ELR Citation: ELR 20548
No(s). 75-3261 (5th Cir. Jul 18, 1980)

The Fifth Circuit Court of Appeals rules that the owner of a barge from which oil was discharged may not, in an action by the United States to recover its cleanup costs pursuant to §311(f) of the Federal Water Pollution Control Act, escape liability on the ground that the owner of a tug that was towing the barge was an independent contractor and thus a "third party" within the meaning §311(f). The court holds that, in this instance, the owner of a discharging vessel may not take advantage of the defense that a tugboat hired as an independent contractor constitutes a "third party" for purposes of contesting liability for cleanup costs assessed under the Federal Water Pollution Control Act. Reversing the decision below, the court reasons that a narrow interpretation of "third party" is most consistent with the statutory purpose of preventing and ensuring the cleanup of oil spills, rejecting the contention that it should include anyone over whom the owner does not have direct control. Furthermore, the owner can require indemnification from the tug for any losses attributable solely to its conduct.

Counsel for Appellant
Thomas Willard Snook
Civil Division, Torts Branch
Department of Justice, Washington DC 20530
(202) 747-7317

Counsel for Appellee
Margaret Tribble, William E. O'Neill
Lemle, Kelleher, Kohlmeyer & Matthews
1800 First National Bank of Commerce Bldg., New Orleans LA 70112
(504) 586-1241

Before THORNBERRY, ANDERSON, and THOMAS A. CLARK, Circuit Judges.