HENRY BRATCHER, JR., & another vs. CIRILLO BROS. PETROLEUM PRODUCTS & another (and a companion case ).

HENRY BRATCHER, JR., & another [Note 1] vs. CIRILLO BROS. PETROLEUM PRODUCTS & another [Note 2] (and a companion case [Note 3]).

379 Mass. 912

September 5, 1979

In these actions, the plaintiffs seek to invoke the provisions of G. L. c. 21, Section 27 (14), in order to recover damages for harm done to their lands arising from an oil spill caused by the defendants. A judge of the Superior Court directed verdicts in favor of the defendants after the plaintiffs' opening statement. The case was transferred here on our own motion. We affirm the judgments.

The judge stated his conclusion that under G. L. c. 21, Section 27 (14), a pre-requisite to recovery by the plaintiffs "would appear to be a determination by the Division [of Water Pollution Control] that the instant defendant did in fact cause the spill or was in control of the oil when it was spilled. Thus, the statute may be read as precluding subject matter jurisdiction of this action in the absence of a determination by the Division adverse to the defendant pursuant to subsection 14." The plaintiffs' opening did not mention such a "determination," and at a bench conference plaintiffs' counsel could only represent that a representative of the Division would testify that there had been a determination and that the defendant Cirillo Bros. Petroleum Products had accepted responsibility for the spill. We interpret the judge's rulings as including a ruling that such an informal determination does not satisfy the statute. We agree with that ruling, and affirm the judgments on that ground.

We need not, and do not, reach the defendants' further argument that the Legislature did not intend by the abbreviated, almost cryptic, language of G. L. c. 21, Section 27 (14), to provide private litigants an action in strict liability against persons determined by the Division to be responsible for causing oil to spill in the Commonwealth's waterways. Nor do we express any opinions as to possible constitutional issues.

Judgments affirmed.

FOOTNOTES

[Note 1] Alice M. Bratcher.

[Note 2] William Savage is the second defendant in both cases.

[Note 3] Harriet A. Bratcher vs. Cirillo Bros. Petroleum Products & another.