STATES v. BARGE SHAMROCK

Cite as 635 F.2d 1108 (1980)

UNITED STATES of America,

Appellant,

The BARGE SHAMROCK, her tackle apurtenances, etc.,

and Harbor Towing Corporation, Shell Oil Company and

Water Quality Insurance Syndicate, Appellees.

No. 79-1603.

United States Court of Appeals,

Fourth Circuit.

Argued May 6, 1980.

Decided Dec. 10, 1980.

Alfred Mollin, Washington, D. C. (Alice Daniel, Asst.

Atty. Gen., Washington, D. C., Russell T. Baker, Jr., U.S.

Atty., Baltimore, Md., Leonard Schaitman, Dept. of Justice,

Civ. Div., Appellate Section, Washington, D. C., on brief),

for appellant.

John Henry Lewin, Jr., Baltimore, Md. (James K.

Archibald, Venable, Baetjer & Howard, John T. Ward, M.

Hamilton Whitman, Jr., Ober, Grimes & Shriver, Balti-

more, Md., on brief), for appellees.

Before WINTER, WIDENER and SPROUSE, Circuit

Judges.

SPROUSE, Circuit Judge:

On September 6, 1978, the United States filed this action

to recover $462,098.00 in costs expended by the Gov-

ernment in removing an oil spill. The district court, holding

the action barred by a statute of limitations, granted

summary judgment for the defendants and the Government

appeals.

The Barge Shamrock discharged the oil while being

loaded at Wagners Point, Baltimore Harbor, Maryland, on

August 10, 1975. The defendants are Shell Oil Company

(which was loading the barge) and Harbor Towing Cor-

poration (which owned the barge) (collectively, Com-

panies). Three years elapsed between the spill of August 10,

1975, and filing of the action on September 6, 1978. We hold

that the computation of time for filing the action commenced

on September 12, 1975, when the government completed the

oil removal. Since less than three years elapsed from that

event until the action was filed, the case must be reversed and

remanded for trial.

The Shamrock lay moored at Shell’s Wagners Point

petroleum terminal at about 1:00 a. m. on August 10, 1975,

and began loading from Shell’s shoreline at that time.

Approximately 135,000 gallons of oil soon overflowed from

the Shamrock’s tanks into the Patapsco River. Neither

Harbor Towing nor Shell attempted to remove the oil. The

complaint alleged that the Shamrock was unseaworthy and

undermanned, that her crew was careless, incompetent,

overworked, fatigued, and asleep on duty during the loading,

that Shell Oil’s dockman was careless, incompetent,

overwored, fatigued, and asleep on duty during the loading,

and that both companies were willfully negligent in that they

knew of these conditions concerning their respective

personnel yet did nothing to remedy the conditions.

The Government, in answering interrogatories, furnished

the Coast Guard report covering the entire incident. Among

the details disclosed was the oil removal completion date—

September 12, 1975.

The action was brought under the Federal Water Pol-

lution Control Act (the Act) Subsection, 33 U.S.C.

1321(b)(3), which prohibits discharges of oil or hazardous

substances into certain navigable waters of the United

States.

The Act contains a variety of penalty and cleanup cost-

recovery provisions for oil spills. Administrative penalties

up to $5,000 may be imposed, without a showing of fault.

The administrator of the Act may also seek judicially-

imposed penalties. The Government may recover the actual

cost of cleanup operations for spills from vessels up to a

maximum of $250,000, even without fault. It may recover

all actual removal costs without maximum limitation on the

showing of willful negligence or willful misconduct. 33

U.S.C. § §1321(b)(6)(A), 1321(b)96)(B), 1321(f)(1).

There is no specific statute of limitations contained in the

Act. The Companies contend that 28 U.S.C. §2415

controls this action. Section 2415 expresses generally the

time limitations barring actions against the Government.

The Companies argue that the oil spill was a tort, and is thus

governed by the three-year time bar specified for torts in

section 2145 [sic]. The district court agreed and held that

since the oil spill occurred on August 10, 1975, more than

three years prior to filing of suit on September 6, 1978, the

action was time-barred.'

'The opinion of the late Judge Blair is adopted as the principal part of

the dissent. Jt should be noted, however, that the language of the district

court quoted in the dissent was not considered in the majority opinion.

The reasoning was not approved or disapproved because it was not

necessary to the disposition of the case. As is discussed, infra, the

conclusions of the majority are based on a later accrual date for the

government’s cause of action.

[1] The Government contends that Congress did not

intend the Federal Water Pollution Control Act to be subject

to the provisions of section 2145 [sic]. It argues, alterna-

tively, that even if the three-year time bar for torts is applica-

ble, the complaint was timely filed on September 6, 1978.

Although the spill occurred on August 10, 1975, the

Government argues that the cause of action did not accrue

until September 12, 1975-——-when the oil removal was com-

pleted. We agree with this latter contention and reverse and

remand for trial. We need not consider the other arguments

advanced by the parties since, under any of those theories,

the action would not be time-barred.

[2] The primary duty for cleaning the oil spill, was of

course, upon the Companies. Cf Wyandotte Transporta-

tion Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19

L.Ed.2d 407 (1967) (removal of sunken barges); United

States v. Perma Paving Co., 332 F.2d 754 (2nd Cir. 1964)

(removal of man-made shoal). See also Askew v. American

Waterways Operators, Inc., 411 U.S. 325, 332-334, 93

S.Ct. 1590, 1595-1596, 36 L.Ed.2d 280 (1973).

Section 1321(c)(1) of the Act provides:

Whenever any oil or a hazardous substance is

discharged, . . . the President is authorized to act to

remove or arrange for the removal of such oil or

substance at any time, unless he determines such

removal will be done properly by the owner or operator

of the vessel, onshore facility, or offshore facility from

which the discharge occurs.

33 U.S.C. § 1321(c)(1). The President is thus authorized to

arrange for removal of the spill unless he determines that the

removal will be done properly by the owner or operators of

the facilities involved. In order to avoid the obvious con-

sequences of possible delay or ineffectiveness Congress,

with this section, provided the Executive Branch an.option.

The option is sufficiently broad to effect the Congressional

purpose of efficiently removing contaminants and fixing

responsibility. The President may act or decline to act.

Presumably, once a government cleanup is started it can be

delayed at the direction of the President. He could direct a

responsible party to become involved. Government action in

appropriate circumstances might be terminated prior to

completion.

The cause of action for recouping expenses incurred by

the government does not fully accrue until the government

has completely exercised its option and completed the

cleanup operation. Supportive of this logic is 28 U.S.C.

§ 2416, which provides:

For the purpose of computing the limitations periods

established in section 2415 [28 U.S.C.S. §2415], there

shall be excluded all periods during which—

and reasonably could not be known by an official of the

United States charged with the responsibility to act in

the circumstances. .. .

See also United States v. Boyd, 520 F.2d 642, 645 (6th Cir.

1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 776, 46

L.Ed.2d 638 (1976).

[3,4] The Companies correctly contend that the Sep-

tember 12 removal completion date was not argued to the

district court as the accrual date for the cause of action. They

argue that this issue cannot be considered on appeal. It is true

that this Court does not generally pass on issues not

previously raised. United States v. One 1971 Mercedes

Benz, 542 F.2d 912 (4th Cir. 1976); United States v.

Chesapeake & Ohio Ry. Co., 215 F.2d 213 (4th Cir. 1954).

