On February 8, 2022, the U.S. Court of Appeals for the 11th Circuit issued a decision affirming the district court’s dismissal of admiralty claims brought by a vessel owner against the United States for oil-removal damages for a spill caused by the U.S. Army Corp. of Engineers (the “Army Corps”). See Savage Servs. Corp. v. United States, Slip Op. No. 21-10745 (11th Cir. Feb. 8, 2022). The 11th Circuit held that as a matter of statutory construction, the Oil Pollution Act of 1990 (“OPA”), 33 U.S.C.S. § 2701 et. seq., does not authorize a claim against the federal government, and because Congress intended through its enactment of OPA’s comprehensive remedial scheme to displace the government’s generally broad sovereign immunity waiver afforded through the Suits in Admiralty Act of 1920 (“SAA”), the Plaintiffs common law admiralty claims against the government could not survive. Id.
The facts of the dispute are straightforward. On September 8, 2019, the M/V SAVAGE VOYAGER, a vessel owned by Plaintiffs Savage Services Corp. and Savage Inland Marine LLC, was pushing two tank barges along the Tennessee-Tombigbee Waterway, a manmade system of canals, locks, and dams linking the Tennessee River in Mississippi with the Tombigbee River in Alabama. The Plaintiffs alleged that as the vessel was entering one of the locks, the lock master began de-watering the lock chamber without proper notice to the crew and without ensuring that the tug and tow were fully secured within the miter walls. The boat lift in the lock was at all times operated by the Army Corps. As a result, the vessel incurred damage (including the puncture of a cargo tank), crude oil was released into the lock channel, and expensive removal operations were undertaken which Plaintiffs claimed led to nearly $4 million in damages.
The Plaintiffs filed suit in the U.S. District Court for the Southern District of Alabama and alleged admiralty jurisdiction. Specifically, Plaintiffs sought to hold the government responsible for the damages and removal costs on the basis that the Army Corps was solely responsible for the incident. In support of the claim of subject matter jurisdiction, the Plaintiffs argued that the incident involved a vessel on the navigable waters of the United States and as such, invoked the court’s admiralty and maritime jurisdiction. Plaintiffs alleged that since its claim arose under admiralty, the government was a proper defendant due to its waiver of sovereign immunity for admiralty claims pursuant to the SAA.
The government moved to dismiss the claim for spill removal cost, arguing that the OPA statute exclusively controlled in oil spill-recovery actions and that the United States has not waived its sovereign immunity under OPA. In granting the motion to dismiss, the district court held that because OPA was enacted by Congress specifically to ‘assign responsibility’ for oil-spill cleanup costs and did not contain any waiver of sovereign immunity, there was no ability to sue the government under SAA as a side-step to OPA’s exclusivity. In comparing the statutes, the Court held that Congress through OPA (which was enacted some seventy (70) years after the SAA), had effected an “implied repeal of the general sovereign immunity provision in the SAA as it pertains to oil-spill cleanup damages.”
The 11th Circuit agreed and affirmed the decision below. The Court ruled that the plain language of the OPA makes clear that the United States was not an entity against which a contribution claim could be brought, holding that there was no mention of the United States in the list of “persons” responsible under OPA. Furthermore, other statutes such as the Comprehensive Environmental Response, Compensation, and Liability Act and the Clean Water Act used explicit language waiving the government’s sovereign immunity and subjecting the United States to civil liability in those statutes. The omission in OPA was further evidence that the government had not waived its sovereign immunity. Finally, the 11th Circuit found that where there was a conflict between the broad waiver under the SAA and the narrower OPA, the OPA’s comprehensive remedial scheme displaced the waiver provision in the SAA. The OPA was, as other courts had found, a party’s exclusive remedy for claims for clean-up costs related to oil spills. The Court observed that, for purposes of interpretation, detailed statutes generally pre-empt more general ones. This was especially true, the Court reasoned, because OPA was the more recent statute and, by its language, was intended to take precedence over preexisting legislation on the same subject. Although OPA did not repeal the older, more general SAA, the Court held that it did create a discrete exception to it. Id. at 46.
The government’s immunity from responsibility from its own oil spills or spills which it causes third parties to have is directly at odds with the United States’ pursuit of environmental compliance and enforcement worldwide. This lack of accountability is especially contrary to the prosecution (both civilly and criminally) of vessel owners, operators, and seafarers under various statutes and enforcement regimes such as the Clean Water Act, Clean Air Act, and the Act to Prevent Pollution from Ships (APPS – 33 U.S.C. § 1901, et seq.).
Although it would seem the 11th Circuit’s ruling means that the government can never be liable for causing an oil spill (or the damages incurred in removing/remediating a spill), the 1st Circuit Court of Appeals has held that OPA has not completely supplanted the more general SAA. As it relates to claims against the United States for common law negligence under the general admiralty law of the United States, the 1st Circuit held that such claims could be pursued against the government for spills caused by a public vessel. Ruling that OPA is explicit in leaving all claims and causes of action which are not specifically addressed by the statute intact in the case Ironshore Specialty Ins. Co. v. United States, the Court permitted a claim for negligence against the government for a spill from a public vessel. Id. 871 F.3d 131, 139-140, 2017 AMC 2138 (1st Cir. 2017). The 1st Circuit explained that under “Admiralty and Maritime Law,” the OPA states: “Except as otherwise provided in this Act, this Act does not affect . . . admiralty and maritime law.” 33 U.S.C. § 2751(e). The 1st Circuit reasoned that since public vessels lie outside the sweep of OPA liability, any preexisting admiralty and maritime law that applied to public vessels before the OPA’s passage survives its enactment, including the SAA.
To read a copy of Eleventh Circuit’s opinion in Savage, click here.
To read a copy of the First Circuit’s opinion in Ironshore, click here.
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