ELR Citation: ELR 21432
No(s). 90-404-SLR (D. Del. Sep 29, 1992)

The court holds that the government of Uruguay is liable to the United States for removal costs under §311 of the Federal Water Pollution Control Act (FWPCA), and to the state of Delaware for civil penalties under the Delaware Oil Pollution Liability Act (DOPLA), as a result of the discharge of over 183,000 gallons of fuel oil into the Delaware River when a tanker owned and operated by Uruguay went aground and ruptured its hull. Uruguay concedes that the tanker discharged oil in harmful quantities into the Delaware River, a navigable waterway of the United States. However, in response to the United States' motion for summary judgment on Uruguay's liability under FWPCA §311, Uruguay asserted FWPCA §311(f)(1)(D)'s third-party defense. The court rejects the defense, holding that the grounding of the tanker and the ensuing oil spill were not caused solely by the acts or omissions of a third party. The contributing causes of the spill include the premature dropping of the tanker's port anchor and the subsequent grounding of the ship during a maneuver made in an attempt to bring the vessel back upriver after retrieval of the anchor. These acts are properly attributable to Uruguay as the owner and operator of the vessel. It is not significant that the ship allegedly went aground during a maneuver directed by the local river pilot, because other courts have held that a ship's temporary local pilot does not constitute a third party under §311. The court grants the United States' motion for partial summary judgment on the issue of Uruguay's liability.

The court next grants partial summary judgment for Delaware on the issue of Uruguay's liability under DOPLA, because Uruguay does not dispute its liability under the Act. The court defers resolution of the parties' dispute over the amount of civil penalties until the damages stage of the proceeding.

Counsel for Plaintiffs
Howard C. Radzik, James P. Krauzlis
Donovan, Parry, Walsh & Repetto
161 William St., New York NY 10038
(212) 964-3553

James S. Green
Duane, Morris & Heckscher
1201 Market St., Wilmington DE 19801
(302) 571-5550

Counsel for Defendant
Michael McIntyre
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000