Strict Liability Under Section 311 of
the Clean Water Act: Cleaning Up
Respondeat Superior and Negligence

INTRODUCTION

The Clean Water Act

Congress passed the Water Quality Improvement Act of 1970
(commonly known as the Clean Water Act ("CWA"))I in response
to major oil spills off United States' and foreign coasts2 and in
recognition of the increasing environmental damage caused by oil
pollution.3 Congress adopted a far-reaching goal for the CWA,
that "there should be no discharges of oil" into United States'
waters.4 To achieve this goal, Congress prohibited discharges 5 of

1. Pub. L. No. 91-224, §§ 101-205,84 Stat. 91(1970), 33 U.S.C. §§ 1151-1175 (1970)
(amended and recodified at 33 U.S.C. §§ 1251-1376 (1982)).

2. H.R. REP. No. 127, 91st Cong., 1st Sess. 2 (1969), reprinted in 1970 U.S. CODE CONG.
& AD. NEWS 2691, 2692-94; S. REP. No. 351, 91st Cong., 1st Sess. 3, 6 (1969).

3. Frequent oil spills from vessels and from on- and off-shore facilities have
ruined beaches and lowered the quality of our rivers and shore waters and
have jeopardized animal and vegetable life. The spills from the Torrey Canyon
and the Ocean Eagle have been spectacular examples of this danger, but the
damage from repeated but unpublicized lesser incidents and intentional
dumping is steadily increasing. This can no longer be tolerated.

S. REP. No. 351, 91st Cong., 1st Sess. 3 (1969).
"[Tihe increasing volume of oil being handled by an increasing number of vessels and

facilities enhances the risk of major disaster, and . . . the protection of our vital water
resources and shorelines is more and more imperative." Id. at 7.

For a history of the events leading up to Congress' adoption of the Water Quality Im-
provement Act ("WQIA"), see Healy & Paulsen, The Water Quality Improvement Act of 1970, 1
J. MAR. L. & CoM. 537 (1970-1971).

For a discussion of the extent and impact of oil pollution, see R. M'GONIGLE & M.
ZACHER, POLLUTION, POLITICS AND INTERNATIONAL LAw 14-38 (1979); F. GRAD, TREATISE

ON ENVIRONMENTAL LAw § 3.01[l](f)(ii), at 3-18 to 3-19 (1984).
4. Pub. L. No. 91-224, § lI(b)(l), 84 Stat. 91, 92 (1970). In 1972, Congress included

"hazardous substances" within the Act's purview as well as oil. Pub. L. No. 92-500,
§ 311(b)(2)(A), 92 Stat. 863 (1972) (codified as amended at 33 U.S.C. §§ 1251-1376
(1982)). Subsection 311 (b) (2)(A) of the Act directs the Environmental Protection Agency
("EPA") to designate as "hazardous substances" those "elements and compounds which,
when discharged in any quantity into or upon [United States' waters] . . . present an im-

minent and substantial danger to the public health or welfare, including, but not limited
to, fish, shellfish, wildlife, shorelines, and beaches." 33 U.S.C. § 1321(b)(2)(A) (1982).

The Water Quality Improvement Act will be considered in this Note only in regard to
oil, unless otherwise indicated, because the Note focuses on the scheme of liability created
by Congress in 1970, and on Congress' intent in creating that scheme. Because the provi-



150 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 10: 149

oil in "harmful quantities" 6 from vessels and onshore and off-
shore facilities. 7 Owners and operators8 of vessels and facilities
which discharge oil in violation of the CWA are subject to a civil
penalty, regardless of fault.9

sion for "hazardous substances" was grafted onto an existing scheme of liability, which has
remained largely intact, much of the analysis of that scheme pertains to both oil and haz-
ardous substances. The most current provisions of the CWA will be cited to herein if cita-
tion to the original Act is not necessary to discuss Congress' intent when it passed the Act,
but where they significantly depart from the original provisions, nevertheless.

5. "Discharge" is currently defined as:
includ[ing], but. . . not limited to, any spilling, leaking, pumping, pouring, emitting,
emptying or dumping, but exclud[ing] (A) discharges in compliance with a permit
under section 1342 of this title, (B) discharges resulting from circumstances identified
and reviewed and made a part of the public record with respect to a permit issued or
modified under section 1342 of this title, and subject to a condition in such permit,
and (C) continuous or anticipated intermittent discharges from a point source, identi-
fied in a permit or permit application under section 1342 of this title, which are caused
by events occuring within the scope of relevant operating or treatment systems.

§ 31 l(a)(2), 33 U.S.C. § 1321(a)(2) (1982).
6. Subsection 31 l(b)(4) of the CWA currently directs the President to determine by reg-

ulation "those quantities of oil and any hazardous substances the discharge of which may
be harmful to the public health or welfare of the United States, including but not limited to
fish, shellfish, wildlife, and public and private property, shorelines, and beaches." 33
U.S.C. § 1321(b)(4) (1982).

7. § 311(b)(3), 33 U.S.C. § 1321(b)(3) (1982). This subsection currently exempts dis-
charges "permitted under the International Convention for the Prevention of Pollution of

the Sea by Oil, 1954, as amended." Id. Vessels, onshore and offshore facilities are defined
in § 311(a)(3), (10) and (11), 33 U.S.C. § 1321(a)(3), (10) and (11), respectively.

8. "[O]wner or operator" means (A) in the case of a vessel, any person owning,
operating, or chartering by demise, such vessel, and (B) in the case of an on-
shore facility, and an offshore facility, any person owning or operating such
onshore facility or offshore facility, and (C) in the case of any abandoned off-
shore facility, the person who owned or operated such facility immediately
prior to such abandonment.

§ 31 l(a)(6), 33 U.S.C. § 1321(a)(6) (1982). Hereinafter, "owner or operator" will be re-
ferred to simply as "owner."

9. § 31 l(b)(6), 33 U.S.C. § 1321(b)(6) (1982). As originally drafted, this subsection di-
rected the Coast Guard to assess a civil penalty of up to $10,000 per offense on owners
who "knowingly" discharged in violation of subsection 11 (b) (2). The amount of the pen-
alty was to be determined on the basis of the "size of the business of the owner or operator
charged, the effect on the owner or operator's ability to continue in business, and the
gravity of the violation. ... Pub. L. No. 91-224, § I l(b)(5), 94 Stat. 91, 92 (1970).

Subsection 31 1(b)(6), the current analogue of subsection 1 1(b)(4), directs the Coast
Guard to assess a civil penalty of no more than $5,000 per offense, and drops the "know-
ing" requirement of the earlier version. Subsection 31 l(b)(6) authorizes the EPA to assess
a civil penalty, where none has been assessed under the prior section, of up to $50,000 per
offense, and up to $250,000 for discharges resulting from willful negligence or willful mis-
conduct within the privity and knowledge of the "owner, operator, or person in charge."
In determining the amount of the penalty, the EPA is to consider the "gravity of the of-
fense, and the standard of care manifested by the owner, operator, or person in charge."
33 U.S.C. § 1321(b)(6)(A), (B) (1982).



1985] Stict Liability under CWA

The CWA authorizes the United States government to clean up
a discharge if the owner of the discharging vessel or facility does
not do so adequately. ° Under subsection 311 (0, an owner is "li-
able to the United States government for the actual costs" that
the government incurs in cleaning up the spill."I The amount of
liability is limited, unless the United States can prove that the dis-
charge was caused by "willful negligence or willful misconduct
within the privity and knowledge" of the owner. 12 An owner can
escape liability altogether by proving that the discharge was
caused "solely by (A) an act of God, (B) an act of war, (C) negli-
gence on the part of the United States government, or (D) an act
or omission of a third party," whether or not the third party's act
or omission was negligent.' 3 Subsection 3 11(g) provides the

10. Pub. L. No. 91-224, § 1 (c)(1), 94 Stat. 91, 93 (1970). As currently drafted, subsec-
tion 31 l(c)(1) also authorizes the United States to remove oil and hazardous substances
which have not yet been discharged, but which pose a "substantial threat" of being dis-
charged. 33 U.S.C. § 1321(c)(1) (1982). See § 311(c), (d), 33 U.S.C. § 1321(c), (d) (1982),
for complete set of actions which the United States is authorized to take in the event of an
imminent or actual discharge.

11. Pub. L. No. 91-224, § 1 (f)(1), 84 Stat. 91, 94-95 (1970) (amended and recodified at
33 U.S.C. § 1321(0(1) (1982)).

12. Id. One author suggests that these standards are so difficult to prove that the United
States seldom attempts to seek unlimited liability under this provision. Helfrich, Problems
in Pollution Response Liability Under Federal Law: FWPCA Section 311 and the Superfund, 13 J.
MAR. L. & COM. 455, 457 (1981-1982).

13. Pub. L. No. 91-224, § 11(f)(1)-(3), 84 Stat. 91, 94-95 (1970) (emphasis added). Sub-
section 11 (f)(1) reads:

Except where an owner or operator can prove that a discharge was caused solely by
(A) an act of God, (B) an act of war, (C) negligence on the part of the United States
Government, or (D) an act or omission of a third party without regard to whether any
such act or omission was or was not negligent, or any combination of the foregoing
clauses, such owner or operator of any vessel from which oil is discharged in violation
of subsection (b)(2) of this section shall, notwithstanding any other provision of law,
be liable to the United States Government for the actual costs incurred under subsec-
tion (c) for the removal of such oil by the United States Government in an amount not
to exceed $100 per gross ton of such vessel or $14,000,000 whichever is lesser, except
that where the United States can show that such discharge was the result of willful
negligence or willful misconduct within the privity and knowledge of the owner, such
owner or operator shall be liable to the United States Government for the full amount
of such costs. Such costs shall constitute a maritime lien on such vessel which may be
recovered in an action in rem in the district court of the United States for any district
within which any vessel may be found. The United States may also bring an action
against the owner or operator of such vessel in any court of competent jurisdiction to
recover such costs.

Id.
Subsections 11(0(2) and (3), applying to onshore and offshore facilities, respectively,

each contain different liability limitations from that in subsection 11 (f(1). The liability



152 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 10:149

United States government with a claim against such a third
party. 

14

Third Party Defense and Respondeat Superior

This Note addresses the scope of owners' liability for cleanup
costs under subsection 311 (f) as limited by the third party de-
fense. 15 Without stating so explicitly, several judicial opinions
and commentators have suggested that the third party exception
to liability under subsection 311 (f) in effect restates the common
law limit of owners' liability as defined by the doctrine of respon-
deat superior.16 According to this broad view of the defense, the
relationship of a third party-whose acts are beyond the scope of

limitations in subsection 11(f)(1) have been substantially increased in a subsequent
amendment. 33 U.S.C. § 1321(f) (1982).

14. Pub. L. No. 91-224, § I1(g), 84 Stat. 91, 95 (1970) (amended and recodified at 33
U.S.C. § 1321(g) (1982)).

The CWA is only one of a patchwork of domestic and international efforts to reduce
marine pollution from oil and other substances. For descriptions of these efforts, see gen-
erally Healy & Paulsen, supra note 3, at 537; M'GONIGLE & ZACHER, supra note 3; Wood, An

Integrated International and Domestic Approach to Civil Liability for Vessel-Source Oil Pollution, 7 J.
MAR. L. & COM. 1 (1975-1976); THE NEW NATIONALISM AND THE USE OF COMMON SPACES

7-111 (J. Charney ed. 1982).
15. The third party defense appears in a variety of schemes of strict liability. E.g., Com-

prehensive Environmental Response, Compensation and Liablity Act ("CERCLA"),
§ 107(b)(3), 42 U.S.C. § 9607(b)(3) (1982); International Convention on Civil Liability for
Oil Pollution Damage, Nov. 29, 1969, art. III, par. 2(b), 9 I.L.M. 45, 47 ("No liability for
pollution damage shall attach to the owner if he proves that the damage . . . was wholly
caused by an act or omission done with intent to cause damage by a third party.");
Superfund Expansion and Protection Act of 1984, H.R. 5640, 98th Cong., 2d Sess.
§ 202(b)(3)(C), H.R. REP. No. 890, 98th Cong., 2d Sess. 13 (1984) (third party defense in
provision for compensation of persons injured from exposure to hazardous wastes; the
provision was omitted from the final version of H.R. 5640 which was passed by the House).
These schemes have become more prevalent as the inherent dangers to public health from
the production and disposal of toxic chemicals, and the difficulty of recovery under tradi-
tional common law remedies for persons injured from exposure to such chemicals, are
recognized.

For a description of several state statutes imposing strict liability, two with third party
defenses, see GRAD, supra note 3, § 4A.05[b][ii][F], at 4A-191 to 4A-193. See also
SUPERFUND SECTION 301(E) STUDY GROUP, REPORT TO THE CONGRESS ON VICTIM COMPEN-

SATION PURSUANT TO SECTION 301(E) OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE,

COMPENSATION AND LIABLITY ACT OF 1980 (P.L. 96-510) (1982) [hereinafter cited as STUDY

GROUP PROPOSAL] (proposed federal and state scheme of victim compensation for injuries
caused by the discharge of hazardous substances).

For a discussion of the difficulties of recovery under traditional common law doctrines
of fault and causation, and under applicable state statutes of limitation, see STUDY GROUP
PROPOSAL, supra, at 25-146; GRAD, supra note 3, § 4A.05, at 4A-151 to 4A-172.

16. See infra notes 43-52 and accompanying text.



1985] Stict Liability under CWA

owners' responsibility-to an owner is as close as that of an in-
dependent contractor to an employer.