See also Singleton v. Wulff; 428 U.S. 106, 120, 96 S.Ct.

2868, 2877, 49 L.Ed.2d 826 (1976). There are instances,

however, when issues not previously raised should be

entertained on appeal. If the error is “‘plain’”’ and a refusal to

treat it would result in the denial of fundamental justice, it

should be decided. In Ricard v. Birch, 529 F.2d 214 (4th

Cir. 1975) we considered an issue which was raised for the

first time on appeal.

The defendant argues, however, that the statute

should not be applied because it was not raised in the

district court. Ordinarily, of course, we do not pass on

questions that were not presented to or considered by

the district court, but orderly rules of procedure do not

require sacrifice of the rules of fundamental justice.

“Indeed, if deemed necessary to reach the correct

result, an appellate court may sua sponte consider

points not presented to the district court and not even

raised on appeal by any party.”

Id. at 216, quoting Washington Gas Light v. Virginia

Electric & Power Co., 438 F.2d 248 (4th Cir. 1971). See

also Walker Manufacturing Co. v. Dickerson, Inc., 560

F.2d 1184, 1187 n. 2 (4th Cir. 1977). This Court has also

held:

Rules of practice and procedure are devised to

promote the ends of justice, not to defeat them. A rigid

and undeviating judicially declared practice under

which courts of review would invariably and under all

circumstances decline to consider all questions which

had not previously been specifically urged would be out

of harmony with this policy. Orderly rules of procedure

do not require sacrifice of the rules of fundamental

justice.

Washington Gas Light, supra at 250, quoting Hormel v.

Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed.

1037 (1941).

The facts concerning the removal of the oil spill are

documented in the record by the Coast Guard investigative

report. The September 12 completion date is undisputed.’

The issue of whether it was the critical date should have been

obvious to the parties and to the trial court. The Govern-

ment’s failure to previously argue the September 12 date,

therefore, does not inhibit us from considering it.’ It would be

unjust to impose the costs on the government which was in no

way involved in the spill while permitting the perpetrators

of the damage to escape liability. —

The case is reversed and remanded for proceedings

consistent with the views expressed in this opinion.

REVERSED AND REMANDED.

WIDENER, Circuit Judge, dissenting:

I respectfully dissent.

?The record is brief because the case was decided on the defendants’

motion for summary judgment. The Coast Guard investigative report

was an integral part of the record. It was not only not contested, but was

obviously an independent factual source. The defendants did not at trial

nor on appeal contest the factual accuracy of the statement that the final

clean-up was not completed until September 12. They only assert that

the date of the spill rather than the date of clean-up completion initiates

the statute of limitations.

*The dissent stresses the government’s admissions during discovery

proceedings that August 10 was the day on which the cause of action

accrued because the spill occurred on that date. There is no question, of

course, that the spill occurred on August 10, just as there is no question

that the clean-up operation was not completed until September 12. The

issue as to whether the cause of action accrued on the date of the spill or

the date of the clean-up completion, however, is a question of law. The

majority believes, for the reasons expressed in the body of the opinion,

that under the correct interpretation of the applicable statutes the

government’s cause of action did not finally accrue until the clean-up

operation was completed.

I would affirm on the opinion of Judge Blair ‘which,

because it was not published and Judge Blair having since

died, I now copy below and adopt as my own.

“On August 10, 1975, while the barge SHAM-

ROCK was taking an oil at Shell Oil Company’s

petroleum terminal in Baltimore, Maryland, over 3000

barrels of oil spilled into the Patapsco River. More than

three years later, in September 1978, the United States

brought this action against Shell Oil, the SHAMROCK

and her owner, Harbor Towing Corporation, to recover

the amount the government expended to clean up the

oil. The defendants have moved for summary judgment

under Fed.R.Civ.P. 56 on the grounds that the suit is

barred by the applicable statute of limitations, 28

U.S.C. §2415(b).

“That section provides that every action for money

damages brought by the United States ‘which is

founded upon a tort’ is barred unless filed within three

years after the right of action accrues. The defendants

reason that an action to recover the costs of removing oil

polllution is an action ‘founded upon a tort.’

“‘The government responds that this action is founded

not upon a tort but upon the sovereign’s right under the

Constitution to insure and protect the cleanness of its

navigable waters, a right, it is argued, which is not

subject to any statute of limitations. The complaint did

not specify the theory of liability supporting this action.

The government argues now that there are some six

possible theories of recovery,’ all intertwined, and all

'The government asserts the following sources of liability:

1. Under the Rivers and Harbors Act of 1899, for injunction,

damages, and penalty.

2. Under the general maritime tort law.

3. Under the common law of nuisance, for an injunction or its

monetary equivalent.

4. In equity, for an injunction or its monetary equivalent.

5. In equity, for restitution.

6. Under the Federal Water Pollution Control Act, 1972

(FWPCA), for an injunction, cleanup costs, and penalty.

‘founded’ upon the authority of the sovereign to abate

pollution. This argument has been foreclosed, however,

by the recent decision of the Fourth Circuit in Steuart

Transportation Company v. Allied Towing Corpora-

tion, 596 F.2d 609 (4th Cir. 1979) (No. 77-2426,

decided April 10, 1979). There the court decided that

the Federal Water Pollution Control Act of 1972, 33

U.S.C. §1321(f)(1) (FWPCA) affords the exclusive

federal remedy for the recovery of oil pollution cleanup

costs. The question before this court then is simply

whether an action founded upon the FWPCA,

§1321(f) is subject to the limitation of 28 U.S.C.

§ 2415.

“This court concludes that it is. There is no sug-

gestion in the legislative history of the FWPCA that

Congress intended to place the government above duly-

enacted statutes of limitations. Moreover, the gov-

ernment has not been able to cite any case which has so

held. It is true that oil pollution is an offense against the

United States, not actionable by any private citizen. But

the fact that the government alone has standing to

recover cleanup costs from polluters does not, without

some affirmative legislative indication, give it limitless

_ power to pursue its citizens whenever and wherever it

chooses. The government also has the sovereign right to

prosecute crimes, but there too it must observe ap-

propriate statutes of limitation. 18 U.S.C. § §3281 et

seq.

“Having decided that a statute of limitations must

apply, the question is which one. The defendant argues

that an action brought under the FWPCA is an action

‘founded upon a tort’ and therefore subject to the three-

year limitation of 28 U.S.C. §2415(b). The court

agrees. It is clearly not ‘contract,’ and although such an

action could arguably be labeled one in quasi-contract,

10a

on the theory that the polluter is unjustly enriched by the

government’s undertaking to clean up,’ it seems more

likely from the face of the statute that the wrong

Congress sought to remedy is a tortious one.

“The statute, 33 U.S.C. § 1321(f)(1), provides that

(f)(1) Except where an owner or operator can

prove that a discharge was caused solely by (A) an

act of God, (B) an act of war, (c) negligence on the

part of the United States Government, or (D) an act

or omission of a third party without regard to whether

any such act or omission was or was not negligent or

any combination of the foregoing clauses, such owner

or operator of any vessel from which oil or a

hazardous substance is discharged in violation of

subsection (b)(3) or this section shall, notwith-

standing any other provision of law, be liable to the

United States Government for the actual costs

incurred under subsection (c) of this section for the

removal of such oil or substance by the United States

Government in an amount not to exceed, in the case

of an inland oil barge $125 per gross ton of such

barge, or $125,000, whichever is greater, and in the

case of any other vessel, $150 per gross ton of such

vessel (or, for a vessel carrying oil or hazardous

substances as cargo, $250,000), whichever is

greater, except that where the United States can show

that such discharge was the result of willful negli-

gence or willful misconduct within the privity and

knowledge of the owner, such owner or operator shall

be liable to the United States Government for the full

amount of such costs. . . .

