In re: Settoon Towing, L.L.C.

Filing

PUBLISHED OPINION FILED. [16-30459 Affirmed] Judge: JES, Judge: EBC, Judge: LHS. Mandate pull date is 06/30/2017 [16-30459]

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IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 16-30459

June 9, 2017
Lyle W. Cayce
Clerk

In re: In the Matter of the Complaint of Settoon Towing, L.L.C., as Owner
and Operator of the M/V Hannah C. Settoon, for Exoneration from or
Limitation of Liability
SETTOON TOWING, L.L.C., Owner and Operator of the M/V Hannah C.
Settoon,
Petitioner - Appellee
v.
MARQUETTE TRANSPORTATION COMPANY, L.L.C.,
Claimant - Appellant

Appeal from the United States District Court
for the Eastern District of Louisiana
Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
One flotilla of barges encountered another on the lower Mississippi
River. Both followed the usual protocol of entering an agreement by radio for
how one was to overtake and pass the other. A collision nonetheless resulted,
causing an oil spill that closed a portion of the river for two days. Cleanup was
immediately undertaken. Who ultimately pays and how much are what this
suit is about.

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The litigation is governed by the federal Oil Pollution Act, or OPA. No
one contests that Settoon Towing was properly charged by the Coast Guard
with the initial cleanup and remediation, thus initially paying all expenses
under the strict-liability statutory scheme. The district court, though, found
both Settoon and Marquette Transportation to be negligent. Our principal
issue is whether Settoon can receive contribution under the OPA from
Marquette for its payment of purely economic damages, i.e., for the cleanup
costs. A hoary bit of maritime law has traditionally said, “no.” We conclude
that the OPA clearly says, “yes.” Marquette’s arguments to the contrary try to
make the statutory question seem a whole lot harder than it really is.
The district court allowed contribution and determined the percentage
of fault of each party. We AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
On February 22, 2014, the M/V HANNAH C. SETTOON, towing two
crude oil tank barges, and the M/V LINDSAY ANN ERICKSON, towing
twenty-one loaded grain barges, were both heading downstream on the lower
Mississippi River. The LINDSAY began to stop just after it passed the College
Point 1 bend near Convent, Louisiana. It was preparing to “top around” with
the help of a towboat in order to drop off three of her barges and then head
back upriver. At approximately 2:58 p.m., as the HANNAH was in the same
bend and about 3,500 feet behind the LINDSAY, the vessels communicated by
radio and entered into what the parties call a “one whistle overtaking

So named due to the College of Jefferson which opened there on the east bank of the
river in 1834. Since 1931, the Roman Catholic order of Jesuits has used the former college’s
1842 main building and other structures for retreats. OLIVER P. CARRIERE, A SKETCH OF THE
HISTORY OF JEFFERSON COLLEGE AND MANRESA HOUSE OF RETREATS, CONVENT, LOUISIANA
8–9, 21 (1974).
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agreement.”
According to the agreement, the HANNAH would pass the LINDSAY on
her stern while the LINDSAY would hold steady. Once the HANNAH was
clear, the LINDSAY would begin her top around. The width of the river at the
location of the overtaking and passing is about 3,000 feet.
Consistent with the agreement, the HANNAH increased her speed and
maneuvered in order to remain midway between the LINDSAY and the west
bank of the Mississippi River. For approximately three and a half minutes,
the LINDSAY held her position in the river. At 3:07 p.m., before the HANNAH
had passed the LINDSAY, the HANNAH by radio seemingly released the
LINDSAY from the agreement. The LINDSAY acknowledged. At some point
prior to the HANNAH completely passing the LINDSAY, the LINDSAY began
reversing into the river to start her top-around. At 3:09 p.m., her stern collided
with the portside bow of a crude-oil barge towed by the HANNAH.
Approximately 750 barrels of light crude oil were discharged into the
Mississippi River. As a result, a 70-mile stretch of the river was closed to
vessels for approximately 48 hours for cleanup and recovery.
Settoon was named the strictly liable “Responsible Party” by the United
States Coast Guard pursuant to the OPA. That phrase is a term of art central
to this appeal and will be much discussed later.

Settoon carried out its

statutory responsibilities related to cleanup, remediation, and third-party
claims for damages.

