Savage Servs. Corp. v. United States

666 F.Supp.3d 1177

SAVAGE SERVICES CORPORATION, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

CIV. ACT. NO. 1:20-cv-137-TFM-N

United States District Court, S.D. Alabama, Southern Division

Filed March 30, 2023

Signed March 23, 2023

Jay P. Farmer, Pro Hac Vice, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, New Orleans, LA, Todd Gregory Crawford, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, Houston, TX, for Plaintiffs.

Michael A. DiLauro, U.S. Department of Justice, Civil Division, Washington, DC, Joseph Steven Jarreau, Aviation, Space & Admiralty, Washington, DC, Kasee Sparks Heisterhagen, U.S. Attorney's Office, Mobile, AL, for Defendant.

MEMORANDUM OPINION AND ORDER

TERRY F. MOORER, UNITED STATES DISTRICT JUDGE

This matter came before the Court for a non-jury trial that commenced on February 6, 2023, and concluded on February 10, 2023, with the Court's verdict in favor of the United States. Pursuant to Fed. R. Civ. P. 52(a)(1) the Court issues this opinion with its findings of fact and conclusions of law.¹,²

I. NATURE OF THE CASE

This action was brought by Savage Services Corporation and Savage Inland Marine, LLC (collectively, "Savage") against the United States. It arises from a September 8, 2019 mishap in the chamber of the U.S. Army Corps of Engineers' Jamie Whitten Lock and Dam on the Tennessee-Tombigbee Waterway, which resulted in damage to a tanker barge and caused an oil spill. This Court previously summarized the facts leading up to the incident:

The Lock has a miter sill at the upstream end of the lock chamber, running perpendicular to the length of the chamber, which is underwater when the Lock is full, but which becomes exposed as water is released. There is another miter sill at the downstream end of the lock chamber. The distance between the miter sills is 600 feet. The location of each miter sill is denoted by a yellow painted line rising vertically along the chamber wall. The two-barge tow was configured end to end, with the Vessel pushing from behind. The barges had a combined length of 595 feet. The crew tied the barges off to the lock chamber, and the Vessel's pilot, Chip Ellis, brought the Vessel alongside the barges. The lock operator, Bobby Pharr, began the dewatering process. The stern of the Barge was downstream of the miter sill when this process began. At some point during the process, however, the Barge got caught on the miter sill.

Savage Servs. Corp. v. United States, 625 F.Supp.3d 1236 (S.D. Ala. 2022) (hereinafter Savage I).³

As Savage explains, a cargo tank opened, releasing crude oil into the chamber:

As the water in the chamber fell, the rake end of PBL 3422 rose out of the water until the angle became so steep that the barge fell off the north miter wall. The weight of the barge caused the rake end of the barge to bend upward, as reflected in the following photograph:

Image materials not available for display.

Figure 1 (Barge PBL 3422 after the accident)

Id. ¶ 12.

Savage alleges that the damage to the barge and the resulting oil spill were caused "solely and completely by the fault, neglect and lack of due care" on the part of the U.S. Army Corps of Engineers. Doc. 39 at 7, PageID.169. The United States denies liability. See generally Doc. 44, PageID.177-81. The United States filed a counterclaim, alleging that Savage is strictly liable to reimburse the Oil Spill Liability Trust Fund for U.S. Coast Guard costs incurred in overseeing the spill cleanup. Doc. 44 at 6-11, PageID.182-87.

II. PROCEDURAL HISTORY

The Court, without a jury, tried this matter from February 6 to 10, 2023. Before turning to Findings of Fact and Conclusions of Law, the Court will summarize the extensive procedural history of this case, which sets the stage.

A. Complaint and United States' Motion to Dismiss Savage's FTCA Claims

Savage brings claims against the United States for damages under the auspices of the Suits in Admiralty Act, 46 U.S.C. §§ 30901-18 ("SAA"), and the Federal Tort Claims Act, 28 U.S.C. § 1346, et seq. ("FTCA"). Doc. 39 at 2.

Savage seeks damages for environmental-cleanup costs ($3,082,531), fines and penalties imposed by federal and state authorities ($34,000), damage to the PBL 3422 ($501,886), loss of cargo from barge PBL 3422 ($138,430), and loss of use of the M/V Savage Voyager and PBL 3422 ($467,400). Id. at 3, 8. In sum, Savage claims to have suffered damages in excess of $4.2 million, approximately $3.1 million of which are associated with environmental cleanup. Id. ¶ 21 (listing damages). The government moved the Court to dismiss Savage's FTCA claims on the grounds that the SAA and FTCA are mutually exclusive. See Doc. 49, PageID.204-06; Doc. 50, PageID.207-30. The government argued that if the SAA applies, the FTCA does not. Savage opposed the motion. See Doc. 54, PageID.257-84; Doc. 57, PageID.301-16.⁴

