Baldwin Haspel Burke & Mayer LLC

Maritime Update: Tug Pushing Two “Dumb” Barges Liable for Spill Cleanup as the Operating Vessel

Bill Schwartz - 

In January 2013, a tugboat owned by Nature’s Way Marine was moving two oil-carrying barges owned by Third Coast Towing down the Mississippi River. The barges were “dumb” barges, lacking the ability for self-propulsion or navigation, and as such, were reliant on the propulsion and navigation provided by the tugboat. The barges collided with a bridge, resulting in one of the barges discharging over 7,000 gallons of oil into the Mississippi River. Nature’s Way Marine and its insurer (collectively “Nature’s Way”), as well as Third Coast Towing and its insurer (collectively “Third Coast”) were all designated by the Coast Guard as “responsible parties” under the Oil Pollution Act (OPA). Subsequently, Nature’s Way spent over $2.99 million on the clean-up. In addition, various governmental entities spent over $792,000.

Third Coast and Nature’s Way settled a lawsuit between them in late 2014.

In May 2015, Nature’s Way submitted a claim to the National Pollution Funds Center (NPFC) seeking reimbursement of over $2.13 million on the grounds that its liability should be limited by the tonnage of the tugboat and not the tonnage of the barges. Nature’s Way also requested that it be relieved of any obligation to reimburse the government for the additional $792,000-plus. Those claims were denied by the NPFC based upon its determination that Nature’s Way was an “operator” of the oil-discharging barge at the time of the collision.

In January 2016, the United States initiated this litigation seeking recovery of the additional $792,000-plus from Nature’s Way and Third Coast. Nature’s Way answered that it was not liable for the additional $792,000-plus and counterclaimed that the NPFC violated the Administrative Procedure Act (APA) by deeming it to be an “operator” of the barge and consequently ineligible for reimbursement of the $2.13 million-plus.

The government moved for partial summary judgment on the sole question of whether the NPFC violated the APA by declaring Nature’s Way an “operator” of the barge and denying reimbursement of the $2.13 million-plus. The district court granted the government’s motion for partial summary judgment, concluding that a “common sense”  understanding of the term “operator,” as it is used in the statute, would include a tugboat that was moving a barge through the water.

Nature’s Way appealed the district court ruling against it.

On September 21, the Fifth Circuit affirmed the lower court judgment in the case of UNITED STATES OF AMERICA v. NATURE’S WAY MARINE, stating:

“It follows from that analysis that the ordinary and natural meaning of an ‘operator’ of a vessel under the OPA would include someone who directs, manages, or conducts the affairs of the vessel. Furthermore, it follows that the ordinary and natural meaning of ‘operating’ a vessel under the OPA would thereby include the act of piloting or moving the vessel. It is undisputed that Nature’s Way had exclusive navigational control over the barge at the time of the collision, and, as such, that it was a party whose direction (or lack thereof) caused the barge to collide with the bridge. Consequently, we—like the NPFC and district court—hold that Nature’s Way was ‘operating’ the barge at the time of the collision based on the ordinary and natural meaning of the term. In this case, Nature’s Way directed precisely the activity that caused the pollution—it literally was the party that crashed the barge into the bridge. To hold that Nature’s Way was not ‘operating’ the barge at the time of the collision would be to strain beyond the ordinary and natural meaning of the word.”

The case can be found here.

If you have any questions regarding this maritime matter, please contact Bill Schwartz at (504) 569-2900 or wschwartz@bhbmlaw.com.


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