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  • United States v. The M/V Zoe Colocotroni, Etc., 602 F.2d 12, 1st Cir. (1979)

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    This document summarizes a court case in which the United States sued to recover cleanup costs from an oil spill caused by the defendants' oil tanker. The court granted summary judgment to the US for the full cleanup costs. The US appealed aspects of the judgment regarding prejudgment interest and attorney fees. The appellate court affirmed the lower court's rulings, finding that prejudgment interest was properly awarded from the date the US first billed defendants, rather than the earlier date of costs being incurred. The court also affirmed denial of attorney fees since no statute authorized such fees for the US.

    Original Description:

    Filed: 1979-06-29 Precedential Status: Precedential Citations: 602 F.2d 12 Docket: 78-1542

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    United States v. The M/v Zoe Colocotroni, Etc., 602 F.2d 12, 1st Cir. (1979)

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    This document summarizes a court case in which the United States sued to recover cleanup costs from an oil spill caused by the defendants' oil tanker. The court granted summary judgment to the US for the full cleanup costs. The US appealed aspects of the judgment regarding prejudgment interest and attorney fees. The appellate court affirmed the lower court's rulings, finding that prejudgment interest was properly awarded from the date the US first billed defendants, rather than the earlier date of costs being incurred. The court also affirmed denial of attorney fees since no statute authorized such fees for the US.

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    Public Domain
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    14 views5 pages

    United States v. The M/V Zoe Colocotroni, Etc., 602 F.2d 12, 1st Cir. (1979)

    Uploaded by

    Scribd Government Docs
    This document summarizes a court case in which the United States sued to recover cleanup costs from an oil spill caused by the defendants' oil tanker. The court granted summary judgment to the US for the full cleanup costs. The US appealed aspects of the judgment regarding prejudgment interest and attorney fees. The appellate court affirmed the lower court's rulings, finding that prejudgment interest was properly awarded from the date the US first billed defendants, rather than the earlier date of costs being incurred. The court also affirmed denial of attorney fees since no statute authorized such fees for the US.

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    of 5

    602 F.

    2d 12
    13 ERC 1378

    UNITED STATES of America, Plaintiff, Appellant,


    v.
    The M/V ZOE COLOCOTRONI, etc., et al., Defendants,
    Appellees.
    No. 78-1542.

    United States Court of Appeals,


    First Circuit.
    Argued May 9, 1979.
    Decided June 29, 1979.

    Allen P. van Emmerik, Atty., U. S. Dept. of Justice, Washington, D. C.,


    with whom Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C.,
    Julio Morales Sanchez, U. S. Atty., San Juan, P. R., and Michael Kimmel,
    Atty., U. S. Dept. of Justice, Washington, D. C., were on brief, for
    appellant.
    Owen McGivern, New York City, with whom John W. Wall, Peter S.
    Dealy, Gary B. Schmidt, Richard A. Booth, Donovan, Leisure, Newton &
    Irvine, Daniel J. Dougherty, Mary Louise Montgomery, and Kirlin,
    Campbell & Keating, New York City, were on brief, for appellees.
    Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, WYZANSKI,
    Senior District Judge.*
    COFFIN, Chief Judge.

    This suit arises from an action brought by the United States to recover its costs
    of cleaning up an oil spill. The spill occurred when the defendants' oil tanker,
    the SS ZOE COLOCOTRONI ran aground about three miles off the southern
    coast of Puerto Rico and jettisoned more than 5000 tons of crude oil into the
    Caribbean in an attempt to refloat. The defendants moved for summary
    judgment in favor of the United States in the full amount of the government's
    claimed cleanup costs, $677,660.42, which judgment was granted. That left

    only three contested issues, the government's claims for interest, statutory
    penalties and attorney's fees. The court imposed full statutory penalties upon
    the defendants, awarded prejudgment interest at the rate of six per cent from
    the date the United States first notified defendants of the amount which was
    due, and denied the United States' requests for attorney's fees. The United
    States appeals from that judgment on two grounds. First, it argues that the
    prejudgment interest should have run from an earlier date, namely, when the
    United States first incurred its expenses and that it should have been computed
    at a higher rate. Second, it maintains that the court erred in denying its claims
    for fees. Not finding sufficient merit in either contention, we affirm the
    judgment below.
    2