The Court held that the SAA applies and dismissed Savage's FTCA claims. See Savage Servs. Corp. v. United States, 522 F. Supp. 3d 1114, 1126 (S.D. Ala. 2021) (hereinafter Savage II), aff'd, 25 F.4th 925 (11th Cir. 2022). This was proper because the FTCA "shall not apply to . . . any claim for which a remedy is provided by chapter 309 [the SAA] or 311 [the Public Vessels Act] of title 46 relating to claims or suits in admiralty against the United States." 28 U.S.C. § 2680(d); see also Anderson v. United States, 317 F.3d 1235, 1237 (11th Cir. 2003) ("[I]f admiralty jurisdiction exists for [plaintiff]'s claim, it cannot be brought under the FTCA."); Miller v. United States, 725 F.2d 1311, 1313 (11th Cir. 1984) ("an action brought under the DOHSA, a part of the SAA, cannot be maintained under FTCA because jurisdiction under the FTCA and SAA are mutually exclusive") (emphasis added).

B. Parties' Motions Addressing the Scope of the Oil Pollution Act of 1990

The parties asked the Court to decide whether the SAA waives the United States' sovereign immunity for Savage's oil removal cost claims. In the aforementioned partial motion to dismiss, the United States argued that it has not waived sovereign immunity for oil spill removal cost claims. See Doc. 49, PageID.204-06; Doc. 50, PageID.207-30; Doc. 54, PageID.257-84); Doc. 57, PageID.301-16. Savage filed an opposing motion for partial summary judgment, claiming that the United States waives its sovereign immunity through the SAA, thus allowing Savage's removal cost claims. See Doc. 55, PageID.289-90; Doc. 55-1, PageID.291-96; 55-2, PageID.297-98. The United States did not, however, seek dismissal of Savage's claims for other damages, e.g., barge repair, loss of use, or lost cargo, only removal costs.

Rejecting Savage's position, the Court, referring to the Oil Pollution Act of 1990 ("OPA"), held that "Congress has enacted a specific, detailed statute assigning responsibility for oil-spill cleanup costs (at the initial payee level, and beyond) that lacks any waiver of sovereign immunity applicable to the events pleaded in the Amended Complaint." Savage II, 522 F. Supp. 3d at 1123; see also 33 U.S.C. §§ 2701-62. "In so doing, Congress has expressed its intent to effect an implied repeal of the general sovereign immunity provision in the SAA as it pertains to oil-spill cleanup damages." Savage II, 522 F. Supp. 3d at 1123. "Savage is not permitted to look beyond the OPA to engraft a sovereign immunity waiver from a more general statute (in this case, the SAA) onto a more specific statute (here, the OPA), thereby supplying one that OPA's detailed remedial scheme does not." Id.

Savage filed an interlocutory appeal. Affirming the Court's ruling, the Eleventh Circuit found:

OPA is a detailed and comprehensive framework for apportioning oil-spill liability. Through its many parts, Congress chose not to afford vessel owners any cause of action against the United States. Quite the contrary: It eliminated, as we've said, a provision—present in the OPA's predecessor statute—that would've allowed vessel owners to skirt liability in the case of governmental negligence. And it strayed from similar statutory schemes (like CERCLA and RCRA) that expressly allow for contribution claims against the federal government. The plain import of these unambiguous decisions, then, is that Congress has provided otherwise—by making clear that the Government is not liable for oil-removal costs.

Savage Servs. Corp., 25 F.4th 925, 942 (11th Cir. 2022) (hereinafter Savage III) (emphasis added). The Eleventh Circuit denied Savage's application for rehearing en banc. Doc. 161. Savage did not seek a writ of certiorari. Docs. 167, 172.

On December 23, 2022, Savage filed a motion to clarify the scope of recoverable damages at trial, bringing the following OPA-related arguments: (1) that contamination of a vessel's hull with oil constitutes physical damage to a vessel, (2) that the general maritime law allows a vessel owner to recover the cost of repairing such damage, and (3) thus Savage can recover these costs from the United States. See Doc. 188, PageID.2127-2139.

In opposition, the United States argued that Savage's motion seeking "clarification" is, in effect, an untimely motion for partial summary judgment by another name. Doc. 191 at 5-6, PageID.2252-53. The United States further contended that these OPA arguments could and should have been raised in its earlier motion for partial summary judgment (Doc. 55) or in responding to the United States' partial motion to dismiss (Doc. 49), but were not. Id. at 6-9, PageID.2253-55. Both addressed OPA's application in this case. Had Savage believed that cleaning oil from its vessels' hulls remained a viable cost claim under the SAA notwithstanding OPA's passage, the United States argued, it could and should have made that argument earlier. Waived claims are not subject to review. See United States v. Lewis, 492 F.3d 1219, 1221 (11th Cir. 2007) (en banc). Finally, the United States was of the view that Savage's motion should be denied on the merits. Id. at 8-19, PageID.2255-66.

On January 31, 2023,⁵ the Court "clarified that the...