ELR Citation: ELR 20531
No(s). 73-1397 (1st Cir. Jun 13, 1974)

The owner of a petroleum tank farm bears strict liability under the Rivers and Harbors Act of 1899 for an unauthorized oil discharge into a navigablewaterway which was caused by seepage from a large accumulation of oil under its property. Defendant had admitted ownership of the oil, and the court holds that ownership and the unauthorized presence of the oil in navigable waters are the only requisites for conviction under the statute. While defenses of general due care and lack of intent or knowledge are not available under the act, the defendant could have escaped liability by proving that the discharge resulted from the actions of a third party. Since the statute does not create a duty to mitigate the effects of a discharge, failure to mitigate cannot be considered a separate offense or part of the original discharge violation, but neither can diligence in mitigation serve as a defense against liability.

Counsel for Plaintiff
James N. Gabriel, U.S. Attorney
Alan R. Hoffman, Asst. U.S. Attorney
John F. Kennedy Federal Building
Government Center
Boston, MA 02109

Counsel for Defendant
David A. Luttinger
Legal Dept. Texaco Inc.
135 East 42nd Street
New York, NY 10017

David M. Roseman
H. Theodore Cohen
Tyler & Reynolds
One Boston Place
Boston, MA 02108