Nos. 98-682 & 98-752
In the Supreme Court of the United States
OCTOBER TERM, 1998
BOUCHARD TRANSPORTATION COMPANY, INC., ET AL., PETITIONERS
v.
UNITED STATES OF AMERICA, ET AL.
DEPARTMENT OF ENVIRONMENTAL PROTECTION OF FLORIDA, PETITIONER
v.
BOUCHARD TRANSPORTATION COMPANY, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
FRANK W. HUNGER
Assistant Attorney General
ROBERT S. GREENSPAN
BRUCE G. FORREST
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
1. Whether the concursus procedure under Rule F of the Supplemental Rules
For Certain Admiralty and Maritime Claims applies to claims brought under
the Oil Pollution Act of 1990, 33 U.S.C. 2701 et seq. (1994 & Supp.
II 1996).
2. Whether a federal court retains jurisdiction notwithstanding a State's
invocation of the Eleventh Amendment when the State files claims in an action
brought under the Limitation of Shipowner's Liability Act of 1851, 46 U.S.C.
App. 181-196 (1994 & Supp. II 1996).
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-682
BOUCHARD TRANSPORTATION COMPANY, INC., ET AL., PETITIONERS
v.
UNITED STATES OF AMERICA, ET AL.
No. 98-752
DEPARTMENT OF ENVIRONMENTAL PROTECTION OF FLORIDA, PETITIONER
v.
BOUCHARD TRANSPORTATION COMPANY, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1-201) is reported at 147
F.3d 1344. The order of the district court (Pet. App. 21-24) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on July 31, 1998. The petition
for a writ of certiorari in No. 98-682 was filed on October 26, 1998. The
petition for a writ of certiorari in No. 98-752 was filed on October 28,
1998. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. a. The Limitation of Shipowner's Liability Act of 1851 (Limitation Act),
46 U.S.C. App. 181-196 (1994 & Supp. II 1996), allows a shipowner to
limit his or her liability with respect to claims arising out of a vessel
casualty, not involving death or personal injury, to the post-accident value
of the ship plus "her freight then pending." 46 U.S.C. App. 183(a).
Paragraph (1) of Rule F of the Supplemental Rules for Certain Admiralty
and Maritime Claims (Rule F) provides that, within six months of receiving
a claim in writing, "any vessel owner may file a complaint in the appropriate
district court, as provided in subdivision (9) of this rule, for limitation
of liability pursuant to statute." Paragraph (2) of Rule F provides
that "[t]he complaint shall set forth the facts on the basis of which
the right to limit liability is asserted and all facts necessary to enable
the court to determine the amount to which the owner's liability shall be
limited."
If the vessel owner complies with the requirements for timely filing of
a complaint, "all claims and proceedings against the owner or the owner's
property with respect to the matter in question shall cease." Rule
F(3). The court then has the authority to issue notice to all claimants
with respect to which the vessel owner seeks limitation of liability, Rule
F(4), to require the filing of claims in a single consolidated procedure,
Rule F(5), and, upon determining the vessel owner's liability, to award
pro rata shares to the claimants "in proportion to the amounts of their
respective claims," Rule F(8). The procedure provides a "concursus"
of all claims against the vessel owner arising out of claims consistent
with limitations on vessel owner liability provided by statute.
b. In 1990, Congress enacted the Oil Pollution Act (OPA), 33 U.S.C. 2701
et seq. (1994 & Supp. II 1996). That legislation followed the catastrophic
marine and environmental disaster involving the Exxon Valdez, which accidentally
discharged more than 11 million gallons of crude oil into Prince William
Sound, Alaska. The OPA provides a comprehensive liability scheme for oil
spills, applying to cases arising from such accidents, "[n]otwithstanding
any other provision or rule of law." 33 U.S.C. 2702(a). Under the OPA,
"each responsible party for a vessel or a facility from which oil is
discharged * * * is liable for the removal costs and damages." 33 U.S.C.
2702(a). Included in the definition of "responsible party" are
vessel owners, operators, and demise charterers. 33 U.S.C. 2701(32)(A).
In addition to changing the parties liable for oil spill damages, the OPA
also abandons the Limitation Act's value-of-the-vessel-plus-pending-freight
liability formula. "[T]he OPA contemplates a strict liability regime
with statutory limits of at least $2 million for tanks vessels and $.5 million
for all other vessels. 33 U.S.C. §§ 2702, 2704. Moreover, in certain
instances, the OPA imposes virtually unlimited liability on the responsible
party. See 33 U.S.C. § 2704(c)." In re Metlife Capital Corp.,
132 F.3d 818, 822 (1st Cir. 1997), cert. denied, 118 S. Ct. 2367 (1998).
Moreover, the OPA liability provisions do not affect the imposition of additional
liability under "State law, including common law." 33 U.S.C. 2718(a)(2).