?This court cannot accept this argument for the reason that by the very

terms of the Act, the primary duty to take steps to abate pollution rests

with the president, not with the polluter. 33 U.S.C. § 1331(c)(1). Thus it

would be legally impossible for the polluter to be “unjustly enriched” by

the government’s performance of its own duty.

It would not be a fair reading of the law to hold that

where Congress spoke of ‘negligence’ and ‘willful

misconduct’ it was not talking about tort. Accordingly,

the statute of limitations which applies to tort actions

brought by the United States, 28 U.S.C. §2415(b),

bars the government from recovering its expenses

incurred in cleaning up the defendants’ spilled oil under

33 U.S.C. §1321(f), and summary judgment must be

granted for the defendants.”

There are three additional short paragraphs in the opinion

which deal only with the issuance of a certificate under

FRCP 54(b) and entry of an order for summary judgment.

They have nothing to do with the merits of the case decided

here.

Specifically, I dissent from the majority’s adoption of

September 12, 1975 as the accrual date for the tort.

I disagree with the majority’s consideration of this issue in

the first place because it was not presented to the district

court. E.g., United States v. One 1971 Mercedes Benz, 542

F.2d 912 (4th Cir. 1976). No exceptional circumstance is

shown or claimed for not presenting the issue, except the

government lost the case.

And not only was the issue not presented, it was precluded

from consideration by the solemn writing of the government,

signed and verified by an Assistant Attorney General of the

United States as well as an Assistant United States

Attorney. The majority ignores the government’s answer on

oath in the district court that the accrual date for its claim is

August 10, 1975.

12a

Interrogatory No. 12 submitted by Shell to the govern-

ment and its answer are as follows:

12. Identify the date on which you contend that this

claim, or any part thereof, against Shell accrued and

further state, with particularity, all facts and reasons on

which you rely in support of your contention.

Answer 12. August 10, 1975, by reason of the fact that

oil from Shell’s facility entered the Patapsco River on

that date.

The government has not moved to be relieved of its answer

even if such could be done. Thus, it is bound by the August

10th date. With August 10th as the accrual date, the

government’s action is time barred. The suit was filed

September 6, 1978.

Also, the record does not support the majority’s con-

clusion, variously stated, that the “September 12 com-

pletion date is undisputed.”’ At 1111. See also at p. 1110, n.

1; p. 1111, n. 2; p. 1111, n. 3. Not only is it disputed, in the

only chance Shell had to contest the September 1 2th date, it

states in its brief, at p. 22, n. 12:

The Government compounds its misconduct with an

improper and obviously incorrect factual representa-

tion (wholly unsupported by the record) that “‘the

cleanup was not completed until September 12, 1975.”

The brief record made in this case does not so conclusively

establish when the cleanup was completed that it is not open

to question. No copy of a complete cleanup report is

included in the record. ‘“‘On-the-Scene-Coordinator-Notes”’

are included by the government with its responses to Shell’s

interrogatories, but these notes cease on August 1 8th. Those

notes reveal that actual cleanup began on August 10, the day

of the spill. By August 12, approximately 144,000 gallons of

oil had been removed, with cleanup estimated at 75%

13a

complete. J & L Ind. were released from future cleanup

activities on August 16th. As stated, these notes provide a

summary of activities only until August 18th. A letter report

dated January 12, 1976 from the U. S. Coast Guard’s

Investigating Officer at Baltimore to the Commander of the

Fifth Coast Guard District is also included with the

government’s answer to interrogatories. That letter states

that ““The last oil was removed from the water on 22 August

1975, and at that time the Coast Guard Strike Team

departed. Final cleanup of small boats, beaches and booms

was completed on 12 September 1975 and Clean Water,

Inc. was released on that date.” There is, however, not even

documentation in the record to support the September 12th

date beyond the bare letter which Shell is not bound to

accept. The record reveals no details at all as to the cleanup

between August 18 and September 12. Because Shell

objects to the accuracy of the September 12 date, and the

matter is the subject of a factual dispute, I disagree with the

majority’s adoption of that date. By so doing, this court is

‘making a finding of fact as to a matter contested by the

parties and not even considered by the district court.

An example within the majority opinion itself shows why

this court should not engage in fact finding. Apparently to

bolster the weight of evidence it relies on in its fact finding,

the majority describes the letter of January 12, 1976 from

the Coast Guard Investigating Officer to his superior as ‘“‘an

independent factual source.” P. 1111, n. 2. Without further

arguing the point, I can think of no less “independent”’ a

source than a letter from one investigating officer to another,

especially untested as it is by way of cross-examination or

even discovery.

Until this appeal, Shell had never been given a chance to

dispute the September 12th date, and its disputation of that

14a

date in its brief here, which I have quoted, is not only

unheeded and unmentioned by the majority, it is

characterized in the opinion so that the reader is told that

Shell does “‘not on apppeal contest the factual accuracy of

the statement.” P. 1111, n. 2. The majority can point to

nothing in the record or briefs to support its statement that

there is no contest of the September 12th date for the reason

that there is nothing there except that which I have quoted.

This bare statement is, I think, too slender a reed to support

the opinion.

Although I agree that the action here sounds in tort, I

believe that the accrual date is August 10, 1975, the date of

the spill. That is the date on which the harm occurred, thus

making the cause of action complete. Restatement (Second)

of Torts, §899, Comment c. at 441 (1979). The government

finds itself in no different position than any plaintiff who,

with a claim for injury to his person, must file suit within a

statutory time from the day his injury happened, although he

may be required to pay large bills to physicians and hospitals

for treatment occurring after the statute has run.

15a

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 79-1603

United States of America,

Appellant,

versus

The Barge Shamrock, her tackle

appurtenances, etc., and Harbor

Towing Corporation, Shell Oil

Company and Water Quality

Insurance Syndicate,

Appellees.

ORDER

Upon consideration of the appellees’ petitions for re-

hearing and suggestion for rehearing en banc, and no judge

having requested a poll on the suggestion for rehearing en

banc,

Itis ADJUDGED and ORDERED that the petitions for

rehearing are denied.

Entered at the direction of Judge Sprouse with the

concurrence of Judge Winter. Judge Widener would have

granted rehearing and rehearing en banc.

FILED

MAR-6 1981 For the Court,

U.S. Court of Appeals

Fourth Circuit /s/ William K. Slate, II

CLERK

16a

28 U.S.C. §2415

§2415. Time for commencing actions brought by the

United States

(a) Subject to the provisions of section 2416 of this title,

and except as otherwise provided by Congress, every action

for money damages brought by the United States or an

officer or agency thereof which is founded upon any contract

express or implied in law or fact, shall be barred unless the

complaint is filed within six years after the right of action

accrues or within one year after final decisions have been

rendered in applicable administrative proceedings required

by contract or by law, whichever is later: Provided, That in

the event of later partial payment or written acknowledgment

of debt, the right of action shall be deemed to accrue again at

the time of each such payment or acknowledgment:

Provided further, That an action for money damages

brought by the United States for or on behalf of a recognized

tribe, band or group of American Indians shall not be barred

unless the complaint is filed more than six years and ninety

days after the right of action accrued: Provided further, That

an action for money damages which accrued on the date of

enactment of this Act in accordance with subsection (g)

brought by the United States for or on behalf of a recognized

tribe, band, or group of American Indians, or on behalf of an

individual Indian whose land is held in trust or restricted

status, shall not be barred unless the complaint is filed after

April 1, 1980 or more than two years after a final decision

has been rendered in applicable administrative proceedings

required by contract or by law, whichever is later.

