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In re Complaint of Settoon Towing, L.L.C.

United States Court of Appeals, Fifth Circuit

June 9, 2017

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
MARQUETTE TRANSPORTATION COMPANY, L.L.C., Claimant-Appellant SETTOON TOWING, L.L.C., Owner and Operator of the M/V Hannah C. Settoon, Petitioner-Appellee

         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.

         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.


         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 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 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.


         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 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 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 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 government-created 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 ...

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