United States v. M/v Big Sam, in Rem

693 F.2d 451, 18 ERC 1537, 13 Envtl. L. Rep. (Envtl. Law Inst.) 20206, 18 ERC (BNA) 1537, 1982 U.S. App. LEXIS 23369

Opinions

ON PETITIONS FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

(Opinion July 30, 1982, 5 Cir., 1982 681 F.2d 432)

Before WISDOM, RANDALL and TATE, Circuit Judges.

PER CURIAM:

The principal issues of this appeal relate to the proper statutory construction of section 311(g), (h), Federal Water Pollution Control Act, 33 U.S.C. § 1321(g), (h). See panel opinion at 681 F.2d 432. The focus of the defendant parties’ applications for rehearing is the alleged inconsistency of the panel’s interpretation of these subsections (g) and (h), with prior interpretations of subsection (f), section 311(f), 33 U.S.C. § 1321(f). The panel adheres to its construction of subsections (g) and (h), as based on the unambiguous statutory language that presumably reflects the unambiguous Congressional intent — especially since the legislative history gives no reason to doubt that the legislative words mean precisely what they say. Even assuming that the alleged inconsistency between subsections (f) and (g) is illogical,¹ it is for Congress to correct the syllogism, not the courts.

I.

Subsections (f), (g), and (h) relate to liability for the costs of removing pollution of navigable waters of the United States caused by the discharge of oil or hazardous substances. Subsection (f) provides that the discharger will be liable without fault but only up to a limited amount specified by statute,² except where the discharger can prove that the sole cause of the discharge was, inter alia, “an act or omission of a third party without regard to whether any such act or omission was or was not negligent.” Subsection (g) similarly provides for strict (no fault) liability in limited amount for such sole-cause third party, with similar exceptions. Subsection (h) provides, however, that the liabilities established by the Act “shall in no way affect any rights” that the United States or other persons “may have against any third party whose acts may in any way have caused or contributed to such discharge.”

The uneontroverted facts before the court show: The defendant vessel, BIG SAM, collided with a tank barge and caused an oil spill to be discharged from the latter. The sole cause of the collision was the negligence of BIG SAM, the non-discharging third-party vessel. BIG SAM and its owners contended that their exclusive liability for the cleanup costs was provided by the sole-cause strict liability provisions of subsection (g), under which (based on BIG SAM’s 155 gross tons) liability was limited to $15,500. The panel held, however, that BIG SAM — undoubtedly liable as the “sole cause” third party, irrespective of negligence, under subsection (g) — was subject to liability for the damages³ caused by its negligence and thus that subsection (g) “sole [no fault] cause” liability was not exclusive and did not relieve BIG SAM and its owners of their liability⁴ under ordinary maritime tort principles. The panel so concluded, because of the unambiguous provision of subsection (h)(2) 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 of oil or hazardous substance. (Emphasis and boldface added.)

That the construction given by the panel to subsection (h) reflects its literal and unambiguous meaning is scarcely questioned by the rehearing applicants or the dissent from denial of an en banc rehearing. Furthermore, the rather scant committee reports concerning the provisions of the Act, as hammered out by a conference committee compromising conflicting approaches and interests, are silent of any reason to believe the words do not mean what they say. Nor has anything in the legislative history or debates called to our attention any concern about relieving nondischarging third parties of theij liability under maritime tort principles for their negligence;⁵ these sources reflect to the contrary, if anything.

Instead, the panel’s construction is attacked as being inconsistent with the judicial construction given almost identical language in subsection (f) concerning the strict liability of discharger itself. In United States v. Dixie Carriers, Inc., 627 F.2d 736 (5th Cir.1980), a panel of this court held that, with regard to a discharger — admitting that “the express language of the statute provides little guidance to indicate Congress’ intent,” 627 F.2d at 739—subsection (f) provided the exclusive remedy for the government to recover cleanup costs, and that a remedy against the discharger for ordinary negligence in maritime tort seems to have been excluded “by a balanced and comprehensive remedial scheme in section 1321(f)(1) by matching limited recovery with strict liability and unlimited recovery with proof of willful conduct.” Id. In support of this ultimate conclusion, however, Dixie Carriers pointed out instances in the Act where other specific remedies were allowed—including that the Act “does not affect rights which the United States may have against, a third party whose actions caused an oil spill,” citing subsection (h), 627 F.2d at 742—and pointed out that, as against a discharger, “[n]o such express language allows the government to recover its cleanup costs under the ... common law.”⁶ 627 F.2d at 742. Thus, in Dixie Carriers we in part relied upon subsection (h)’s provision, expressly preserving maritime tort remedies as against third parties (without an equivalent preservation against dischar-gers), as supporting the construction that such maritime tort remedies were not preserved but were instead supplanted as against dischargers themselves by the strict-liability remedy of subsection (f).

