ELR Citation: ELR 20643
No(s). H-93-2328 (S.D. Tex. Jul 18, 1994)

The court holds that the private operator of a navy vessel is not entitled to reimbursement from the Oil Spill Liability Trust Fund (the Fund) of its costs of remediating 12 barrels of bunker fuel that spilled into the Houston ship channel while being pumped into the vessel. The Fund denied the operator reimbursement on the ground that the operator could not assert any third-party defense to liability under Oil Pollution Act (OPA) §1003, in part because the operator had a contractual relationship with the dock terminal, which the operator asserted was at fault. The court first holds that the operator's suit for reimbursement is a suit against the United States, which sovereign immunity bars absent consent to suit or waiver. Nothing in OPA §§1012, 1013, or 1015, however, can be construed as a waiver of sovereign immunity. Thus, the operator cannot sue the Fund directly under the OPA. The court next holds that the waiver of sovereign immunity in Administrative Procedure Act, 5 U.S.C. §702, applies to this case. Although the operator seeks money and the §702 waiver applies only to relief other than money damages, reimbursement of OPA removal costs from the Fund constitutes restitution, not damages. The court next denies the operator's motion to amend its complaint to name the United States as a defendant. Amendment would be futile due to the court's disposition of the remaining motions. Turning to the Fund's argument that the operator lacks standing and that the claim is not ripe for review, the court holds that a decision that the Fund wrongfully denied the operator a §1003 third-party defense would partially redress the operator's injury. Also, the claim is ripe because the procedural requirements of the Contract Dispute Act (CDA) do not apply, even though the operator entered into an agreement indemnifying the United States for oil spill liability and the CDA governs that agreement. The agreement only becomes relevant if the operator establishes that the Fund wrongfully denied it the §1003 defense and that it is otherwise entitled to recover its cleanup costs. The court declines to decide whether the vessel is a "public vessel" excluded from the OPA cost recovery scheme. The court next holds that the Fund reasonably concluded that the §1003 third-party defense does not extend to the type of arrangement between the operator and the terminal. It was also reasonable for the Fund to determine that the commercial contracts between the parties, including a declaration of inspection governing the transfer of the fuel, constitute an OPA contractual relationship within the meaning of §1003. Thus, the court grants the Fund's motion for summary judgment.

Counsel for Plaintiff
Mark Cohen
Royston, Rayzor, Vickery & Williams
2200 Texas Commerce Tower, Houston TX 77002
(713) 224-8380

Counsel for Defendant
Gordon S. Young, Ass't U.S. Attorney
U.S. Attorney's Office
U.S. Cthse., 515 Rusk St., Houston TX 77002
(713) 229-2600