UNITED STATES of America, Plaintiff-Appellant, v. M/V BIG SAM, in rem, et al., Defendants-Appellees.
No. 81-3127.
United States Court of Appeals, Fifth Circuit.
Dec. 13, 1982.
693 F.2d 451
The bankruptcy court correctly exercised its power to restore the surplus to First Colonial‘s shareholders. The bankruptcy court properly directed the trustee to deliver the surplus to the state-appointed receiver. As a leading commentator noted:
... it is outside the scope of bankruptcy to go into conflicting claims of stockholders or as to who is entitled to the assets of a dissolved corporation, and, in such instances, the bankruptcy court may simply hold the assets or provide for their custody pending determination of rights by another tribunal.
6 Remington, § 2890 at 510. Accord, Berl v. Crutcher, 60 F.2d at 444.
The submissibility of a particular controversy arising in bankruptcy to a state court is ordinarily within the bankruptcy court‘s discretion, to be exercised in the interests of the parties, the estate and the proceeding. 1 Collier on Bankruptcy, ¶ 2.07 at 166 (14th ed. 1974). There was no danger of conflict between the paramount jurisdiction of the bankruptcy court and that of the courts of Louisiana, inasmuch as the trustee‘s official duties had been fulfilled and the administration of the estate was completed. The district court carefully considered the welfare of the debtor and its shareholders, together with the Act‘s underlying policy of efficient and expeditious settlement of proceedings in bankruptcy, in affirming the bankruptcy court‘s order. The court likewise, on this basis, properly dismissed the petition for a federal receiver.
The judgment of the district court, in each case, is, in all respects, AFFIRMED.
Wendy M. Keats, Leonard Schaitman, Thomas W. Snook, Allen Van Emmerik, Dept. of Justice, Civ. Div., Washington, D.C., for plaintiff-appellant.
Normand F. Pizza, New Orleans, La., for M/V Big Sam and Zito Towing Co.
Leonard N. Bouzon, Thomas J. Wagner, Richard A. Sabalot, New Orleans, La., for Mission Ins. Co.
Machale A. Miller, New Orleans, La., for amicus Water Quality.
ON PETITIONS FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC
(Opinion July 30, 1982, 5 Cir., 1982 681 F.2d 432)
Before WISDOM, RANDALL and TATE, Circuit Judges.
PER CURIAM:
The principal issues of this appeal relate to the proper statutory construction of section 311(g), (h), Federal Water Pollution Control Act,
I.
The uncontroverted facts before the court show: The defendant vessel, BIG SAM, collided with a tank barge and caused an oil spill to be discharged from the latter. The sole cause of the collision was the negligence of BIG SAM, the non-discharging third-party vessel. BIG SAM and its owners contended that their exclusive liability for the cleanup costs was provided by the sole-cause strict liability provisions of subsection (g), under which (based on BIG SAM‘s 155 gross tons) liability was limited to $15,500. The panel held, however, that BIG SAM—undoubtedly liable as the “sole cause” third party, irrespective of negligence, under subsection (g)—was subject to liability for the damages caused by its negligence3 and thus that subsection (g) “sole [no fault] cause” liability was not exclusive and did not relieve BIG SAM and its owners of their liability4 under ordinary maritime tort principles. The panel so concluded, because of the unambiguous provision of subsection (h)(2) that the liabilities established by the Act
shall in no way affect any rights which ... the United States Government may have against any third party whose actions may in any way have caused OR contributed to the discharge of oil or hazardous substance. (Emphasis and boldface added.)
That the construction given by the panel to subsection (h) reflects its literal and unambiguous meaning is scarcely questioned by the rehearing applicants or the dissent from denial of an en banc rehearing. Furthermore, the rather scant committee reports concerning the provisions of the Act, as hammered out by a conference committee compromising conflicting approaches and interests, are silent of any reason to believe the words do not mean what they say. Nor has anything in the legislative history or debates called to our attention any concern about relieving nondischarging third parties of their liability under maritime tort principles for their negligence;5 these sources reflect to the contrary, if anything.