The panel thus perceives no inconsistency in the respective constructions given by it to subsections (g) and (h) and by Dixie Carriers to subsection (f), given the different and additional statutory provision expressly applicable to third parties alone by subsection (h) and expressly relied upon both by this panel and by Dixie Carriers in explaining their respective constructions of subsections (f) and (g).

II.

The complaint as to the panel’s construction of subsections (g) and (h) is thus not directed to any error in construing or overlooking unambiguous language of the statute, nor is it in truth directed at any inconsistency between our holding and that in Dixie Carriers.

The complaint, rather, is that Congress was inconsistent in providing an exclusive strict liability remedy against dischargers by subsection (f) (if correctly construed by Dixie Carriers, which admitted the ambiguity of the statute in that regard⁷), but in permitting against negligent third parties a maritime tort remedy as well (whether concurrent or cumulative, see note 4 supra). We who are not Congressmen might think it is illogical to permit the Act’s strict liability remedy to supplant maritime tort remedies against a negligent discharger who created the bulk of the risk, but not against a negligent non-discharging third person who causes a discharge.⁸

However inconsistent we may think this disparate treatment, however much we may be of the view that we could tidy up the statute and make of it what to us seems to be more sense, it is simply not part of our function as judges to re-write, in the guise of statutory construction, unambiguous statutory language in order to cure what to us seems to be statutory deficiencies. Last Term, the Supreme Court so admonished on at least two occasions.

In American Tobacco Company v. Patterson, 456 U.S. 63, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982), reversing a circuit court’s interpretation of unambiguous statutory language to different effect, the Court noted that while “[sjtatutes should be interpreted to avoid untenable distinctions and unreasonable results where possible,” 456 U.S. at 71, 102 S.Ct. at 1538,

[a]s in all cases involving statutory construction, “our starting point must be the language employed by Congress,” Reiter v. Sonotone Corp., 442 U.S. 330, 337, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931 (1979), and we assume “that the legislative purpose is expressed by the ordinary meaning of the words used.” Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962). Thus “[ajbsent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2055, 64 L.Ed.2d 766 (1980).⁹

456 U.S. at 68, 102 S.Ct. at 1537.

Again, in Griffin v. Oceanic Contractors, Inc., - U.S. -, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982), the Supreme Court reversed this circuit and its line of decisions that had “sensibly” construed a statute provision contrary to its unambiguous expression, and the Court explicitly enjoined against creative judicial interpretation of an unambiguous statute in order to accord with its supposed purpose (despite absence of any legislative history indicating any intention other than that expressed by the unambiguous wording):

“There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.” United States v. American Trucking Assns., Inc., 310 U.S. 534, 543, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940). See Caminetti v. United States, 242 U.S. 470, 490, 37 S.Ct. 192, 196, 61 L.Ed. 442 (1917). Nevertheless, in rare cases the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters, and those intentions must be controlling. We have reserved “some ‘scope for adopting a restricted rather than a literal or usual meaning of its words where accepance of that meaning ... would thwart the obvious purpose of the statute.’ ” Commissioner v. Brown, 380 U.S. 563, 571, 85 S.Ct. 1162, 1166, 14 L.Ed.2d 75 (1965) (quoting Helvering v. Hammel, 311 U.S. 504, 510-11, 61 S.Ct. 368, 371, 85 L.Ed. 303 (1941)). This, however, is not the exceptional case.

- U.S. at -, 102 S.Ct. at 3250.

It is true that interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available. See United States v. American Trucking Assns., Inc., 310 U.S. 534, 542-543, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940); Haggar v. Helvering, 308 U.S. 389, 394, 60 S.Ct. 337, 339, 84 L.Ed. 340 (1940). In refusing to nullify statutes, however hard or unexpected the particular effect, this Court has said:

.“Laws enacted with good intention, when put to the test, frequently, and to the surprise of the law maker himself, turn out to be mischievous, absurd or otherwise objectionable. But in such case the remedy lies with the law making authority, and not with the courts.” Crooks v. Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 50, 75 L.Ed. 156 (1930).

-U.S. at -, 102 S.Ct. at 3252.