Settoon subsequently filed Limitation of Liability

proceedings pursuant to 46 U.S.C. §§ 30501–30512 in the Eastern District of
Louisiana. Marquette also filed a claim. Settoon brought a counterclaim
against Marquette seeking contribution under the OPA, the general maritime
law, or both.
At the conclusion of a four-day bench trial on the issue of liability, the
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district court determined both parties were at fault and apportioned 65% of the
fault for the collision to Marquette and 35% to Settoon. The district court also
considered a question for which, surprisingly, there is little authority: Is a
Responsible Party entitled to contribution for purely economic damages from
a third party found to be partially liable? The district court answered that
such contribution is permitted. Marquette timely filed its notice of appeal.
DISCUSSION
Marquette claims the district court erred in two ways: (A) the OPA does
not allow a Responsible Party to obtain contribution from a partially liable
third party, and even if it does, (B) the district court erred in its allocation of
relative fault.

Because the first issue raises legal questions of statutory

interpretation, our review is de novo. Sobranes Recovery Pool I, LLC v. Todd
& Hughes Constr. Corp., 509 F.3d 216, 220 (5th Cir. 2007). As for the second
issue, a trial court’s finding on apportionment of relative fault in a maritime
collision is reviewed under a clearly erroneous standard. See Tokio Marine &
Fire Ins. Co. v. FLORA MV, 235 F.3d 963, 970 (5th Cir. 2001).
Our approach is first to discuss some basics about the relevant statute.
Then, with that background, we analyze the two issues before us.
I.

The Oil Pollution Act of 1990
The enactment that controls this litigation was a legislative response to

the grounding of the oil tanker Exxon Valdez and the spilling of over eleven
million gallons of crude oil into the waters of Prince William Sound, Alaska.
See 2 THOMAS J. SCHOENBAUM, ADMIRALTY & MAR. LAW § 18-4 (5th ed. 2016).
The OPA is Congress’s effort “to streamline federal law so as to provide quick
and efficient cleanup of oil spills, compensate victims of such spills, and
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internalize the costs of spills within the petroleum industry.” Rice v. Harken
Expl. Co., 250 F.3d 264, 266 (5th Cir. 2001). The OPA is codified at 33 U.S.C.
§§ 2701–2762.
The OPA facilitates prompt cleanup and compensation by first requiring
the President to “designate the source or sources of the discharge,” who is
called the “responsible party.” 33 U.S.C. § 2714(a). In 1991, the President
delegated that duty to the Coast Guard. 2 The “responsible party” in the case
of a vessel is “any person owning, operating, or demise chartering the vessel.”
33 U.S.C. § 2701(32)(A). The OPA makes the responsible party “strictly liable
for cleanup costs and damages and first in line to pay any claims for removal
costs or damages that may arise under OPA.”

United States v. Am.

Commercial Lines, L.L.C., 759 F.3d 420, 422 n.2 (5th Cir. 2014).
“Notwithstanding any other provision or rule of law . . . each responsible party
. . . is liable for the removal costs and damages specified in subsection (b) that
result from such incident.” 33 U.S.C. § 2702(a). There are three absolute
defenses, but they are not relevant in this case. 3
Well before the enactment of the OPA, it was clear that general maritime
law did not permit recovery of purely economic losses. See Robins Dry Dock &
Repair Co. v. Flint, 275 U.S. 303, 307–09 (1927).

Since our decision in

“The functions vested in the President by Section 1014 of OPA [33 U.S.C. § 2714],
respecting designation of sources of discharges or threats, notification to responsible parties,
. . . the advertisement of designation, and notification of claims procedures, are delegated to
the Secretary of the Department in which the Coast Guard is operating.” Exec. Order No.
12,777, 56 Fed. Reg. 54,757, 54,768 (Oct. 18, 1991). The imprecision in identifying a
Department is because the Coast Guard is within the Department of Homeland Security
except when it is transferred to the Department of the Navy during wartime. See 14 U.S.C.
§ 3.
2