Instead, the panel‘s construction is attacked as being inconsistent with the judicial construction given almost identical language in subsection (f) concerning the strict liability of discharger itself. In United States v. Dixie Carriers, Inc., 627 F.2d 736 (5th Cir.1980), a panel of this court held that, with regard to a discharger—admitting that “the express language of the statute provides little guidance to indicate Congress’ intent,” 627 F.2d at 739—subsection (f) provided the exclusive remedy for the government to recover cleanup costs, and that a remedy against the discharger for ordinary negligence in maritime tort seems to have been excluded “by a balanced and comprehensive remedial scheme in section 1321(f)(1) by matching limited recovery with strict liability and unlimited recovery with proof of willful conduct.” Id. In support of this ultimate conclusion, however, Dixie Carriers pointed out instances in the Act where other specific remedies were allowed—including that the Act “does not affect rights which the United States may have against a third party whose actions caused an oil spill,” citing subsection (h), 627 F.2d at 742—and pointed out that, as against a discharger, “[n]o such express language allows the government to recover its cleanup costs under the ... common law.”6 627 F.2d at 742. Thus, in Dixie Carriers we in part relied upon subsection (h)‘s provision, expressly preserving maritime tort remedies as against third parties (without an equivalent preservation against dischargers), as supporting the construction that such maritime tort remedies were not preserved but were instead supplanted as against dischargers themselves by the strict-liability remedy of subsection (f).
II.
The complaint as to the panel‘s construction of subsections (g) and (h) is thus not directed to any error in construing or overlooking unambiguous language of the statute, nor is it in truth directed at any inconsistency between our holding and that in Dixie Carriers.
The complaint, rather, is that Congress was inconsistent in providing an exclusive strict liability remedy against dischargers by subsection (f) (if correctly construed by Dixie Carriers, which admitted the ambiguity of the statute in that regard7), but in permitting against negligent third parties a maritime tort remedy as well (whether concurrent or cumulative, see note 4 supra). We who are not Congressmen might think it is illogical to permit the Act‘s strict liability remedy to supplant maritime tort remedies against a negligent discharger who created the bulk of the risk, but not against a negligent non-discharging third person who causes a discharge.8
However inconsistent we may think this disparate treatment, however much we may be of the view that we could tidy up the statute and make of it what to us seems to be more sense, it is simply not part of our function as judges to re-write, in the guise of statutory construction, unambiguous statutory language in order to cure what to us seems to be statutory deficiencies. Last Term, the Supreme Court so admonished on at least two occasions.
[a]s in all cases involving statutory construction, “our starting point must be the language employed by Congress,” Reiter v. Sonotone Corp., 442 U.S. 330, 337, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931 (1979), and we assume “that the legislative purpose is expressed by the ordinary meaning of the words used.” Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962). Thus “[a]bsent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Product Safety Comm‘n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2055, 64 L.Ed.2d 766 (1980).9
456 U.S. at 68, 102 S.Ct. at 1537.
Again, in Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982), the Supreme Court reversed this circuit and its line of decisions that had “sensibly” construed a statute provision contrary to its unambiguous expression, and the Court explicitly enjoined against creative judicial interpretation of an unambiguous statute in order to accord with its supposed purpose (despite absence of any legislative history indicating any intention other than that expressed by the unambiguous wording):
“There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.” United States v. American Trucking Assns., Inc., 310 U.S. 534, 543, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940). See Caminetti v. United States, 242 U.S. 470, 490, 37 S.Ct. 192, 196, 61 L.Ed. 442 (1917). Nevertheless, in rare cases the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters, and those intentions must be controlling. We have reserved “some ‘scope for adopting a restricted rather than a literal or usual meaning of its words where acceptance of that meaning would thwart the obvious purpose of the statute.‘” Commissioner v. Brown, 380 U.S. 563, 571, 85 S.Ct. 1162, 1166, 14 L.Ed.2d 75 (1965) (quoting Helvering v. Hammel, 311 U.S. 504, 510-11, 61 S.Ct. 368, 371, 85 L.Ed. 303 (1941)). This, however, is not the exceptional case.