(b) Subject to the provisions of section 2416 of this title,

and except as otherwise provided by Congress, every action

17a

for money damages brought by the United States or an

officer or agency thereof which is founded upon a tort shall

be barred unless the complaint is filed within three years

after the right of action first accrues: Provided, That an

action to recover damages resulting from a trespass on lands

of the United States; an action to recover damages resulting

from fire to such lands; an action to recover for diversion of

money paid under a grant program; and an action for

conversion of property of the United States may be brought

within six years after the right of action accrues, except that

such actions for or on behalf of a recognized tribe, band or

group of American Indians, including actions relating to

allotted trust or restricted Indian lands, may be brought

within six years and ninety days after the right of action

accrues, except that such actions for or on behalf of a

recognized tribe, band, or group of American Indians,

including actions relating to allotted trust or restricted Indian

lands, or on behalf of an individual Indian whose land is held

in trust or restricted status which accrued on the date of

enactment of this Act in accordance with subsection (g) may

be brought on or before April 1, 1980.

bringing an action to establish the title to, or right of

possession of, real or personal property.

(d) Subject to the provisions of section 2416 of this title

and except as otherwise provided by Congress, every action

for the recovery of money erroneously paid to or on behalf of

any civilian employee of any agency of the United States or

to or on behalf of any member or dependent of any member

of the uniformed services of the United States, incident to the

employment or services of such employee or member, shall

be barred unless the complaint is filed within six years after

the right of action accrues: Provided, That in the event of

18a

later partial payment or written acknowledgment of debt, the

right of action shall be deemed to accrue again at the time of

each such payment or acknowledgment.

(e) In the event that any action to which this section

applies is timely brought and is thereafter dismissed without

prejudice, the action may be recommended within one year

after such dismissal, regardless of whether the action would

otherwise then be barred by this section. In any action so

recommended the defendant shall not be barred from

interposing any claim which would not have been barred in

the original action.

(f) The provisions of this section shall not prevent the

assertion, in an action against the United States or an officer

or agency thereof, of any claim of the United States or an

officer or agency thereof against an opposing party, a co-

party, or a third party that arises out of the transaction or

occurrence that is the subject matter of the opposing party’s

claim. A claim of the United States or an officer or agency

thereof that does not arise out of the transaction or occur-

rence that is the subject matter of the opposing party’s claim

may, if time-barred, be asserted only by way of offset and

may be allowed in an amount not to exceed the amount of the

opposing party’s recovery.

(g) Any right of action subject to the provisions of this

section which accrued prior to the date of enactment of this

Act shall, for purposes of this section, be deemed to have

accrued on the date of enactment of this Act.

(h) Nothing in this Act shall apply to actions brought

under the Internal Revenue Code or incidental to the

collection of taxes imposed by the United States.

19a

33 U.S.C. § 1321

§1321. Oil and hazardous substance liability

Definitions

(a) For the purpose of this section, the term—

(1) “oil” means oil of any kind or in any form,

including, but not limited to, petroleum, fuel oil, sludge, oil

refuse, and oil mixed with wastes other than dredged spoil;

“discharge” includes, but is not limited to, any

spilling, leaking, pumping, pouring, emitting, emptying or

dumping;

(3) ‘“‘vessel’’ means every description of watercraft or

other artificial contrivance used, or capable of being used,

as a means of transportation on water other than a public

vessel;

(4) “‘public vessel” means a vessel owned or

bareboat-chartered and operated by the United States, or

by a State or political subdivision thereof, or by a foreign

nation, except when such vessel is engaged in commerce;

(5) “United States” means the States, the District of

Columbia, the Commonwealth of Puerto Rico, the Canal

Zone, Guam, American Samoa, the Virgin Islands, and

the Trust Territory of the Pacific Islands;

(6) “owner or operator” means (A) in the case of a

vessel, any person owning, operating, or chartering by

demise, such vessel, and (B) in the case of an onshore

facility, and an offshore facility, any person owning or

operating such onshore facility or offshore facility, and

person who owned or operated such facility immediately

prior to such abandonment;

20a

(7) “person” includes an individual, firm, corpora-

tion, association, and a partnership;

(8) “remove” or “removal” refers to removal of the

oil or hazardous substances from the water and shorelines

or the taking of such other actions as may be necessary to

minimize or mitigate damage to the public health or

welfare, including, but not limited to, fish, shellfish,

wildlife, and public and private property, shorelines, and

beaches;

(9) “contiguous zone” means the entire zone estab-

lished by the United States under article 24 of the

Convention on the Territorial sea and the Contiguous

Zone;

(10) “onshore facility” means any facility (including

but not limited to, motor vehicles and rolling stock) of any

kind located in, on, or under, any land within the United

States other than submerged land;

(11) “offshore facility” means any facility of any

kind located in, on, or under, any of the navigable waters of

the United States, and any facility of any kind which is

subject to the jurisdiction of the United States and is

located in, on, or under any other waters, other than a

vessel or a public vessel;

(12) “tact of God” means an act occasioned by an

unanticipated grave natural disaster;

(13) “barrel” means 42 United States gallons at 60

degrees Fahrenheit;

(4) “hazardous substance” means any substance

designated pursuant to subsection (b)(2) of this section;

(15) “inland oil barge” means a non-self-propelled

vessel carrying oil in bulk as cargo and certificated to

operate only in the inland waters of the United States,

while operating in such waters;

2la

(16) “inland waters of the United States” means

those waters of the United States lying inside the baseline

from which the territorial sea is measured and those

waters outside such baseline which are a part of the Gulf

Intracoastal Waterway.

Congressional declaration of policy against discharges

of oil or hazardous substances; designation of hazardous

substances; determination of removability;

liability; penalties

(b)(1) The Congress hereby declares that it is the policy

of the United States that there should be no discharges of oil

or hazardous substances into or upon the navigable waters of

the United States, adjoining shorelines, or into or upon the

waters of the contiguous zone, or in connection with

activities under the Outer Continental Shelf Lands Act or

the Deepwater Port Act of 1974, or which may affect natural

resources belonging to, appertaining to, or under the exclu-

sive management authority of the United States (including

resources under the Fishery Conservation and Management

Act of 1976).

(2A) The Administrator shall develop, promulgate, and

revise as may be appropriate, regulations designating as

hazardous substances, other than oil as defined in this

section, such elements and compounds which, when dis-

charged in any quantity into or upon the navigable waters of

the United States or adjoining shorelines or the waters of the

contiguous zone or in connection with activities under the

Outer Continental Shelf Lands Act or the Deepwater Port

Act of 1974, or which may affect natural resources belong-

ing to, appertaining to, or under the exclusive management

authority of the United States (including resources under the

22a

Fishery Conservation and Management Act of 1976),

present an imminent and substantial danger to the public

health or welfare, including, but not limited to, fish, shellfish,

wildlife, shorelines, and beaches.