The absolute defenses from liability, which the Responsible Party need establish by
a preponderance of the evidence, are these: “(1) an act of God; (2) an act of war; or (3) an act
or omission of a third party,” with certain exceptions. See 33 U.S.C. § 2703(a).
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Louisiana ex rel. Guste v. M/V TESTBANK, 752 F.2d 1019, 1022 (5th Cir.
1985) (en banc), this circuit “has consistently applied the rule limiting recovery
in maritime cases to plaintiffs who sustain physical damage to a proprietary
interest.” In re Bertucci Contracting Co., 712 F.3d 245, 246–47 (5th Cir. 2013).
Under the OPA, though, recovery of economic losses is allowed without
physical damage to a proprietary interest. See 33 U.S.C. § 2702(b)(2)(E). The
only restriction on such recovery is that the loss must be “due to the injury,
destruction, or loss of real property, personal property, or natural resources[.]”
Id.
Marquette’s statutory argument is that the right to contribution Settoon
claims here for reimbursement of a percentage of all its costs from a jointly
negligent party does not arise under the OPA. Instead, it argues that any
contribution it owes is based on general maritime law and therefore is subject
to the Robins Dry Dock bar to purely economic damages. If general maritime
law is the sole source for the right to contribution, the total damages of about
$4,265,000 would need to be reduced by the $1,450,000 in damages for purely
economic-loss claims.
II. Marquette’s Issues on Appeal
A. Does the OPA Allow Contribution for Purely Economic Damages?
Our task is to discern the meaning of a statute. If the statute’s language
is unambiguous, we apply the plain language absent some resulting absurdity.
Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6
(2000). Yet we do not look at language in isolation, as it is important to
examine the statute “as a whole and [be] mindful of the linguistic choices made
by Congress.” Whatley v. Resolution Tr. Corp., 32 F.3d 905, 909 (5th Cir. 1994).
During this interpretive process, “plain statutory language is the most
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instructive and reliable indicator of Congressional intent.”

Martinez v.

Mukasey, 519 F.3d 532, 543 (5th Cir. 2008). Our power “to say what the law
is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), is constrained by
our mandate to “respect the role of the Legislature, and take care not to undo
what it has done,” King v. Burwell, 135 S. Ct. 2480, 2496 (2015).
One clear requirement of the OPA is that liability and damages are
determined in a three-step process. First, the injured party must present its
claim for damages to the designated Responsible Party. 33 U.S.C. § 2713(a).
The Coast Guard identified Settoon as the Responsible Party, and that is not
challenged. Second, if the Responsible Party rejects the claim or refuses to
settle it within 90 days, the injured party has a statutory cause of action to sue
the Responsible Party for its damages or to seek recovery from the governmentcreated Oil Spill Liability Trust Fund.

Id. § 2713(c).

Third, once the

Responsible Party pays compensation, it may seek partial or complete
repayment from others by means of contribution or subrogation. Id. § 2709
(contribution); § 2715 (subrogation).
Six categories of damages are detailed in Section 2702(b)(2). One of
them, Subsection (E), expressly allows for recovery of purely economic losses
from the Responsible Party. Id. § 2702(b)(2)(E). Claimants must first directly
assert claims against Settoon, 4 the Responsible Party, and purely economic
loss damages may be claimed. Our question, though, is whether a Responsible
Party, after suffering purely economic losses, may seek an apportioned
contribution for those losses from some other tortfeasor. We will examine two
sections of the OPA as we consider this issue.

“The text of OPA implies its mandatory and exclusive nature. . . . Section 2713(a)
uses the absolute words ‘all’ and ‘shall,’ directing the course of action for ‘all claims’ and
mandating that they ‘shall’ be presented first to the responsible party.” Gabarick v. Laurin
Mar. (Am.) Inc., 623 F. Supp. 2d 741, 745 (E.D. La. 2009).
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We begin with the first section of the OPA after the definitions are out
of the way, which is Section 1002 or, as codified, 33 U.S.C. § 2702. Entitled
“Elements of liability,” it details the obligation of the Responsible Party for the
cleanup and identifies which costs of the federal and state governments it must
reimburse and the damages for which it must compensate.

33 U.S.C.

§§ 2702(a), (b). Marquette argues that a particularly relevant subsection is
Section 2702(d), entitled “Liability of third parties.” What Marquette finds
especially attractive is that it applies only when the entity the Coast Guard
designated as the Responsible Party was in fact not at fault at all and others
were solely responsible for the discharge of oil. In such a case, liability will
shift and the other party or parties will become the equivalent of the
Responsible Party under the OPA and thus obligated to pay all costs:
(d) Liability of third parties
(1) In general
(A) Third party treated as responsible party
Except as provided in subparagraph (B), in any case in which
a responsible party establishes that a discharge or threat of a
discharge and the resulting removal costs and damages were
caused solely by an act or omission of one or more third parties
described in section 2703(a)(3) of this title (or solely by such an act
or omission in combination with an act of God or an act of war), the
third party or parties shall be treated as the responsible party or
parties for purposes of determining liability under this subchapter.
(B) Subrogation of responsible party
If the responsible party alleges that the discharge or threat
of a discharge was caused solely by an act or omission of a third
party, the responsible party—
(i) in accordance with section 2713 of this title, shall pay
removal costs and damages to any claimant; and
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(ii) shall be entitled by subrogation to all rights of the United
States Government and the claimant to recover removal costs or
damages from the third party or the Fund paid under this
subsection.
Id. § 2702(d).
This section is inapplicable to our issue because Settoon’s principal
argument is not that it should be subrogated to the United States and any
claimants in order to be reimbursed for all its payments. Instead, it seeks
contribution toward what it paid based on the percentage of fault allocated to
Marquette. A later section of the OPA addresses that concept. That later
section’s austerity of language is the opening for Marquette’s argument:
A person may bring a civil action for contribution against
any other person who is liable or potentially liable under this Act
or another law. The action shall be brought in accordance with
section 2717 of this title.
Id. § 2709 (entitled “Contribution”). Marquette argues that the OPA itself does
not establish a right to contribution but merely acknowledges it remains
available under general maritime law with all that body of law’s restrictions
including, most relevant, no recovery for purely economic damages.
In Marquette’s view, the OPA works like this.

