Court Holds Operator of Tug is “Operator” of Barge under Tow Pursuant to OPA 90

By Stephanie Veech

United States v. Third Coast Towing, No. 3:16-CV-34-CWR-FKB, 2017 WL 4051766 (S.D. Miss. Sept. 12, 2017); No. 3:16-CV-34-CWR-FKB, 2017 U.S. Dist. LEXIS 147253On January 27, 2013, a tug operated by Nature’s Way Marine was pushing two barges of crude oil down the Mississippi River. Near Vicksburg, MS, one of the barges struck a bridge and released more than 7,100 gallons of oil into the Mississippi River. Natures Way spent $2.99 million on cleanup and government entities spent almost $800,000.In September 2013, Third Coast Towing, the barge owner, sued Nature’s Way for breach of maritime contract and maritime tort. The case was settled in 2014.In January 2016, the United States filed suit against Nature’s Way, Third Coast, and Great American Insurance Company, claiming the parties were liable under the Clean Water Act and the Oil Pollution Act of 1990 (“OPA 90”) for oil spill removal costs and civil penalties.Nature’s Way counterclaimed, asserting that the federal government should have reimbursed Nature’s Way cleanup costs using money from the Oil Spill Trust Fund. Nature’s Way sought reimbursement of all but $854,000 of the cleanup costs, while the United States sought confirmation that Nature’s Way is not entitled to reimbursement.OPA 90 creates strict liability for the costs of oil spill cleanups, stating, “each responsible party for a vessel…from which oil is discharged…is liable for the removal costs and damages…that result from such incident.” The “responsible party” for a vessel is “any person owning, operating, or demise chartering the vessel.” This raises the question of whether Nature’s Way was “operating” the barge at the time of the oil spill. If Nature’s Way was only operating the tug, it would have limited liability for the cleanup. If the company were operating both the tug and the barge, there would be greater liability, and they would not be entitled to repayment.The Coast Guard determined Nature’s Way was operating both the tug and the barge because it was in the control of the barge.  The barge had no other means of propulsion, and the speed, direction, and navigation were controlled by the tug pilot.Nature’s Way claimed that Third Coast had operational control of the barge, “because Third Coast was responsible for instructing when the barge would be leaded, unloaded, and moved.” The court found that there was no evidence to suggest that any of Third Coast’s instructions caused the oil spill and that Nature’s Way satisfied operator liability under OPA 90.The second issue is whether the settlement agreement Nature’s Way has with Third Coast bars reimbursement from the Oil Spill Trust Fund. The government maintained “a subrogation-related defect in settlement is sufficient to uphold the Coast Guard’s determination,” meaning that in the settlement between Nature’s Way and Third Coast, Nature’s Way was given all of the reimbursement to which the company was entitled to receive and could no longer seek reimbursement from the Oil Spill Trust Fund.The United States’ motion for partial summary judgment was granted.