    Little would be served by a detailed recitation of the events which transpired


    during the four and a half years that passed between the oil spill and the entry
    of judgment. In the context of the narrow legal issues raised by this appeal, we
    need not resolve the conflicting explanations the parties offer for that delay.
    The United States accuses the defendants of bad faith, "stonewalling", and
    "contumacious obstinacy"; the defendants attempt to shift responsibility for the
    delay to the United States. Suffice it to say that the court's findings show that
    the United States experienced considerable frustration in its attempts to secure
    the cooperation of the vessel owners and their insurers in the cleanup process.

    1. Prejudgment Interest
    3

    Recognizing that the general rule in collision cases in admiralty is that interest
    is awarded from the date of the actual casualty or loss, See, e.g., MooreMcCormack Lines v. Amirault, 202 F.2d 893, 898 (1st Cir. 1953); Robinson on
    Admiralty 114 at 850-51 & n.159 (1939), the court nonetheless concluded
    that "(t)he instant action cannot be blindly encased in the confines of a typical
    admiralty claim", and that "(p)rior to the date when the Government first sent a
    bill, the claims were unliquidated and unascertained." "Considering all the
    equities involved", the court found that the United States would be adequately
    compensated by an award of prejudgment interest running from November 12,
    1974, the date when a bill was first sent to defendants. The United States
    vigorously disputes the court's power to depart from the strict admiralty rule in
    collision cases which, it claims, entitled it to interest from July 19, 1973, the
    date it incurred expenses in the cleanup.

    Quite simply, we do not believe that this is the type of case in which the
    collision rule of prejudgment interest need apply. Unlike the numerous
    authorities cited to us by the United States, See, e.g., Socony Mobil Oil Co. v.
    Texas Coastal and International, Inc., 559 F.2d 1008 (5th Cir. 1977); Grace

    Line Inc. v. Todd Shipyards Corp., 500 F.2d 361 (9th Cir. 1974); Mid-America
    Transportation Co., Inc. v. Rose Barge Line, Inc., 477 F.2d 914 (8th Cir. 1973),
    this suit is not brought to recover damages for loss or injury to a vessel or
    cargo. See The President Madison, 91 F.2d 835, 846 (9th Cir. 1937) ("interest
    is necessary to make 'just compensation' for the loss of a vessel or the repairs,
    salvage expenditures, and the like caused by the tort of the colliding
    offender."). Indeed, the United States does not seek recompense for any loss of
    its property damaged in a collision. Instead it seeks reimbursement for the
    expenses it incurred in cleaning up the oil spill. The terms of the collision rule,
    if not its underlying logic, are clear, See Moore-McCormack Lines v. Amirault,
    supra, 202 F.2d at 898; In re Great Lakes Dredge & Dock Co., 250 F. 916
    (D.Mass.1917), and we hold that the rule need not have been applied to this
    factually distinguishable context. Relying on the more general policy of
    admiralty law that "the award of interest (on claims unliquidated in nature) lies
    in the discretion of the admiralty court", Moore-McCormack Lines v. Amirault,
    supra, 202 F.2d at 898, we find no abuse in the allowance of prejudgment
    interest from the date the United States first presented a bill to the defendants.
    See generally Robinson v. Pocahontas, Inc., 477 F.2d 1048, 1052 (1st Cir.
    1973); American Union Transport Co. Inc. v. Aguadilla Terminal, Inc., 302
    F.2d 394, 396 (1st Cir. 1962).
    5

