Tug is Deemed Operator of Dumb Barges Under OPA 90 “Ordinary and natural meaning of the term”

United States v. Nature's Way Marine, L.L.C., 2018 U.S. App. LEXIS 27152,  2018 WL 4520105 (5th Cir., Sept. 21, 2018)

By: Arthur Crais

Two dumb barges (owned by Third Coast Towing) were under tow of a tug owned by Nature’s Way Marine when the barges allided with a bridge resulting in the spill of 7,000 gallons of oil in the Mississippi River. Both Nature’s Way and Third Coast were designated Responsible Parties by the Coast Guard. Nature’s Way spent over $2.99 Million on cleanup; the government entities spent over an additional $792,000 and sought recovery from Nature’s Way.

Nature’s Way sought reimbursement of $2.l3 Million from the National Pollution Funds Center asserting that its liability should be limited to the tonnage of the tug and not the barges. It also maintained that it should not be responsible for the funds expended by government entities. The claims were denied. The Funds Center determined that Nature’s Way was the “operator” of the barges in tow. Though both parties argued whether the administrative determination should be given Chevron deference (Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 [1984]), the panel determined that as the word “operator” should be interpreted in the ordinary and natural sense of the word, it chose not to determine if Chevron deference would be proper.

The term “operating” or “operator” is not defined in OPA 90, but is not res nova as the U.S. Supreme Court addressed the term as used in CERCLA which along with OPA 90 have a common purpose. In United States v. Bestfoods, 524 U.S. 51 (1998), the Court stated that “to ‘operate’ ordinarily means ‘[t]o control the functioning of; run: operate a sewing machine.’… So, under CERCLA, an operator is simply someone who directs the workings of, manages, or conducts the affairs of a facility.” (524 U.S. at 66)

Based on this, the Fifth Circuit panel held: “It follows from that analysis that the ordinary and natural meaning of an "operator" of a vessel under the OPA would include someone who directs, manages, or conducts the affairs of the vessel.” (2018 U.S. App. LEXIS 27152 at *7) Nature’s Way had exclusive navigational control over the barges and was “operating” the barges “based on the ordinary and natural meaning of the term.” Id.