There is an initial

designation by the Coast Guard of a Responsible Party. That party bears all
initial costs. Because time is of the essence after a spill, the designation is
straightforward — “the source or sources of the discharge” will be tagged. Id.
§ 2714(a). Here, Settoon’s barge was carrying the oil that discharged. Thus,
Settoon was in charge of the cleanup. Only later will the sorting out occur
regarding who was actually at fault. When that time comes, the initially
designated Responsible Party will be entitled to subrogation if it can show that
another party was solely at fault. As to contribution, Marquette contends a
Responsible Party will have no rights under the OPA but will be able to recover
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apportioned shares of the costs from others who are liable under other laws,
namely, general maritime law. That means a Responsible Party must bear the
entirety of what it paid for purely economic damages, though it may recover
the allocated portions of payments it made for damages recognized under
general maritime law.
We disagree with Marquette’s key conclusion. Under the principle that
we should apply the plain meaning of statutory language while considering its
context in the overall enactment, we hold it to be plain that both subrogation
and contribution are available “under this Act.” That is what Sections 2702
and 2709 say. Marquette’s argument would wholly eliminate contribution
under the Act and restrict a Responsible Party to seek reimbursement for
cleanup expenses only from a later-designated solely-at-fault entity.
Marquette insists the language is not that plain, and it cites allegedly
supportive caselaw. It uses a Ninth Circuit decision that examined, under
Section 2702(d)(1)(A), the shifting of fault from the initially designated
Responsible Party to another participant in the accident; the court emphasized
that no such shift occurs unless the other is solely at fault. See Unocal Corp.
v. United States, 222 F.3d 528, 534 (9th Cir. 2000). In that case, though, the
Responsible Party sued two other parties claiming they were solely responsible
for the oil spill. Id. at 533. After a trial, a jury concluded that the two third
parties were indeed liable and were the sole causes of the spill. Id. Fault was
apportioned between the third parties, 80% and 20%, respectively. Id. The
appellate court affirmed the jury’s verdict. Id. at 536. That decision is a simple
application of the OPA’s rules on subrogation. We see nothing in the decision
that even addresses how contribution works when the originally designated
Responsible Party is partly but not entirely at fault.
Marquette also refers us to one of our unpublished decisions in which we,
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like the Unocal court, applied Section 2702(d)(1)(A). See Gabarick v. Laurin
Mar. (Am.), Inc., 406 F. App’x 883, 888 (5th Cir. 2010). In the course of doing
so, we explained the next section of the OPA, which is entitled “Defenses to
liability.” See 33 U.S.C. § 2703. That section elaborates that a Responsible
Party has a complete defense to any liability if it can show someone else was
solely at fault. Gabarick, 406 F. App’x at 888 (citing 33 U.S.C. § 2703(a)(3)).
Marquette’s continuing point is that the only contribution Settoon is entitled
to “under this Act” is under Section 2702 when another is solely liable, which
would mean Section 2709 adds nothing significant to the concept.

Our

continuing response is that Marquette is looking at one section in isolation.
We hold, therefore, that contribution is available under the OPA. That
is not to say what the scope of contribution may be. The OPA does not define
that term. When a common legal term is used but not specifically defined in a
statute, we give that term its general legal meaning. See Bradley v. United
States, 410 U.S. 605, 609 (1973). An apt definition for contribution is this:
“One tortfeasor’s right to collect from joint tortfeasors when, and to the extent
that, the tortfeasor has paid more than his or her proportionate share . . . .”
BLACK’S LAW DICTIONARY (10th ed. 2014).