(B)(i) The Administrator shall include in any designation

under subparagraph (A) of this subsection a determination

whether any such designated hazardous substance can

actually be removed.

(ii) The owner or operator of any vessel, onshore facility,

or offshore facility from which there is discharged during the

two-year period beginning on October 18, 1972, any

hazardous substance determined not removable under

clause (i) of this subparagraph shall be liable, subject to the

defenses to liability provided under subsection (f) of this

section, as appropriate, to the United States for a civil

penalty per discharge established by the Administrator

based on toxicity, degradability, and dispersal char-

acteristics of such substance, in an amount not to exceed

$50,000, except that where the United States can show that

such discharge was a result of willful negligence or willful

misconduct within the privity and knowledge of the owner,

such owner or operator shall be liable to the United States for

a civil penalty in such amount as the Administrator shall

establish, based upon the toxicity, degradability, and dis-

persal characteristics of such substance.

(iii) After the expiration of the two-year period referred to

in clause (ii) of this subparagraph, the owner or operator of

any vessel, onshore facility, or offshore facility, from which

there is discharged any hazardous substance determined not

removable under clause (i) of this subparagraph shall be

liable, subject to the defenses to liability provided in

subsection (f) of this section, to the United States for either

one or the other of the following penalties, the determination

23a

of which shall be in the discretion of the Administrator:

(aa) a penalty in such amount as the Administrator

shall establish, based on the toxicity, degradability, and

dispersal characteristics of the substance, but not less than

$500 nor more than $5,000; or

(bb) a penalty determined by the number of units dis-

charged multiplied by the amount established for such unit

under clause (iv) of this subparagraph, but such penalty

shall not be more than $5,000,000 in the case of a

discharge from a vessel and $500,000 in the case of a

discharge from an onshore or offshore facility.

(iv) The Administrator shall establish by regulation, for

each hazardous substance designated under subparagraph

(A) of this paragraph, and within 180 days of the date of such

designation, a unit of measurement based upon the usual

trade practice and, for the purpose of determining the penalty

under clause (iii) (bb) of this subparagraph, shall establish

for each such unit a fixed monetary amount which shall be

not less than $100 nor more than $1,000 per unit. He shall

establish such fixed amount based on the toxicity, degrada-

bility, and dispersal characteristics of the substance.

(v) In addition to establishing a penalty for the discharge

of a hazardous substance determined not to be removable

pursuant to clauses (ii) through (iv) of this subparagraph, the

Administrator may act to mitigate the damage to the public

health or welfare caused by such discharge. The cost of such

mitigation shall be deemed a cost incurred under subsection

United States Government.

(3) The discharge of oil or hazardous substances (i) into

or upon the navigable waters of the United States, adjoining

shorelines, or into or upon the waters of the contiguous zone,

or (ii) in connection with activities under the Outer Conti-

24a

nental Shelf Lands Act or the Deepwater Port Act of 1974,

or which may affect natural resources belonging to,

appertaining to, or under the exclusive management au-

thority of the United States (including resources under the

Fishery Conservation and Management Act of 1976), in

harmful quantities as determined by the President under

paragraph (4) of this subsection, is prohibited, except (A) in

the case of such discharges of oil into the waters of the

contiguous zone or which may affect natural resources

belonging to, appertaining to, or under the exclusive

management authority of the United States (including

resources under the Fishery Conservation and Management

Act of 1976), where permitted under the International

Convention for the Prevention of Pollution of the Sea by Oil,

1954, as amended, and (B) where permitted in quantities and

at times and locations or under such circumstances or

conditions as the President may, by regulation, determine

not to be harmful. Any regulations issued under this

subsection shall be consistent with maritime safety and with

marine and navigation laws and regulations and applicable

water quality standards.

(4) The President shall by regulation, to be issued as soon

as possible after October 18, 1972, determine for the

purposes of this section, those quantities of oil and any

hazardous substance the discharge of which, at such times,

locations, circumstances, and conditions, will be harmful to

the public health or welfare of the United States, including,

but not limited to, fish, shellfish, wildlife, and public and

private property, shorelines, and beaches.

(5) Any person in charge of a vessel or of an onshore

facility or an offshore facility shall, as soon as he has

knowledge of any discharge of oil or a hazardous substance

from such vessel or facility in violation of paragraph (3) of

25a

this subsection, immediately notify the appropriate agency

of the United States Government of such discharge. Any

such person (A) in charge of a vessel from which oil or a

hazardous substance is discharged in violation of paragraph

(3)(i) of this subsection, or (B) in charge of a vessel from

which oil or a hazardous substance is discharged in violation

of paragraph (3)(iii) of this subsection and who is otherwise

subject to the jurisdiction of the United States, or (C) in

charge of an onshore facility or an offshore facility, who fails

to notify immediately such agency of such discharge shall,

upon conviction, be fined not more than $10,000, or

imprisoned for not more than one year, or both. Notification

received pursuant to this paragraph or information obtained

by the exploitation of such notification shall not be used

against any such person in any criminal case, except a

prosecution for perjury or for giving a false statement.

(6) Any owner, operator, or person in charge of any

onshore facility or offshore facility from which oil or a

hazardous substance is discharged in violation of paragraph

(3) of this subsection shall be assessed a civil penalty by the

Secretary of the department in which the Coast Guard is

operating of not more than $5,000 for each offense. Any

owner, operator, or person in charge of any vessel from

which oil or a hazardous substance is discharged in violation

of paragraph (3)(i) of this subsection, and any owner,

operator, or person in charge of a vessel from which oil or a

hazardous substance is discharged in violation of paragraph

(3) (ii) who is otherwise subject to the jurisdiction of the

United States, shall be assessed a civil penalty by the

Secretary of the department in which the Coast Guard is

operating of not more than $5,000 for each offense. No

penalty shall be assessed unless the owner or operator

charged shall have been given notice and opportunity for a

26a

hearing on such charge. Each violation is a separate offense.

Any such civil penalty may be compromised by such

Secretary. In determining the amount of the penalty, or the

amount agreed upon in compromise, the appropriateness of

such penalty to the size of the business of the owner or

operator charged, the effect on the owner or operator’s

ability to continue in business, and the gravity of the

violation, shall be considered by such Secretary. The

Secretary of the Treasury shall withhold at the request of

such Secretary the clearance required by section 91 of title

46 of any vessel the owner or operator of which is subject to

the foregoing penalty. Clearance may be granted in such

cases upon the filing of a bond or other surety satisfactory to

such Secretary.

Removal of discharged oil or hazardous substances:

National Contingency Plan

(c)(1) Whenever any oil or a hazardous substance is

discharged, or there is a substantial threat of such discharge,

into or upon the navigable waters of the United States,

adjoining shorelines, or into or upon the waters of the

contiguous zone, or in connection with activities under the

Outer Continental Shelf Lands Act or the Deepwater Port

Act of 1974, or which may affect natural resources

belonging to, appertaining to, or under the exclusive

management authority of the United States (including

resources under the Fishery Conservation and Management

Act of 1976) the President is authorized to act to remove or

arrange for the removal of such oil or substance at any time,

unless he determines such removal will be done properly by

the owner or operator of the vessel, onshore facility, or

offshore facility from which the discharge occurs.