Under respondeat superior, acts of independent contractors are
also beyond the scope of owners' responsibility because, by defi-
nition, owners have no control over independent contractors'
physical conduct. 17 According to the doctrine of respondeat supe-
nor, an employer is liable for the conduct of his or her employee
only when the employer has a right to control the employee's
physical conduct in performance of the employee's contractual
duties.' 8 Thus, vessel owners are responsible for the acts of their
crew or pilot which the owners have a right to control.' 9 Simi-
larly, a barge owner would not be responsible for the conduct of a
crew on a tug which the owner hired to tow the barge if the owner
had no contractual right to control the manner of towage. 20

Other courts have viewed the third party defense narrowly in
holding that subsection 311 (f) extends the scope of owners' re-
sponsibility beyond persons within the master/servant relation of
respondeat superior to include independent contractors. 21 These
courts state that Congress placed a standard of strict liability in

17. "An independent contractor is a person who contracts with another to do some-
thing for him but who is not controlled by the other nor subject to the other's right to
control with respect to his physical conduct in the performance of the undertaking." RE-
STATEMENT (SECOND) OF AGENCY § 2 (1957); Id. § 219(1). "For the purpose of determin-
ing liability, . . . 'independent contractors' . . . do not cause the person for whom the
enterprise is undertaken to be responsible, under the rule stated in Section 219." Id.
§ 220, comment e.

18. A master is a principal who employs an agent to perform service in his affairs
and who controls or has the right to control the physical conduct of the other
in the performance of the service. (2) A servant is an agent employed by a
master to perform service in his affairs whose physical conduct in the per-
formance of the service is controlled or is subject to the right to control by the
master.

Id. § 2. "A master is subject to liability for the torts of his servants committed while acting
in the scope of their employment." Id. § 219(1).

19. G. GILMORE & C. BLACK, THE LAW OF ADMIRALTY § 7-16, at 520 (1975). "The...
pilot is in much the same position as any other crew member. Under the ordinary rules of
respondeat superior, the shipowner is responsible for his actions . . . " Id.

20. See, e.g., Bisso v. Inland Waterways Corp., 349 U.S. 85 (1955). In Bisso, the respon-
dent tug owner's crew negligently caused the sinking of petitioner's oil barge. Id. at 86.
The Supreme Court held the tug owner liable in spite of provisions in the towage contract
that the tow was at the "sole risk" of the barge, and that the tug's crew were the barge
owner's "servants" during the towage. Id. The Court explained that the latter term was a
"fiction" because the tug's crew "remained at all times subject to [the tug owner's] com-
plete control. In contrast, the owners of the barge being towed never had a relationship of
any kind or character with those who controlled and operated the towboat." Id. at 95.

21. See infra notes 29-42 and accompanying text.



154 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 10:149

the CWA, because Congress intended owners both to bear a
greater burden of the costs incurred by oil pollution than under
prior law, 22 and to exert more control over the conduct of their
transport or storage operations. To achieve this objective, the
courts state, Congress extended responsibility beyond that de-
fined by the master/servant relation, to remove owners' incentive
to relinquish control through contract in order to avoid responsi-
bility under respondeat superior for the acts of independent contrac-
tors. According to this second view, acts of third parties which are
beyond the scope of owners' liability are those acts over which
owners could never have exerted any control to prevent spills.

Fault-based Tests for Strict Liability?

The scope of the third party defense in section 311 is signifi-
cant, not only because it is a statutory issue over which there is
disagreement among courts and commentators,2 3 but also be-
cause the meaning of "third party" bears on the fundamental na-
ture of liability imposed by section 311. More specifically, the
third party defense and "sole cause" requirement for owners in-
voking the defense raise questions of the role of fault-related
standards of liability in a "strict liability" statute.

One of these questions is whether the third party defense im-
ports a scope of liability equivalent to that determined by the doc-
trine of respondeat superior in cases of common law negligence. 24

Another question is whether the statutory requirement that an
owner must prove a third party cause to be the sole cause of a
spill imports a no-fault test of causation for owners' conduct in
addition to a test of negligence. 25 This Note rejects use of the
fault-based standard of respondeat superior to determine who is a
third party, but argues that owners' conduct should be subject
only to a fault-based negligence test under the sole cause
provision.

The first section of this Note details the facts of cases which
have faced the third party issue and identifies the alleged third
parties in the context of the master/servant relation under respon-
deat superior. The courts' decisions are discussed in subsequent
sections. Section two outlines the history of applicable standards

22. See infra Section II(A) for a discussion of the law prior to the CWA.
23. See infra Section I, notes 29-52 and accompanying text.
24. See infra Section V, notes 103-39 and accompanying text.
25. See infra Section VI, notes 140-65 and accompanying text.



Stict Liability under CWA

of liability. Section three discusses the bases for the courts' differ-
ing interpretations of the third party defense. Section four ana-
lyzes the defense in terms of the functions which Congress
intended its standard of liability to serve. Section five analyzes all
of the defenses in subsection 311(026 in terms of the nature of the
set of causes for which they exempt owners from liability, Con-
gress' apparent intent to impose a scheme of strict liability, and
the principles underlying the defenses. Section six addresses the
sole cause requirement for owners invoking the third party
defense.

The last section compares the third party defense and causation
requirement in section 311 of the CWA with similar provisions in
section 107 of the Comprehensive Environmental Response,
Compensation and Liability Act. 27 Section 107 of CERCLA im-
poses liability for the government's costs of cleaning up hazard-
ous substances. 28 Thus, CERCLA is functionally similar to the
CWA with respect to oil, and CERCLA functionally overlaps the
CWA with respect to hazardous substances. The legislative his-
tory and Congress' drafting of the former-more recent- statute
avoid much of the ambiguity which exists in the third party and
sole cause provisions of the CWA. The last section of this Note
will also discuss the possibilities for construing section 311 of the
CWA in accordance with Congress' inteni in passing section 107
of CERCLA.

I. CASES

A. Narrow Reading of "Third Party"

The scope of the third party defense has been squarely ad-
dressed by two courts of appeals, both of which have interpreted
the provision narrowly. The First Circuit in Burgess v. M/V
Tamano29 held that the owner of a supertanker was liable to the
United States under subsection 311 (f) for the cost of cleaning up
100,000 gallons of oil which spilled from the tanker when it struck
an underwater ledge. The court of appeals found that the acci-
dent was caused by the negligence of a compulsory pilot, but held
that the pilot was not a third party within the meaning of subsec-

26. See supra note 13 and accompanying text.
27. 42 U.S.C. § 9607 (1982) (commonly known as the "Superfund" statute).
28. See infra notes 167-78 and accompanying text.
29. 564 F.2d 964 (1st Cir. 1977), cert. denied, 435 U.S. 941 (1978).

1985]



156 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 10:149

tion 31 1(f)(1). 30 A pilot is "compulsory" when a ship is required
by law to have a pilot navigate the ship into port, and when the
ship's owner is subject to a fine or imprisonment for violating the
law.3 1 Under the common law doctrine of respondeat superior, if the
pilotage statute removes control over navigation of the ship from
the owner and places it entirely with the pilot, the pilot is not a
"servant" of the owner, and the owner is not responsible for the
pilot's negligence.32 In Tamano the court of appeals presumed
that the owner was not liable for the compulsory pilot's negli-
gence on the basis of respondeat superior, but held the owner liable
under section 311 of the CWA, nevertheless. 33

In United States v. LeBoeuf,34 a barge which was being unloaded
spilled oil when a tug crewman accidentally opened the wrong
valve. The tug and its crew had been contracted to tow the barge
as well as to load and unload its cargo.3 5 The Fifth Circuit re-
versed the district court's judgment against the United States, and
held the owner liable for cleanup costs because the tugboat was
not a third party within the meaning of subsection 311(f)(1).
Like the First Circuit in Tamano, the Fifth Circuit rejected the de-
fense while assuming the asserted third party "operated as an in-
dependent contractor, '"36 for whose acts the owner would not be
liable under respondeat superior.

District courts in two other cases have rejected owners' asser-
tions of a third party defense. In United States v. Hollywood Marine,
Inc.,37 oil leaked from a hole caused by the grounding of an un-
propelled tank barge. The barge was owned pro hac vice38 by the
defendant, and towed by Big B. Towboat Services which was also
responsible for keeping the barge "seaworthy, properly manned,

30. Id. at 981-82.
31. GILMORE & BLACK, supra note 19, § 7-16, at 520.
32. RESTATEMENT (SECOND) OF AGENCY § 223, comment c. Cf GILMORE & BLACK, supra

note 19, § 7-16, at 520. The authors suggest that compulsory pilots are never servants
under respondeat superior. "[I]t is pretty well settled that if the pilotage is 'compulsory' the
respondeat superior nexus is broken." Id.

33. 564 F.2d at 982. Contra Note, Shipowner's Liability for an Oil Spill Caused Solely by the

Negligence of a Compulsory Pilot, 58 B.U.L. REV. 316 (1978) (arguing that Congress did not
intend to repudiate common law principle that a shipowner is not personally liable for the
negligence of a compulsory pilot); see infra text accompanying notes 112 and 113.

34. 621 F.2d 787 (5th Cir. 1980), cert. denied, 452 U.S. 906 (1981).
35. Id. at 788.

36. Id. at 790.
37. 519 F. Supp. 688 (S.D. Tex. 1981).
38. "For this turn; for this one particular occasion." BLACK'S LAw DICTIONARY 1091

(4th ed. 1951).



Stict Liability under CWA

equipped" and "furnish[ed with] all necessary [equipment] to
safely operate and handle" the barge. 39 Without determining
whether the tug was an independent contractor, the district court
followed its court of appeals' decision in LeBoeuf and held that the
United States was entitled to recover cleanup costs from the
barge owner because the tug, which the court found to have
caused the grounding, was not a third party within the meaning of
subsection 311 (f) (1).40

On a motion for summary judgment, the District Court for the
District of Alaska held that the contractor who had built the de-
fendant's fuel storage facility was not a third party within the
meaning of subsection 311(f).4 1 The district court followed the
First and Fifth Circuits' narrow interpretation of the defense in
holding that the contractor was not a third party, even assuming
that he was an independent contractor for purposes of respondeat
superior.

42

B. Broad Interpretation of Third Party Exception

In Tug Ocean Prince, Inc. v. United States,43 a barge leaked oil
when it was driven onto a rock by the pilot of the tug towing the
barge. 44 The district court ruled on issues relating to the exist-
ence and extent of the tug owner's liability as a presumed third
party under subsection 3 11 (g). Although the tug owner's status as
a third party under subsection 311 (f) was never contested, the
court addressed it anyway. The court noted legislative history
suggesting that the exception was intended to cover situations in
which a "third party" ship caused a spill by striking an unrelated,

39. 519 F. Supp. at 690.
40. The district court had originally held that the tug was a third party. 487 F. Supp.

1211 (S.D. Tex. 1980). This decision was summarily reversed and remanded by the Fifth
Circuit in a brief opinion citing the court of appeal's earlier decision in LeBoeuf. 625 F.2d
524 (5th Cir. 1980), cert. denied, 451 U.S. 994 (1981).

41. United States v. Sea-land Service, Inc., No. A79-150 (D. Ark. filed Dec. 2, 1980).
But see Healy & Paulsen, supra note 3, at 564 (suggesting that a third party, in relation to an
oil-carrying ship, could be the shipbuilder or repair yard).

42. Sea-land Service, No. A79-150, at 5-6. The district court did not uphold the United
States' motion for summary judgment on the seemingly simpler issue of whether the oil
which was discharged and cleaned up emanated from defendant-owner's facility. Id. at 6.
The case was settled, however, before this issue was tried.

43. 436 F. Supp. 907 (S.D.N.Y. 1977), modifed, 584 F.2d 1151 (2d Cir. 1978), cert. denied,
440 U.S. 959 (1979).

44. Id. at 915.

1985]



158 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 10:149

oil-carrying vessel.4 5 But the court disregarded the significance of
this example in defining the scope of the defense, and simply
questioned whether Congress was aware that much of the oil car-
ried on inland waterways was pushed by tugs which "are often
owned by third parties." 46

On appeal, the Second Circuit in Tug Ocean held that the tug
owner had committed "willful misconduct" and, thus, was not eli-
gible for the liability limitation in subsection 311 (g).4 7 The court
justified its broad construction of "willful misconduct" as "neces-
sary to make a tug company liable" for cleanup costs. 48 Like the
district court below, and contrary to the Fifth Circuit's decision in
LeBoeuf, the Second Circuit did not consider that section 311 may
have been intended to impose liability on a tanker owner for the
conduct of a tug contracted by the owner. 4 9

The Supreme Court denied certiorari in all of the cases men-
tioned above which were appealed to the Court.50 Justice Rehn-
quist dissented when the Court denied certiorari in Hollywood
Marine, arguing that the conflicting interpretations of the third

45. Id. at 923. This legislative history is discussed infra at text accompanying note 107.

46. Id.
47. 584 F.2d at 1162. The scheme of third party's liability under subsection 31 l(g) is

similar to that applicable to owners in subsection 311 (f). As in subsection 31 1(f) with
respect to owners, willful negligence or willful misconduct within the third party's privity

or knowledge will expose the third party to unlimited liability. For further discussion of
this scheme, see infra text accompanying and following note 165.

48. Id. at 1164.
49. Tugs' status as third parties was questioned in a case arising in the Second Circuit,

but the issue became moot before any court could render a final decision on it. In Com-

plaint of Berkley Curtis Bay Co., a district court held on remand that the tug contracted to tow
the barge which discharged oil was a third party within the meaning of subsection 311 (h)
of the CWA. 557 F. Supp. 335, 340 (S.D.N.Y. 1983). The court also held that subsection

311 (h) preserved the United States' nonstatutory rights against such third parties. Id. at

338-39. At trial, the district court had found the tug not to be a third party within the
meaning of subsection 311 (f). But the issue was disregarded when the court found that
the barge owner could not have exercised the third party defense because his negligence

defeated the requirement in subsection 311 (f) that the defense asserted must be the sole
cause of the spill. Id. at 339. On remand, the court did not consider whether its holding as

to the tug's status under subsection 311 (h) was inconsistent with its earlier holding under
subsection 311 (f), because the latter was "irrelevant." Id. at 339-40. However, in an ap-
parent acceptance of the First and Fifth Circuits' arguments for a narrow reading of the

third party defense in subsection 311 (f), the court noted that such an inconsistency would
bejustified. The court stated that, while a narrow reading of the term in subsection 311 (f)
served Congress' purpose of assuring the United States recovery of cleanup costs by hold-
ing vessels strictly liable, a broad reading of the term in subsection 311 (h) also served that

purpose by providing the United States with another basis for recovering its costs. Id. at

340.
50. See supra notes 29, 34, 40, 43.



