to natural resources, since the damages for natural resources are presently 

 considered part of the cleanup costs and thus are subject to the liability 

 ceiling in cases where the Government cannot show willful negligence. 



One possible solution to the problem of limited liability would be the 

 creation of an emergency cleanup fund large enough to cover the actual costs 

 of oil and hazardous substance cleanups. The Carter administration is pres- 

 ently preparing legislation to require oil and chemical producers to pay up 

 to $6 billion a year into such a Superfund. It remains to be seen if wild- 

 life compensation or restoration funds and methods will be adequate. Unless 

 they are and until and unless such a fund is created, lawyers will have to 

 deal with the problem of limited liability under the FWPCA. One way we have 

 tried to do this is by relying on other sources of legal authority to inhibit 

 spillers or require them to make up the difference between their limited lia- 

 bility under the FWPCA and the actual cleanup costs and damages. 



For instance, the Refuse Act, which is part of the Rivers and Harbors Act, 

 33 U.S. C. |407, provides that it is unlawful to 



...discharge, or deposit, or cause, suffer, or procure to 

 be. . .discharged, or deposited. . .any refuse matter of any 

 kind whatever. . .into any navigable water of the United 

 States, or into any tributary of any navigable water... 



without a permit from the Corps of Engineers. Violation of this provision is 

 a criminal offense punishable by up to 1 year in prison or by a fine of up to 

 $2,500, or both. The Act has been construed to apply to oil spills. E.g., 

 United States v. Ballard Oil Co. of Hartford , 195 F.2d 369 (2d Cir. 1952); 

 La Merced , 84 F.2d 444 (9th Cir. 1936). 



Other potential sources of authority for the United States to recover the 

 full amount of damages and cleanup costs are the court-made rules of nuisance 

 and maritime tort. Pollution of navigable waters has long been held by the 

 Federal courts to be a public nuisance because it harms resources shared by 

 all people. Illinois v. City of Milwaukee , 406 U.S. 91 (1972). A maritime 

 tort is simply a civil wrong, such as a nuisance, which occurs on navigable 

 waters and is related to maritime activities. Both of these doctrines, in 

 addition to the Refuse Act, might allow the United States to obtain full 

 recovery for oil spills even where the spiller's liability is limited under 

 the FWPCA. 



This argument, however, has not always worked. The United States Court 

 of Appeals for the Fourth Circuit has ^jery recently ruled that the Federal 

 Government can no longer resort to the Refuse Act, nuisance, and maritime tort 

 law in oil and hazardous substance spill cases, but must rely entirely on the 

 FWPCA. This is the Steuart case, where a barge fully loaded with oil sank in 

 the Chesapeake Bay north of the Rappahannock River. Because the United States 

 failed to convince the court that the spiller was guilty of willful negligence, 

 the spiller's liability was limited, and it paid only a fraction of the clean- 

 up costs. Since the court held that the FWPCA provides the exclusive remedy 



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