2. This litigation arises from a collision between a freighter and two tugs
in Tampa Bay on August 10, 1993. Pet. App. 4. In the aftermath of the collision,
the owners of the three vessels filed petitions under the Limitation Act,
46 U.S.C. App. 183(a). The vessel owners sought exoneration from, or limitation
of, liability for damages caused by the collision. Pet. App. 4-6. The district
court issued injunctions pursuant to the "concursus" procedure
of Rule F and consolidated the three limitations actions with four other
cases arising out of the collision. Pet. App. 7.
With all of its claims cognizable in an action brought under the OPA, the
United States filed protective claims in these Limitation Act proceedings
initiated by the vessel-owner petitioners and then moved to dismiss, without
prejudice, on the ground that its OPA claims could be asserted independently
of the Limitation Act/Rule F proceedings. The district court granted that
motion. Pet. App. 22.
Petitioner Department of Environmental Protection of Florida (Florida) moved
to dismiss on the ground that the district court lacked jurisdiction, in
light of the Eleventh Amendment, to adjudicate the State's rights arising
from the accident. The district court granted that motion. Pet. App. 22-23.2
3. The court of appeals affirmed in part, reversed in part, and remanded
for additional proceedings. Pet. App. 19-20. The court first addressed the
State's claim of immunity under the Eleventh Amendment. See id. at 9-11.
The court analogized a Limitation Act proceeding to an admiralty in rem
action, in which the court has jurisdiction over the res and claimants file
claims to it: "Like an in rem proceeding, the plaintiffs in the limitation
proceeding neither named any specific entities as defendants in their complaints
nor formally served process on any defendants." Id. at 10. Rather,
"the plaintiffs posted security bonds with the district court in the
amount of their maximum liability and the district court notified potential
claimants to make their claims on the res deposited with the district court."
Id. at 11. Invoking California v. Deep Sea Research, Inc., 118 S. Ct. 1464
(1998), the court of appeals held that Florida's Eleventh Amendment immunity
did not apply in this Limitation Act case because the suit is "sufficiently
analogous" to an in rem proceeding. Pet. App. 10-11.
The court of appeals then addressed whether Rule F concursus procedures
apply to claims brought pursuant to OPA. The court gave two reasons for
holding that OPA claims are not subject to Rule F concursus: "(1) OPA
90 claimants do not face a limited fund necessitating a pro rata distribution;
and (2) Congress has specifically set forth procedures to implement the
strictures of OPA 90." Pet. App. 12. The court concluded that, in cases
involving maritime oil spills, Congress intended for OPA to override the
Limitation Act's liability provisions and to accomplish the statutory aim
of establishing liability for oil spill removal costs "without the
assistance of Rule F." Id. at 14.
ARGUMENT
The decision of the court of appeals is correct with respect to both its
Rule F and Eleventh Amendment holdings, and does not conflict with any decision
of this Court or any court of appeals. Accordingly, further review is unwarranted.
1. The vessel-owner petitioners (No. 98-682) contend that, even with respect
to claims that are not cognizable under the Limitation Act, the procedural
requirements of Rule F (or some new concursus rule to be created by this
Court) should be applied to this case. That argument is incorrect.
The Limitation Act allows a vessel owner to limit his or her liability with
respect to claims arising out of a vessel casualty, not involving death
or personal injury, to the post-accident value of the ship plus "her
freight then pending." 46 U.S.C. App. 183(a). Congress, however, has
prescribed a different scheme for liability in those maritime accidents
causing the discharge of crude oil or refined petroleum products; that more
specific statutory scheme supersedes the Limitation Act with respect to
this class of cases. See In re Metlife Capital Corp., supra.3 The vessel-owner
petitioners, in fact, do not challenge the premise that the substantive
scheme of liability set forth in the Limitation Act does not apply to this
litigation.
Rule F was adopted to implement the Limitation Act. Even though the substantive
liability provisions of the Limitation Act do not apply here, petitioners
nevertheless seek to impose the Rule F "concursus" procedure on
this OPA case. That proposition lacks merit. As the court of appeals concluded,
Congress has expressly provided procedures for OPA litigation and those
procedures are incompatible with Rule F. Pet. App. 14-15. See also In re
Metlife, 132 F.3d at 823-824.