“Laws enacted with good intention, when put to the test, frequently, and to the surprise of the law maker himself, turn out to be mischievous, absurd or otherwise objectionable. But in such case the remedy lies with the law making authority, and not with the courts.” Crooks v. Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 50, 75 L.Ed. 156 (1930).
In summary, as to the issue now before us, the panel adheres to its view that we should apply unambiguous statutory provisions as written. The statutory compromise of differing interests and approaches may indeed contain inconsistencies and ambiguities in some of its other provisions (as typically compromise legislation does within the competence of Congress). Nevertheless, the panel finds these alleged inconsistencies to be no reason to refuse to apply the unambiguous provisions, solely before us, as written, in the complete absence of any legislative history contraindicating the intent unambiguously stated by the particular provision at issue (subsection (h)) as written.
The Petitions for Rehearing are DENIED and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (
Before CHARLES CLARK, Chief Judge, BROWN, GEE, RUBIN, REAVLEY, POLITZ, RANDALL, TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY and HIGGINBOTHAM, Circuit Judges.
GEE, Circuit Judge, with whom BROWN, RUBIN and JOLLY, Circuit Judges, join, dissenting from the denial of Suggestion for Rehearing En Banc:
With a certain deference, I dissent from the refusal of the court to accord en banc consideration to this appeal. Our refusal to do so leaves standing the panel opinion,10 one which deranges the apparent plan of the Federal Water Pollution and Control Act (FWPCA) and, taken in combination with our earlier decision in United States v. Dixie Carriers, Inc., produces consequences sufficiently anomalous that I am in serious doubt the Congress could have intended them. As now construed by two panels of our court, operating separately, the FWPCA calls to mind nothing so much as the wag‘s depiction of a camel: a horse designed by a committee. On this construction, actual dischargers of oil pollutants who are guilty of no more than simple negligence are protected by tonnage limitations on their cleanup liabilities, while third parties whose simple negligence is the cause of such spills are—as maritime tort-feasors—subject to being crushed by full and unlimited liability for the consequences.
I am in no sense certain that the panel opinion‘s construction, founded as it is on the rock of a literal reading of the statute, is incorrect. It well may be that the strange result produced, having been configured by literal words of the Congress, must be endured by our maritime commerce until the Congress gets around to correcting it. But since neither I nor the panel can make out the faintest rhyme or reason for such an enactment, and since there are plausible arguments against according the act such an irrational construction, I think that these latter should have been addressed by the en banc court, which exists to—and alone can—harmonize panel decisions of our court short of a resort to the over-taxed higher authority.
The 1970 amendments to the FWPCA represent Congress’ response to the nation‘s increasing need for imported oil and to the consequent increased risk of environmental damage from oil spills. See United States v. Bear Marine Services, 509 F.Supp. 710, 713 (E.D.La.1980).11 As might have been expected, the final enactment was a compromise. In its original form, the Senate bill would have allowed the government an unlimited cleanup recovery upon proof of mere negligence, while the House proposal would, by contrast, have limited that recovery even in the case of a willful discharge. See United States v. Dixie Carriers, Inc., 627 F.2d 736, 739 (5th Cir.1980). “The final statute allowing only limited recovery under a strict liability theory and allowing an unlimited recovery only upon proof of willful conduct represents a compromise between the two proposed statutes.” Id. at 739.12
Discharger Liability according to Dixie Carriers.
