Petition — M/V BIG SAM v. UNITED STATES (Nos. 82-1541, 82-1517)

Et Office-S Court, US, |

B2-154). FIileED

MAR 44 1983

ALEXANDER L. STEVAS,

=TTEenk

NO.

In the

Supreme Court of the United States

OCTOBER TERM, 1982

M/V BIG SAM, in rem and

ZITO TOWING, INC.

Petitioners

VS

UNITED STATES OF AMERICA

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

REUTER & REUTER

ARTHUR C. REUTER, SR.

NORMAND F. PIZZA

303 S. BROAD

P.O. BOX 19567

NEW ORLEANS, LA 70179

(504) 822-9748

ATTORNEY FOR

PETITIONER

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

i

QUESTIONS PRESENTED FOR REVIEW

i. Does the FWPCA, 33 USC § 1321 (f)(g)(h), preempt

the United States government’s right to sue for clean-up

costs expended to clean an oil spill in navigable waters of

the United States under a maritime tort cause of action.

2. Does the United States have standing to sue for

damages caused to a waterway within the United States

when the claim is founded on a maritime tort and the

damages are for oil spill clean-up costs.

ii

LIST OF PARTIES

United States of America

Thomas W. Snook

U.S. Department of Justice

Washington, D.C. 20530

and

John Volz

U.S. Attorney

500 Camp Street

New Orleans, LA 70130

Mission Insurance Company

Thomas Wagner

1300 Hibernia Bank Building

New Orleans, LA 70112

Solicitor General

Department of Justice

Washington, D.C. 20530

iii

TABLE OF CONTENTS

Questions Presented for Review ..........eseeserereseeeneenseees i

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Table of Arsthovkties...ccccccocccsscccosccccocscosssccsccsccscccccsssenssscneseees iv

Opinions Below...........0ssssssseresseressesessenessssssessessssssssssnenssnsees 1

Fret UI OR ceccccccscsccccccsccccessecccsecccconsccccsevsneccocsoonine seecedeanbeaensel 2

Beabeate Ter volved .cccccccoscescsccseccccsccccscccoscutnsccccsesccnsccceneccosenesees 2

Statement Of the Case...cccccccrscrrcccccrccrccssvcesersccsercccrecssccceccsoees 2

ATPBUMENL.......ccccsrcrrcescrscescrscrereereeceesecseesensenssssssssesssssseseeseesoes 5

Bent OO Ot R .ccccccceccecececceecsceccesccecssebsosccnonescocsoossesconsesoccosnoooosees 5

Co csccscenccennisecsrnchinciantasssctdolsenebeissieeenseunenbenniabeniienta 24

Cortificate of Servic’ ...cccccccsscccsccccscccoscccocsccossccosscccosscseesesceens 25

Appendix A ........cccssrrrssersscereseesscrecserssesessessesessesees Vol. I, A-1

Appendix B...........ccccccscsscsrersseeseresessecsceceesssesesesresees Vol. I, A-4

Appendix C.........ccccccssosserssrerserersrserensesensnseesesecssees Vol. I, A-30

Appendix D.............0rssssesssrssrserserensensensersssesseeseoes Vol. I, A-48

Appendix E..........ccccccccccsccccsscersreeseseersceesesensesseceseers Vol. I, A-70

iv

TABLE OF AUTHORITIES

CASE PAGE

Milwaukee VS Illinois,

451 US 304, 68 L.Ed.2d 114,

Be Mas Be ee iilicnithissbesnesinnscenschtrinséinoninnennnees 6,9, 12,13

Middlesex County Sewerage Authority VS Sea Clammers,

453 US 1, 69 L.Ed.2d 435,

Bee ea Be i cichcesnscnaicsnscsestsessabcinacecedsnned 6, 9, 12, 13, 17

Matter of Oswego Barge Corporation,

GBS F.Bab SBT (Bn COr., BOSD) cccccsrccressceccveccccecccecccssesceseeees 6

U.S. VS Dixie Carriers, Inc.,

GBT F.BG TOS Gee Cir... LOB) cccocscssscesvesercscovsecccccsseces 7,15

Cushing VS Maryland Cusualty Company,

198 F.2d 5636 (5th Cir., 1952)........sccsrccrcssssesssrscerseseceess 8

California VS SS Bournemouth,

307 F.Supp. 922 (C.D. CA. 1969).........cscssssssssersserees 11

The Daniel Ball,

Be I e sait vsiniietninneennesncciasininenistiasriunesisiinrvinaseennetees ll

Wilson VS The Black Bird Creek Marsh Company,

Be A sinnsncnessnusscseinentnencntustgnonsinsecssseupienesorsneees ll

Gilman VS Philadelphia,

Be Pe ET cs sncacneniniesdbssneebteniscsbneedsounsnenseenbinnyibane li

Escanaba Company VS Chicago,

sci icsiatenenasenaiinsanennnnseocoussvearsecntanseiones ll

Cardwell VS American Bridge Company,

113 US 205 (1884)............ licnaauissaihietetihabancneistiieensetinentas 11

Hamilton VS Vicksburg, Shreveport and Pacific Railroad,

ee IE sncdadcssuiiiesesansstniininibndnmasowennenicestinevines 11

Willamette Iron Bridge Company VS Hatch,

ee EID iccncsninovnineiiianbsonisinasinannvcserensevecssseiuecte ll

Erie Railroad Company VS Tompkins,

Se a ccenerdstihsivenitceiinctiavetasatndnerveessemovsssnane 11,12

Hinderlinder VS LaPata Company,

304 US 92, 83 L.Ed. 1202, 58 S.Ct. 8038.........sceseeerees 12

Illinois VS City of Milwaukee,

406 US 91, 31 L.Ed.2d 712, 92 S.Ct. 1385........cceeeeee 12

os

Halcyon Lines VS Haenn Ship Ceiling & Refitting,

Company, 342 US 282, 72 S.Ct. 277, 96 L.Ed.