Stict Liability under CWA

party defense in Tug Ocean, LeBoeuf and Hollywood Marine war-
ranted the Supreme Court's attention because oil transport and
pollution were important subjects, and because contracts like
those between owners and tug operators, and insurance coverage
depended on how the defense was construed by the courts. 5 1 Jus-

tice Rehnquist doubted that the First and Fifth Circuits' narrow
interpretation was valid. 52

II. STANDARDS OF LIABILITY PRIOR TO CWA

A. Pre-1967: Fault, Respondeat Superior

Prior to the CWA, cleanup costs were recoverable on both stat-
utory and common law grounds based on fault and traditional
limits of responsibility defined by respondeat superior. The Oil Pol-
lution Act of 192453 provided the United States with a claim
against "persons discharging or permitting the discharge" of oil
from ships, and for expenses "reasonably" incurred by the United
States in cleaning up oil from such discharges. The Act limited
the government's recovery to spills caused by dischargers' willful
conduct or gross negligence. 54 Recovery of cleanup costs was
also available for owners' negligent conduct under maritime tort
law in the case of vessels, and common law tort in the case of
facilities. 5 5 Maritime tort actions are subject to the Limitation of
Liability Act of 1851,56 which limits owners' liability for damages,
when the cause is outside the owner's privity or knowledge, to the
value of the owner's interest in the vessel and freight after the
discharge.

57

51. 451 US. 994, 996 (1981).
52. Id. Justice Rehnquist's dissent is discussed infra at text accompanying notes 73 and

132-39.
53. Pub. L. No. 68-238, ch. 316, §§ 2-9, 43 Stat. 604-06 (1924), as amended by Pub. L.

No. 89-753, § 211 (a), 80 Stat. 1246, 1252-53 (1966), and repealed by Water Quality Im-
provement Act of 1970, Pub. L. No. 91-224, Title I, § 108, 84 Stat. 91, 113 (1970).

54. Pub. L. No. 89-753, § 211(a), 80 Stat. 1246, 1252-53 (1966).
55. Note, Oil Spills and Cleanup Bills: Federal Recovery of Oil Spill Cleanup Costs, 93 HARV. L.

REV. 1761, 1763 (1980) (noting that, in practice, the United States never invoked these
grounds for recovery).

56. 46 U.S.C. §§ 181-189 (1982).
57. Id. § 183(a). Thus, if the vessel sank, the owner's interest and corresponding liabil-

ity might be negligible.
Gilmore and Black note that, while the liability limit for vessels in subsection 311 (0 (1) of

the CWA is greater than that in subsection 183(a) of the Limitation of Liability Act in the

absence of fault within the owner's privity or knowledge, liability under the CWA could in
other instances be less than that under the Limitation Act. Under subsection 183(a) liabil-

1985]



160 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 10:149

B. Post-1967: Negligence With Reverse Burden of Proof versus No-
fault With Defenses

The grounding of the Torrey Canyon in 1967 and subsequent
major spills off United States' coasts spurred legislative efforts
culminating in the Water Quality Improvement Act of 1970.58
The final House bill, H.R. 4148, imposed a limited liability based
on willful or negligent conduct. 59 Two commentators argue that
courts are likely to consider negligent causes of spills to be
"grossly" negligent, as well. 60 If so, the House standard of negli-
gence was for all practical purposes no more stringent than the
standard of gross negligence in the Oil Pollution Act of 1924.61
The House standard was also equivalent to the negligence stan-
dard for maritime and common law torts. The numerical liability
limitation for vessels in the House bill was higher than that in the
Limited Liability Act, but lower than the otherwise unlimited
common law liability for facilities. 62

ity is unlimited if the spill is caused by any fault within the owner's privity or knowledge.
Under subsection 311 (f)(1) of the CWA, liability is unlimited only when the spill is caused
by willful negligence or willful misconduct within the owner's privity or knowledge. The
authors comment that the "WQIA draftsmen seem to have lost sight of their objective," in
permitting such an inconsistency. GILMORE & BLACK, supra note 19, § 10-4(b), at 828-29.

Congress' alleged "oversight" may actually have resulted from a conscious choice exer-
cised from between a rock and a hard place. Healy and Paulsen point out the problem that
a standard of negligence for unlimited liability, which would have been equal to that in the
Limited Liability Act, and which was incorporated in the final Senate bill, creates. These
authors suggest that, since most spills are due either to negligence within the owner's
privity or knowledge, or to one of the causes listed as defenses, the provision for limited
liability absent the owner's negligence or one of the defenses would rarely be applicable.
Healy & Paulsen, supra note 3, at 559-60.

Subsection 311 (1 has been held to provide the United States' exclusive remedy against
discharging vessels, so the United States can no longer avail itself of the Limitation Act in
those circumstances which would afford it a greater recovery. See United States v. Dixie
Carriers, Inc., 627 F.2d 736 (5th Cir. 1980).

The Rivers and Harbors Act of 1849 has also been invoked in cases of oil pollution in
navigable waters of the United States, but affords recovery up to only $2500 as a fine, half
of which is to be paid to a person who leads the United States to the violator. § 13, 33
U.S.C. § 407 (1982). See generally GRAD, supra note 3, § 3.03(b), at 3-88 to 3-99.

58. Healy & Paulsen, supra note 3, at 553. For discussion of this legislative activity, see
id. and Dix & Suna, The Control of Pollution by Oil Under the Water Quality Improvement Act of
1970, 27 WASH. & LEE L. REV. 278, 285-87 (1970).

59. H.R. 4148, 91st Cong., 1st Sess. § 17(e)(1), (f)(1), (2) (1969); Dix & Suna, supra note
58, at 286.

60. Healy & Paulsen, supra note 3, at 553.
61. See supra text accompanying note 54.
62. H.R. 4148 limited owners' liability for willful or negligent discharges to the lesser of

$100 per gross registered ton or $10,000 for vessels, and to $8,000,000 for facilities. H.R.
4148, 91st Cong., 1st Sess. § 17(e)(l), (f)(3) (1969).



Stict Liability under CWA

The House bill differed from prior standards of liability by im-
posing the burden on owners or operators to rebut a prima facie
case of willful misconduct or negligence.63 The bill did not, how-
ever, extend the ambit of liability, or responsibility, beyond the
limit traditionally associated with negligence and defined by re-
spondeat superior.

The original Senate bill, which was passed in 1967, imposed
unlimited liability on owners regardless of fault, and provided
only an "act of God" defense. 64 The final Senate bil165-S.7-
most closely resembled the draft which was passed by both
houses in 1970 as the WQIA, described above. Despite its resem-
blance to the Senate bill, the WQIA was touted as a compromise
of the final Senate and House positions. 66 Part of the compro-
mise is readily apparent. For example, the standard of willful mis-
conduct or willful negligence within the privity or knowledge of
the owner for unlimited liability in subsection 311 (f) of the CWA
is narrower than the standard of negligence for unlimited liability
in section 102 of the Senate bill, 6 7 but broader than the House
bill which did not provide for unlimited liability in any
circumstance.

68

It is less certain how the compromise affected the scope of lia-
bility as determined by the scope of the third party defense. The
following diagram illustrates this uncertainty.

Scope of Owners' Responsibility for Causes of Discharge
A B C D

act of act of act of third party?
owner servant independent 1st & 5th

contractor: Circuits
third party?
House bill,

2nd Circuit,
Rehnquist dissent

63. Id. § 17(e)(2).
64. Healy & Paulsen, supra note 3, at 554; S. 2760, 90th Cong., ist Sess. § 19(e), 113

CONG. REC. 36,130 (1967).
65. S.7, 91st Cong., ist Sess. §§ 101-301, 115 CONG. REC. 28,947-53 (1969).
66. E.g., 116 CONG. REc. 9327 (1970) (statement of Rep. Cramer) ("The conference was

able to work out a compromise accepting the best features of both the House and the
Senate positions.").

67. S.7, 91st Cong., ist Sess. § 102, 115 CONG. REC. 28,949 (1969). Section 102 of S.7
amends the prior Senate bill by adding certain provisions, of which subsections 12(f(I),
(i)(1), (2) deal with unlimited liability.

68. See supra text accompanying note 62.

1985]



162 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 10:149

Under the House bill, and maritime and common law, owners are
responsible for all negligent acts in categories A and B, and for
grossly negligent acts in those categories under the Oil Pollution
Act. Justice Rehnquist's and the Second Circuit's presumption of
a broad third party defense is, in effect, a restatement of the scope
of liability as defined by the House bill and common and maritime
law. In presuming that tugs hired to tow barges are third parties
within the meaning of subsection 311 (f), Justice Rehnquist and
the Second Circuit imply that all acts of individuals who are not
servants of the owner are acts of third parties, as in category C
above.

69

On the other hand, the First and Fifth Circuits' narrow inter-
pretation of the third party defense implies that S.7 and the CWA
are different from H.R. 4148 in extending owners' responsibility
beyond respondeat superior, to virtually all human causes (column
C) except a narrow range defined by the third party and the other
statutory exceptions (column D). 70

III. SOURCES OF THE CONFLICTING INTERPRETATIONS

The uncertainty over whether Congress considered S.7 and the
CWA to have extended the scope of liability beyond that defined
in the common law and House bill arises from a conflict in the
plain meaning of different statutory provisions, and from conflict-
ing statements in the legislative history of the CWA. 7 1 The "blan-
ket" liability in subsection 311(f), with specific exceptions,
suggests the broad scope of responsibility which accompanies a
strict standard of liability, 72 even though the phrase "strict liabil-
ity" is not written in the statute. On the other hand, the plain
meaning of "third party" is also broad, and might include anyone
who is not the owner or the owner's servant. In his dissent in

69. Neither Justice Rehnquist nor the Second Circuit state that the third party defense

defines a scope of owner's responsibility even narrower than that in prior law by including
owners' servants. It is unlikely that they would have considered the defense to have such

an effect.
70. For discussion of this range, see infra section V(A).
71. The Act has been criticized for its lack of clarity. "Enough has been said to indicate

that the Act is as soft and spineless in its drafting as it is muddle-headed in its policy. If it
is destined to remain on the books, the courts have their work cut out for them in making
some sort of sense out of its vague, ambiguous and contradictory provisions." GILMORE &
BLACK, supra note 19, § 10-4(b), at 827-28. "The language of Sec. 311 is ambiguous in
some places, overbroad in other areas, and contradictory in still other instances." Hel-
frich, supra note 12, at 460.

72. See infra note 115 and accompanying text.



Stict Liability under CWA

Hollywood Marine, Justice Rehnquist questioned the Fifth Circuit's
interpretation of the third party defense because it was "not sup-
ported by the plain language of the statute, which in its express
terms provides a defense whenever the discharge is the result of
an act of a third party." '73

The CWA was described in the House as "plac[ing] strict fea-
tures of liability on those who would ship oil," 74 and in the Sen-
ate, as "very close, if not equivalent to the standard that can be
referred to as strict liability." 75 However, Senator Muskie ex-
plained that his Committee on Public Works, which wrote the
Senate bill, viewed the Senate and House standards as "similar in
practical application. " 76 Representative Cramer indicated that
the Senate and House bills "came to the same result." 77

These seemingly basic contradictions may be evidence that
Congress never resolved the extent of the compromise between
the House bill on the one hand, and Senate bill and final Act on
the other. At a minimum, they underscore the difficulty Congress
had in reaching an acceptable compromise. Senator Muskie al-
luded to this difficulty in noting that the question of liability was
one that his subcommittee had been "struggling with and frus-
trated by for a number of years." 78

IV. EVIL To BE ADDRESSED: FUNCTIONS OF LIABILITY STANDARD

The following is a discussion of whether a scope of liability ex-
panded beyond or equal to that determined by respondeat superior is
necessary to serve the functions which Congress intended its
scheme of liability to serve. Unfortunately, while the evidence is

73. 451 U.S. at 995.
74. 116 CONG. REC. 9325 (1970) (statement of Rep. Blatnik).
75. 115 CONG. REC. 28,969 (1970) (statement of Sen. Cooper).
76. 115 CONG. REc. 28,954 (1969). See also S. REP. No. 351, 91st Cong., 1st Sess. 5

(1969). See Healy & Paulsen, supra note 3, at 564 (arguing that the Senate Public Works
Committee's conclusion leads to an interpretation of the third party defense as including a
shipbuilder or repair yard).

77. 116 CONG. REC. 9327 (1970).
78. Hearings on S. 7 and S.44 Before the Subcommittee on Air and Water Pollution of the Senate

Committee on Public Works, U.S. Senate, 91st Cong., 1st Sess. 951 (1969) [hereinafter cited as
Hearings]. "The oil pollution provisions were extremely difficult to resolve because they
affected directly our merchant marine, concepts of admiralty law, the American insurance
market, the overseas insurance market, the balance of payments, our international rela-
tions, the economy, small business, onshore and offshore oil facilities . . . as well as the
predominant consideration of the protection of our ecology." 116 CONG. REC. 9328
(1970) (statement of Rep. Harsha).

1985]



164 COLUMBIA JOURNAL OF ENVIRONMENTAL LAw [Vol. 10:149

fairly clear as to which functions Congress intended, it does not
clearly lead to a conclusion that either standard is necessary-
and, thus, chosen by Congress-to fulfill those functions.

A. Encourage Prevention and Prompt Removal

One objective which Congress sought in adopting subsection
311 (f) was to increase owners' incentives to prevent spills, 79 and
to undertake cleanup operations after a discharge. The Senate
Report on S.7 notes that owners ought to be encouraged to clean
up spills because owners usually learn of a spill before the gov-
ernment does and are thus in the "best position to prevent or
minimize damage."80 The House standard of negligence, which
departed from prior law in requiring a reverse burden of proof,
might have served this function by increasing the prospect of lia-
bility for causes over which the owner is otherwise responsible
under common or maritime law. The increased liability limits in
the House bill over those in the Limited Liability Act,"' might also
have served this function, at least with regard to shipowners
whose liabilities under maritime law were determined by the Lim-
ited Liability Act. Congress might also have considered section
31 1's provision for penalties, which can be mitigated on a show-
ing that the owner undertook reasonable cleanup efforts,8 2 as suf-
ficient added incentives for owners to prevent spills and insure
that they were promptly cleaned up.

