United States of America, Plaintiff-appellant, v. T/b Arcadian 95, Etc., et al., Defendants,melissa G. Towing, Incorporated, Gautier Transportationincorporated and Water Quality Insurancesyndicate, in Personam, Defendants-appellees, 714 F.2d 470 (5th Cir. 1977)

This case involves an attempt by the United States Government to recover all the costs incurred in cleaning up an oil spill on the Mississippi River under the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1321 et seq., the Refuse Act, §§ 13 and 16 of the Rivers and Harbors Act of 1899, 33 U.S.C. §§ 407, 411, and 412 and negligence under the general maritime law. The United States spent $92,807.60 to clean up fish oil which was discharged from the T/B ARCADIAN 95 after it was rammed, while moored at the dock, on December 11, 1977 by a barge in tow of the tug MELISSA G. All parties acknowledged that the sole cause¹  of the collision and of the consequent discharge of oil was the action of the MELISSA G. The District Court therefore permitted the United States to recover against the tug MELISSA G. but the court limited that recovery to $10,300, plus pre-judgment interest. The District Court construed § 1321(g) of the FWPCA to limit the liability of a sole-fault non-discharging third party which is not guilty of willful negligence or willful misconduct to $100 per gross ton. 33 U.S.C. § 1321(g).²  The MELISSA G. was the only party responsible for the oil spill, and the tug was not the discharging vessel. Hence, the limitation on liability was held to be applicable. The Government appeals that holding.

This statute is not a model of clarity, but it has already been interpreted by this Court on several occasions. Subsection (f) of § 1321 was the subject of inquiry in United States v. Dixie Carriers, Inc., 627 F.2d 736 (5th Cir. 1980).³  In Dixie Carriers, this Court held that the FWPCA provided the Government's exclusive remedy for oil spill cleanup costs, and that the limits on liability established by the Act could not be circumvented by allowing the Government to pursue alternative forms of action, such as maritime tort.

Significantly, though, the negligent party and the discharging party in Dixie Carriers were one and the same. Therefore, this Court in that case did not settle the issue of whether the same limitations on liability would apply when a negligent non-discharging vessel causes the oil spill.

Such a case came before this Court in United States v. M/V BIG SAM, 681 F.2d 432 (5th Cir. 1982), reh. denied, 693 F.2d 451 (5th Cir. 1982), cert. denied, --- U.S. ----, 103 S. Ct. 3112, 76 L. Ed. 2d --- (1983). The fact situation in Big Sam, as even the Government concedes, was analytically indistinguishable from this case. Thus, the decision in that case governs the disposition of this appeal. In Big Sam, as here, the negligent vessel was not the vessel from which the oil was spilled, yet all parties agreed that the cause of the spill was the non-discharging third party's negligence. Hence, the applicable subsection was not 1321(f), which pertains to discharging vessels. It was, rather, 1321(g), which deals with non-discharging third parties. This Court ruled that although the subsections are parallel and linguistically identical, subsection (g), unlike subsection (f), does not provide an exclusive remedy. 681 F.2d at 441. This apparent inconsistency was explained by reference to 1321(h) which provides that the liabilities established by the Act "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."⁴  Id. at 442.

The Government argues that given our decision in Big Sam, the District Court's limitation on liability was clearly wrong and must be overturned. The offending tug basically concedes the point but, forgetting that this panel may not overrule another panel, implores us that Big Sam was inconsistent with Dixie Carriers and should now be reconsidered.

Whether, as some urged, Big Sam is at odds with Dixie Carriers, the earlier case pointed out that "section 1321(h) (2) states that the FWPCA does not affect the rights which the United States may have against a third party whose action caused an oil spill." Dixie Carriers, 627 F.2d at 742.

Big Sam no less than Dixie Carriers involved nothing more than strict statutory construction. It is the statute itself which treats negligent discharging vessels and negligent non-discharging vessels disparately. And this seeming peculiarity was not lost on the Court. Judge Gee's dissent from the denial of the petition for a rehearing en banc summarized the anomalous statutory language in this way:

Thus he who, carrying oil, solely and carelessly causes another to discharge it, is to be--in appropriate circumstances--crushed, while he who carried it and carelessly discharged it is to be shielded....

[A] third-party sole-causer .... may be crushed, while an equal-fault discharger is to be shielded.

United States v. BIG SAM, 693 F.2d 451, 458 (5th Cir. 1982) (emphasis added). Surely that is an odd result, but as the majority in that case emphasized, the language of the statute is "unambiguous." 693 F.2d at 455. However much the statute in its consequences may seem illogical and inconsistent, it is the work of Congress and up to Congress to correct.

As we said it before, we must say it again. Subsection (h) permits the Government to seek to recover the full costs expended in cleaning up an oil spill, so long as the cause of the spill is not the discharging vessel. The statute permits the Government to recover more than $100 per gross ton from the tug MELISSA G. The parties stipulated below, however, that there was no willful negligence or willful misconduct on the part of the MELISSA G. And although, as the Government points out, there is a presumption of negligence against a moving vessel when, as here, it strikes a fixed or non-moving object, Woods v. U.S. Department of Transportation, 681 F.2d 988, 990 (5th Cir. 1982); Brown & Root Marine Operators, Inc. v. Zapata Off-Shore Co., 377 F.2d 724, 726 (5th Cir. 1967), that presumption is not irrebuttable. See, e.g., Brown & Root, 377 F.2d at 726; Boudoin v. J. Ray McDermott & Co., 281 F.2d 81, 82, 87 (5th Cir. 1960). At the trial below, the tug MELISSA G., successfully acting on the theory that liability would be limited, did not have to undertake rebutting the presumption. Having now been sunk by Big Sam, the tug MELISSA G. must be given the opportunity to defend against negligence.

Accordingly, the District Court's construction of the FWPCA is overruled, and the case is remanded for proceedings not inconsistent with this opinion.

REVERSED and REMANDED.