IIIT clcclistelctiasnnicidis habeas vienettbasanusndessntesustenssiseebacsenes 14

Atlantic Coast Line Railroad VS Erie Lackawanna

Railroad, 406 US 340, 92 S.Ct. 1550, 32 L.Ed.2d

Be iesdinhtiehannditeisi i Dlcaeinsitsininiianipesiacsiintansaanseunnsnntenseenies 14

Cooper Stevedoring Company VS Fritz Kopke Inc.,

417 US 106, 94 S.Ct. 2174, 40 L.Ed.2d 694 (1974)....... 14

Mobil Oil Corporation VS Higginbotham,

436 US 618, 56 L.Ed.2d 581, 98 S.Ct. 2010 (1978)....... 14

TVA VS Hill,

BF Tas BAT, BB Be, TB aavcccssscesccssececececccnscecccnseees 15

Gulf Oil Corporation VS Copp Paving Company,

419 US 186, 95 S.Ct. 392, 42 L.Ed.2d 378 (1974)......... 16

Transamerica Mortgage Advisors Inc. VS Lewis,

UII TINIE conc iciionenkannipantaiadssneetaseensessonssnsabenesonenenss 17

Touche Ross & Company VS Redington,

SIT TITITT TT iiccniisisndbdanscssianisenitnsesenssentesasnocsdenneseseses 17

Koch VS U.S.,

Ta aI TTT ichnsscanieeienatinbdasnnndbeoinensnnceseneoussnnesees 20

U.S. VS San Jacinto Tin Company,

125 US 273, 85 S.Ct. 850, 31 L.Ed. 747........cccccssseeeees 20

U.S. VS Appalachain Electric Power Company,

311 US 712; 61 S.Ct. 568 (1940)..........ssssrsssseees 20, 21

U.S. VS Bethlehem Steel Corporation,

OE ie ee il ns BOGE sccccecccceceecccessccccccsceccveccccenes 20

Toomer VS Witsell,

334 US 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948)......... 20

Gertleer VS Connecticut,

161 US 519, 16 S.Ct. 600, 40 L.Ed. 793 (1896)............. 21

California Department of Fish & Game VS

SS Bournemouth, 307 F.Supp. 922

8 ECAR RE ae ee 21

State of Maryland, Department of Resources VS

Amerda Hess Corporation, 350 F.Supp. 1060

CBE. 2678) .crcececersscorcvecccsceseesseecccssscoccbeovccccscesesecsooseceee 21

U.S. VS M/V BIG SAM,

454 F.Supp. 1144 (E.D.LA 1978).........0cccscrcsrcssssseesseeees 4

vi

U.S. VS M/V BIG SAM,

480 F.Supp. 290 (E.D.LA. 1979).........cccccccsssssscessreecssseees 4

U.S. VS M/V BIG SAM,

505 F.Supp. 1029 (E.D.LA. 1981)............sscssssssrsessseeees 4

U.S. VS M/V BIG SAM,

661 F.2d 482 (Gth Cir., 1962).......cccccorcccssocsssssscosecseessececs 4

U.S. VS M/V BIG SAM,

Be ee BO Foe lg LOGE) sccceccnsccncscsscccccccocscoscsesccecezees 4

LEGAL PERIODICALS AND BOOKS

Damages, Charles E. McCormack 1935...........::ccssesseeeeeees 19

“The Origins of the Action of Trespass” 33 Yale

SNES SRS ETT SIC o Tee a 19

9 Houston Law Review 668 ............cccccsssssssecesssesseseeeseseenees 23

LEGISLATIVE HISTORY

116 Congressional Record 9327-9328 March 25, 1970.....5, 8

115 Congressional Record 28960 Oct. 7, 1969... 8

U.S. Code Congressional & Administrative News,

Volume 2, 91st Congress Second Session, 1970

Se Be cctsasecnscascesscnnssccnnnccassescorscosseesconecnccesecsscoseese 22

1

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1982

M/V BIG SAM, in rem and

ZITO TOWING, INC.

Petitioners

Vs

UNITED STATES OF AMERICA

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OPINIONS BELOW

All of the opinions below are contained in the attach-

ed appendix to the petition for certiorari. Appendix B is

the Fifth Circuit’s decision in United States VS M/V BIG

SAM, 681 F.2d 432, (5th Cir., 1982) the judgment from

which review is sought from this court. Appendix C is the

Fifth Circuit’s denial of rehearing and rehearing en banc,

published 693 F.2d 451 (5th Cir., 1982). Appendices D, E,

and F are the District Courts’ opinions in United States VS

M/V BIG SAM, published at 454 F.Supp. 1144 (E.D. LA.,

1978, 480 F.Supp. 290 (E.D. LA. 1979) and 505 F.Supp.

1029 (E.D. LA. 1981).

2

JURISDICTION

Jurisdiction in the District Court was founded upon

28 USC § 1331, as the case involved a claim by the United

States to recover clean-up expenses under the Federal

Water Pollution Control Act, 33 USC § 1251 et seq. The

United States also asserted claims under the Rivers and

Harbors Act of 1899, 33 USC § 407, as well as the General

Maritime Law, 28 USC 1333.

The judgment of the Court of Appeals was entered

on July 30, 1982, and a petition for rehearing and rehearing

en banc was denied on December 13, 1982.