The First and Fifth Circuits' narrow interpretation of the third
party defense, thereby extending the scope of owners' responsi-
bility beyond that in the House bill and prior law, theoretically
provides an even greater incentive for owners to prevent and
promptly clean up spills.8 3 However, this interpretation is not

79. "The legislation is designed to encourage preventive action to eliminate discharges
of oil wherever possible." S. REP. No. 351, 91st Cong., 1st Sess. 7 (1969).

80. Id. at 17.
81. See supra note 62 and accompanying text.
82. See supra note 9 and accompanying text.
83. Helfrich offers several reasons why the CWA does not encourage owners to under-

take the prompt cleanup efforts that Congress intended. Helfrich suggests that an owner
prefers to put the burden on the United States of filing suit to recover fines and cleanup
costs, particularly because, even if the owner loses, the owner retains use of the money to
pay for such costs until the suit is over. Helfrich also notes that an owner would be "fool-
ish" to willingly assume the cleanup costs if there is a possibility of exercising the third
party defense in a suit by the United States to recover such costs. Helfrich, supra note 12,
at 458. Cf. infra note 102 (1977 amendment requiring owners to pay costs upon alleging
third party cause).



Stict Liability under CWA

logically necessary to fulfill Congress' intended function; the
House standard and penalty provisions also increase incentives
for owners.

B. New Risks-Nature of the Activity

The legislative history indicates that Congress considered ex-
isting standards of liability to be inappropriate for the risk of
damage from spills which was posed by the current extent of and
expected increase in the marine transport and storage of oil. The
Senate Report on S.7 notes:

[M]aritime liability relates to the vessel, cargo and its employ-
ees. Insurance covers the hull, cargo, personal injury, and
death and is designed to protect people who either work for,
use, own or operate a vessel. Were this the case with oil pollu-
tion, the imposition of liability based on negligence would not
be questioned. However, the discharge of oil can and usually
does affect the general public, and persons . . . wholly unre-
lated to the vessel.84

Congress' general intent to impose a liability comparable to
Congress' perceived risk does not necessitate interpreting the
CWA to extend the scope of responsibility beyond the limit de-
fined by the House bill as respondeat superior. To match the risk,
Congress may have intended only to raise the limit of liability set
by the Limited Liability Act.8 5 Such an increase would have been
designed to cover damages "which have a much wider impact on
the public at large,"'8 6 and which are greater than the kinds of
damage Congress faced when it passed the Limited Liability Act
in 1951.

The Senate Report explains that the "new" risks posed by the
expanding oil industry require a liability which is "absolute and
unlimited . ... If Congress imposed a negligent liability, it fol-
lowed that there should be no limits on such liability." 8 7 This
statement is inconclusive as to whether Congress considered a
wider scope of owners' responsibility necessary to match the risks
of oil transport and storage because neither the Senate bill nor
final Act impose "absolute"-no fault and no defenses- and

84. S. REP. No. 351, 91st Cong., 1st Sess. 5 (1969).
85. But see supra note 57 (comment of Gilmore and Black that CWA liability is actually

lower than that under the Limitation of Liability Act where a spill is caused by negligence
within the owner's privity or knowledge).

86. S. REP. No. 351, 91st Cong., 1st Sess. 5 (1969).
87. Id.

1985]



166 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 10:149

limited liability. Congress lowered the standard for unlimited lia-
bility in the final Act to willful negligence from that of negligence
in the Senate bill, but it is difficult to conclude whether this
change was meant to be accompanied by a narrow scope of re-
sponsibility equivalent to that in the House bill.

The Senate Report lists the following factors as important in
determining a standard of liability:

1) the effect of too rigid a liability test on maritime commerce;
2) the availability of insurance for any specific amount or type
of liability; 3) the economic impact of any specific amount of
liability on the owner, shipper and consumer; and 4) the impact
of a burdensome liability test on the U.S. Government and
people.

88

The Senate's characterization of the above factors suggests that
Congress was concerned about fairly allocating economic bur-
dens, and clearly did not want to impose a liability which would
put owners out of business. 89 But the legislative history gives no
indication of how Congress applied those factors to determine
the scope of owners' responsibility. 90

Both houses of Congress attempted to coordinate their stan-
dards of liability with what they felt the insurance industry could
bear, but again the legislative history gives no indication of what
scope of responsibility Congress considered appropriate to match
the insurance coverages which might be available to owners. The
insurance industry favored the House standard of negligence with
a reverse burden of proof, and predicted that it could provide
only $5 million per accident for owners subject to absolute liabil-
ity, far less than the $14 million limit of liability which Congress
ultimately adopted. 9 1 A representative from the insurance indus-
try testified that his recommended limitation was low because it
would be unfair to hold owners absolutely liable for the costs of

88. Id.

89. See also 115 CONG. REC. 9021 (1969) (statement of Rep. Cramer) ("[T]he commit-
tee's intention is not to force on the businessman the closing of his business or bankruptcy
because of our requirement of responsibility for discharge cleanup.").

90. The Conference Committee did reject an amendment offered by Representative
Cramer which would have placed some of the burden of cleanup costs on oil companies as
distinguished (to the extent possible) from shippers. 116 CONG. REc. 9327 (1970) (state-
ment of Rep. Cramer).

91. Hearings, supra note 78, at 1347, 1372 (testimony of PaulJ. Kreuzkamp, Marine In-
surance Commission, Insurance Brokers Association, and Peter N. Miller, Thomas R.
Miller & Son, Ltd.).



Stict Liability under CWA

discharges from certain causes. 92 However, the causes mentioned
closely resemble those which are defenses in the CWA, including
a narrow third party provision. 93

The legislative history also suggests that Congress may have
given up trying to match its standard of liability with the expected
availability of insurance. Senator Muskie confessed at the end of
lengthy Senate committee hearings at which members of the in-
surance industry testified, that he had a "very strong feeling that
a snow job [was] being done on us in the connection of insur-
ance."' 94 Senator Muskie further stated that he believed the level
of insurance which the insurers indicated would be available to
owners was only a minimum which could be raised to meet a new,
higher standard of liability.95

C. Litigation Function-Difficulty of Proving Negligence and
Responsibility

The legislative history indicates that Congress intended its
standard of liability to enhance the United States government's
ability to recover its cleanup costs. 9 6 One hindrance to prompt
recovery which Congress perceived the United States faced with
prior standards of liability was the "difficult, if not impossible,
task of proving negligence."' 97 The House bill, requiring owners
to rebut a prima facie case of negligence, would have facilitated
the United States' recovery of cleanup costs. Without being read
to expand the scope of owners' responsibility, the Senate bill and
CWA, both of which eliminated negligence as a standard for the
imposition of limited liability, could also have served this func-
tion. Senator Muskie noted during floor debates that the Senate

92. Id. at 1367 (testimony of Mr. Miller).
93. See infra notes 109-11 and accompanying text.
94. Hearings, supra note 78, at 1547-48.
95. Id. at 1547. Cf. 116 CONG. REC. 9327 (1970) (statement of Rep. Cramer) (Confer-

ence bill was a better substitute than that of the House--"based on an evaluation of the
world insurance market for this new type of risk"-and Senate, which was "completely
uninsurable.").

96. The Second Circuit seems to view this as the only function Congress intended.
United States v. Oswego Barge Corp., 673 F.2d 47, 48 (2d Cir. 1982) ("[The CWA's] only
purpose is to create a precise remedy solely for the United States to recover specified
damages pursuant to a carefully devised formula.").

97. S. REP. No. 351, 91st Cong., 1st Sess. 5 (1969). "Both Houses recognized the diffi-
culty of proving fault as the basis of recovery." 116 CONG. REC. 9327 (1970) (statement of
Rep. Cramer).

19851



168 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 10:149

and House bills had a similar effect on the issue of negligence, 98

presumably because owners' burden of liability without fault is
not much greater than that of having to rebut a prima facie case of
negligence.

The Senate Report indicates that limited, no-fault liability was
required for the United States to avoid even the burden of rebut-
ting a case of nonnegligence made by the owner.99 The report
also states that the Senate bill was preferable because it enabled
the United States to avoid litigation on the question of responsi-
bility. 0 0 This objective is met only if the CWA and Senate bill,
on which the Act was based, are interpreted in accord with the
First and Fifth Circuit decisions as greatly expanding the scope of
owners' responsibility beyond the limit of respondeat superior.)0

The actual limit of responsibility as defined by the exceptions re-
mains to be litigated, even given that it lies beyond the limits of
common law; the narrower the exception is construed by the
courts, the more Congress' intent to ease the government's litiga-
tion burden will be effectuated. 0 2

V. "THIRD PARTY" AND NATURE OF THE OTHER DEFENSES IN

SECTION 311

In his dissent in Hollywood Marine, Justice Rehnquist noted that
the CWA was "entirely silent as to what judicial refinements, if

98. 115 CONG. REC. 28,954 (1969). See also S. REP. No. 351, 91st Cong., 1st Sess. 5
(1969).

99. S. REP. No. 351, 91st Cong, 1st Sess. 5 (1969).

100. Id. See also 115 CONG. REC. 28,954 (1969).

101. It would not be true if "responsibility" is only intended to mean "fault."
102. See infra Section V(C) (on principle for determining scope of third party defense in

area beyond independent contractors).
Congress' objective of insuring the United States' prompt recovery under section 311

was furthered in a 1977 amendment to subsection 31 l(g) which requires owners of vessels

other than inland oil barges, and of facilities which store oil in bulk, to pay the United
States for cleanup costs upon alleging that a spill was caused solely by a third party. If
owners succeed in invoking the defense, subsection 311 (g) affords them a claim-by sub-
rogation from the United States-against such third party. Pub. L. No. 95-217, § 58(), 91
Stat. 1566, 1595-96 (current version at 33 U.S.C. § 1321(g) (1982)).

[This] provision . . . assures that the Government can pursue the insurer or the

spiller to recover cleanup costs without awaiting final disposition of all third-party
damage claims. This provision was adopted as a result of discussions with the Justice
Department which indicated that the greatest limit on speedy cleanup cost recovery

was the joining of cleanup liability suits with third-party negligence actions. This will
no longer be the case.

S. REP. No. 370, 95th Cong., 1st Sess. 64-65, reprinted in 1977 U.S. CODE CONG. & AD.
NEWS 4326, 4389-90.



Stict Liability under CWA

any, were intended to be placed on the [broad] term 'third
party.' "103 On the contrary, the other defenses to owners' liabil-
ity in subsection 311 (f) are clues as to how the third party defense
should be construed. Although "third party" is broad on its face,
the term should be construed to define a narrower class of per-
sons than all those beyond the limit of respondeat superior, in order
to fit the scheme of liability in subsection 311 () which is com-
prised of all the defenses. This scheme is detailed below.

A. Conduct to Which the Other Exceptions Refer

The Fifth Circuit argued that the third party exception should
be interpreted narrowly because the other exceptions refer to a
narrow set of acts. 10 4 The First Circuit described these acts as
unrelated to the ship's or facility's operation and as occuring
outside of the owner's ship or facility, or which are caused by
strangers.' 0 5 According to this description, the First Circuit ex-
plained, a vandal who opened the ship's valve would be a third
party, but an independent contractor who negligently installed
the valve while "act[ing] for the ship" would not.10 6 Thus, the
compulsory pilot in Burgess and the tug in LeBoeuf were not third
parties because their activities were related to the operation of the
owners' ships. Similarly, owners of tugs which push much of the
oil on inland waterways, as noted by the Second Circuit in Tug
Ocean, would also not be third parties with respect to their tow.

The First and Fifth Circuits' construction of "third party" is
supported by the legislative history. The Senate Report uses, as
an example of the acts which the third party exception was in-
tended to cover, the collision of an unrelated vessel with the
owner's ship which was secured at a dock. 10 7 In the House, the
exceptions were characterized as being "very limited." 10 8

Representatives from the marine transportation and insurance
industry, testifying before the Senate Subcommittee on Air and
Water Pollution, offered similarly narrow examples of causes for
which it would be unfair to hold owners liable. These examples

103. 451 U.S. at 995.
104. 621 F.2d at 789.
105. 564 F.2d at 982.
106. Id.
107. S. REP. No. 351, 91st Cong., 1st Sess. 6 (1969).
108. 116 CONG. REc. 9327 (1970) (statement of Rep. Cramer).

1985]



170 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 10:149

included the same one as that used in the Senate Report, 0 9 a ship
struck by a mine, 10 and an act of sabotage over which the ship-
owner had no control."'I These examples suggest that even the
maritime industry would consider any exceptions to a blanket lia-
bility to define a narrower set of causes than that beyond the
traditional limit defined by respondeat superior.

B. Other Exceptions and Limits of Respondeat Superior

The above section discussed the third party defense in terms of
the nature of the conduct referred to by the other defenses. This
section discusses how the defenses, as a group, correspond to a
scheme of liability limited by respondeat superior.

Some commentators contend that Congress included the de-
fenses in subsection 311(f) merely to state those instances in
which owners would not be liable under the common law of negli-
gence and respondeat superior. For example, Druckman argues that
in order to ease the government's litigation burdens Congress did
not specifically adopt the House's negligence provision, but kept
the House's standard of fault by simply listing those occasions
which would "exempt the owner from liability in almost all in-
stances of nonnegligent spills."" 2 Druckman bases this argu-
ment on the legislative history suggesting that the standard of
"absolute liability" with exceptions in the Senate bill was similar
to that of negligence with a reverse burden of proof in the House
bill, and that negligence usually accompanies a spill. 113

One problem with this argument is that it places little signifi-
cance on Congress' characterization of its standard of liability as
"strict" and "absolute." ' 1 4 It is unlikely that Congress used these
characterizations without intending one of their common ramifi-
cations: expansion of the scope of responsibility beyond that de-
fined by the master/servant relation which is associated with

109. Hearings, supra note 78, at 1367 (testimony of Mr. Miller) (the collision of an unre-
lated vessel with the owner's ship which was at anchor).