The crucial subsections of the statute for our present purposes are
Subsection (f), as pertinent here, provides that a discharger of pollutants is to be held strictly liable for a limited amount of cleanup costs unless he can prove himself into one or more of the four statutory exceptions, and is liable without limit if the government establishes that his discharge was a willful one. The four exceptions comprise discharges caused solely by acts of God or of war, negligence by the government, and the act (whether or not negligent) of a third party.13
Citing the apparent intent of Congress to enact “a compromise bill that limits the government‘s recovery for cleanup costs in all cases except those involving willful discharges” and so to “deter oil spills and recover cleanup costs in a manner that would protect most vessel owners from potential crushing liability,”14 our earlier panel rejected the contention of the United States that where it could establish simple negligence on the part of a discharger the maritime tort action was not preempted by the statutes and a full recovery might be had. Instead, it accepted the discharger‘s argument that “the language, legislative history, and general statutory scheme of the FWPCA demonstrate Congress’ intent to provide an exclusive and comprehensive remedy for the government to clean up oil spills and to recover cleanup expenses.” Dixie Carriers, supra at 738. Judge-made theories of maritime tort were, in the view of the Dixie Carriers court, swept away by the FWPCA insofar as they intruded upon the Congress’ comprehensive scheme of limited absolute liability for negligent carrier-dischargers. With the instant panel decision, however, we learn that the congressional scheme was not comprehensive after all, since those same carriers (or others), should they find themselves the sole cause of another‘s oil spill, remain subject to unlimited liability in maritime tort. And thus our committee construction of the FWPCA: limited liability if one negligently dumps his own oil; unlimited liability if one negligently causes another to dump his. A crazy-quilt indeed, one by which Mr. Bumble would have been pleased.
Subsection (g) governs the liability of third parties who solely cause oil spills. Taking up on subsection (f)‘s third-party exception to discharger liability, that section provides the identical liability for such a third-party sole-causer to that of a discharger. Unless such a third-party causer can prove himself into the same exceptions to liability granted in subsection (f) to the discharger, his liability is substituted for that of the discharger.15
The instant panel has concluded that this is not so, that those whose simple negligence causes discharges by others are to be exposed to “potentially crushing liability,” supra, are meant by the Congress to incur it, rather than or in addition to the limited liability scheduled. Thus he who, carrying oil, solely and carelessly causes another to discharge it, is to be—in appropriate circumstances—crushed, while he who carried it and carelessly discharged it is to be shielded. Nor is this anomalous treatment limited to third parties who have engaged in oil carriage and reaped the benefit of the rates charged for such commerce; any third party will do as a sacrifice. It seems to me arguable that the Congress did not and could not have intended such an exercise in statutory Russian Roulette.
The Maritime Tort Exception.
Subsection (h) preserves all rights that the government “may have against any third party whose actions may in any way have caused or contributed to the discharge ....” (Emphasis supplied.)
The panel has held that by reason of the above, and despite Section (g), the government may recover without limit against a third-party sole-causer. Thus, we decree, he may be crushed, while an equal-fault discharger is to be shielded. By default, the court en banc agrees. From that default, I respectfully dissent: that Congress has said so in terms is persuasively arguable, perhaps plain; that its intent was to say so is, in my view, dubious—sufficiently so that I am satisfied our court has slighted its en banc function by refusing to face and resolve a fundamental conflict in principle between its panels, to adopt the approach of the Big Sam panel and limit or disapprove the reasoning of Dixie Carriers, or to consider the countervailing arguments for a construction of the Act consonant with our prior panel decision in Dixie Carriers. Among these are:
- As noted above, our earlier Dixie Carriers opinion concluded that, since subsection (f)‘s liability limitations apply in cases of simple negligence, the FWPCA preempts the general maritime tort remedy for such negligence. Though that decision concerned the liability of dischargers, the decision of the Big Sam panel that subsection (g)—textually and conceptually identical to and interlocking with subsection (f)—does not preempt the general maritime tort remedy for simple negligence of third-party causers of discharges conflicts in principle with Dixie Carriers and throws the general congressional scheme into irrational disarray.
- By focussing exclusively on the literal language of subsection (h) preserving the government‘s rights against third-party causers, the panel opinion saps the limitation of liability provided them by subsection (g) of vitality and all but reads it out of the statute.
- The Big Sam panel adopts as to third-party causers the approach of the original Senate bill—unlimited recovery for simple negligence—that was squarely rejected by the Congress. Such an adoption of a rejected approach in the teeth of the legislative history conflicts with the strongest settled principles of statutory construction, both in this court and in the Supreme Court. See, e.g., Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 95 S.Ct. 392, 42 L.Ed.2d 378 (1974).
So doing, it passes to an overburdened Supreme Court the task of relieving those within our jurisdiction from burdens of which it is probable the Congress meant to discharge them, preserves a clear conflict in principle in our decisions, and abdicates what I conceive to be its major function.