27a

(2) Within sixty days after October 18, 1972, the Presi-

dent shall prepare and publish a National Contingency Plan

for removal of oil and hazardous substances, pursuant to this

subsection. Such National Contingency Plan shall provide

for efficient, coordinated, and effective action to minimize

damage from oil and hazardous substance discharges,

including containment, dispersal, and removal of oil and

hazardous substances, and shall include, but not be limited

to—

(A) assignment of duties and responsibilities among

Federal departments and agencies in coordination with

State and local agencies, including, but not limited to,

water pollution control, conservation, and port authori-

ties:

(B) identification, procurement, maintenance, and

storage of equipment and supplies;

consisting of personnel who shall be trained, prepared,

and available to provide necessary services to carry out

the Plan, including the establishment at major ports, to be

determined by the President, of emergency task forces of

trained personnel, adequate oil and hazardous substance

pollution control equipment and material, and a detailed

oil and hazardous substance pollution prevention and

removal plan;

(D) a system of surveillance and notice designed to

insure earliest possible notice of discharges of oil and

hazardous substances and imminent threats of such

discharges to the appropriate State and Federal agencies;

(E) establishment of a national center to provide

coordination and direction for operations in carrying out

the Plan;

28a

(F) procedures and techniques to be employed in

identifying, containing, dispersing, and removing oil and

hazardous substances;

(G) a schedule, prepared in cooperation with the

States, identifying (i) dispersants and other chemicals, if

any, that may be used in carrying out the Plan, (ii) the

waters in which such dispersants and chemicals may be

used, and (iii) the quantities of such dispersant or chemical

which can be used safely in such waters, which schedule

shall provide in the case of any dispersant, chemical, or

waters not specifically identified in such schedule that the

President, or his delegate, may, on a case-by-case basis,

identify the dispersants and other chemicals which may be

used, the waters in which they may be used, and the

quantities which can be used safely in such waters; and

(H) asystem whereby the State or States affected by a

discharge of oil or hazardous substance may act where

necessary to remove such discharge and such State or

States may be reimbursed from the fund established under

subsection (k) of this section for the reasonable costs

incurred in such removal.

The President may, from time to time, as he deems advisable

revise or otherwise amend the National Contingency Plan.

After publication of the National Contingency Plan, the

removal of oil and hazardous substances and actions to

minimize damage from oil and hazardous substance dis-

charges shall, to the greatest extent possible, be in

accordance with the National Contingency Plan.

Maritime disaster discharges

(d) Whenever a marine disaster in or upon the navigable

waters of the United States has created a substantial threat of

29a

a pollution hazard to the public health or welfare of the

United States, including, but not limited to, fish, shellfish,

and wildlife and the public and private shorelines and

beaches of the United States, because of a discharge, or an

imminent discharge, of large quantities of oil, or of a

hazardous substance from a vessel the United States may

(A) coordinate and direct all public and private efforts

directed at the removal or elimination of such threat; and (B)

summarily remove, and, if neccessary, destroy such vessel

by whatever means are available without regard to any

provisions of law governing the employment of personnel or

the expenditure of appropriated funds. Any expense in-

curred under this subsection or under the Intervention on the

High Seas Act (or the convention defined in section 2(3)

thereof) shall be a cost incurred by the United States

Government for the purposes of subsection (f) of this section

in the removal of oil or hazardous substance.

Judicial relief

(e) In addition to any other action taken by a State or local

government, when the President determines there is an

imminent and substantial threat to the public health or

welfare of the United States, including, but not limited to,

fish, shellfish, and wildlife and public and private property,

shorelines, and beaches within the United States, because of

an actual or threatened discharge of oil or hazardous sub-

stance into or upon the navigable waters of the United States

from an onshore or offshore facility, the President may

require the United States attorney of the district in which the

threat occurs to secure such relief as may be necessary to

abate such threat, and the district courts of the United States

shall have jurisdiction to grant such relief as the public

interest and the equities of the case may require.

30a

Liability for actual costs of removal

(f)(1) Except where an owner or operator can prove that a

discharge was caused solely by (A) an act of God, (B) an act

of war, (C) negligence on the part of the United States

Government, or (D) an act or omission of a third party

without regard to whether any such act or omission was or

was not negligent, or any combination of the foregoing

clauses, such owner or operator of any vessel from which oil

or a hazardous substance is discharged in violation of

subsection (b) (3) of this section shall, notwithstanding any

other provision of law, be liable to the United States

Government for the actual costs incurred under subsection

the United States Government in an amount not to exceed,

in the case of an inland oil barge $125 per gross ton of such

barge, or $125,000, whichever is greater, and in the case of

any other vessel $150 per gross ton of such vessel (or, for a

vessel carrying oil or hazardous substances as cargo,

$250,000), whichever is greater, except that where the

United States can show that such discharge was the result of

willful negligence or willful misconduct within the privity

and knowledge of the owner, such owner or operator shall be

liable to the United States Government for the full amount of

such costs. Such costs shall constitute a maritime lien on

such vessel which may be recovered in an action in rem in the

district court of the United States for any district within

which any vessel may be found. The United States may also

bring an action against the owner or operator of such vessel

in any court of competent jurisdiction to recover such costs.

(2) Except where an owner or operator of an onshore

facility can prove that a discharge was caused solely by (A)

an act of God, (B) an act of war, (C) negligence on the part of

3la

the United States Government, or (D) an act or omission of a

third party without regard to whether any such act or

omission was or was not negligent, or any combination of the

foregoing clauses, such owner or operator of any such

facility from which oil or a hazardous substance is

discharged in violation of subsection (b)(3) of this section

shall be liable to the United States Government for the

actual costs incurred under subsection (c) of this section for

the removal of such oil or substance by the United States

Government in an amount not to exceed $50,000,000,

except that where the United States can show that such

discharge was the result of willful negligence or willful

misconduct within the privity and knowledge of the owner,

such owner or operator shall be liable to the United States

Government for the full amount of such costs. The United

States may bring an action against the owner or operator of

such facility in any court of competent jurisdiction to recover

such costs. The Administrator is authorized, by regulation,

after consultation with the Secretary of Commerce and the

Small Business Administration, to establish reasonable and

equitable classifications of those onshore facilities having a

total fixed storage capacity of 1,000 barrels or less which he

determines because of size, type, and location do not present

a substantial risk of the discharge of oil or a hazardous

substance in violation of subsection (b)(3) of this section,

and apply with respect to such classifications differing limits

of liability which may be less than the amount contained in

this paragraph.

(3) Except where an owner or operator of an offshore

facility can prove that a discharge was caused solely by (A)

an act of God, (B) an act of war, (C) negligence on the part of

the United States Government, or (D) an act or omission of a

third party without regard to whether any such act or

32a

omission was or was not negligent, or any combination of the

foregoing clauses, such owner or operator of any such

facility from which oil or a hazardous substance is

discharged in violation of subsection (b)(3) of this section

shall notwithstanding any other provision of law, be liable to

the United States Government for the actual costs incurred

under subsection (c) of this section for the removal of such oil

or substance by the United States Government in an amount

not to exceed $50,000,000, except that where the United

States can show that such discharge was the result of willful

negligence or willful misconduct within the privity and

knowledge of the owner, such owner or operator shall be

liable to the United States Government for the full amount of

such costs. The United States may bring an action against

the owner or operator of such a facility in any court of

competent jurisdiction to recover such costs.