The related but distinct legal

concept, “subrogation,” is defined as a “substitution of one party for another
whose debt the party pays . . . .” Id.
If any limitation is to be placed on the types of damages for which
contribution may be recovered under the OPA, the limit must be in the statute.
We do not perceive any limitation from the manner in which the separate
concept of subrogation is explained. Perhaps, though, the word “liable” can do
the work. The OPA explains that “‘liable’ or ‘liability’ shall be construed to be
the standard of liability which obtains under section 1321 of this title,” which
is a section of the Clean Water Act (“CWA”) entitled “Oil and hazardous
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substance liability.” 33 U.S.C. § 2701(17); see also id. § 1321.
We thus examine how the CWA treats liability for oil pollution. As with
the OPA, it provides (with certain exceptions) that the “owner or operator of
any vessel from which oil or a hazardous substance is discharged” is initially
liable for all the costs of removal of the pollution. Id. § 1321(f)(1). Also as
under the OPA, if a discharge of oil “was caused solely by an act or omission of
a third party,” the third party is liable “for the full amount of such removal
costs” which may be recovered by the initially responsible party through
subrogation. Id. § 1321(g). In addition, in a subsection entitled “Rights against
third parties who caused or contributed to discharge,” the CWA provides that
“liabilities established by this section shall in no way affect any rights which
(1) the owner or operator of a vessel or of an onshore facility or an offshore
facility may have against any third party whose acts may in any way have
caused or contributed to such discharge,” nor does the section affect (2) the
rights of the United States against such third parties. Id. § 1321(h).
We ask the same question of the CWA as we have of the OPA — does it
create or just preserve a right of contribution?

This court has already

answered the question as to the CWA in a non-precedential opinion, where we
held that Section 1321(h) does not create a right to contribution. See Tetra
Tech., Inc. v. Kansas City S. Ry. Co., 122 F. App’x 99, 102 (5th Cir. 2005). We
agree with that conclusion in light of the CWA’s plain language — “liabilities
established by this section shall in no way affect” any rights a vessel owner
“may have” to contribution. See 33 U.S.C. § 1321(h). Section 1321(h) has been
described as preserving the right of contribution without serving as its source.
Keller Transp., Inc. v. Wagner Enters., LLC, 873 F. Supp. 2d 1342, 1352 (D.
Mont. 2012). We perforce agree with that characterization in light of the
CWA’s clear statutory language.
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Where are we? We know that liability under the OPA is determined
under the same standard as for the CWA. The latter Act relies on other law to
determine if a Responsible Party may seek contribution from another who was
partially but not entirely responsible for the discharge. The OPA, though, has
no similar reliance solely on other law to create a right to contribution.
Instead, Section 2709 is solely about contribution, from title through content.
It must contemplate that one tortfeasor may sue another for less than complete
reimbursement, else the section is a nullity.
Most importantly for us, Section 2709 is premised on there being liability
for contribution under the Act when it says “a civil action for contribution [may
be brought] against any other person who is liable or potentially liable under
this Act . . . .” 33 U.S.C. § 2709. Yes, we elided the “or another law” that ends
the sentence, but that is only to show that the section recognizes contribution
among joint tortfeasors can arise under the Act. To interpret otherwise is to
make superfluous the premise that contribution at times arises under the Act.
“The rule against superfluities complements the principle that courts are to
interpret the words of a statute in context.” Hibbs v. Winn, 542 U.S. 88, 101
(2004). This basic interpretive rule has been summarized as meaning that no
provision of a statute should be “inoperative or superfluous, void or
insignificant . . . .” 2A N. SINGER, SUTHERLAND STATUTES AND STATUTORY
CONSTRUCTION § 46.6 (7th ed. 2016).
Section 2709 identifies the set of parties who may be called on for
contribution under the OPA by referring to those who are “potentially liable.”
That phrase also is not statutorily defined. Certainly if the party designated
by the Coast Guard as responsible brought a civil action against another party
and proved that the latter was solely the cause of a discharge, then that second
party’s potential liability would be shown to have arisen under the Act. We
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have already discussed that eventuality: the initially designated Responsible
Party would be entitled to recover all its relevant costs through the Section
2702(d)(1)(B) right to be subrogated to the United States.
Our factual situation is different. This record does not support that
Marquette was solely the cause of this accident. Marquette, though, was
“potentially liable” even if “liable” means the entity responsible for the entire
incident. Any tortfeasor allegedly contributing to the cause of the discharge is
“potentially liable” under the Act until there are fact-findings that either
confirm or reject complete liability. Factual determinations must be made, be
appealed, and become final. Until then, there is a legal potential that any
entity who had some role in causing the pollution is liable. Giving that broad
meaning to “potentially liable” is logical considering the expansive reach of the
OPA and the financial impact on strictly liable Responsible Parties of paying
for damages that they did not factually cause.
We find support for this interpretation from another strict-liability
enactment, the Comprehensive Environmental Response, Compensation and
Liability Act (“CERCLA”). See 42 U.S.C. §§ 9601–9675. One of its sections
provides that “[a]ny person may seek contribution from any other person who
is liable or potentially liable under section 9607(a) of this title[.]”
§ 9613(f)(1).

