If both the United States and a State were to claim damages for harm to 

 the same species, the court would of course have to decide which sovereign is 

 entitled to be paid, or how the award should be divided. As the Supreme Court 

 ruled on 24 April of this year, neither the States nor the United States "owns" 

 wildlife in the usual sense of the word. Hughe s v. Oklahoma , 47 U.S.L.W. 4447 

 (24 April 1979). Rather, wildlife is a resource owned by all the people in 

 this country, a resource which the States and the Federal Government have the 

 responsibility to protect. With regard to federally regulated species, the 

 United States is the most logical party to receive damages. 



THE PROBLEM OF LIMITED LIABILITY UNDER THE FWPCA 



The FWPCA provides that where a spill occurs which may affect natural 

 resources managed by the United States, and where the spiller does not clean 

 up the environment, the United States is authorized to clean up the spill in 

 accordance with the National Contingency Plan. Section 311(c)(1) and (2). 

 The spiller will be liable to the Federal Government for the cost of the 

 cleanup. 



However, this liability is limited to certain dollar amounts unless the 

 United States can show that the discharge was the result of "willful negli- 

 gence or willful misconduct." Section 311(f)(1). In Tug Ocean Prince, Inc. 

 v. United States , 584 F.2d 1151 (2d Cir. 1978), the court construed "willful 

 negligence or willful misconduct" under the FWPCA to mean 



...an act, intentionally done, with knowledge that the per- 

 formance will probably result in injury, or done in such a 

 way as to allow an inference of a reckless disregard of the 

 probable consequence .... The knowledge required for a find- 

 ing of willful misconduct is that there must be either ac- 

 tual knowledge that the act, or the failure to act, is nec- 

 essary in order to avoid danger, or if there is no actual 

 knowledge, then the probability of harm must be so great 

 that failure to take the required action constitutes reck- 

 lessness, (citations omitted) 584 F.2d at 1163. 



Accord, Steuart Transportation Co . v. Allied Towing Corp . , Nos. 77-2426 and 

 77-2427, 4th Cir., 10 April 1978. The court in Tug Ocean Prince held that 

 the tug's owners could not limit their liability for cleanup costs under the 

 FWPCA because their failure to appoint a captain, to require a lookout, and 

 to inform one pilot of the other pilot's unfamiliarity with the Hudson River 

 met the test of "willful negligence or willful misconduct." 



It is clear, however, that the United States will frequently be unable to 

 prove willful negligence or misconduct, and that in most cases the spiller 

 will pay back only a portion of the actual costs of the cleanup. For instance, 

 in the Steuart Transportation Co . case, the cost to the U.S. Coast Guard of 

 removal was $480,000, but because the spiller's liability was limited, only 

 about one fourth was recovered. This may make it difficult to collect damages 



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