The jurisdiction of this Court is invoked under 28

USC § 1254 (1).

STATUTE INVOLVED

The primary statutory provisions involved in this

litigation are 33 USC § 1321 (f) (g) (h), which are set out in

the attached appendix to petition as Appendix A, in the

form the provisions took at the time of the oil spill in ques-

tion.

STATEMENT OF THE CASE

This case arose on April 25, 1975 when the M/V BIG

SAM collided with a barge. The barge was holed and spill-

ed oil into the Mississippi River. The United States cleaned

up the oil spill. The money and authorization for the clean-

up came from only one source, the FWPCA, § USC §

- 1251-1376.

The third party vessel, M/V BIG SAM is owned by

3

Zito Towing, Inc. Zito bareboat chartered the vessel to

TriCapt., Inc. a now defunct company. TriCapt., Inc. was

found to be liable for the collision because the helmsman

steering the M/V BIG SAM at the time of the collision was

not properly licensed. In the collision case, in which the

United States was not a party and clean-up not an issue,

the M/V BIG SAM was held liable with TriCapt., its

charterer, under the Admiralty Doctrine of Ship per-

sonification—in rem liability. The crew hired by TriCapt.

was incompetent, therefore the M/V BIG SAM was found

to be unseaworthy. Unseaworthiness was the cause of the

collision, ergo BIG SAM was liable.

At the time of the collision and clean-up, the vessel

was worth more than the cost of clean-up. Clean-up was ap-

proximately TWO HUNDRED SEVENTY EIGHT

THOUSAND AND NO/100 ($278,000.00) DOLLARS and

the M/V BIG SAM was worth about FOUR HUNDRED

THOUSAND AND NO/100 ($400,000.00) DOLLARS.

Under FWPCA limits 33 USC § 1321 (g) in effect at the

time ($100.00 per gross ton), the 155 gross ton BIG SAM

would have a maximum liability of FIFTEEN THOU-

SAND FIVE HUNDRED FIFTY AND NO/100

($15,550.00) DOLLARS.

Because the cost of clean-up exceeded the FWPCA

limitations substantially, and because the principal defen-

dant and cause of the spill, TriCapt., Inc. was defunct and

without the insurance it claimed it had, the United States

sued the M/V BIG SAM and its owner Zito Towing, Inc.

for the full amount of the clean-up costs under several

theories, including maritime tort.

The district court initially held that the government

was not limited to the remedies provided by the FWPCA

4

and could recover as well under both the General Maritime

Law and the Refuse Act, United States VS M/V BIG SAM,

454 F.Supp. 1144 (E.D.LA. 1978), See Appendix D. Subse-

quently, following the submission of additional memoran-

dum by all parties, the district judge vacated the previous

ruling and held that the government was limited to those

remedies specified under the FWPCA. United States VS

M/V BIG SAM, 480 F.Supp. 290 (E.D. LA. 1979) See Ap-

pendix E. Following this ruling, the parties submitted the

case for decision on stipulated facts. The trial court entered

judgment in the amount of FIFTEEN THOUSAND FIVE

HUNDRED FIFTY AND NO/100 ($15,550.00)

DOLLARS, the FWPCA statutory limit in favor of the

United States against TriCapt., Inc., the bareboat

charterer and operator of the BIG SAM. All the claims

were dismissed, and the government’s in rem claim was

disallowed. United States VS M/V BIG SAM, 505 F.Supp.

1029 (E.D. LA. 1981) See Appendix F.

The United States appealed and the United States

Court of Appeals for the Fifth Circuit reversed the District

Court disallowing the government’s claim to recover costs

in excess of the statutory limits under maritime tort.

United States VS M/V BIG SAM, 681 F.2d 432 ‘5th Cir.,

1982). See Appendix B. The Fifth Circuit affirmed the

District Court’s ruling that the government’s claim under

the Refuse Act was preempted by the FWPCA.

Petitions for rehearing and rehearing en banc were

denied by the Fifth Circuit. United States VS M/V BIG

SAM, 693 F.2d 451 (5th Cir., 1982). See Appendix C. Cir-

cuit Judges Gee, Brown, Rubin and Jolly dissented. Peti-

tioner files its petition for writ of certiorari to review the

Fifth Circuit’s decision and to resolve the conflicts created

by its construction of this important statute.

5

ARGUMENT

INTRODUCTION:

Each and every day hundreds of vessels traverse the

Mississippi River carrying all kinds of cargoes. Some carry

wheat, corn and other grains, some carry salt, and other

minerals, some carry machinery and manufactured goods

and some carry chemicals including petroleum. Each U.S.

vessel, whether it be a small pushboat, workboat, large

towboat, fleet tug, freighter, tanker or barge carrying or

not carrying a cargo must be financially responsible in

order to operate on the river. This means each owner or

operator of a vessel must have insurance protecting him

and the vessel against water pollution. 33 USC § 1321 (p),

46 CFR 542, Financial Responsibility for Removal of Oil

and Hazardous Substances. This rule applies throughout

the United States. In everyday work-a-day terms this

means that you can not operate on the Mississippi or any

U.S. waterway if you cannot afford to purchase oil pollu-

tion insurance.

When the FWPCA, 33 USC § 1251 eq seq. was being

considered by Congress, ‘‘the oil pollution provisions were

extremely difficult to resolve because they affected direct-

ly the Merchant Marine, concepts of admiralty law, the

American Insurance Market, and Overseas Insurance

Market, the balance of payments, international relations,

the economy, small business, onshore and offshore oil

facilities, research provisions, vessel inspection re-

quirements, requirements that vessels will carry oil spill

containment equipment as well as the predominate con-

sideration of the protection of our ecology.’’ 116 Congres-

sional Record 9328 March 25, 1970.