(4) The costs of removal of oil or a hazardous substance

for which the owner or operator of a vessel or onshore or

offshore facility is liable under subsection (f) of this section

shall include any costs or expenses incurred by the Federal

Government or any State government in the restoration or

replacement of natural resources damaged or destroyed as a

result of a discharge of oil or a hazardous substance in

violation of subsection (b) of this section.

(5) The President, or the authorized representative of any

State, shall act on behalf of the public as trustee of the natural

resources to recover for the costs of replacing or restoring

such resources. Sums recovered shall be used to restore,

rehabilitate, or acquire the equivalent of such natural

resources by the appropriate agencies of the Federal

Government, or the State government.

33a

Third party liability

(g) Where the owner or operator of a vessel (other than an

inland oil barge) carrying oil or hazardous substances as

cargo or an onshore or offshore facility which handles or

stores oil or hazardous substances in bulk, from which oil or

a hazardous substance is discharged in violation of sub-

section (b) of this section, alleges that such discharge was

caused solely by an act or omission of a third party, such

owner or operator shall pay to the United States Govern-

ment the actual costs incurred under subsection (c) of this

section for removal of such oil or substance and shall be

entitled by subrogation to all rights of the United States

Government to recover such costs from such third party

under this subsection. In any case where an owner or

operator of a vessel, of an onshore facility, or of an offshore

facility, from which oil or a hazardous substance is

discharged in violation of subsection (b)(3) of this section,

proves that such discharge of oil or hazardous substance was

caused solely by an act or omission of a third party, or was

caused solely by such an act or omission in combination with

an act of God, an act of war, or negligence on the part of the

United States Government, such third party shall, not-

withstanding any other provision of law, be liable to the

United States Government for the actual costs incurred

under subsection (c) of this section for removal of such oil or

substance by the United States Government, except where

such third party can prove that such discharge was caused

solely by (A) an act of God, (B) an act of war, (C) negligence

on the part of the United States Government, or (D) an act or

omission of another party without regard to whether such act

or omission was or was not negligent, or any combination of

the foregoing clauses. If such third party was the owner or

34a

operator of a vessel which caused the discharge of oil or a

hazardous substance in violation of subsection (b)(3) of this

section, the liability of such third party under this subsection

shall not exceed, in the case of an inland oil barge $125 per

gross ton of such barge, or $125,000, whichever is greater,

and in the case of any other vessel, $150 per gross ton of such

vessel (or, for a vessel carrying oil or hazardous substances

as cargo, $250,000), whichever is greater. In any other case

the liability of such third party shall not exceed the limitation

which would have been applicable to the owner or operator

of the vessel or the onshore or offshore facility from which

the discharge actually occurred if such owner or operator

were liable. If the United States can show that the discharge

of oil or a hazardous substance in violation of subsection

(b)(3) of this section was the result of willful negligence or

willful misconduct within the privity and knowledge of such

third party, such third party shall be liable to the United

States Government for the full amount of such removal

costs. The United States may bring an action against the

third party in any court of competent jurisdiction to recover

such removal costs.

Rights against third parties who caused or

contributed to discharge

(h) The liabilities established by this section shall in no

way affect any rights which (1) the owner or operator of a

vessel or of an onshore facility or an offshore facility may

have against any third party whose acts may in any way have

caused or contributed to such discharge, or (2) the United

States Government may have against any third party whose

actions may in any way have caused or contributed to the

discharge of oil or hazardous substance.

35a

Recovery of removal costs

(i)(1) In any case where an owner or operator of a vessel

or an onshore facility or an offshore facility from which oil or

a hazardous substance is discharged in violation of sub-

section (b)(3) of this section acts to remove such oil or

substance in accordance with regulations promulgated

pursuant to this section, such owner or operator shall be

entitled to recover the reasonable costs incurred in such

removal upon establishing, in a suit which may be brought

against the United States Government in the United States

Court of Claims, that such discharge was caused solely by

(A) an act of God, (B) an act of war, (C) negligence on the

part of the United States Government, or (D) an act or

omission of a third party without regard to whether such act

or omission was or was not negligent, or of any combination

of, the foregoing causes.

(2) The provisions of this subsection shall not apply in.

any case where liability is established pursuant to the Outer

Continental Shelf Lands Act, or the Deepwater Port Act of

1974,

(3) Any amount paid in accordance with a judgment of

the United States Court of Claims pursuant to this section

shall be paid from the funds established pursuant to sub-

section (k) of this section.

Regulations; penalty

(j(1) Consistent with the National Contingency Plan

required by subsection (c)(2) of this section, as soon as

practicable after October 18, 1972, and from time to time

thereafter, the President shall issue regulations consistent

with maritime safety and with marine and navigation laws

36a

(A) establishing methods and procedures for removal of

discharged oil and hazardous substances, (B) establishing

criteria for the development and implementation of local and

regional oil and hazardous substance removal contingency

plans, (C) establishing procedures, methods, and equipment

and other requirements for equipment to prevent discharges

of oil and hazardous substances from vessels and from

onshore facilities and offshore facilities, and to contain such

discharges, and (D) governing the inspection of vessels

carrying cargoes of oil and hazardous substances and the

inspection of such cargoes in order to reduce the likelihood of

discharges of oil from vessels in violation of this section.

(2) Any owner or operator of a vessel or an onshore

facility or an offshore facility and any other person subject to

any regulation issued under paragraph (1) of this subsection

who fails or refuses to comply with the provisions of any such

regulations, shall be liable to a civil penalty of not more than

$5,000 for each such violation. This paragraph shall not

apply to any owner or operator of any vessel from which oil

or a hazardous substance is discharged in violation of

paragraph (3) (ii) of subsection (b) of this section unless such

owner, operator, or person in charge is otherwise subject to

the jurisdiction of the United States. Each violation shall be

a separate offense. The President may assess and compro-

mise such penalty. No penalty shall be assessed until the

owner, operator, or other person charged shall have been

given notice and an opportunity for a hearing on such charge.

In determining the amount of the penalty, or the amount

agreed upon in compromise, the gravity of the violation, and

the demonstrated good faith of the owner, operator, or other

person charged in attempting to achieve rapid compliance,

after notification of a violation, shall be considered by the

President.

37a

Authorization of appropriations

(k) There is hereby authorized to be appropriated to a

revolving fund to be established in the Treasury such sums as

may be necessary to maintain such fund at a level of

$35,000,000 to carry out the provisions of subsections (c),

(d), (i), and (/) of this section. Any other funds received by

the United States under this section shall also be deposited in

said fund for such purposes. All sums appropriated to, or

deposited in, said fund shall remain available until

expended.

Administration

(1) The President is authorized to delegate the adminis-

tration of this section to the heads of those Federal

departments, agencies, and instrumentalities which he de-

termines to be appropriate. Any moneys in the fund

established by subsection (k) of this section shall be

available to such Federal departments, agencies, and

instrumentalities to carry out the provisions of subsections

and instrumentality, in order to avoid duplication of effort,

shall, whenever appropriate, utilize the personnel, services,

and facilities of other Federal departments, agencies, and

instrumentalities.

