An appeals court has set back American Commercial Lines’ (ACL) efforts to get reimbursed for cleanup costs from a 2008 accident which spilled more than 250,000 gals. of fuel into the Mississippi River at New Orleans, closing about 100 miles of the waterway for days.
ACL wanted its contract voided with DRD Towing Co., Harvey, La., claiming it expected a properly licensed crew that complied with all laws and regulations.
The U.S. Court of Appeals for the Fifth Circuit, New Orleans, let stand a lower court decision that the contract was valid, since the district court already had accepted the validity in another aspect of the case. ACL can’t have it both ways, the appeals court said in late May.
At stake are spill cleanup costs of about $100 million. The large, Jeffersonville, Ind.-based inland barge operator would not comment on the appeals court opinion or what it has paid so far.
The accident occurred on July 23, 2008 when the towboat Mel Oliver pushed the loaded barge DM932 into the path of the southbound 600' tanker Tintomara, which sliced the barge in half. ACL had chartered the Mel Oliver to DRD for $1 a day, court records show, and DRD then time chartered the Mel Oliver back to ACL with a crew for $2,740 a day.
An apprentice steersman was at the towboat’s controls instead of the boat’s master, who had left town without DRD officials’ knowledge. Coast Guard regulations require a licensed pilot in the wheelhouse with an unlicensed steersman. U.S. District Judge Ivan Lemelle held DRD solely responsible for the accident, after accepting ACL’s argument that the towboat was under DRD’s control.
“It is clear that the validity of the charters was central to the district court’s judgment,” the appeals court said.
After the collision, the Coast Guard designated ACL the responsible party under the Oil Pollution Act of 1990 (OPA ’90). As owner of the barge, ACL paid for the cleanup and can try to recover the cost from whoever is ultimately held responsible or from the government’s Oil Spill Liability Trust Fund, which is backed in part by a per-barrel excise tax on the oil industry. But, under OPA ’90, they can’t recover if they had a contract with the responsible party.
The towing company and two crew members received various sentences and fines. And DRD filed for Chapter 7 bankruptcy in March 2013 listing assets of $5,533 and liabilities of $1,082,408.73.