OPA Subrogation Displacing Common and Maritime Law
OPA Subrogation Displacing Common and Maritime Law
By: Kevin Phillips
Edited by: Forrest Guedry
United States v. American Commercial Lines, L.L.C., No. 13-30358, 2014 WL 3511882 (5th Cir. July 16, 2014)
In United States v. American Commercial Lines (herein, ACL), the Fifth Circuit settles a dispute concerning liability to the Oil Spill Liability Trust Fund (herein, Fund), after the Fund has made a payment to the companies which cleaned the oil spill. The oil spill in question happened in the Mississippi River near New Orleans in July of 2008 when the M/V TINOMARA collided with the barge DM 932 and tug M/V MEL OLIVER. Two companies provided cleanup services, Environmental Safety & Health Consulting Services Inc. (herein, ES&H) and United States Environmental Services (herein, USES). Although ACL, the Responsible Party, paid for both cleanup services, it did not pay the full amount billed. Subsequently, pursuant to the Oil Pollution Act of 1990 (herein, OPA), the cleanup service providers chose to submit a claim to the Fund for the remaining amount after waiting the requisite ninety days without payment. The contractors other option was to sue ACL for payment in full. Though the Fund made some payments, they did not pay the full amount requested.Consequently, the U.S. sued ACL to recover the amount that the Fund paid to ES&H and USES. ACL joined the cleanup companies as third party defendants. Further, ACL claimed there were defects in the claim payments process made by the Fund. The district court granted ES&H and USES’ Rule 12(b)(6) motion to dismiss, finding that ACL’s claim of defects in the claim payment process was a defense against the Fund, rather than a claim against the companies. The district court granted the motion because it found that OPA displaced any pre-existing law and the claims which arise from those laws. On appeal, the Fifth Circuit affirmed the district court’s decision.The Fifth circuit reasoned, “OPA provides the exclusive source of law for an action involving a responsible party’s liability for removal costs governed by OPA.” The court noted that OPA provides specific remedies and when an act does so, it is meant to be the exclusive source of remedies. Further, the court found that OPA does provide the scheme for settling the dispute over payments, which is to challenge the Fund and not the cleanup companies. The court also relied on In re: Deepwater Horizon, 745 F.3rd 157 (5th Cir. 2014) as precedent for the notion that OPA provides the only remedies when oil spills are at issue.ACL argued that the savings clause in OPA 33 U.S.C.§ 2751(e) saved their traditional maritime claims against the cleanup companies. The court found that the clause does not save those remedies because the clause states “except as otherwise provided.” Thus, the court found OPA did provide a remedy, and therefore remedies were otherwise provided. Again, the court cited In re: Deepwater Horizon, 745 F.3rd 157 as precedent.