6

The Supreme Court has examined the effect of the

FWPCA on several occasions. In Milwaukee VS Illinois,

451 US 304, 68 L.Ed.2d 114, 101 S.Ct. 1784, the Court held

that no federal common law remedy was available to II-

linois to seek abatement of the nuisance caused by in-

terstate water pollution because the field was preempted

by the comprehensiveness of the FWPCA. In Middlesex

County Sewerage Authority VS Sea Clammers, 453 US 1,

69 L.Ed.2d 435, 101 S.Ct. 2615, the Court held that the

underlying legal basis of the federal common law of

nuisance claims was preempted by the FWPCA and that

there was no implied private right of action under the

FWPCA despite savings clauses.

The circuit courts have also examined the FWPCA.

The U.S. argued before the Second Circuit that the

FWPCA in 33 USC § 1321 (h) (2) preserved the govern-

ment’s rights against “‘any third party whose actions may

in any way have caused or contributed”’ to an oil spill mak-

ing it anomalous for Congress to preserve non-FWPCA

remedies against third parties (maritime tort—vessels) if it

(Congress) intended to abolish such remedies against

discharging vessels. The U.S. claimed because of the

anomaly that maritime tort theories could be used to swup-

port a claim for full recovery of clean-up costs—(no limita-

tion), against a discharging vessei despite the provisions of

33 USC § 1321 (f). The Second Circuit rejected this argu-

ment in Matter of Oswego Barge Corporation, 664 F.2d 327

(2nd Cir., 1981). Relying in part upon this court’s decisions

in Middlesex County, supra, and Milwaukee VS Illinois,

supra, it held:

“Once Congress legislates comprehensively on

the subject of government remedies for oil spill

clean-up costs, the responsibility lies with Con-

gress to spell out expressly what, if any, role

7

remains for courts to fashion and apply non-

statutory remedies the government is asserting

in this case.”’

In a footnote the Court indicated it would probably

rule the same way if presented with a third party vessel

case like The Big Sam, 664 F.2d 327 (at 341, footnote 19).

The Fifth Circuit appeared to agree with this rationale

when it decided against the Government in United States

VS Dixie Carriers, Inc., 627 F.2d 736 (5th Cir., 1980).

However, by refusing to hear the petition for en banc

consideration of United States VS Big Sam, the Fifth Cir-

cuit by default agreed with the Panel on the Big Sam that

by reason of 1321 (h) and despite 1321 (g) the government

may recover without limit against a third party sole cause

vessel. The dissent from the refusal to grant rehearing

composed of Judges Brown, Rubin, Gee and Jolly, com-

mented on the refusal:

“Thus we (the Fifth Circuit) decree, he (M/V BIG

SAM, third party vessel) may be crushed, while

an equal fault discharger is to be shielded.”

“(The) Court has slighted its en banc function by

refusing to face and resolve a fundamental con-

flict in principle between its panels, to adopt the

approach of the BIG SAM panel and limit or

disapprove the reasoning of Dixie Carriers, or to

consider the countervailing arguments for a con-

struction of the Act consonant with our prior

panel decision in Dixie Carriers. ..

“So doing, it passes to an overburdened Supreme

Court the task of relieving those within our

jurisdiction from burdens of which it is probable

8

the Congress meant to discharge them, preserves

a clear conflict in principle in our decisions, and

abdicates what I conceive to be its major func-

tion.”

Not only does the decision in United States VS M/V

BIG SAM create a conflict within the circuit and with

other circuit courts, it also has a profound effect on shipp-

ing and insurance along the Mississippi River. In part, the

reasons for liability limits in the FWPCA were to allow for

insurability on the part of vessel owners and operators as

required by Federal Regulations. 116 Congressional

Record, 9327, March 25, 1970; 115 Congressional Record,

28960 October 7, 1969.

The Fifth Circuit considered its decision’s affect on

insurance cost and procurement. It said that the Limita-

tion of Liability Act, 46 USC § 183 (a) protected vessel

owners from potentially crushing liability and from an

uninsurable risk. In so stating it ignored reality and its

own decisions. The Fifth Circuit has addressed previously

the question of insurance premiums as they apply in con-

nection with the Limitation of Liability Act.

“Regarding the matter of higher premiums, even

if this question had not been implicitly disposed

of by Cushing (Cushing VS Maryland Casualty

Company 198 F.2d 536, 5th Cir., 1952), we would

reject the contention to begin with, since in the

vast majority of cases limitation is denied for one

reason or another, it may well be questioned how

significantly the possibility of limitation figures

into the actuarial computation of premiums. Se-

cond, since the maritime industry quite often

benefits from a full recovery of losses, the policy

underlying the Limitation Act is perfectly com-

patable with spreading losses through higher

9

premiums. For example, the interest of the mari-

time industry in the present case is best served

by permitting Olympic to recover its entire loss

from the sinking of its vessel; the better policy

would seem to favor slightly higher premiums, if

really necessary, in order to avoid instances of

severe loss. And finally, we do not think that the

Limitation Act was intended to limit the amount

of premiums paid by vessel owners on insurance.

Therefore, we hold, that the possibility of higher

premiums is an insufficient basis for permitting

an insurer to limit its liability.”

In Louisiana and elsewhere, every insurer will have

to react to the potential problem this case causes in connec-

tion with direct action statutes and the success of limiting

liability in a pollution claim. The fact that a maritime tort

claim is now permitted and that the United States may

proceed against the insurer directly without benefit of

limitation and further that should it have a benefit of

limitation, the limitation will probably not be successful

creates in the insurer sufficient doubt to cause him to raise

his premiums significantly to cover the potentially

crushing liability of an oil pollution claim. This problem is

exactly what Congress considered in reaching the com-

promise of the Federal Water Pollution Control Act.