110. Id. (testimony of Mr. Miller).
111. Id. at 1411 (testimony of Mr. Checkett, American Petroleum Institute).
112. Note, supra note 33, at 321.
113. Id. See also Healy & Paulsen, supra note 3, at 566 (considering it an "extremely

unlikely event" that an owner would be able to rebut a prima facie case of negligence but
not be able to prove one of the defenses).

114. E.g., 116 CONG. REC. 9327 (1970) (statement of Rep. Cramer); 115 CONG. REC.
28,954 (1969) (statement of Sen. Muskie).



Stict Liability under CWA

negligent liability.' 15 The Restatement cites cases in which excep-
tions to common law strict liability were granted for acts of "third
persons" such as a trespasser, a vandal and an upstream
owner.' 16 These exceptions are similar to the few descriptions of
the CWA exceptions in the legislative history, in the First and
Fifth Circuits' decisions, and as urged by the insurers.1 17

The Second Circuit in Tug Ocean indicated that tug owners
could be statutory third parties in relation to the vessels they
towed," 8 but the court has also recognized Congress' intent, in
passing subsection 311(f), to impose "strict liability." 11 9 The
First and Fifth Circuits argued that once Congress' intent of strict
liability is recognized, a broad interpretation of the exceptions
would defeat that intent.' 20 Under "strict liability" owners would
be liable for most causes. With a broad third party defense, how-
ever, owners could escape liability "merely by hiring out their op-
erations to tugs and independent contractors,"'21 for whose acts
owners are not responsible under respondeat superior.

The second problem with Druckman's argument is that the de-
fenses are exceptions from a set of causes which itself is beyond
the limit set by respondeat superior.'22 For example, the defense for

115. E.g., RESTATEMENT (SECOND) TORTS § 522 (1976) ("One carrying on an abnormally
dangerous activity is subject to strict liability for the resulting harm although it is caused by
the unexpectable (a) innocent, negligent or reckless conduct of a third person .. ").

116. Id. § 522, Reporter's Note. In only one case cited did the third party have even a
contractual relationship with the owner. Langabaugh v. Anderson, 68 Ohio St. 131, 67
N.E. 286 (1903) (third party lessee). See also W. PROSSER, PROSSER ON TORTS § 60, at 460-
61 (1941); PROSSER AND KEETON ON TORTS § 79, at 564 (W. Keeton ed. 1984).

117. See supra Section V(A), test accompanying notes 104-11i.
118. 584 F.2d at 1164; see supra text accompanying note 48.

119. Matter of Oswego Barge Corp., 664 F.2d 327, 340 (2d Cir. 1981), reh'g denied, 673
F.2d 47 (1982).

120. Tamano, 564 F.2d at 982; LeBoeuf, 621 F.2d at 789.
121. LeBoeuf, 621 F.2d at 789.

122.

D
Exceptions I Respondeat Superior

As opposed to:

-Respondeat SupErir Exceptions

19851



172 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 10:149

negligence on the part of the United States government would be
meaningless under a limit defined by respondeat superior. As long as
a discharge was not caused, at least partly, by the owner or his or
her servants,' 23 the owner would not be liable for the cost of
cleaning up a discharge caused by the United States, whether or
not the United States was negligent. If Congress had limited the
act of United States defense to negligent acts on the assumption
that a spill would be caused by the owner's negligence if not by
negligence of the United States then Congress would have limited
the third party defense to negligent acts of third parties, as well.
Construing all of the defenses as simply restating those causes
not resulting from negligence of the owner or of his or her ser-
vants would also make several of the defenses redundant. 2 4

Under this construction, a negligent act of the United States or an
act of war of a foreign country would be subsumed under the
third party defense.

C. Principles on which Exceptions Are Based: Fairness and Control

The two sections above analyzed the third party defense in
terms of the nature of the other defenses and their relation to the
scope of owners' responsibility under respondeat superior. This sec-
tion interprets the third party defense in accordance with the
principles on which the other defenses appear to be based, and in
relation to the principle underlying the doctrine of respondeat
superior.

One principle which seems to support the defenses in subsec-
tion 311(f) is fairness. Congress might have determined that,
although it is fair to designate the owner as insurer for most
causes under the theory of strict liability,' 25 owners would be un-
fairly burdened with liability for spills caused by such acts of
God-unforeseeable grave natural disasters-which the owner

123. See infra Section VI, for discussion of whether or not owners' conduct sufficient to
foreclose the defense must be negligent.

124.

Act of United States; War

Third Party

Respondeat Supeior

125. See, e.g., RESTATEMENT (SECOND) TORTS § 522, comment a (1976) ("The reason for
imposing strict liability upon those who carry on abnormally dangerous activities is that
they have for their own purposes created a risk that is not a usual incident of the ordinary
life of the community.").



Stict Liability under CWA

could not anticipate nor take special measures to prevent. Simi-
larly, Congress might have considered it unfair to allow the
United States government to recover cleanup costs for a spill
which was caused by its own negligence.

Fairness can be better explained in conjunction with the princi-
ple of control. The Senate Report discusses this principle in refer-
ence to the acts of God and war exceptions.

[O]ne obvious area over which the owner or operator would
have no control would be a discharge caused solely by an act of
war. . . . Another area. . . beyond the control of an owner or
operator . . . would be any discharge . . . caused solely by an
act of God about which the owner could have no foreknowl-
edge, could make no plans to avoid, or could not predict. 126

The courts' differing constructions of the third party defense
under subsection 311 (f) stem, in part, from the fact that the prin-
ciple of control which Congress used in reference to the defenses,
also underlies the master/servant relation in respondeat superior.
Under respondeat superior, an owner is not liable for the negligent
acts of a worker if the owner has contracted away its control over
the worker's physical conduct, and if the owner has not acted neg-
ligently himself, for example, in hiring the contractor. 127

Because both the CWA defenses and the doctrine of respondeat
superior seem to be based on control, they might define the same
scope of owners' responsibility. However, it is more likely that
Congress intended to exempt an owner from liability only when
the opportunity to exert control to prevent a spill never existed,
and not when the owner voluntarily contracted away his right of
control. The circumstances in which owners would be exempt
from liability which are mentioned in the above quote 128 are
based not on whether the owner voluntarily relinquished control,
but on whether the owner initially had such opportunity to con-
trol. Moreover, a focus on the owner's opportunity to control-
rather than on the actual control exercised-accords with the fo-
cus of strict liability which is on the owner's overall activity, re-
gardless of how much control the owner chooses to exercise over
the conduct of such activity.

The effect of imposing liability on the basis of owners' opportu-
nity to prevent a spill is evident by analogy to a case involving an

126. S. REP. No. 351, 91st Cong., 1st Sess. 5-6 (1969).
127. See supra note 18 and accompanying text.
128. See supra text accompanying note 126.

19851



174 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 10:149

owner's liability under section 311 for the cost of cleaning up a
discharge from the owner's barge. In Complaint of Steuart Transp.
Co., 12 9 the owner's barge discharged oil after sinking when water
filled the barge because of misplaced "scupper plugs" and the
tearing loose of a rotted deck fitting.' 3 0 The district court found
that the owner was negligent in requiring its employees to main-
tain only a "haphazard non-system of inspection," such that the
misplaced plugs and rusted deck fittings were never noticed. "It
is not a sufficient performance of an owner's duties to tell a
number of people to inspect as part of their jobs and hope that
everything that needs periodic inspection will receive it."'' If
the owner had hired persons as independent contractors under
respondeat superior the owner could not have enforced any inspec-
tion program and, presumably, would not have been liable for the
contractor's negligent inspection. The principle of control un-
derlying the third party and other defenses in section 311, in ef-
fect, mandates that such an owner ensure proper inspections are
undertaken in all circumstances, and that the owner is liable for
spills caused by improper inspections even when the owner con-
tracts away all control over inspections.

Justice Rehnquist discussed the tug/barge relation in Hollywood
Marine in the following terms:

[The owner's] barges are towed by tugboat operators who are
in no way associated with petitioner except by reason of the
contract between the two for services to be performed by the
tugboat operator. Under such contract, the tugboat operator
exercises complete control over the method and manner of per-
forming the towing operations, including all decisions to be
made as to questions of navigation. 132

Justice Rehnquist's description implies that the tug operator's
control would exempt the barge owner from responsibility under
the traditional doctrine of respondeat superior. The First and Fifth
Circuits placed a different- albeit somewhat vague-significance
on the principle of control. The First Circuit noted that owners
should not be able to avoid liability for the acts of, for example,
valve installers hired as independent contractors. Such installers,
according to the court, "act[] for the ship" and, like a compulsory

129. 435 F. Supp. 798 (E.D. Va. 1977).
130. Id. at 803.
131. Id.
132. 451 U.S. at 994 (emphasis added).



Stict Liability under CWA

pilot who "might be regarded as an independent contractor," are
"at all times subject to the ultimate control of the ship's
master."' 133 The Fifth Circuit explained that such "ultimate con-
trol" over the tug in LeBoeuf stemmed from the owner's "hiring
[the tug] in the first place, specifying its itinerary, and retaining it
throughout the job." 134

Citing the First and Fifth Circuits' decisions, the district court
in Sea-Land stated that a "third party" within the meaning of sub-
section 31 1(f) must be beyond the owner's "control."' 1 5 The dis-
trict court did not find the owner to have violated ordinary
standards of care in negligently hiring or directing the builder,
and assumed that the builder was an independent contractor. 136

Yet the court held that the builder could not be a statutory third
party because it was controlled sufficiently by the owner's selec-
tion of the builder and provision of detailed work instructions. 13 7

Thus, the courts' opinions suggest that the control which an
owner exercises in hiring an independent contractor, and which
an owner retains-even after contracting out enough control to
exempt the owner from liability for the contractor's conduct
under respondeat superor-is sufficient to prevent the owner from
escaping liability under the third party defense in the CWA. The
courts' use of the principle of control in terms of the opportunity
to exercise it follows from the standard of strict liability which
Congress intended section 311 to impose. 138 As stated earlier, 139

this standard focuses on the nature of the owner's overall activity,
not on how the owner chooses to conduct such activity.

VI. SOLE CAUSE STANDARD: NEGLIGENCE OR
No-FAULT CAUSATION?

As discussed above, the dispute over the third party defense
focuses on the role of respondeat superior-a doctrine which is nor-
mally associated with liability based on fault-in a scheme of strict
liability. This section also discusses the lingering role of fault-
based standards of liability, but in the context of the statutory re-

133. 564 F.2d at 982.

134. 621 F.2d at 790.
135. No. A79-150 at 5 (D. Ark. filed Dec. 2, 1980).

136. Id. at 6.
137. Id. at 5.
138. See supra text accompanying notes 114 and 119.

139. See supra note 115.

19851



176 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 10:149

quirement that an owner must prove any of the four causes listed
as defenses as the sole cause of a discharge in order to be ex-
empted from liability. 140 While the above discussion concluded
that remnants of liability based on fault ought not be considered
by courts in determining who is a third party, this section con-
cludes that the sole cause standard for the conduct of owners at-
tempting to invoke the third party defense should not be any
stricter than one of negligence.

It is settled that any negligence on the part of the owner will
defeat the sole cause requirement. 14 ' Whether owners' conduct
which is not negligent can fail the sole cause test is less certain.
In Reliance Ins. Co. v. United States, 142 the Court of Claims enunci-
ated the rule that if contributory causes of a discharge were the
act or omission of a third party and an omission of the owner, then
the third party is the sole cause unless the owner's omission was
negligent. 14 3 However, the court announced a different rule
where contributory causes consist of an act or omission of a third
party, and a nonnegligent affirmative act of the owner. In this cir-
cumstance, the third party cause is the sole cause only if the
owner's act is "so indirect and insubstantial as to displace [the
owner] as a causative element of the discharge," even if the dis-
charge would not have occured but for the act of a third party.14 4

In Reliance the Court of Claims held that the owner of an oil
facility could not recover cleanup costs from the United States
under subsection 311(i) for a discharge of oil into navigable wa-
ters which occured when the owner's dredging uncovered an "un-
derground deposit of an oily pollutant."' 145 The court assumed
that the deposit had been caused by an unknown third party, but
held that the third party's act was not the sole cause of the dis-
charge because the owner's dredging was a "significant element
in the causal chain leading to the ultimate spill, since without this

140. See supra note 13.

141. See, e.g., Atlantic Richfield Co. v. United States, 1 Cl. Ct. 261 (1982) (owner could
not recover cleanup costs under subsection 311 (i) because it could not prove absence of
fault in leaving tanker truck unguarded when vandals came to open it).

Subsection 311 (i) permits an owner who cleans up a spill to recover from the United
States the costs of cleanup if the owner can prove that one of the defenses listed in subsec-
tion () was the sole cause of the spill. 33 U.S.C. § 1321(i) (1982).

142. 677 F.2d 844 (Ct. Cl. 1982).
143. Id. at 848.
144. Id. at 849.

145. Id. at 846.



Stict Liability under CWA

direct intervention" the oil deposit would not have been
disturbed. 1

46

The Court of Claims' rule on owners' nonnegligent affirmative
acts is arguably justified by the plain meaning of the sole cause
provision of subsections 311 (f) and (i) which does not include lan-
guage on fault or duty of care. The rule also seems consistent
with Congress' general intent to impose a heavier burden on
owners of bearing the costs of cleaning up discharges from own-
ers' facilities or vessels. The following is a discussion of whether
the court's rule or a rule holding the owner's affirmative acts only
to a negligence standard under the sole cause test is best suited to
the scheme of liability which Congress intended section 311 to
create.

The Court of Claims in Reliance first assumes that, while affirm-
ative acts can be "easily identified" and "evaluated," omissions
can only be evaluated in terms of failure to exercise due care.' 47

The court's assumption may be a practical one, but is not one
which Congress seemed to have made. In a slightly different con-
text, Congress provided that a third party defense applies "with-
out regard to whether [the third party's] act or omission was or was
not negligent."'' 48 This provision suggests that Congress consid-
ered acts and omissions to be held to the same standards.
Whether the express provision that third parties' acts and omis-
sions can be nonnegligent and the absence of any qualification
regarding owners' acts or omissions proves that Congress in-
tended the latter to be held to a negligent standard only, is
uncertain.