Petitioners (No. 98-682 Pet. 12) express concern that there "may"
not be sufficient means to protect them from incurring liability that exceeds
the limits set forth in the OPA. Parties in OPA litigation, however, may
invoke the same procedures generally available to litigants in the federal
court system: consolidation under Federal Rule of Civil Procedure 42; transfer
for forum non conveniens under 28 U.S.C. 1404(a); and multidistrict litigation
under 28 U.S.C. 1407. Speculation that those traditional tools will prove
to be inadequate is premature and does not provide any basis for further
review.4
2. Petitioner Department of Environmental Protection of Florida (No. 98-752
Pet. 6-9) contends that the Eleventh Amendment obviates the need for a State
to participate in a Limitation Act proceeding that will adjudicate the claims
of liability of the vessel owner, upon pain of forfeiting that State's claims.
The court of appeals correctly rejected that argument. For purposes of the
Eleventh Amendment claim being asserted by the State, there is no material
difference between a Limitation Act proceeding that determines various claimants'
interests in liability apportionment and an in rem proceeding that determines
claimants' ownership interests. Both types of disputes involve invocations
of federal admiralty jurisdiction. Like an in rem proceeding, the Limitation
Act action seeks no property or funds that are in the State's possession;
rather, the vessel owner seeks a declaration from the court limiting or
exonerating it from liability. The policies favoring unitary admiralty jurisdiction,
see Deep Sea Research, 118 S. Ct. at 1470, are equally present in the Limitation
Act context and the putative threat to a State's Eleventh Amendment immunity
is equally absent. Although the Limitation Act has been on the books for
nearly a century and a half, this apparently is the first time a court of
appeals has confronted an Eleventh Amendment challenge by a State to the
concursus procedure. See No. 98-752 Pet. 9; Pet. App. 9 n.3.
3. In addition, Petitioner Department of Environmental Protection of Florida
(98-752 Pet. 9-11) argues that the vessel owners' pursuit of counterclaims
against the State is barred under the Eleventh Amendment. That claim, however,
was not passed on by the court of appeals. The court of appeals' silence
on the issue may have stemmed from the State's failure to specify its arguments
regarding the counterclaims as a separate
issue.5 Florida could have sought rehearing in the court of appeals, bringing
that possibly overlooked argument to the court's attention, but it did not.
See Fed. R. App. P. 40. Nor does the State offer any conflicting decision
by any other court on the issue. Accordingly, even if the court erred in
having failed to consider separately the Eleventh Amendment implications
of counterclaims brought against the State in a concursus proceeding, this
case would not be a suitable vehicle for considering that issue.
CONCLUSION
The petitions for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
FRANK W. HUNGER
Assistant Attorney General
ROBERT S. GREENSPAN
BRUCE G. FORREST
Attorneys
DECEMBER 1998
1 All references to "Pet. App." herein refer to the Appendix to
the petition filed in No. 98-682, unless otherwise noted.
2 Initially, the district court had ordered the parties, including Florida,
to engage in mediation. The Eleventh Circuit reversed that ruling, however,
and remanded the case to the district court for a prompt ruling on Florida's
claim of Eleventh Amendment immunity. See Bouchard Transp. Co. v. Florida
Dep't of Envtl. Protection, 91 F.3d 1445, 1448-1449 (11th Cir. 1996).
3 The courts of appeals have reached similar conclusions on the interplay
between the Limitation Act and the Federal Water Pollution Control Act,
33 U.S.C. 1251 et seq., In re Oswego Barge Corp., 664 F.2d 327, 340 (2d
Cir. 1981), and the Trans-Alaska Pipeline Authorization Act, 43 U.S.C. 1651
et seq., In re Glacier Bay, 944 F.2d 577, 583 (9th Cir. 1991).
4 Moreover, the vessel owners' fears are even more speculative than they
acknowledge. The vessel-owner petitioners' argument is based on the untested
assumption that they are protected by the OPA's dollar-per-ton liability
limits under 33 U.S.C. 2704(a)(1) (1994 & Supp. II 1996). The OPA's
liability limits are not always available to a responsible party and, in
this litigation, the government maintains that none of the vessel-owner
petitioners qualifies for the OPA limitation due to their alleged violations
of federal safety rules. See 33 U.S.C. 2704(c)(1)(B). That question has
not yet been addressed by the district court.
5 The Statement of the Issues in Florida's brief as appellee (filed in 11th
Cir., Nos. 96-3494, et al., at 12) framed the issues as follows:
I. Whether the Eleventh Amendment immunity of a State from suit in federal
court applies in the context of an admiralty limitation of liability proceeding.
II. Whether vessel owners may use the admiralty limitation of liability
procedures of Supplemental Rule F to circumvent the Oil Pollution Act of
1990 with regard to claims arising out of an oil spill in Florida waters.
III. Whether the injunctions against prosecution of claims against the vessel
owners and their vessels outside of the limitation cases should be enforced
even if the use of Supplemental Rule F is limited.