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Marine and Energy News Alert: U.S. Fifth Circuit Holds Tug is OPA Responsible Party for Barge Pollution

September 26, 2018

This incident involved a tug and barge flotilla that struck a bridge and subsequently released oil from a barge. Since there was oil pollution, response and cleanup obligations under the Oil Pollution Act of 1990 (OPA 90) were triggered. The issue on appeal was whether the owner of the tug, Nature’s Way, was “operating” the barge, as the term is used for designating a "responsible party" under OPA 90.

Under OPA, each "responsible party" is liable for the removal costs and damages. OPA defines a "responsible party" as "[i]n the case of a vessel, any person owning, operating, or demise chartering the vessel," (33 U.S.C. § 2702(a)).

OPA 90 does not define “operating,” and Nature’s Way argued it was not operating the barge. The district court granted the U.S.'s motion that a “common sense” understanding of the term “operator” included a tugboat that pushed a barge.

The U.S. Fifth Circuit affirmed the district court’s decision relying on a U.S. Supreme Court decision in United States v. Bestfoods that interpreted the Comprehensive Environmental Compensation and Liability Act of 1980 (CERCLA), which analyzed CERCLA’s definition of the term “operator.” The Fifth Circuit recognized that parallel language between CERCLA and OPA is significant given that OPA and CERCLA have common purposes and a shared history.

This case confirms that under OPA the tug is a responsible party for any oil pollution emanating from a barge under its tow. To read, click here.