The Court of Claims did not argue that its act/omission distinc-
tion and "direct and substantial" causation test are derived from
common law notions of proximate cause, but that its distinction is
based on the principle of control which underlies the defenses.' 49

Two points are helpful in assessing this reasoning. First, accord-
ing to the discussions above, the principle of control does not re-
fer simply to control over one's physical motions. Rather, control

146. Id. at 848-49. While the court assumed that the deposit of oil had been caused by a
third party, the court also noted that plaintiff had failed to establish this fact. Id. at 847
n.5. This failure most likely increased the court's desire to find the plaintiff to have been a
contributory cause of the spill.

147. Id. at 848.
148. 33 U.S.C. § 1321(f), (i) (1982) (emphasis added).

149. 677 F.2d at 849.

19851



178 COLUMBIA JOURNAL OF ENVIRONMENTAL LAw [Vol. 10:149

refers specifically to actions which an owner could conceivably
have taken to prevent a spill. Second, the principle of control is
already built-in to the issue of who is a third party: by definition, a
third party cause is one over which the owner could exert no con-
trol (whether potential or actual) to prevent.' 50 Thus, for the
Court of Claims to say that an owner's nonnegligent act is a par-
tial cause of the spill if the owner had some sort of control over
the third party's act, is to distort the principle as Congress per-
ceived it. By definition, the owner had no control over the third
party, and could have taken no further preventive measures to
avert the spill. The owner in Reliance had no more "control" over
its dredging operations in terms of prevention/mitigation than it
had over any other act conducted at the oil storage facility.

The Reliance court distinguished its "direct and substantial" test
of causation from that of "immediate cause" urged by the United
States. According to the court, application of the latter test would
lead to "anomolous and unjust" results as in the case of an owner
who "caused" a discharge by detonating a third party vandal's
time-bomb which was triggered when the owner turned on a light
switch in the facility.' 5 1 However, the owner in Reliance had no
more control-in the sense that Congress used the principle-to
prevent the spill when dredging than an owner who triggered a
bomb by turning on a light.

A negligence standard for determining whether an owner's af-
firmative act defeats the sole cause test is more consistent with
Congress' concept of control than the court's direct and substan-
tial standard. Even if, by definition, an owner had no control over
the third party's conduct, if the owner's negligence was a contrib-
uting-but for-cause of the spill, the owner nonetheless could
have exerted control to prevent the spill by avoiding its own neg-
ligent conduct. A sole cause test for both omissions and affirma-
tive acts which is based on fault is also supported by legislative
history. The Senate Report on S.7 states:

[W]hile the owner or operator should not be liable if he could
prove that a discharge was caused by one of these acts, it was
also necessary that such exceptions be allowed only when the
owner or operator proved the discharge to be solely the result

150. See supra Section V(C).
151. 677 F.2d at 849 n.7.



Stict Liability under CWA

of one of the exceptions. Any culpability on the part of the owner or
operator would vitiate the exception. 152

It follows from the discussion above that the court's rule on
affirmative acts will not serve as more of an incentive for owners
to take precautionary measures to prevent spills caused by third
parties than would a negligence standard: by definition, the
owner cannot control third parties' conduct. Theoretically, how-
ever, the court's rule might encourage owners to take preventive
measures beyond those required by ordinary standards of care, to
prevent their "substantial" acts from triggering discharges caused
by third parties. If a negligence standard was the basis for the
sole cause test owners would only be encouraged to exercise due
care to guard against third party causes. Of course, strict liability
for causes not covered by the third party and other defenses still
encourages owners to take extra precautionary measures with re-
spect to such causes. Whether owners would take such additional
measures that would be needed to cover every act which courts
later determined to be so "substantial" as to defeat the sole cause
test seems doubtful. As argued above, any distinction between
substantial and insubstantial acts on the basis of control is tenu-
ous. Thus, owners would be at a loss to know which acts required
the exercise of extra care, in addition to that care over the
owner's entire activity which the overall scheme of strict liability
itself encourages.

If a sole cause standard based on causation and not negligence
does promote an "extra effort" by owners to guard against third
parties, then it is all the more reason to judge omissions by that
standard as well. If Congress did intend to encourage owners to
take measures beyond those required by ordinary standards of
care to prevent spills caused by acts of third parties beyond own-
ers' control, it seems likely that Congress would have intended
this incentive to apply to all spills caused by third parties whether
or not they were triggered by affirmative acts of owners. More-
over, Congress could simply have imposed absolute liability (i.e.,
with no defenses) on owners rather than the tortuous scheme en-
visioned by the Court of Claims and analyzed above. Absolute
liability might even be more fair to owners by providing more cer-

152. S. REP. No. 351, 91st Cong., 1st Sess. 6 (1969) (emphasis added). See also 115
CONG. REC. 28,954 (1969) (statement of Sen. Muskie). Cf. Note, supra note 33, at 321
(arguing that last sentence of quote indicates Congress' intent to retain the concept of
fault for its entire scheme of liability in subsection 311 (0).

1985]



180 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 10:149

tainty of potential liabilities than a scheme which depends on dis-
tinctions between substantial and insubstantial acts.

Justification for the court's distinction among affirmative acts
sufficient to defeat the sole cause test might be based more
soundly on common law principles of proximate cause than on
Congress' notion of control. But whether such principles are
consistent with the statutory framework based on strict liability is
doubtful. The court's rule as to owners' affirmative acts does
eliminate the necessity of litigating negligence, at least, to deter-
mine sole cause. This result is consistent with Congress' intent to
facilitate the United States' recovery of cleanup costs. 153 Distin-
guishing between substantial and insubstantial acts may prove to
be just as burdensome to litigate as negligence, however. What is
the physical difference between substantial and insubstantial acts?
Are acts which require much force and result in much physical
movement but which are conducted regularly in the course of the
owners' storage or transport operations not substantial, as op-
posed to one-time acts like dredging?

Moreover, difficult distinctions among owners' particular acts
like that between "immediate" and "direct and substantial"
causes detract from the role which the owner's overall activity
plays in the scheme of strict liability which Congress intended sec-
tion 311 to create. Owners' liability for affirmative acts under the
court's test is based simply on chance: whether the triggering act
required a "substantial" effort-like dredging-or a minimal ef-
fort-like flipping a light switch. Liability on this basis has little to
do with the notion underlying strict liability of the owner as in-
surer for the consequences of a discharge from the owner's over-
all oil storage or transport operations. This notion is derived
from the nature of the owner's overall activity, not from any dis-
tinction between particular "immediate" and "substantial" acts.

A subsequent Claims Court decision in Cities Service Pipe Line Co.
v. United States, 154 takes the Reliance court's causation test one step
further toward its logical, yet utterly absurd, conclusion that a
third party cause is not the sole cause if an owner's "normal" op-
eration of its facility is also necessary to cause the spill. The
owner in Cities Service proved that its underground pipeline had
been damaged sometime within the last ten years by heavy equip-

153. See supra note 96 and accompanying text.
154. 4 C1. Ct. 207 (1983), afjd, 742 F.2d 626 (Fed. Cir. 1984).



Stict Liability under CWA

ment operated by an unknown third party. Citing Reliance, and
the plain meaning of the sole cause provision, 55 the Claims
Court denied the owner's claim for recovery of cleanup costs
under subsection 311 (i). The court stated that although no culpa-
bility arises from the owner's normal use of its pipeline, such nor-
mal use was sufficient to defeat the sole cause test in subsection
311(i). According to the court, "[p]laintiffs use of the pipeline,
over a period of what may have been ten years, [was a] cause" of
the spill because the damage attributable to the third party
"would never have matured into a rupture without plaintiff's con-
tinuing use of the pipeline and the resultant wear and tear."' 56

The court's extension of the Reliance rule to owners' "normal"
activities seems justified by the particular facts in Cities Service.
The owner's "normal" use which was found to be a contributing
cause spanned a period of ten years, and involved the exact same
piece of equipment which was damaged and from which the oil
ultimately spilled. ' 57 Thus, the owner's normal use in Cities Service
might be considered just as "direct and substantial" a cause as the
owner's one-time act of dredging in Reliance.'58

Yet, as with the owner's dredging in Reliance, the duration and
particular item of use by the owner in Cities Service are no more
relevant to the principles underlying section 311 than are any
other normal activities conducted by an owner. For example, an
owner's normal use which triggered a spill, but which lasted for
only one day, and/or involved equipment other than that which
actually released the oil, reveals no less "control" and is no more
relevant to the dangerous nature of the owner's overall oil stor-
age activity which is the basis for strict liability, than are the
owner's normal use in Cities Service and the owner's dredging in
Reliance.

Assuming that the Reliance and Cities Service decisions are indis-
tinguishable from all future cases where an owner's normal use is
a "but for" triggering cause of a spill, then these decisions, for all

155. Id. at 210.
156. Id. at 210-11.
157. Id. at 208.
158. Other factors must also have influenced the court's willingness to formulate and

apply a "'normal use" test. These factors are 1) the length of time between the third
party's act and the resulting spill; 2) the owner's inability to identify the third party; and 3)
the court's alternative holding that the owner's failure to notice the initial damage and
subsequent wear and tear was a negligent omission which itself warranted a denial of the
owner's claim under subsection 311 (i). Id. at 208-10.

1985]



182 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 10:149

intents and purposes, prevent owners from ever invoking the third
party defense. This result follows from the fact that all third party
acts require some triggering "normal use" of the owner, if only
the filling of a tank with oil, to cause a spill. The above sections of
this Note concluded that Congress intended the third party de-
fense to be applied only in limited circumstances. But there is no
indication that Congress drafted that and the remaining defenses
only to prevent access to them with an impenetrable "sole cause"
barrier.

On appeal, the Federal Circuit Court of Appeals prevented the
Claims Court's decision in Cities Service from leading to the re-
markable result of completely foreclosing the section 311 de-
fenses. The court of appeals upheld the Claims Court's finding as
to negligence, but dismissed as "unnecessary" the lower court's
alternative holding regarding the owner's normal use. 15 9 The
court of appeals explained that the imposition of liability on the
basis of conduct "inherent" in the owner's "business activity"
would lead to the kind of "anomolous" result which the Reliance
court warned against.' 60

The court of appeals seemed to recognize that the scheme of
strict liability in section 311 was based on the abnormally danger-
ous nature of the owner's overall storage operation, rather than
on particular acts which the owner conducts in the normal course
of such operation. Yet the court of appeals explicitly accepted the
Reliance court's rule that owners' nonnegligent affirmative acts can
be contributing causes which would prevent owners from invok-
ing the third party defense.' 6 1 Thus, while the appellate court
limited the otherwise far-reaching precedental impact of Cities Ser-

vice, the court failed to eliminate the theoretical foundation for
Cities Service which was established in Reliance and which, there-
fore, can still be applied to less extreme facts. As stated earlier, a
"normal" use rule follows logically from the "substantial acts"
rule enunciated in Reliance, but neither rules are suited to the
scheme of strict liability which section 311 was intended to create.

Other causation requirements in section 311 do fit Congress'
scheme of strict liability. The first is that the discharge at issue

159. 742 F.2d 626, 627 (Fed. Cir. 1984).

160. Id. at 627.

161. Id.



Stict Liability under CWA

must come from the owner's vessel or facility.' 62 As mentioned
earlier, another causation requirement relates to the third party's
acts or omissions "without regard to whether any such acts . . .
are negligent" as qualified in subsection 311(f).163 An assess-
ment of third parties' acts on the basis of causation rather than
negligence is justified because owners have no more control over
third parties' acts which are not negligent than over acts which
are negligent.' 64 Thus, under the principle of control, an owner
should be exempt from liability whenever a third party's act-
whether or not negligent-causes a spill in the traditional sense of
proximate cause.

While the provision in subsection 311 (0 for nonnegligent acts
or omissions of third parties is suited to the scheme of owners'
liability, it may not be suited to the general statutory scheme of
subsection 3 1 (g) which allows the United States to recover costs
against sole cause third parties.' 65 Curiously, Congress omitted
the "was or was not negligent" qualification in this section re-
garding claims by the United States against sole cause third par-
ties, although Congress reinserted the qualification in reference
to the "other party" defense for third parties. If Congress' omis-
sion was unintentional, then under subsection 311 (g) a nonnegli-
gent third party vessel which crashes into an owner's moored
vessel, for example, is subject to the same scheme of strict liability
as are owners. This is true even if the third party-unlike owners
under the CWA-is not engaged in the transport of oil or hazard-
ous substances, which activities are the justification for the

162. See supra note 42 (district court denied United States' motion for summary judg-
ment on issue of whether the oil spill came from defendant's onshore facility).

163. See supra note 148 and accompanying text.
164. This is equally true for acts" of the United States government, although it appears

from the United States government defense that Congress intended owners to be the in-
surers of spills caused by nonnegligent acts of the United States.

165. In any case where an owner or operator of a vessel, of an onshore facility, or
of an offshore facility, from which oil or a hazardous substance is discharged
in violation of subsection (b)(3) of this section, proves that such discharge of
oil or hazardous substance was caused solely by an act or omission of a third
party . . . such third party shall, . . . be liable to the United States Govern-

ment for the actual costs incurred under subsection (c) for removal of such oil
or substance by the United States Government, except where such third party
can prove that such discharge was caused solely by (A) an act of God, (B) an
act of war, (C) negligence on the part of the United States Government, or (D)
an act or omission of another party without regard to whether such act or
omission was or was not negligent.

33 U.S.C. § 132 1(g) (1982),

1985]



184 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 10:149

scheme of strict liability in the first place. By omitting the qualifi-
cation, Congress may have intended subsection 311 (g) to provide
the United States with a claim against third parties only if they are
negligent. Such a result would be more consistent with the no-
tion of strict liability which is inapplicable to third parties en-
gaged in a business other than the one related to the hazardous
activity of storing or transporting oil.