Id.

Though not as expansive as Section 2709, which allows for

contribution to reach those “liable” or “potentially liable” under the Act or any
other law, actions brought under CERCLA’s contribution provision are
“intended to provide a liable party under CERCLA with a cause of action to
mitigate the harsh effects of joint and several liability. . . .”

Elementis

Chromium L.P. v. Coastal States Petrol. Co., 450 F.3d 607, 612 (5th Cir. 2006).
We have interpreted “potentially liable” in CERCLA to include all who
are sued under the Act:
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The terms “liable or potentially liable” . . . are not defined in
the statute. However, after examining the text and the structure
of CERCLA, we think that the most sensible reading of the statute
demands that, even before any determination of actual liability, a
party may be “potentially liable” simply by being sued under the
statute. The courts may eventually clear a CERCLA defendant or
third-party defendant from liability; but until it does, such a
defendant is at least potentially liable.
OHM Remediation Servs. v. Evans Cooperage Co., 116 F.3d 1574, 1582 (5th
Cir. 1997) (citations omitted). Attaching the “potentially liable” label to all who
are sued under CERCLA “allows parties to bring contribution actions after
settlements, stipulations, or judicial determination of liability, within the
three-year limitations period.” Id. at 1583. A similar three-year limitations
period applies under the OPA. 33 U.S.C. § 2717(f)(3).
Even if it is correct to say that no provision in the OPA explicitly uses
the word “liable” in relation to anyone other than the entity solely responsible
for the damage, the phrase “potentially liable” completes the statutory scheme.
The entity from whose vessel the oil was discharged must immediately turn to
the cleanup without concerning itself with ultimate financial responsibility.
Once done, that party may through contribution or subrogation seek payment
from all others who were partially or completely at fault.
We examine some of Marquette’s counters to this analysis. For example,
Marquette discusses a Louisiana federal district court opinion holding that
general maritime law and not the OPA governs the Section 2709 contribution
action of a Responsible Party against a joint-fault third party. Gabarick v.
Laurin Mar. (Am.) Inc., No. 08-4007, 2010 WL 147216, at *2 (E.D. La. Jan. 11,
2010), rev’d and remanded, 406 F. App’x 883 (5th Cir. 2010). In that case, a
third party alleged to be at fault for an oil spill sought summary judgment
against the Responsible Party for all claims that fell under the OPA. Id. at *1.
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The district court granted summary judgment for the third party on the
grounds that evidence precluded finding the third party solely liable under
Section 2702(d)(1)(A) of the OPA. Id. at *2. The court also concluded that the
Responsible Party was “not precluded from seeking contribution under any law
other than the OPA.” Id.
We reversed because we held there was insufficient factual development
to assign fault at that stage in the case. Gabarick, 406 F. App’x at 890. We
did not discuss the part of the district court’s analysis on which Marquette
wishes to rely. The district court in Gabarick never mentioned Section 2709,
which specifically deals with contribution as opposed to subrogation. We have
mentioned, analyzed, and held Section 2709 to be dispositive.
Marquette also relies on two out-of-circuit district court decisions. The
first involved a catastrophic oil spill in the Chicago Sanitary Ship Canal. See
United States v. Egan Marine Corp., 808 F. Supp. 2d 1065, 1071 (N.D. Ill.
2011). The Responsible Party sought contribution against a third party whose
alleged negligence in loading oil on its barge “was the sole or partial cause of
the explosion and spill.” Id. at 1072. In resolving the third party’s summaryjudgment motion, the district court also focused its analysis only on Section
2702(d)(1)(A), which is the provision that governs when a third party is
determined to be solely at fault. Id. at 1080. Because the Responsible Party
failed to create a genuine issue of material fact that the third party “solely
caused the oil spill,” the court determined that “the OPA does not provide
grounds for contribution.” Id. at 1082. The court interpreted the OPA as
providing contribution only when another entity is solely responsible, but the
court never tried to explain why there would be one OPA section on
subrogation and another on contribution. Respectfully, we disagree with Egan.
Marquette refers us to one more district court decision.
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Shipping Co. of Saudi Arabia (NSCSA) v. Moran Mid-Atl. Corp., 924 F. Supp.
1436, 1439 (E.D. Va. 1996), aff’d sub nom. Nat’l Shipping Co. of Saudi Arabia
v. Moran Trade Corp. of Delaware, 122 F.3d 1062 (4th Cir. 1997). Highlighted
is language that general maritime law controlled contribution. Id. at 1450.
The reason, though, was that the third party from whom contribution was
being sought had a defense to liability under the OPA, namely, that it was in
a contractual relation with the Responsible Party. Id. at 1446 n.4 (citing 33
U.S.C. § 2703(a)(3)); see also id. at 1450. Thus contribution was limited to that
under the “other law” portion of Section 2709. Id. at 1450.
Through this caselaw, Marquette argues its liability arises only under
general maritime law, leaving any contribution obligation subject to the Robins
Dry Dock rule. “The short answer is that Congress did not write the statute
that way.” United States v. Naftalin, 441 U.S. 768, 773 (1979). Relevant to
our interpretive task, a member of this panel while serving as a judge on the
Eastern District of Louisiana wrote that, based on reading the statute as a
whole, the “OPA establishes an entirely new, federal cause of action for oil
spills.” Tanguis v. M/V WESTCHESTER, 153 F. Supp. 2d 859, 867 (E.D. La.
2001) (Clement, J.). The OPA’s “new scheme includes new remedies, which, in
many respects, preempt traditional maritime remedies.” Id.
Another particularly well-experienced district judge explained the
expansion of recovery under the OPA beyond general maritime law:
Congress intended OPA to allow a broader class of claimants to
recover economic losses than allowed under general maritime law.
Consistent with this intention, Subsection (E) does not require the
plaintiff to be the owner of the property or natural resources
injured, destroyed, or lost in order to recover under that Section.
Thus, the Robins Dry Dock rule does not apply to a claim pursued
under Subsection (E) of OPA.
In re: Oil Spill by Oil Rig “Deepwater Horizon” in Gulf of Mexico, on Apr. 20,
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2010, 902 F. Supp. 2d 808, 815–16 (E.D. La. 2012) (Barbier, J.) (citation
omitted).
We also conclude that limiting Section 2709 liability to contribution only
under general maritime law is inconsistent with the OPA’s savings clause for
admiralty and maritime law.