In summary, as to the issue now before us, the panel adheres to its view that we should apply unambiguous statutory provisions as written. The statutory compromise of differing interests and approaches may indeed contain inconsistencies and ambiguities in some of its other provisions (as typically compromise legislation does within the competence of Congress). Nevertheless, the panel finds these alleged inconsistencies to be no reason to refuse to apply the unambiguous provisions, solely before us, as written, in the complete absence of any legislative history contraindicating the intent unambiguously stated by the particular provision at issue (subsection (h)) as written.

The Petitions for Rehearing are DENIED and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 16) the Suggestion for Rehearing En Banc is also DENIED.

Before CHARLES CLARK, Chief Judge, BROWN, GEE, RUBIN, REAVLEY, POL-ITZ, RANDALL, TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY and HIGGIN-BOTHAM, Circuit Judges.

1 . The panel does not, however, concede that this inconsistency is irrational or beyond the Congressional purview in the enactment of this complicated legislation compromising conflicting interests. See, e.g„ note 8 infra.

2 . However, the discharger will be liable to the full amount of clean up costs where the discharge is “the result of willful negligence or willful misconduct within the privity and knowledge of the owner.” Subsection (f).

3 . Subject, however, to the limitation of liability provided by 46 U.S.C. § 183(a).

4 . Since the value of the vessel was greater than the $300,000 cleanup costs demanded, the panel did not reach the issue of whether the maritime tort and the subsection (g) strict liabilities against the third party are concurrent (so that the United States may recover only the greater of the two amounts) or instead cumulative. 681 F.2d at 444 and n. 16.

5 .The concerns at which attention were primarily directed in these sources were to the liabilities of dischargers, subject to crushing potential liability against which insurance could not be procured because of the day-to-day exposure to risk of discharge in the transportation of oil and other hazardous substances. These concerns did not necessarily implicate any inability of vessels not engaged in such trade to secure insurance for tort damages resulting from collision with another vessel, whether or not it carried oil; or with crushing personal liability of the tort-causing vessel’s owner in excess of the insurance limits, for these owners were already protected from such excessive exposure by the limitation of liability act, 46 U.S.C. § 183(a).

6 . Earlier in its discussion, the court had referred to the remedy sought as being under “common law maritime tort” theory. 627 F.2d at 741.

7 . The government, conceding the panel decision to be correct, asked for rehearing en banc in order to overrule Dixie Carriers, as affording a construction of subsection (f) that was inconsistent with the present panel’s of subsection (g). At least the members of the panel felt that it would be inappropriate to reconsider Dixie Carriers where no litigation against a dischar-ger was at actual issue and that, besides, Congress may well have intended to treat dischar-ger and third party differently in that regard, as indicated by Dixie Carriers. See note 8 infra.

8 . However, if we were members of Congress concerned with economic reality as well as logic, and if we had had the benefit of the extensive hearings as to the problems of insuring against oil-pollution damage, we may have concluded that third parties needed no such exclusive-liability feature to obtain adequate insurance protection, as compared with those in the category of dischargers, who are exposed daily (rather than exceptionally) to the risk of causing oil-pollution damage, see note 5 supra.

Dixie Carriers quotes a leading Congressional exponent of the conference compromise ultimately enacted as stating, 627 F.2d 739-40:

limitations of liability and imposition of liability should not be such as to preclude the possibility of recovery of cleanup costs from the discharger. We felt that the gauge of this liability should be whether or not insurance could be obtained to cover these events. Consequently, the House bill provided for limitations of liability for vessels based upon an evaluation of the world insurance market for this new type of risk. (Emphasis supplied.)

If this was the basis upon which Congress decided to treat differently the liability of dis-chargers and of non-discharging third parties, it would be difficult for judges to determine that this classification was irrational or unreasonable so as somehow to ignore or to re-write unambiguous language that provided the oil-pollution liability of negligent non-discharging third persons to be different from that Congres-sionally provided for negligent dischargers.

9 . Considering that the present unambiguous subsection (h) was involved in a text hammered out in conference committee as a compromise of conflicting interests and approaches, we also find particularly appropriate the Court’s further remarks, 456 U.S. at 68, 102 S.Ct. at 1537:

The plain language of § 703(h) is particularly cogent in light of the circumstances of its drafting. It was part of the Dirksen-Mansfield compromise bill which represented “not merely weeks, but months of labor.” 110 Cong.Rec. 11935 (1964) (remarks of Sen. Dirksen). As Senator Dirksen explained, “I doubt very much whether in my whole legislative lifetime any measure has received so much meticulous attention. We have tried to be mindful of every word, of every comma, and of the shading of every phrase.”