This Court is now presented squarely with an issue it

did not have to decide in Milwaukee VS Illinois, supra, and

Middlesex County VS Sea Clammers, supra. Specifically

that is the preemptive effect of legislation, the FWPCA,

upon maritime law. The Sea Clammers Association alleged

a claim under federal common law of public nuisance and a

claim of maritime tort. The Third Circuit held both claims

to be viable, 616 F.2d 1222. The Supreme Court in a limited

grant of certiorari, included as one of its questions,

10

“Whether any federal common law nuisance action for alleg-

ed damages sustained resulting from ocean pollution, is not

preempted by" the FWPCA. 449 US 917, 101 S.Ct, 314, 66

L.Ed.2d 145 (1980). The grant of certiorari did not expressly

include any question bearing upon the plaintiff's claim of

maritime tort.

If this Court finds either that the FWPCA preempts a

claim for maritime tort or that the United States is without

standing to allege a claim for maritime tort, it will resolve all

of the issues presented by 38 USC § 1321 (f) (g) and (h). No

maritime tort or preemption of maritime tort means there is

no maritime lien outside of a grant given in 33 USC § 1321

(f). There is no recovery for clean-up costs outside of the

limits set in the FWPCA unless the spill is willful. The effect

on insurance cost and procurement is predictable by the

companies based upon the language and experience they

have with the FWPCA. The questions left open by the Fifth

Circuit in United States VS M/V BIG SAM:

“1, Whether a maritime tort not subject to the

limitation of liability because of the owner's

knowledge of privity would be inconsistent with

the remedy provided by the act for willful conduct

or willful negligence and

2. Whether the maritime tort remedy provides a

recovery that is cumulative to or concurrent with

the remedy provided by subsection (g)"’

are resolved.

THE FWPCA PREEMPTS THE RECOVERY BY

THE UNITED STATES UNDER FEDERAL

MARITIME TORT LAW FOR THE FULL

AMOUNT OF ITS CLEAN-UP COSTS

ll

No court nor commentator has ever cited a pre

FWPCA, pre-Oil Pollution Act of 1924, or pre-Rivers &

Harbors Act of 1899 case as authority or illustration for

the proposition that the United States is or can be the

beneficiary as plaintiff of an award for damages resulting

from oil pollution of a navigable waterway. The leading

case and one most often cited recognizing the maritime

tort of oil pollution is California VS SS Bournemouth, 307

F.Supp. 922, (C.D. CA., 1969), However, that case recogniz-

ed California the state as a plaintiff, not the United States.

The FWPCA and the case law developed to date all

recognize the right of a state to sue for damages caused by

oil pollution.

It is uncontested here, indeed it has long been

recognized, that power is vested in the federal government

to regulate and control the waters of the United States. the

Daniel Ball 10 Wall 557. But until Congress acts on the

subject, the power of the state over its waterways is

plenary. Wilson VS The Black Bird Creek Marsh Company,

2 Pet. 245 (1829); Gilman VS Philadelphia, 3 Wall 713

(1865); Escanaba Company VS Chicago, 107 US 678 (1882);

Cardwell VS American Bridge Company, 113 U.S. 205

(1884); Hamilton VS Vicksburg, Shreveport and Pacific

Railroad, 119 US 280 (1886); Willamette Iron Bridge Com-

pany VS Hatch, 31 L.Ed. 629 (1887).

Until Congress does pass a law, ‘there is no common

law of the United States which prohibits obstructions and

nuisances in navigable rivers, unless it be the maritime

law, administered by the courts of admiralty and maritime

jurisdiction. No precedent however, exists for the enforce-

ment of any such law...'' Willamette Iron Bridge Company

VS Hatch, 31 L.Ed, 629, 632 (1887). Erie Railroad VS Tom-

pking, 304 US 64 (1938) established again that there is no

12

federal general common law and “except in matters

governed by the federal constitution or by Act of Congress,

the laws to be applied in any case is the law of the State.”

Erie Railroad VS Tompkins, supra. The only exception

recognized to this rule was made at the time Erie Railroad

VS Tompkins was handed down. Hinderlider VS LaPata

Company, 304 US 92, 110, 83 L.Ed. 1202, 1212, 58 S.Ct.

803, held that federal common law exists to resolve a

dispute where the interstate nature of a controversy

renders inappropriate the law of either state.

Illinois VS City of Milwaukee, 406 US 91, 31 L.Ed.2d

712, 92 S.Ct. 1385, did not change the rule handed down in

Hinderlider VS LaPata Company or Erie Railroad VS Tom-

pkins. The beginning of the opinion recognizes

Milwaukee's right to be a party as a political subdivision of

the State of Wisconsin, The issue of the case was the pollu-

tion of interstate waters with the litigants essentially be-

ing opposite states. Obviously neither Wisconsin's law nor

Illinois’ law would have been appropriate to follow for a

decision by the U.S. Supreme Court. The court went on to

say what has been stated countless times by the Supreme

Court. Congress has the right to act and thereby preempt

state law and federal common law.

“It may happen that new federal laws and new

federal regulations may in time preempt the field

of federal common law of nuisance."’ /ilinois VS

City of Milwaukee, supra, at page 725, L.Ed.2d.