One section provides: “Except as otherwise

provided in this Act, this Act does not affect — (1) admiralty and maritime law;
or (2) the jurisdiction of the district courts of the United States with respect to
civil actions under admiralty and maritime jurisdiction . . . .”
§ 2751(e) (emphasis added).

33 U.S.C.

The emphasized language shows that the

admiralty claims that are preserved are those that are not addressed in the
OPA. See Moran, 924 F. Supp. at 1447. The contribution that is being sought
in this case is addressed in the OPA. Marquette’s view of the interplay between
Section 2709 and Section 2751 would transform the “savings clause” into a
supremacy clause by advancing general maritime law over the express
provisions of the OPA. In another context, we rejected a similar argument,
saying that “courts cannot, without any textual warrant, expand the operation
of savings clauses to modify the scope of displacement under OPA.” Am.
Commercial Lines, 759 F.3d at 426.
The OPA provides a procedure for submission, consideration, and
payment of costs and damages associated with an oil spill. Responsible parties
are also afforded a few absolute defenses from liability.

See 33 U.S.C.

§ 2703(a). If no defense applies, “the responsible party will always bear firstlevel liability, but will be able to recover over against third parties either
through contribution according to principles of comparative fault or by
invoking a hold harmless or indemnification agreement, if applicable.” See 2
THOMAS J. SCHOENBAUM, ADMIRALTY & MAR. LAW § 18-3 n.26 (5th ed. 2016).
We often resolve statutory interpretation questions based solely on the
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language of the statute: “Where the statute is so lucid, we need not look to the
legislative history for further guidance.”

