Waiving Goodbye to Oil Spill Claims Against the United States: the Eleventh Circuit Creates a Narrow Exception to the Sovereign Immunity Waiver in the Suits in Admiralty Act of 1920
| Publication year | 2023 |
Waiving Goodbye to Oil Spill Claims Against the United States: The Eleventh Circuit Creates a Narrow Exception to the Sovereign Immunity Waiver in the Suits in Admiralty Act of 1920
Anika Akbar
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Costs related to oil spills can be extraordinary. Excluding the damage to the environment and to the vessel alone, a responsible party may incur containment costs, clean-up costs, cost of repairing public infrastructures, and fines and fees for causing the spill.1 Additionally, the owner of the spilling vessel also risks liability for lost profits to other businesses in the surrounding areas, including those that can no longer fish in the affected area.2
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A responsible party3 must incur all of those costs and reimburse the United States for any costs it incurs for the spill, but then the responsible party may bring a claim for contribution against another party for their negligence.4 The responsible party may also be protected from liability to the federal government for costs it incurs if it can prove the sole cause of the spill had been due to an act of God, an act of war, or an act or omission of a third party.5 However, no contribution is available from the United States under any circumstances—even if it had been the sole cause of a spill.
The United States Court of Appeals for the Eleventh Circuit explored a question of first impression on whether the Suits in Admiralty Acts of 19206 (SAA) created a waiver of sovereign immunity to allow a vessel owner to recover on oil spill clean-up costs.7 In holding that the Oil Pollution Act of 19908 (OPA) is exclusive to oil spills and interpreting that there was no waiver of sovereign immunity, the court established a narrow exception to the SAA and may have created some disincentives that Congress hoped to avoid.
On September 8, 2019, the M/V Savage Voyager (the Vessel) was pushing two tank barges laden with oil along the Tennessee-Tombigbee Waterway (the Waterway) when it approached the James Whitten Lock, which was operated by the United States Army Corps of Engineers (Army Corps).9 Due to the alleged negligence of the Army Corps, one of the Vessel's oil-containing tanks was punctured, causing an oil spill.10
The Vessel's owners, Savage Services Corp. and Savage Inland Marine LLC (collectively Savage), incurred $4 million in damages and costs associated with cleaning up oil from the Waterway.11 Savage sued the
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United States to recover those costs, alleging that the Army Corps was "solely responsible" for the spill. The Government filed a motion to dismiss, contending that the United States did not waive sovereign immunity for spill removal costs. Savage moved for a partial summary judgment, where it sought an affirmative ruling that sovereign immunity had been waived under the Suits in Admiralty Act of 1920 (SAA).12
The United States District Court for the Southern District of Alabama granted the Government's motion to dismiss and denied Savage's motion for partial summary judgment.13 The district court held that the remedial scheme of the Oil Pollution Act of 199014 (OPA) was exclusive to oil spills and created a narrow exception to the SAA where the federal government had not waived sovereign immunity for oil spill clean-up costs.15
Savage appealed to the United States Court of Appeals for the Eleventh Circuit, which affirmed the district court's judgment.16 In doing so, the court prevents a party from recovering contribution for clean-up costs in claims against the United States government, whose negligence is the sole cause of an oil spill.17
A. Early Federal Control Over Water Pollution
In the mid-1800s, many health professionals advocated for a national board after state and local boards had already been established.18 Bills to establish a national health board failed to gain approval for concerns over states' rights.19 When yellow fever swept through the south, Congress responded by creating the National Board of Health (the Board) in 1879.20 The Board found thousands of overflowing privies and
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cesspools near areas where residents drew water and recommended a sewer system.21
The first piece of federal water pollution control legislation was introduced in 1899 in the Rivers and Harbors Act of 189922 (the Refuse Act), but was interpreted to only apply to objects in the navigable waterways rather than spills.23 In the 1920s, bills were introduced to Congress to prohibit the discharge of oil, but critics argued there was not data to warrant their enactment.24 Finally in 1924, Congress was able to pass a bill to prohibit the discharge of oil from vessels, but this ban was not applicable to on-shore facilities and the Army Corps failed to enforce the act.25