Later this court held that the FWPCA did in fact

completely preempt the federal common law of nuisance

for actions between states or their political subdivisions

and for actions by private citizens. Milwaukee VS Illinois,

451 US 304, 68 L.Ed.2d 114, 101 S.Ct. 1784, and Middlesex

13

County Sewerage Authority VS Sea Clammers, 453 US 1,

69 L.Ed.2d 435, 101 S.Ct, 2615.

“The court has now held that the federal common

law of nuisance in the area of water pollution is

entirely preempted by the more comprehensive

scope of the FWPCA..."" Milwaukee VS Illinois

and Middlesex County Sewerage Authority VS

Sea Clammers, supra.

The Fifth Circuit now holds in U.S. VS M/V BIG

SAM that the FWPCA did not preempt federal maritime

law in one and only one case where a third party vessel

causes an oil spill either jointly or by its sole fault. The con-

clusion of the court is wrong. The FWPCA does preempt

recovery by the United States under federal maritime tort

law.

The United States Supreme Court has been as reluc-

tant to fashion maritime tort law as it has been to draw a

body of general federal common law.

In 1952 the court declined to make a rule sanctioning

contribution between joint tortfeasors in non-collision

cases Justice Black said:

“In the absence of legislation, courts exercising

common law jurisdiction have generally held that

they can not on their own initiative create an en-

forceable right of contribution as between join

tortfeasors. This judicial attitude has provoked

protest on the ground that it is inequitable to

compel one tortfeasor to bear the entire burden of

a loss which has been caused in part by the

negligence of someone else...To some extent

courts exercising jurisdiction in maritime affairs

have felt freer than common law courts in

14

fashioning rules, and we would feel free to do so

here if wholly convinced that it would best serve

the ends of justice.

We have concluded that it would be unwise to at-

tempt to fashion new judicial rules of contribu-

tion and that the solution of this problem should

wait Congressional action."’ Halcyon Lines VS

Haenn Ship Ceiling and Refitting Corporation,

342 US 282, 72 S.Ct. 277, 96 L.Ed. 318 (1952).

In 1972 the court upheld Halcyon by a per curium

decision in Atlantic Coast Line Railroad VS Erie

Lackawnna Railroad, 406 US 340, 92 S.Ct. 1550, 32

L.Ed.2d 110 (1972). Halcyon was of course severely limited

by the decision in Cooper Stevedoring Company VS Fritz

Kopke, Inc., 417 US 106, 94 S.Ct. 2174, 40 L.Ed.2d 694

(1974).

But the court’s reluctance to make law absent Con-

gressional act remains as strong as ever. Justice Rehnquist

speaking for the majority in Milwaukee VS Illinois

discussed this principal by referring to the court's holding

in Mobil Oil Corporation VS Higginbotham, 436 US 618, 56

L.Ed.2d 581, 98 S.Ct. 2010 (1978):

“In Mobil Oil Corporation VS Higginbotham, the

court refused to provide damages for ‘loss of

society’ under the general maritime law when

Congress had not provided such damages in The

Death On The High Seas Act:

“We realize that, because Congress has never

enacted a comprehensive maritime code, ad-

miralty courts have often been called upon to

supplement maritime statutes. The Death

On The High Seas Act, announces Congress’

considered judgment on such issues as the

15

beneficiaries, the limitations, contribution

negligence, survival and damages...The act

does not address every issue of wrongful-

death law,...but when it does speak directly

to a question, the courts are not free to ‘sup-

plement’ Congress’ answer so thoroughly

that the act becomes meaningless.’ At 625,

56 L.Ed.2d 581, 98 S.Ct. 2010.

‘Thus the question was whether the

legislative scheme ‘spoke directly to a ques-

tion’—in that case—the question of damages

—not whether Congress had affirmatively

proscribed the use of federal common law.

Our committment to the separation of

powers is too fundamental’ to continue to re-

ly on federal common law ‘by judicially

decreeing what accords with common sense

and the public weal’ when Congress has ad-

dressed the problem. TVA VS Hill, 57

L.Ed.2d 117, 98 S.Ct. 2279”

The Fifth Circuit in United States VS M/V BIG

SAM maintains that 1321 (h) (2) preserves the maritime

tort remedy for the United States. The dissent. to the denial

of rehearing en banc addresses this issue by saying:

‘1, Our earlier Dixie Carriers’ opinion concluded

that, since Subsection (f)’s liability limitations ap-

ply in cases of simple negligence, the FWPCA

preempts the general maritime tort remedy for

such negligence. Though that decision concerned

the liability of discharges, the decision of the B/G

SAM panel that subsection (g)—textually and

conceptually identical to and interlocking with

subsection (f)—does not preempt the general

maritime tort remedy for simple negligence of

third party causes of discharges conflicts in

16

principle with Dixie Carriers and throws the

general Congressional scheme into irrational

disarray.

2. By focusing exclusively on the literal language

of subsection (h) preserving the government's

rights against third party causes, the panel opi-

nion saps the limitation of liability provided them

by subsection (g) of vitality and all but reads it

out of the statute.

3. The BIG SAM panel adopts as to third party

causes the approach of the original Senate bill—

unlimited recovery for simple negligence—that

was squarely rejected by the Congress. Such an

adoption of a rejected approach in the teeth of the

legislative history conflicts with the strongest

settled principles of statutory construction, both

in this court and in the Supreme Court. See EG

Gulf Oil Corporation VS Coppe Paving Company,

419 US 186, 95 S.Ct. 392, 42 L.Ed.2d 378 (1974).

33 USC § 1321 (g) states in part:

“In any case where an owner or operator of a

vessel...from which oil...is discharged in

violation...of this section proves that such

discharge of oil...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, notwithstanding any other provision

of law, be liable to the United States government

for the actual costs incurred under Subsection (c)

for removal of such oil or substance by the United

States government, except where such third par.

ty can prove that such 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

17

government, or (d) an act or omission of another

party without regard to whether such act or omis-

sion was or was not negligent or any combination

of the foregoing clauses. If such third party was

the owner or operator of a vessel which causes the

discharge of oil...the liability of such third party

under this subsection shall not exceed $100.00 per

gross ton of such vessel or $14 million, whichever

is the lesser....If the United States can show that

the discharge of oil...was the result of willful

negligence or willful misconduct within the privi-

ty and knowledge of such third party, such third

party shall be liable to the United States govern-

ment for the full amount of such removal costs.