Phillips v. Marine Concrete

Structures, Inc., 895 F.2d 1033, 1035 (5th Cir. 1990). We have noted some
interpretive hurdles here, though, and look to the legislative history as either
strengthening or weakening the analysis.
The legislative history recognizes OPA’s comprehensive nature and
identifies the significance of contribution in the overall remedial scheme. The
Conference Report discussed the House’s suggested contribution provision,
subject to certain presentment requirements. See H.R. REP. NO. 101-653, at
110–11 (1990) (Conf. Rep.), as reprinted in 1990 U.S.C.C.A.N. 779, 789.
Perhaps most important for our purposes, the language of the contribution
provision was “changed to allow actions for contribution against any person
who is liable or may be liable under any law.” Id. (emphasis added). That the
OPA itself would largely control liability was also clear:
Liability under this Act is established notwithstanding any other
provision or rule of the law. This means that the liability
provisions of this Act would govern compensation for removal costs
and damages notwithstanding any limitations under existing
statutes such as the act of March 3, 1851 (46 U.S.C. 183), or under
existing requirements that physical damage to the proprietary
interest of the claimant be shown.
H.R. REP. NO. 101-653, at 103, as reprinted in 1990 U.S.C.C.A.N. 779, 781. As
to Section 2702(b)(2)(E), a “claimant need not be the owner of the damaged
property or resources to recover for lost profits or income. For example, a
fisherman may recover lost income due to damaged fisheries resources, even
though the fisherman does not own those resources.” Id.
Numerous other courts and legal scholars agree that the OPA nullifies
the Robins Dry Dock limitation. A maritime law professor put it this way:
“Congress plainly intended . . . to overrule Robins [Dry Dock] legislatively with
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respect to claims for lost profits and impairment of earning capacity resulting
from oil spills.” Robert Force et al., Deepwater Horizon: Removal Costs, Civil
Damages, Crimes, Civil Penalties, and State Remedies in Oil Spill Cases, 85
TUL. L. REV. 889, 930–31 (2011) (citing S. REP. NO. 101-94, at 14–15 (1989), as
reprinted in 1990 U.S.C.C.A.N. 722, 736). 5
We conclude that the most reasonable interpretation of the language of
the OPA, as confirmed by the Act’s legislative history, grants to an OPA
Responsible Party the right to receive contribution from other entities who
were partially at fault for a discharge of oil. Specifically, a Responsible Party
may recover from a jointly liable third party any damages it paid to claimants,
including those arising out of purely economic losses.
B. Was the Apportionment of Fault Clearly Erroneous?
Even though contribution is allowed, that does not mean the allocation
of comparative fault made by the district court is correct. Marquette argues it
was improper to assign it 65% of the fault. It provides an extensive list of cases
where an overtaking or give-way vessel, here the HANNAH owned by Settoon,
was assigned more fault. Marquette argues that when two vessels commit an
equal number of statutory faults, and one is obligated to give-way, the greater
share of fault should be placed on the burdened or give-way vessel, barring
exceptional circumstances.
Marquette contends that a decision by the Ninth Circuit supports its
argument that only in rare circumstances should the overtaken or privileged
vessel be responsible for the majority of fault under a comparative-fault

See generally David W. Robertson, The Oil Pollution Act’s Provisions on Damages
for Economic Loss, 30 MISS. C. L. REV. 157, 167 n.41 (2011) (collecting cases and
commentary).
5

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regime. See Crowley Marine Servs., Inc. v. Maritrans, Inc., 530 F.3d 1169, 1175
(9th Cir. 2008). In Crowley, the court took notice of the unusual facts of the
case when it affirmed the district court’s assessment of fault, which assigned
greater liability to the overtaken vessel. Id. Those unusual facts included: (1)
the overtaken vessel’s Captain’s history of alcoholism and serious medical
problems; (2) the vessel owner’s knowledge of these problems; and (3) “the
coordinated maneuvers of the two vessels[.]” Id. Based on this allocation of
fault, Marquette requests we reverse and reapportion fault 65% to Settoon.
These or related arguments needed to be, and were, presented to the
district court. They have little role on appeal, as our review of a district court’s
apportionment of fault applies the deferential standard of clear error. See
Tokio Marine, 235 F.3d at 970. This is particularly important in a bench trial
where the district court’s opportunity to judge the witnesses’ credibility weighs
strongly. See Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 375 (5th Cir.
2000). “Where both parties to a collision are in violation of statutes designed
to prevent collisions, the court may apportion fault between the parties, unless
either party proves that its statutory violation was not a substantial
contributing cause of the collision.” Stolt Achievement, Ltd. v. Dredge B.E.
LINDHOLM, 447 F.3d 360, 364 (5th Cir. 2006).
Nothing in Marquette’s argument on apportionment convinces us the
district court clearly erred.

While the court did not provide a detailed

explanation for its apportionment of fault, it made the requisite allocation of
fault based on the facts before it. “[E]ven if we might have given different
weight to different pieces of evidence than did the district court, this is not a
reason to disturb that court’s findings of relative responsibility, absent a
showing of clear error.” Tokio Marine, 235 F.3d at 971.
AFFIRMED.
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