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
from the United States District Court for the Eastern
District of Louisiana
SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
H. SOUTHWICK, Circuit Judge.
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.
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.
district court allowed contribution and determined the
percentage of fault of each party. We AFFIRM.
AND PROCEDURAL BACKGROUND
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 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
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.
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.
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.
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.
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).
approach is first to discuss some basics about the relevant
statute. Then, with that background, we analyze the two
issues before us.
The Oil Pollution Act of 1990
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.
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. 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.
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.
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
Marquette's Issues on Appeal
Does the OPA Allow Contribution for Purely Economic
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,
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); §
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,  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 ...