    We affirm as well the district court's decision to award interest at a rate of six
    per cent, the highest rate permissible under the laws of Puerto Rico, P.R.L.A.
    tit. 31, 3025, 4591 (1968). While a federal court is not bound by the forum's
    local rate of interest, it is well established that it may use the law of the forum
    as its guide. Norris, The Law of Maritime Personal Injuries 3rd, 173A (1979).
    The United States has not cited us to a single case in which a district court was
    reversed for refusing to award interest above the forum rate, and we decline to
    do so here. Its argument that a rate of six per cent is unrealistically low in
    today's money market and therefore that it is "arbitrary for courts to follow
    such arbitrary rates" proves too much, for it seemingly would invalidate every
    award of interest guided by a forum rate. And in response to the United States'
    claims that failure to assess the higher rate amounts to "a handsome reward for
    obstinacy", we assume that these arguments were made to and considered by
    the court below, a forum which by this time is intimately acquainted with the
    conduct of the defendants. Contrary to the United States' suggestions, the court
    did not state that it was without discretion to exceed the statutory rate. Instead it
    concluded that that rate "will not be exceeded" here. We are unpersuaded that
    the court abused its discretion by so deciding, a decision reached after "
    (c)onsidering all the equities involved".

    2. Attorney's Fees

    Noting that "(t)here is a first time for everything", the United States claims that
    it is entitled to attorney's fees. Its theory is that "at least when the United States
    collectively seeks to recover its citizens' tax money, it should have the same
    rights as those citizens would have individually, notwithstanding that it does not
    have all their liabilities."
    Whatever the merits of this theory, its time for acceptance has not yet arrived.
    28 U.S.C. 2412 expressly provides:

    8
    "Except
    as otherwise specifically provided by statute, a judgment for costs, as
    enumerated in section 1920 of this title But not including the fees and expenses of
    attorneys may be awarded to the prevailing party in any civil action Brought by or
    against The United States or any agency or official of the United States acting in his
    official capacity, in any court having jurisdiction of such action." (Emphasis added.)
    9

    As the Supreme Court has ruled, " 2412 on its face, and in light of its
    legislative history, generally bars (attorneys' fees) awards, which, if allowable
    at all, must be expressly provided for by statute." Alyeska Pipeline Co. v.
    Wilderness Society, 421 U.S. 240, 267-68, 95 S.Ct. 1612, 1626, 44 L.Ed.2d
    141 (1975); See, e. g., Adams v. Carlson, 521 F.2d 168 (7th Cir. 1975);
    National Association of Regional Medical Programs v. Mathews, 179
    U.S.App.D.C. 154, 156-57, 551 F.2d 340, 342-43 (1976), Cert. denied, 431
    U.S. 954, 97 S.Ct. 2674, 53 L.Ed.2d 270 (1977).

    10

    Despite the United States' wholly unpersuasive assertion that 2412 does not
    apply to fee requests by the United States, it is clear that that provision governs
    the case before us. Thus, absent specific and express authorization by statute,
    the United States may not recover its fees here. Neither the Federal Water
    Pollution Control Act nor the Rivers and Harbors Act provides such
    authorization to the United States, and we are cited to no other statute which
    could govern this suit. See Section 505(d) of FWPCA, 33 U.S.C. 1365(d)
    (courts may award fees in Citizen suits), construed narrowly in Save Our Sound
    Fisheries Ass'n v. Callaway, 429 F.Supp. 1136, 1139-40 (D.R.I.1977). The
    United States' contention that the local Puerto Rican rule which permits
    attorney's fees for obstinacy, 32 L.P.R.A., App. II, Rule 44.4(d), can be applied
    here is unequivocally refuted by the case law. See Sanabria v. International
    Longshoremen's Ass'n, 597 F.2d 312 at 313-314 (1st Cir. 1979); F. F.
    Instrument Corp. v. Union de Tronquistas de Puerto Rico, 558 F.2d 607, 610
    n.3 (1st Cir. 1977); Betancourt v. J. C. Penney Co., Inc., 554 F.2d 1206 (1st Cir.
    1977). Accordingly, the district court did not err in denying attorney's fees to
    the United States.

    11
    *

    The judgment below is affirmed.

    Of the District of Massachusetts, sitting by designation

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