The United States may bring an action against

the third party in any court of competent jurisdic-

tion to recover such removal costs.

Compare this language with that of 33 USC § 1321 (h) (2):

“The liabilities established by this section shall in

no way affect any rights which 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.”

It is an elemental canon of statutory construction

that where a statute expressly provides a particular

remedy or remedies, a court must be chary of reading

others into it. Middlesex County Sewerage Authority VS

Sea Clammers, supra, and Transamerica Mortgage Ad-

visors, Inc. VS Lewis, 444 US 11, (1979), Touche Ross &

Company VS Redington, 442 US 560 (1979).

33 USC § 1321 (g) very clearly sets forth the remedy

of the United States where a third party non-discharging

vessel causes an oil spill. Congress spoke directly to the

18

question presented by this case. The M/V BIG SAM falls

squarely within the confines of the language. But by

reading the more broad provision of 1321 (h) (2), the Fifth

Circuit has torpedoed the limitations provided by the

FWPCA, floating its decision on a theory of maritime tort

recovery for the United States. In so doing, it has ignored

the language of this court and the decisions cited above .

and has in essence completely read out section 1321 (g) of

the FWPCA. No thinking person can state honestly that

by following the Fifth Circuit’s opinion in United States

VS M/V BIG SAM, 33 USC § 1321 (g) remains viable.

THE UNITED STATES DOES NOT HAVE

STANDING TO ALLEGE A CLAIM TO RECOVER

ITS CLEAN-UP COSTS BASED ON A THEORY

OF MARITIME TORT

Prior to the FWPCA and other federal legislation,

the United States did not try to recover clean-up costs.

Prior to the FWPCA the United States did not clean the

water. After the FWPCA was passed, the United States

began clean-up. Now it would like to clean-up the water and

recover its expenses in a manner not prescribed by Con-

gress in the act but rather by maritime tort. So far, only

the Fifth Circuit has permitted this and only in this third

party non-discharging vessel case.

The actions through which most of the modern law of

damages was evolved was the action of trespass, with its

late progeny case and Assumpsit. The parentage of an ac-

tion in trespass was devised in 1166 upon a Roman model

as a remedy against one who had violently wrestled posses-

sion of land from another. Shortly after this action called

the “‘assise of novel disseisin’’, came into use, the practice

arose of giving judgment in such cases, not only for the

19

restoration of the land, but for damages assessed by the

jury for the loss of crops and goods taken from the land by

the marauder. This incidental relief of damages, like the

other features of the action was a borrowing from the prac-

tice found in the Roman proceedings upon which the action

was modeled. Damages, Charles E. McCormack, 1935;

George E. Woodvine, “The Origins of the Action of

Trespass’’, 33 Yale Law Journal 1924.

The action of trespass is designed to protect the in-

terests and exclusive possession of the land in its intact

physical condition. Therefore, any person in the actual and

exclusvie possession of the property may maintain the ac-

tion although he has no legal title. The element of posses-

sion is so important in the action of trespass that an owner

who is out of possession can not maintain a trespass ac-

tion.

The idea of possession and the necessity of being in

possession is still in the modern thoery of trespass. The

American Law Institute Restatement of Torts Second,

1966, states that a trespass on land subjects the trespasser

to liability from physical harm to the possessor of the land

at the time of the trespass or to the land or his things.

The law framing the guidelines of general maritime

tort arose out of the action of trespass and has its same re-

quirements of possession or ownership and damages. (See

Benedict on Admiralty.)

The United States may not bring a general maritime

tort action against the M/V BIG SAM. The United States

lacks the essential elements of a maritime tort. The United

States neither owns nor possesses the Mississippi River.

20

The United States as a proprietor has the same

rights which a citizen has to bring the conventional action

for protection of its proprietary rights. In Koch VS United

States, 11 Howard 229, 13 L.Ed. 675, the Supreme Court

held that the United States could, without any statute

authorizing a suit, sue in trespass for the taking of timber

from its land. In United States VS San Jacinto Tin Com-

pany, 125 US 273, 8 S.Ct. 850, 31 L.Ed. 747, the Supreme

Court held that the United States could sue in equity to set

aside a patent of United States land which patent had been

obtained by fraud. However, the United States does not

own nor possess the Mississippi River. United States VS

Appalachain Electric Company, 311 US 712; 61 S.Ct. 548

(1940). The Mississippi River is a navigable waterway and

the flow of a navigable waterway is not capable of posses-

sion or ownership. The government's interest in the

navigability of such waterways arises out of the constitu-

tional power of Congress to regulate interstate and foreign

commerce. Therefore, the government’s interest is a

regulatory interest and not a proprietary interest. United

States VS Bethlehem Steel Corporation, 319 F.2d 512 (9th

Cir., 1963).

The State of Louisiana as the owner of the riverbed

banks and marine life is the proper party to bring a general

maritime tort action against the M/V BIG SAM. Justice

Frankfurter, concurring in Toomer VS Witsell, 334 US 385,

68 S.Ct. 1156, 92 L.Ed. 1460 (1948) stated,

“A state should care for its own in utilizing the

bounties of nature within her borders bevause it

has the technical ownership of such bounties or,

when ownership is in no one, because the state

may for the common good, exercise all the

authority that technical ownership ordinarily

confers.”