Boarding and inspection of vessels; arrest; execution

of warrants or other process

(m) Anyone authorized by the President to enforce the

provisions of this section may, except as to public vessels,

(A) board and inspect any vessel upon the navigable waters

38a

of the United States or the waters of the contiguous zone, (B)

with or without a warrant arrest any person who violates the

provisions of this section or any regulation issue thereunder

in his presence or view, and (C) execute any warrant or other

process issued by an officer or court of competent juris-

diction.

Jurisdiction

(n) The several district courts of the United States are

invested with jurisdiction for any actions, other than actions

pursuant to subsection (i)(1) of this section, arising under this

section. In the case of Guam and the Trust Territory of the

Pacific Islands, such actions may be brought in the district

court of Guam, and in the case of the Virgin Islands such

actions may be brought in the district court of the Virgin

Islands. In the case of American Samoa and the Trust

Territory of the Pacific Islands, such actions may be brought

in the District Court of the United States for the District of

Hawaii and such court shall have jurisdiction of such

actions. In the case of the Canal Zone, such actions may be

brought in the United States District Court for the District of

the Canal Zone.

Obligation for damages unaffected; local authority not

preempted; existing Federal authority not

modified or affected

(o)(1) Nothing in this section shall affect or modify in any

way the obligations of any owner or operator of any vessel, or

of any owner or operator of any onshore facility or offshore

facility to any person or agency under any provision of law

for damages to any publicly owned or privately owned

39a

property resulting from a discharge of any oil or hazardous

substance or from the removal of any such oil or hazardous

substance.

(2) Nothing in this section shall be construed as pre-

empting any State or political subdivision thereof from

imposing any requirement or liability with respect to the

discharge of oil or hazardous substance into any waters

within such State.

(3) Nothing in this section shall be construed as affecting

or modifying any other existing authority of any Federal

department, agency, or instrumentality, relative to onshore

or offshore facilities under this chapter or any other

provision of law, or to affect any State or local law not in

conflict with this section.

Financial responsibility

(p)(1) Any vessel over three hundred gross tons, in-

cluding any barge of equivalent size, but not including any

barge that is not self-propelled and that does not carry oil or

hazardous substances as cargo or fuel, using any port or

place in the United States or the navigable waters of the

United States for any purpose shall establish and maintain

under regulations to be prescribed from time to time by the

President, evidence of financial responsibility of, in the case

of an inland oil barge $125 per gross ton of such barge, or

$125,000, whichever is greater, and in the case of any other

vessel, $150 per gross ton of such vessel (or, for a vessel

carrying oil or hazardous substances as cargo, $250,000),

whichever is greater, to meet the liability to the United States

which such vessel could be subjected under this section. In

cases where an owner or operator owns, operates, or charters

more than one such vessel, financial responsibility need only

40a

be established to meet the maximum liability to which the

largest of such vessels could be subjected. Financial

responsibility may be established by any one of, or a

combination of, the following methods acceptable to the

President: (A) evidence of insurance, (B) surety bonds, (C)

qualification as a self-insurer, or (D) other evidence of

financial responsibility. Any bond filed shall be issued by a

bonding company authorized to do business in the United

States.

(2) The provisions of paragraph (1) of this subsection

shall be effective April 3, 1971, with respect to oil and one

year after October 18, 1972, with respect to hazardous

substances. The President shall delegate the responsibility

to carry out the provbisions of this subsection to the

appropriate agency head within sixty days after October 18,

1972. Regulations necessary to implement this subsection

shall be issued within six months after October 18, 1972.

(3) Any claim for costs incurred by such vessel may be

brought directly against the insurer or any other person

providing evidence of financial responsibility as required

under this subsection. In the case of any action pursuant to

this subsection such insurer or other person shall be entitled

to invoke all rights and defenses which would have been

available to the owner or operator if an action had been

brought asgainst him by the claimant, and which would have

been available to him if an action had been brought against

him by the owner or operator.

(4) Any owner or operator of a vessel subject to this

subsection, who fails to comply with the provisions of this

subsection or any regulation issues thereunder, shall be

subject to a fine of not more than $10,000.

(5) The Secretary of the Treasury may refuse the

clearance required by section 91 of Title 46 to any vessel

4la

subject to this subsection, which does not have evidence

furnished by the President that the financial responsibility

provisions of paragraph (1) of this subsection have been

complied with.

(6) The Secretary of the Department in which the Coast

guard is operated may (A) deny entry to any port or place in

the United States or the navigable waters of the United

States, to, and (B) detain at the port or place in the United

States from which it is about to depart for any other port or

place in the United States, any vessel subject to this

subsection, which upon request, does not produce evidence

furnished by the President that the financial responsibility

provisions of paragraph (1) of this subsection have been

complied with.

Establishment of maximum limit of liability with

respect to onshore or offshore facilities

(q) The President is authorized to establish, with respect

to any class or category of onshore or offshore facilities, a

maximum limit of liability under subsections (f)(2) and (3) of

this section of less than $50,000,000, but not less than

$8,000,000.

Liability limitations not to limit liability under

other legislation

(r) Nothing in this section shall be construed to impose, or

authorize the imposition of, any limitation on liability under

the Outer Continental Shelf Lands Act or the Deepwater

Port Act of 1974.

42a

List Naming All Parent Companies, Subsidiaries

(Except Wholly Owned Subsidiaries) and Affiliates

of Shell Oil Company and Harbor Towing

Corporation

Shell Oil Company

Butte Pipe Line Company, subsidiary of Shell Pipe Line

Corporation

Dixie Pipeline Company, affiliate of Shell Pipe Line

Corporation

Explorer Pipeline Company, affiliate of Shell Pipe Line

Corporation

Gravcap, Inc., subsidiary of Shell Oil Company

Inland Corporation, subsidiary of Shell Oil Company

LOCAP, Inc., affiliate of Shell Pipe Line Corporation

LOOP, Inc., affiliate of Shell Oil Company

Olympic Pipe Line Company, affiliate of Shell Pipe Line

Corporation

Seadock, Inc., affiliate of Shell Oil Company

Thumbs Long Beach Company, affiliate of Shell Oil

Company

West Shore Pipe Line Company, affiliate of Shell Pipe Line

Corporation

Wolverine Pipe Line Company, affiliate of Shell Pipe Line

Corporation

East Texas Salt Water Disposal Company, affiliate of Shell

Oil Company

MESDIC Financial Corporation of Houston, affiliate of

Shell Oil Company

Oil Companies Institute for Marine Pollution Compensa-

tion Limited, affiliate of Shell Oil Company

43a

WIDC (Wyoming Industrial Development Corporation),

affiliate of Shell Oil Company

Plantation Pipe Line Corporation, affiliate of Shell Oil

Company

Penn Central Corporation, affiliate of Shell Oil Company

Harbor Towing Corporation

Harbor Towing Corporation is a wholly owned subsidiary

of International Bulk Transportation Company, which is a

wholly owned subsidiary of SONAT Interocean Transpor-

tation Company, which is a wholly owned subsidary of

Southern Natural Resources, Inc.

Southern Natural Resources, Inc., which is publically

traded, has the following major subsidiaries:

1. Southern Natural Gas Company which holds:

a. Southern Natural Gas Company

b. Southern Energy Company

c. Southern Deepwater Pipeline Company

d. Southern Gas Storage Company

SONAT Exploration Company

The Offshore Company

Southern Forest Products, Inc.

Interstate and Ocean Transportation Company

> 9°

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.