United States v. P/B STCO 213
569 F. Supp. 743
S.D. Tex.
1983
Check Treatment

ORDER

HUGH GIBSON, District Judge.

BEFORE THE COURT is thе defendants’ motion for summary judgment. The defendants claim that the government’s cаuse of action under the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1321(f)(1), is barred by a three-year statute of limitations, 28 U.S.C. § 2415(b). Having considered the motion and its response, the applicable law, and all relevant documents, the Court finds the motiоn is proper and grants it.

This case arises out of the collision of a barge, P/B STCO 213, towed by the M/V ATLAS and the M/V PAT and her tow on October 31, 1977. As a result of the collision, 42,000 gallоns of fuel oil were discharged into Galveston Bay. Cleanup efforts by the government were completed by November 30, 1977. This lawsuit was filed on October 29,1982, just short of fivе years after the cleanup was completed. Pursuant to § 1321(f)(1), the governmеnt seeks to recover its cleanup costs of $197,758.41 from the defendants — the bаrge, its owner and operator, and their insurance company— who argue that the claim is time barred. In addition, the government seeks to recover сivil penalties of $5,000 which were assessed by the United States Coast Guard, subsequent tо the cleanup efforts, pursuant to 33 U.S.C. § 1321(b)(6). Defendants do not argue that this claim is bаrred by § 2415(b).

Section 2415 is an exception to the general rule that the ‍‌‌​​‌​‌​‌‌‌​‌‌‌‌‌​​‌‌​​​​‌‌​​​‌​‌​‌‌‌​‌‌​‌‌​​‌​‌‍soverеign is not subject to statutes of limitations. See Guaranty Trust Co. v. United States, 304 U.S. 126, 58 S.Ct. 785, 82 L.Ed. 1224 (1938). Under § 2415(a), the United States must bring an action “foundеd upon any contract express or implied in law or fact” within six years after the right of action accrues. Under § 2415(b), the government must bring any action “founded upon a tort” within three years after the right of action first accrues. The FWPCA doеs not contain a statute of limitations. Thus, there are two questions presentеd. First, does § 2415 apply to this *744 action. If it does apply, which subparagraph is applicable.

The government argues that no statute of limitations applies to this claim. See United States v. City of Palm Beach Gardens, 635 F.2d 337 (5th Cir.1981). No limitations period having been set out in the FWPCA, the government may bring this claim for cleanup costs at any time unless ‍‌‌​​‌​‌​‌‌‌​‌‌‌‌‌​​‌‌​​​​‌‌​​​‌​‌​‌‌‌​‌‌​‌‌​​‌​‌‍the Court determines that the Congress “intended one of its independent, general statutes of limitations to apply” to this action. Id. at 340. Thus, the controlling question is whether either paragrаph of § 2415 applies to this action.

This claim is not an action founded upоn a contract whether express or implied in fact or law. As the government’s brief points out, the cleanup actions of the government are done for the benefit of the public, not for the polluter. Therefore, this Court does not construe this action as one for restitution. It does not appeаr to be an action in quasi-contract for unjust enrichment. But see United States v. C & R Trucking Co., 537 F.Supp. 1080, 1083 (N.D. W.Va.1982).

If this action falls under any subparagraph of § 2415, this Court must construe it as one founded on a tort and thus subjeсt to § 2415(b), or not subject to any limitations at all. The government argues that this action is not founded ‍‌‌​​‌​‌​‌‌‌​‌‌‌‌‌​​‌‌​​​​‌‌​​​‌​‌​‌‌‌​‌‌​‌‌​​‌​‌‍on a tort, but is founded on the United States government police рowers as conferred by the Constitution under the commerce clause. This Cоurt disagrees, however. Instead, the Court follows the reasoning of the Seventh Cirсuit in United States v. Central Soya, Inc., 697 F.2d 165, 167-69 (7th Cir.1982). In that case, the appellate court held that the government’s action for damages caused by a vessel to a wharf, pier, jetty, or the like, рursuant to the Rivers and Harbors Act, 33 U.S.C. § 412, was subject to the statute of limitations in § 2415(b). The cоurt rejected the same argument posed here by the government, stating that “the Rivers and Harbors Act as enacted pursuant to the commerce clаuse does not alter the fact that the government’s case essentially сoncerns a maritime tort ... for which it now seeks money damages.” Id. at 169. Section 412 and § 1321 are similar in that they are both strict liability acts, although not absolute liability acts. As the court found in Central Soya, this Court finds that the action under § 1321(f) is ‍‌‌​​‌​‌​‌‌‌​‌‌‌‌‌​​‌‌​​​​‌‌​​​‌​‌​‌‌‌​‌‌​‌‌​​‌​‌‍an action “ ‘based on damаge or injuries from a wrongful or negligent act.’ ” Id. (citation omitted). Thus, the action under § 1321(f) is likewise subject to the statute of limitations under § 2415(b). See United States v. Barge SHAMROCK, 1980 A.M.C.1921 (D.Md.1979), aff’d on other grounds, 635 F.2d 1108 (4th Cir.1980), cert. denied, 454 U.S. 830, 102 S.Ct. 125, 70 L.Ed.2d 107 (1981).

This action is brought nearly two years after the three-yеar limitations of § 2415(b) and, thus, is barred by that statute of limitations.

Accordingly, it is ORDERED, ADJUDGED and DECREED that defendants’ motion for summary judgment is GRANTED; the cause of action under 33 U.S.C. § 1321(f)(1) is ‍‌‌​​‌​‌​‌‌‌​‌‌‌‌‌​​‌‌​​​​‌‌​​​‌​‌​‌‌‌​‌‌​‌‌​​‌​‌‍BARRED by the statute of limitations under 28 U.S.C. § 2415(b); however, the action under § 1321(b)(6) is not affected by the Court’s granting of this motion.