21

It is just this ‘‘technical ownership”’ that the State of

Louisiana has in its waters that gives it the legal right to

bring suit on behalf of the public in order to serve the com-

mon good of its citizens. If the State is deemed to be the

trustee of its waters, then as trustee, the State is the one

empowered to bring a general maritime tort actiongainst

pollutors of those waters to protect the corpus of the trust,

i.e. the waters, for the benefits of the trust, i.e. the public.

The State of Louisiana is the proper authority to br-

ing the general maritime tort action. The State has the

right to preserve its natural resources because of the ex-

istence of a state police power. Gerteer VS Connecticut,

161 US 519, 16 S.Ct. 600, 40 L.Ed. 793, (1896).

The federal courts have recognized that because the

states have the element of possession or ownership that

they are the proper parties to bring a maritime tort action

to recover damages caused by an oil spill in navigable

waters. California Department of Fish and Game VS SS

Bournemouth, 307 F.Supp. 922 (C.D. Cal. 1969). The court

stated that because California possessed the requirement

of ownership and damage, the general maritime !aw provid-

ed relief to that owner for the property tortiously damaged

by conversion. The same is true in State of Maryland

Department of Resources VS Amerada Hess Corporation,

350 F.Supp. 1060 (D.MD. 1972).

The prosecuting of a general maritime tort action by

the United States government is an invasion of the

sovereignty of the State of Louisiana and in the absence of

legislation by Congress, a violation of the 10th Amend-

ment. The Supreme Court specifically prohibited such an

infringement in United States VS Appalachain Electric

Power Company, supra, when it said:

22

‘Actions taken by the United States in the states

which are valid under the commerce power can-

not be an invasion of the sovereignty of the state

in violation of the 10th Amendment under which

non-delegated powers remain with the state.”

If it is true as the United States maintains, that it

has standing to bring this action in maritime tort, one

must wonder why no action was taken by the United

States to clean-up rivers prior to the legislation of the

FWPCA. One must further question why actions under

maritime tort were not brought prior to clean-up authoriz-

ed by the FWPCA. Congress thought it was necessary in

the act to provide for the establishment of a maritime lien

on a vessel which might be recovered by an action in rem.

Legislative History, Public Law 91-224, U.S. Code Con-

gressional and Administrative News Volume 2, 91st Con-

gress, Second Session, 1970, at page 2702. If the United

States had standing to bring a maritime tort prior to the

enactment of the FWPCA, creation of a maritime lien and

an in rem action would not have been necessary. However,

the House in its deliberation did believe that it was

necessary. These provisions found their way into Section

1321 (f) when the final act was made.

This court is now presented with the opportunity to

settle an issue which will continue to bedevil the court for

the next several years. Congress tried to address the ques-

tion of the ecology and the protection of business enter-

prise. The Fifth Circuit has muddied the waters. This court

must decide whether or not the United States has standing

to bring a maritime tort and if so whether or not the

FWPCA has preempted the United States claim under a

theory of maritime tort.

23

“Vessel owners and operators who can function

without protection and indemnity or other liability in-

surance are few indeed. While all thinking persons want to

minimize pollution by oil and hazardous substances, the

imposition of liabilities and peanlties which can not be in-

sured against, will not end the pollution by the few who can

operate without insurance; it will simply end water

transportation of needed products by the may who must

have insurance to remain in business. Before imposing

uninsurable liabilities and penalties, the question first ex-

amined should be whether the product carried on the water

is one which the country can do without. 9 Houston Law

Review 668 by Nicholas Healy.

: Should this court refuse to grant certiorari, it will

mean that the decision of the Fifth Circuit will stand. More

particularly it will mean that the M/V BIG SAM will be

seized and sold to pay the debt to the United States for the

cost of clean-up. At the time of the collision which caused

this spill the BIG SAM was bareboat chartered to

TriCapt., Inc., a now defunct company. The vessel was

found unseaworthy because TriCapt., Inc. placed on board

a helmsman who was not licensed. The owners of BIG

SAM did not select or participate in any way with the deci-

sion to place this man on board. Nevertheless, because of

the personification of the vessel, the owners of the BIG

SAM now face loss of their vessel. Additionally, the owners

of the BIG SAM received certificates from TriCapt., Inc.

indicating that water pollution insurance had been obtain-

ed. In truth and in fact, insurance was not obtained to pro-

tect the BIG SAM and its owners from the provisions of

the FWPCA. If this court grants certiorari and decides

that maritime tort does not apply for whatever reason, the

owners of the M/V BIG SAM will not lose their vessel.

24

CONCLUSION

For the foregoing reasons, petitioner respectfully

prays for a writ of certiorari to the United States Court of

Appeals for the Fifth Circuit.

RESPECTFULLY SUBMITTED:

REUTER & REUTER

REUTER & REUTER

ARTHUR C. REUTER, SR.

NORMAND F., PIZZA

303 S, BROAD

P.O, BOX 19567

NEW ORLEANS, LA 70179

(504) 822-9748

ATTORNEY FOR

PETITIONER

25

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the forego-

ing has been mailed to counsel of record for the involved

parties, this 11th day of March, 1983.

REUTER & REUTER

A Professional Law Corporation

By

REUTER & REUTER

ARTHUR C, REUTER, SR.

NORMAND F. PIZZA

303 S. BROAD

P.O. BOX 19567

NEW ORLEANS, LA 70179

(504) 822-9748

ATTORNEY FOR

PETITIONER