By the 1930s, the water was seriously polluted so federal assistance programs through the New Deal increased publicly owned waste treatment facilities.26 There were also attempts to enact federal water pollution control legislation in the 1930s, but the Federal Water Pollution Control Act (FWPCA) was not signed into law until 1948.27 However, it left the responsibility of addressing water pollution to the states.28
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The FWPCA was amended in 1956.29 One remedy for the 1948 act was allowing for federal action against a polluter after convening a conference to allow local agencies an opportunity to address the issues.30 This caused a serious delay and most of the conferences focused on rural rivers and not the most industrialized streams in the country.31
The FWPCA was again amended in 1961 to expand federal authority,32 but the United States could not convene a conference without the consent of the governor of the state where the pollution occurred.33 Several bills were also introduced and enacted to regulate water pollution control34 throughout the 1960s but were largely ineffective.35
Once again, the FWPCA was amended in 1972 to strengthen the powers of the federal government to control water pollution in a number of ways, including establishing liability in the event of spill, allowing the federal government to arrange for an oil spill clean-up, and the power to recover for the clean-up costs it incurs.36 In 1989, the Exxon Valdez spill showed the federal government placed too great of a burden on itself.37
B. The 1972 Amendments to the FWPCA
The FWPCA was significantly amended in 1972 to strengthen the powers of the federal government over water pollution by establishing liability in the event of a spill and gave the federal government more authority to arrange for an oil spill clean-up and, in that event, to recover costs from those who had caused the spill.38 The "norm" in 1972 was to
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allow the owner or operator to clean up the spill because the operator of the vessel was always closest to the spills.39 Further, it took time to "federalize" a spill, so it was more efficient to allow the financially capable spiller to take action.40
If instead the United States incurred clean-up costs, the FWPCA allowed the United States to recover for the costs associated with the spill through federal civil action or federal maritime lien proceedings.41 In these proceedings, strict liability was imposed on the owner or operator of the discharging vessel.42 The FWPCA provided a defense to the owner or operator to avoid paying those clean-up costs by proving that the sole cause of the spill had been an act of God, an act of war, negligence of the United States, or an act or omission of a third party.43 The federal government would be able to recover the full amount of costs associated with clean-up for spills that were caused with willful negligence or willful misconduct.44 In cases where such willful negligence or willful misconduct cannot be shown, the amount the federal government would have been able to recover was capped depending on the type of vessel.45
Significantly, the fact that the sole cause of a spill had been the fault of the United States was not a claim; it was a defense. However, the FWPCA also created an expressed waiver of sovereign immunity to allow a vessel owner recovery against the United States.46 When vessel owners or operators incurred the oil spill clean-up costs, the FWPCA allowed for reimbursement to the owner or operator in a suit against the United States government by proving that an act of God, an act of war, negligence of the United States government, or an act or omission of a third party was the sole cause of the spill.47
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A spiller must prove it had not been a contributing cause of the spill to recover. For example, in City of Pawtucket v. United States,48 the City of Pawtucket had acquired two storage tanks that were filled with oil when it purchased the surrounding land.49 A vandal caused oil to spill from the tanks. The City sought reimbursement for the spill, alleging the spill was caused solely by a third party.50 However, the court held that the city had been a contributing cause of the spill because it had "created a situation conducive to vandalism."51 Among other security failures, surrounding fences had gaping holes, the floodlights had burnt out, and the tank's spigots had been unlocked. Over the eight-month period prior to the spill, the city had taken no action to secure the area. The city's omissions allowed the unknown vandal easy access, making the city a contributing cause and barring reimbursement.52
C. Problems with the 1972 Amendments to the FWPCA
By 1982, the government had obligated $124 million in the revolving fund while only recovering $49 million.53 The $75 million expenditure for oil-spill removal costs severely undercut Congress's budget plans.54 An assortment of other federal regulations as well as states' liability...
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