VII. CERCLA LIABILITY: ANOTHER LOOK AT THE THIRD PARTY

DEFENSE

The following is a comparison of the provisions in section 311
of the CWA with similar provisions including a third party defense
in section 107 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 ("CERCLA"). 166 The
two acts are worth comparing not only because they contain third
party defenses to similar schemes of liability, but also because the
acts are functionally similar and, in part, are functionally overlap-
ping. The comparison is helpful in assessing the drafting of the
third party provisions in the acts. The comparison is less helpful,
however, in providing clear guidance for courts on whether to
construe the CWA defense in accordance with Congress' intent-
where clear-in providing the defense in CERCLA.

A. Relation between CERCLA and CWA

The similarity of liability schemes in CERCLA and the CWA is
no coincidence. Congress passed CERCLA to update and consol-
idate liability provisions in th CWA and other federal statutes
relating to toxic wastes. 16 7 Briefly, CERCLA authorizes federal
and state governments to remove "hazardous substances" re-
leased from vessels and onshore and offshore facilities. 168 Section
107 of CERCLA, 169 the counterpart of section 311 of the CWA,
provides federal and state governments with actions against own-
ers and other individuals for recovery of removal costs.

166. 42 U.S.C. § 9607 (1982).
167. See, e.g., Helfrich, supra note 12, at 456; Dore, The Standard of Civil Liability for Haz-

ardous Waste Disposal Activity: Some Quirks of Superfund, 57 NOTRE DAME LAW. 260, 268-69
(1981); Note, The Role of Injunctive Relief and Settlements in Superfund Enforcement, 68 CORNELL

L. REV. 706, 710 (1983). Seegenerally GRAD, supra note 3, § 4A.04[1], at 4A-105 to 4A-123.

168. See §§ 104-106, 42 U.S.C. §§ 9604-9606 (1982).
169. 42 U.S.C. § 9607 (1982).



Stict Liability under CWA

The definition of "hazardous substances" in CERCLA includes
those substances listed pursuant to subsection 311 (b)(2)(A) of the
CWA, as well as those substances covered elsewhere in the CWA
and in other federal pollution statutes. 70 CERCLA covers re-
leases which occur in the "environment," 1 71 including not only
navigable waters within the United States' boundaries-which is
the scope of CWA coverage172-but "any other surface water,
ground water, drinking water supply, land surface or subsurface
strata, or ambient air" in the United States as well.' 73 CERCLA
does not cover discharges of "oil," however, as defined in and
subject to subsection 311(a)(1) of the CWA. 174 Nor does CER-
CLA simply pre-empt the CWA where the two statutes overlap,
although CERCLA does bar simultaneous recovery for cleanup
costs under section 311 of the CWA and section 107 of
CERCLA.

175

The scheme of liability in section 107 of CERCLA generally re-
sembles that in section 311 of the CWA. Subsection 107(a)(1) im-
poses liability on owners and operators1 76 of vessels or facilities
for costs of removal incurred by the United States or a state; for
other "necessary costs of response;" and for damages to natural
resources. 77 Subsection 107(b) lists defenses for acts of God and
war, and for acts or omissions of third parties.178

170. § 101(14), 42 U.S.C. § 9601(14) (1982).
171. § 101(22), 42 U.S.C. § 9601(22) (1982).
172. § 31 1(b)(3) of the CWA, as currently drafted, prohibits discharges "(i) into or upon

the navigable waters of the United States, adjoining shorelines, or into or upon the waters
of the contiguous zone, or (ii) in connection with activities under the Outer Continental
Shelf Lands Act or the Deepwater Port Act of 1974 . . . or which may affect natural re-
sources belonging to, appertaining to, or under the exclusive management authority of the
United States .... ." 33 U.S.C. § 1321(b)(3) (1982).

173. § 101(8), 42 U.S.C. § 9601(8) (1982).
174. § 101(14), 42 U.S.C. § 9601(14) (1982).
175. § 114(b), 42 U.S.C. § 9614(b) (1982).
176. Subsection 107(a)(2)-(4) also expressly includes persons who were owners or oper-

ators of discharging facilities at the time the hazardous substance was disposed, persons
who owned and arranged for the disposal of hazardous substances at the discharging facil-
ity, and persons who transported hazardous substances to a discharging facility of their
choosing. 42 U.S.C. § 9607(a)(2)-(4) (1982).

For simplicity, all persons in subsection 107(a) will be referred to hereinafter as "own-
ers" unless otherwise indicated.

177. § 107(a)(4)(A)-(C), 42 U.S.C. § 9607(a)(4)(A)-(C) (1982).
178. 42 U.S.C. § 9607(b) (1982). For a comparison of the liability provisions in section

107 of CERCLA and section 311 of the CWA, see Helfrich, supra note 12, at 470-79. For a
detailed description of CERCLA and its accompanying case law, see GRAD, supra note 3,
§ 4A.04[l], at 4A-105 to 4A-123 (1983).

1985]



186 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 10:149

B. Third Party Defense-Contractual Nexus

The most significant difference between the third party defense
in the CWA and in CERCLA, for the purpose of determining the
scope of owners' liability, is the provision in subsection 107(b)(3)
of CERCLA that the third party defense does not apply to an
"employee or agent" of the owner, or to a person "whose act or
omission occurs in connection with a contractual relationship, ex-
isting directly or indirectly," with the owner. 179 The first category

of "employee or agent" restates the scope of liability under re-
spondeat superior.180 The second category plainly includes in-
dependent general contractors and their subcontractors, and
others who are linked to owners through a contractual chain, and
for whose acts the owner would not be liable under respondeat supe-
nor. '8  Thus, the third party defense in section 107 of CERCLA
extends the scope of owners' responsibility beyond that which
would exist if a standard of negligence was applicable. Moreover,
section 107 prevents owners from contracting away their statu-
tory liability. In so doing, the provision imports a broad scope of
liability similar to that which the First and Fifth Circuits consid-

ered to prevail under the CWA.' 8 2 If the contractual nexus stan-
dard in CERCLA had applied to the alleged third parties in Tug
Ocean (tug pilot), and Berkley Curtis Bay (tug owner), the defense
would not have been available.

The provision in section 107 of CERCLA that the third party
defense does not apply to an individual who has a direct or indi-
rect contractual relationship with the owner has enabled courts to

179. Subsection 107(b) reads:
There shall be no liability under subsection (a) of this section for a person otherwise

liable who can establish by a preponderance of the evidence that the release or threat
of release of a hazardous substance and the damages resulting therefrom were caused
solely by-(l) an act of God; (2) an act of war; (3) an act or omission of a third party
other than an employee or agent of the defendant, or than one whose act or omission

occurs in connection with a contractual relationship, existing directly or indirectly,
with the defendant (except where the sole contractual arrangement arises from a pub-
lished tariff and acceptance for carriage by a common carrier by rail), if the defendant
establishes by a preponderance of the evidence that (a) he exercised due care with
respect to the hazardous substance concerned, taking into consideration the charac-
teristics of such hazardous substance, in light of all relevant facts and circumstances,
and (b) he took precautions against foreseeable acts or omissions of any such third
party and the consequences that could foreseeably result from such acts or omissions.

42 U.S.C. § 9607(b) (1982).
180. See supra note 18.

181. See supra note 17 and accompanying text.

182. See supra Section V(c).



Stict Liability under CWA

easily determine whether the defense applied in the two cases in
which the defense was contested. In United States v. South Carolina
Recycling and Disposal, Inc.,183 the United States sued the owners,
lessees and generators under subsection 107(a) of CERCLA for
the cost of cleaning up toxic wastes at the owners' site. The Dis-
trict Court for the Southern District of South Carolina flatly re-
jected the owners' claim that the third party defense applied to a
lessee who had used the site to dump toxic wastes. The court
stated that because of the "contractual link" between the owners
and lessee, the defense was not available to the owners. 184

South Carolina Recycling was followed in a similarly perfunctory
fashion by the District Court for the District of New Mexico in
United States v. Argent Corp. ,185 which also held that the contractual
relationship between an owner and lessee prevented the owner
from asserting a third party defense as applied to the lessee.1 86 It
is uncertain how the lessor/lessee relationship would have been
handled under section 311 of the CWA by the district court and
Second Circuit in Tug Ocean which considered tugs contracted to
tow barges to be third parties with respect to the barge owner. 187

Under the principle of control, as applied by the First and Fifth
Circuits, the lessee would presumably not be a third party be-
cause the owner controlled the lessee by choosing it, and could
have specified the nature and manner of the lessee's activities
through appropriate provisions in the lease.

The legislative history of CERCLA is as conclusive as the plain
meaning of the contract provisions in the third party defense of
Congress' intent to prevent owners from contracting away liabil-
ity by hiring independent contractors. 188 The third party defense
in subsection 3071(a)(1)(c) of the original House bill-H.R.
7020-resembled that in the CWA by not containing qualifying
language regarding contractual relations between owners and
third parties. 189 The House report explicitly considered the de-
fense to include independent contractors. In reference to the re-

183. 14 ENVrL. L. REP. [ENVTL. L. INST.] 20,272 (D.S.C. Feb. 23, 1984).
184. Id. at 20,275.
185. 14 ENVTL. L. REP. [ENVTL. L. INST.] 20,616 (D.N.M. May 5, 1984).
186. Id.
187. See supra text accompanying notes 43-49.
188. For a summary of the entire legislative history of CERCLA, see Grad, A Legislative

History of the Comprehensive Environmental Response, Compensation & Liability ("Superfund") Act of
1980, 8 COLUM. J. ENVTL. L. 1 (1982).

189. 126 CONG. REC. H9452 (daily ed. Sept. 23, 1980).

1985]



188 COLUMBIA JOURNAL OF ENVIRONMENTAL LAw [Vol. 10:149

quirement that owners exercise due care with respect to
reasonably foreseeable acts or omissions of third parties, the re-
port gives as an example the necessity of exercising due care in
the "selection and instruction" of "a responsible contractor or
other independent party engaged" by the owner. 90 The third
party provision adopted in the final House version of H.R. 7020
was an amendment offered by Representative Gore which con-
tains the contractual nexus language which Congress ultimately
adopted.' 9 ' In House debate, Representative Gore explained
that his amendment was designed to prevent owners from con-
tracting away their potential liabilities under CERCLA.' 92

In contrast with the original House bill which contained a third
party defense intended to include independent contractors, the
original Senate bill-S.148-contained defenses for acts of God
and war, but not for acts or omissions of any third parties.19g

However, the Senate adopted amendments offered by Senator
Stafford-who feared that the existing liability provisions would
be too stringent to gain sufficient support-which included a
third party defense with a contractual nexus limitation similar to
that in the final House bill, and nearly identical to that ultimately
included in section 107 of CERCLA. 194

The statutory provisions, cases and legislative history discussed
above clearly indicate that Congress intended to prevent owners
from contracting out liability under CERCLA for cleanup costs.
What is still unclear, however, is how far the contractual nexus
provision of subsection 107(b) extends. Is there a limit to the
number of contractual links which denote persons whose acts are
excluded from the defense because of an indirect contractual rela-
tionship with the owner? Presumably any limit would be deter-
mined according to the principle of control which Congress
considered to underlie the defenses, as in the CWA.195 There
might be discharges caused by persons whose acts could be
traced to the owner through a series of contracts, but which were

190. H.R. REP. No. 1016(I), 96th Cong., 2d Sess. 34 (1980), reprinted in 1980 U.S. CODE
CONG. & AD. NEWS 6119, 6137.

191. 126 CONG. REC. H9461-68 (daily ed. Sept. 23, 1980).
192. Id. at H9462-63. Cf. Tamano, 564 F.2d at 982; LeBoeuf, 621 F.2d at 789.
193. S.1480, 96th Cong., 2d Sess. § 4(a), 126 CONG. REC. S14,940 (daily ed. Nov. 24,

1980).
194. § 107(a), 126 CONG. REC. S14,953 (daily ed. Nov. 24, 1980). Id. at S14,964 (state-

ment of Sen. Randolph).
195. Eg., 126 CONG. REC. H9468 (daily ed. Sept. 23, 1980) (statement of Rep. Jeffords).



Stict Liability under CWA

so remote that the owner could not have exercised any control to
prevent them, nor which the owner would have considered in at-
tempting to contract out liability. Although the scope of the third
party defense in subsection 107(a) remains to be delineated, such
a delineation will likely be easier than that necessary for the
facially broad CWA defense.

The third party defense in subsection 107(b)(3) of CERCLA is
instructive of how Congress could amend the corresponding pro-
vision in the CWA to narrow the scope of the defense, or as an
example of how the defense in the CWA might be read by the
First and Fifth Circuits. The defense in CERCLA is less instruc-
tive, however, of whether Congress intended, and whether courts
should interpret, section 311 of the CWA to impose liability on
owners for discharges caused solely by acts or omissions of in-
dependent contractors and others directly or indirectly related to
owners through contract. This is true despite subsection 101 (32)
of CERCLA, which defines "liability," as used in section 107, to
be the "standard of liability which obtains under Section 311 of
the [CWA]."' 196 The drafting of this provision and the legislative
history indicate that Congress intended the standard of liability in
CERCLA to match that already existing in the CWA, not to
change the standard in the CWA to equal that created in
CERCLA.

197

CERCLA was passed in 1980, long after Congress adopted the
original version of section 311 in 1970. Thus, CERCLA bears on
Congress' intent when it passed the CWA only as postenactment
legislative history.198 Moreover, it is difficult to even conclude
what that bearing would be. If "standard of liability" includes the
issues of fault as well as scope of responsibility, the extension of
owners' responsibility beyond independent contractors under
section 107 of CERCLA might be viewed as Congress' attempt to
clarify what it considered the scope of owners' responsibility
under section 311 of the CWA. 199

196. 42 U.S.C. § 9601(32) (1982).
197. E.g., 126 CONG. REC. S14,964 (daily ed. Nov. 24, 1980) (statement of Sen. Ran-

dolph); 126 CONG. REc. 31,965 (1980) (statement of Rep. Florio).
198. For relevance of postenactment legislative history, see, e.g., Bell v. NewJersey and

Pennsylvania, - U.S. -, -, 103 S.Ct. 2187, 2194 (1983) ("[T]he view of a later Congress
does not establish definitively the meaning of an earlier enactment, but it does have per-

suasive value.").
199. The First, Fifth and Second Circuit cases discussed earlier in this Note had all been

decided before CERCLA was adopted, so Congress may have been aware of the case law

19851



190 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 10: 149

If the definition of liability in subsection 101(32) of CERCLA
refers only to the issue of fault and not to the scope of responsi-
bility under section 311 of the CWA, Congress may have drafted
the third party defense in CERCLA differently from that in the
CWA to narrow what it considered the scope of owners' responsi-
bility created by the third party defense in the CWA. As men-
tioned above, the House considered the third party defense in its
original bill, which was drafted as broadly as that in the CWA, to
include independent contractors. Congress' drafting of the de-
fense in CERCLA by treating independent contractors as third
parties, while making the defense inapplicable to them through
the separate contractual nexus provision, might also indicate that
Congress considered independent contractors to be third parties
under the CWA. On the other hand, Congress' continual refer-
ence to the standard of liability in section 311 as "strict,"2 0 0 sug-
gests that it considered the section 311 defenses to be narrow in
order to achieve the broad scope of owners' responsibility which
the common law standard imposes. 20 1

Given that CERCLA has little bearing on the CWA as legislative
history, should the broad scope of liability in CERCLA still be
considered by courts as evidence of a national policy which the
more ambiguous CWA should be construed to promote?20 2 Such
a construction would be justified by the functional overlap of the
two acts in the area of hazardous substances and the functional
similarity of CERCLA's coverage of hazardous substances and the
CWA's coverage of oil. The reference in subsection 101 (32) and
legislative history of CERCLA would also support a concurrent
construction of the two acts. However, that Congress intended
CERCLA not to cover oil, as covered by the CWA, nor to pre-

on the third party defense in the CWA. On the day the House approved the final bill,
Representative Florio inserted into the record a letter from the Justice Department which
cited the First Circuit's dicta in Tamano that the CWA defenses are to be narrowly con-
strued. 126 CONG. REC. 31,966 (1980) (letter from Alan Parker, Assistant Attorney Gen-
eral, Office of Legislative Affairs, United States Department of Justice).

200. E.g., 126 CONG. REC. 31,965 (1980) (statement of Rep. Florio); 126 CONG. REC.
S 14,964 (daily ed. Nov. 24, 1980) (statement of Sen. Randolph).

201. See supra notes 115-16 and accompanying text. Contra Note, supra note 33, at 321
("[Tihe suggestion that the current cleanup cost provision [in section 311 of the CWA]
represents a shift toward strict liability is innacurate.").

202. See, e.g., NLRB v. Allis-Chalmers Manufacturing Co., 388 U.S. 175, 194 (1967)
(" 'Courts may properly take into account the later Act when asked to extend the reach of
the earlier Act's vague language to the limits which, read literally, the words might per-
mit.' ") (citation omitted).



Stict Liability under CWA

empt the CWA in the area of hazardous substances, suggests that
Congress intended to preserve the specific differences of the two
acts.

203

C. Causation

Other aspects of the third party defense in section 107 of CER-
CLA and relating to causation are worth comparing with those in
section 311 of the CWA (discussed in Section VI above) because
the causation provisions are applied to functionally similar and, in
part, overlapping statutes. Third parties' acts must be the sole
cause of spills to exempt owners from liability under both CER-
CLA and the CWA. 20 4 CERCLA differs from the CWA, first, in
not expressly providing that third parties' acts or omissions suffi-
cient to trigger the defense can be negligent or nonnegligent.
One can only speculate whether this change in drafting signifies
that Congress intended to apply the Reliance distinction between
omissions and affirmative acts,20 5 to apply the same standard of
negligence or nonnegligence which is expressly provided in the
CWA, or to hold third parties' omissions and affirmative acts to
the less burdensome, negligence standard.

The latter is supported by Representative Jeffords' description
of the third party defense in Representative Gore's amendment
which the House adopted, and which is nearly identical to that in
the final Act: "The amendment . . . limits the defense of inter-
vening actions of a third party to instances . . . where the defend-
ant can prove that the defendant exercised due care and that the
release resulted from the negligence of a third party. '20 6

The second difference between the causation requirements for
invoking the third party defenses in both acts is the express provi-
sion in CERCLA that owners must prove they were, in effect, not
negligent with respect to the "hazardous substance concerned"
and the acts or omissions of third parties.20 7 Representative Jef-

203. See, e.g., 126 CONG. REC. 31,965 (1980). Representative Florio explained that the
third party defense was to be "narrowly defined" and that since section 311 standards
were to be used "only where not superseded by standards of this bill, those defenses, and
not those of Section 311, will control." Thus, Representative Florio must have considered

the two defenses to have distinct ramifications.
204. See subsection 311(f) supra note 14 and accompanying text; subsection 107(b)

supra note 179.
205. See supra text accompanying notes 145-46.
206. 126 CONG. REc. H9468 (daily ed. Sept. 23, 1980) (emphasis added).
207. See text of subsection 107(b) supra note 179.

1985]



192 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 10:149

fords' statement above, that the third party defense applies only
when the owner can prove that due care was exercised, suggests
that there is not an additional causation requirement. The argu-
ment made earlier in regard to the CWA that a separate causation
test does not fit the scheme of strict liability,20 8 would also sug-
gest that the sole cause and due care provisions in CERCLA do
not denote separate standards for owners' conduct.

This provision in conjunction with the sole cause test, however,
suggests that Congress intended owners to be subject to separate
tests of causation and negligence when invoking the defense in
CERCLA. This intent is in accord with the Court of Claims' rule
in Reliance, at least with respect to owners' affirmative acts under
the CWA. 20 9 The express provision does not impose any new re-
quirement of negligence. Even without the provision, negligent
owners would fail the sole cause test and be unable to invoke the
defense.2 10 The express provision in CERCLA might serve to
clarify the owners' burden of proving nonnegligence when invok-
ing the defense although this burden was probably clear under
the CWA, even without being expressly stated.21' Thus, Con-
gress' express provision that owners must prove they were not
negligent to invoke the defense would seem to serve no other
purpose than to insure that owners must meet separate tests of
causation and negligence. 212

208. See supra Section VI, paragraph following text at note 153.
209. See supra text accompanying note 144.
210. See supra note 141 and accompanying text (sole cause provision in CWA will clearly

be defeated by owner's negligent conduct).
211. See, e.g., Reliance, 677 F.2d at 848 (noting that even if owner "could establish that

his conduct was not negligent," owner's affirmative act would be subject to a greater scru-
tiny under a causation test).

212. Analysis of the causation provisions in CERCLA does not help clarify ambiguities
in the CWA for the same reasons as applied to the contractual nexus issue: CERCLA is
postenactment legislative history; and, even if Congress' intent in CERCLA is clear, it is
unclear whether Congress considered its drafting of CERCLA to correspond with or differ
from the meaning it considered Congress to have intended the CWA provisions to import.
As with the contractual nexus provision, courts interpreting causation provisions in the
CWA must ask whether that Act ought to be construed in accordance with CERCLA, in
view of the two acts' functional similarities and the provision in CERCLA referring to the
standard of liability in section 311 of the CWA, or whether Congress' failure to pre-empt
the CWA when it passed CERCLA means that courts should preserve the statutes' specific
differences.



Stict Liability under CWA

CONCLUSION

Courts interpreting the third party defense in section 311 of the
CWA disagree over the extent to which Congress intended the
CWA to depart from prior standards of liability based on fault.
The First and Fifth Circuits argue that the term third party should
be read narrowly because Congress intended to expand the scope
of owners' responsibility beyond that defined by the common law
rule of respondeat superior. An opinion by the Second Circuit and a
dissent by Justice Rehnquist suggest that Congress intended the
third party defense, in effect, merely to restate the common law
rule. The first view is supported by the blanket liability approach
of section 311 and legislative history referring to "strict" liability
with "limited" exceptions. On the other hand, the second view is
supported by the facially broad meaning of "third party" and leg-
islative history referring to the similarity of the CWA and original
House bill which used a standard of negligence and incorporated
the limit of owners' responsibility under respondeat superior.

Analysis of the functions Congress intended its scheme of lia-
bility to serve is not conclusive of whether Congress intended to
expand the scope of owners' responsibility beyond that in the
House bill. A broad scope of responsibility would serve these
functions more effectively than a narrow one. But it is unclear
how far Congress intended its objectives to be pursued, and how
extensive a redistribution of risks, which would result from an ex-
panded scope of responsibility, Congress sought to engender.
The House and Senate bills and the final Act encourage owners to
prevent and to clean up spills; all three address the magnitude of
damages to the public posed by owners' storage and transport
operations; and all three ease the United States' litigation bur-
dens, although only a narrow construction of the third party de-
fense reduces the United States' burden of proving
"responsibility."

Analysis of the statutory scheme of liability is more conclusive
of the scope of the third party defense and supports a narrow
reading of that defense. The defenses for other than third par-
ties' acts define a narrow set of causes stemming from outside an
owner's ship or facility, and are carved out of a set of causes which
itself is beyond the set defined by respondeat superior. The defenses
are based on the principle of control which refers to an owner's
opportunity to take preventive measures and, unlike the principle
of control underlying respondeat superior, does not exclude occa-

19851



194 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 10:149

sions where an owner gave up that opportunity through contract.
These conclusions, and the additional one that Congress in-
tended to create a standard of strict liability, suggest that the de-
fenses were not intended simply to avoid litigation on the issue of
fault by describing all those situations where owners were not lia-
ble under standards of negligence and respondeat superior. More
specifically, Congress did not intend the third party defense in
section 311 to include independent contractors.

Analysis of the causation requirements reveals another ambigu-
ity regarding the role of fault-based standards of liability in a
scheme of "strict" liability which includes a third party defense.
The Court of Claims ruled in Reliance that owners' omissions are
subject only to a test of negligence, but that affirmative acts must
meet an additional test of causation. The plain meaning of "sole
cause" suggests that owner's conduct is subject to a standard re-
sembling proximate cause. Yet, the court's rule ignores statutory
provisions suggesting that omissions and affirmative acts ought to
be held to the same standard. The rule also appears to be based
on a misapplication of Congress' principle of control. Moreover,
the court's imposition of liability on the basis of whether an
owner's particular act-in conjunction with that of a third party-
is later considered by a court to be substantial, is not consistent
with a scheme of strict liability which is based on the nature of the
owner's overall transport or storage activity. The absurd result
from an entirely logical extension of the Reliance and Cities Service
decisions-that owners' "normal" operations defeat the sole
cause test-would prevent owners from ever invoking a section
311 defense. The Federal Circuit Court of Appeals foreclosed
this result, but left its theoretical basis, as established in Reliance,
untouched.

A comparison of the third party defenses in both the CWA and
CERCLA reveals the variations-at least in drafting-which can
exist between two schemes serving overlapping functions, and
based on the supposedly same standard of "strict" liability. The
contractual nexus provision in the third party defense in subsec-
tion 107(b)(3) of CERCLA corresponds to the First and Fifth Cir-
cuits' construction of the CWA defenses. CERCLA does not
include language from the CWA on what third parties' acts are
sufficient to trigger the defense.. Nor does CERCLA clarify ambi-
guity in the CWA on what standards owners' acts must meet to
pass the sole cause test and successfully invoke the defense.



Stict Liability under CWA

The provisions and legislative history of CERCLA are of little
use to determine Congress' intent when it passed the CWA.
Moreover, Congress' refusal to include oil within CERCLA's cov-
erage, and to merge the CWA and CERCLA provisions on haz-
ardous substances, suggests that courts interpreting ambiguous
terms in either statute should not use the other as a guide. How-
ever, CERCLA's reference to the standard of liability in the CWA
and the functional overlap of the acts suggest that such judicial
attempts to construe one act in accordance with the other would
be justified to provide more clarity-as to who should bear which
risks-than the two separate, complex schemes will afford.

If courts do not use CERCLA as a policy guide when interpret-
ing the CWA, they should use the CWA amendments as a guide,
although none of them specifically addresses the scope of the
third party defense. Since 1970, Congress has raised the liability
limitations, 213 imposed liability for all cleanup costs, whether rea-
sonable or not,214 and required owners to reimburse the United
States for cleanup costs upon alleging third party cause. 21 5 These
subsequent efforts to strengthen the CWA are not indicative of
Congress' intent when it passed the Act in 1970, but do under-
score Congress' objective of minimizing marine pollution from oil
and hazardous substances and Congress' resolve that the CWA be
an effective means for achieving this objective. The third party
defense should not be construed so broadly as to weaken the Act
which Congress has concurrently been trying to strengthen.

Finally, analysis of the causation requirements and scope of the
third party defense in both CERCLA and the CWA reveal the
complexity inherent in a scheme of strict liability which combines
elements of absolute liability and fault. This complexity raises
several questions about the propriety of such a scheme. Courts
are required to make subtle factual determinations in applying
the scheme, for example, when distinguishing between the con-
trol underlying respondeat superior and that underlying the de-
fenses; or in assessing owners' obligations-beyond the normal
duty of care-to safeguard against acts of third parties beyond
owners' control. Are these factual assessments too subtle to be
made realistically on a principled basis, and used by courts to es-

213. Pub. L. No. 95-217, § 58(d)(2), (5), (6), 91 Stat. 1566, 1595 (1977) (codified at 33
U.S.C. § 1321(f)(1)-(3) (1982)).

214. Id. § 58(g), 91 Stat. 1566, 1596 (1977) (codified at 33 U.S.C. § 1321(f) (1982)).
215. See supra note 102.

19851



196 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 10:149

tablish clear standards of conduct for owners to follow? Do such
subtle determinations give courts too ample an opportunity to
justify any result they want to achieve? 2 16 Lastly, given the unlike-
lihood of returning to a standard of liability based purely on fault,
and the prevalence of issues of fault even in a scheme of "strict
liability," would a statutory standard of absolute liability be more
practical for both courts and all parties concerned?

Michael M. Wenig

216. For example, the Second Circuit's comment in Tug Ocean that its finding of willful
negligence was "necessary to make tug owners liable for cleanup costs," supra text accom-
panying note 48, suggests that the court was able to exercise such an opportunity.