USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 97-1321

IN THE MATTER OF:

THE COMPLAINT OF

METLIFE CAPITAL CORP., ETC.,

Plaintiff - Appellant,

____________________

COMMONWEALTH OF PUERTO RICO, ET AL.,

Plaintiffs - Appellees,

v.

M/V EMILY S., ETC., ET AL.,

Defendants - Appellees.

____________________

No. 97-1322

IN THE MATTER OF:

BUNKER GROUP, INC., ET AL.,

Plaintiffs - Appellants,

____________________

COMMONWEALTH OF PUERTO RICO, ET AL.,

Plaintiffs - Appellees,

v.

M/V EMILY S., ETC., ET AL.,

Defendants - Appellees.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Lynch, Circuit Judge,

_____________

and Keeton,* District Judge.

______________

_____________________

Michael Mirande, with

________________

whom Robert F. Bakemeier, Bogle &

_____________________ ________

Gates P.L.L.C., Jos

E. Alfaro-Delgado and Calvesbert, Alfaro &
______________ _______________________
_____________________
L pez-Conway
____________

were

on

brief

for

appellant

Metlife

Capital

Corporation.
John M. Woods, with whom
_____________
& Wood,
______

William A. Graffam,
___________________

Andrew J. Garger, Thacher Proffitt

________________ ________________
Patricia A. Garrity
____________________

and

Jim nez
_______

Graffam & Lausell were on brief for appellant Bunker Group, Inc.
_________________
Mee Lon Lam,
___________

Trial Attorney, Torts Branch,

U.S. Department of Justice, with

Attorney General,
States

Civil

Attorney, were

whom Frank W. Hunger, Assistant

_______________

Division,
on

Civil Division,

and

brief for

Guillermo Gil,
______________

appellee United

United

States of

America.
Antonio J. Rodr guez,
______________________

with

whom

Rice Fowler,
____________

Jos
A.
________

Fuentes-Agostini, Attorney General, Commonwealth of Puerto

________________
John F. Nevares and Smith & Nevares were on brief
________________
________________

Rico,

for appellee

Commonwealth of Puerto Rico.

____________________

December 24, 1997

____________________

____________________

Of the District of Massachusetts, sitting by designation.

-2-

TORRUELLA,
TORRUELLA,

consolidated for

Chief
Judge.
Chief
Judge.
_____________

appeal, challenge

These

two

the district

court's ruling

that the Oil Pollution Act of 1990 ("OPA"), 33 U.S.C.

repealed

the Limitation

("Limitation Act"),

claims for removal

of Shipowner's

46 U.S.C.

app.

Liability

181-96,

actions,

2701-61,

Act of

as to

costs and damages arising under

1851

oil spill

the OPA.

We

hold that

costs

claims arising

and

damages)

procedural

claims

law of

under

Admiralty

are

under the OPA

not

subject

the Limitation

Rule

of the

and Maritime

(for pollution

to

Act

or to

Supplemental

Claims

the

of the

removal

substantive

or

the concursus

of

Rules

Federal

for

Rules of

Certain

Civil

Procedure ("Rule F").

I.
I.

BACKGROUND
BACKGROUND

On January 7, 1994, the towing wire between the tug M/V

EMILY

S and

barge

off

the barge

of Punta

MORRIS J.

Escambr n,

BERMAN parted,

San

Juan,

grounding the

Puerto Rico.

The

grounding caused much of the MORRIS J. BERMAN's cargo of fuel oil

to spill into the waters of the Commonwealth

of Puerto Rico (the

"Commonwealth").

damages action

Soon after the spill, the Commonwealth

in

the

United States

District

Court

filed a

for

the

District of Puerto Rico naming numerous defendants including: (i)

the demise charterer

(ii) the operator

("BGPR"); (iii)

and the

of the EMILY S Bunker

Group, Inc. ("BGI");

of the EMILY S Bunker Group

the owner and

co-demise charterer

Puerto Rico, Inc.

operator of the MORRIS

of the EMILY

-3-

S New

J. BERMAN

England Marine

Services ("NEMS"); (iv) the owner

Corporation

("MetLife");

and (v)

Commonwealth arrested the

OPA,

general

federal

Subsequently,

several

of the EMILY S MetLife Capital

the

EMILY S and

maritime

other

EMILY

in rem.
__ ___

The

sought damages under

law,

and

Puerto

civil actions

were

Rico

filed

the

law.

in the

District of Puerto Rico by private parties seeking recovery under

a variety of

theories for

damages.

Each

of these actions

was

either consolidated with the Commonwealth's action or dismissed.

Within

six months

of the

oil

spill, the

appellants

NEMS, BGI,

and BGPR (collectively,

the "Bunker Group")

filed a

complaint

under

Act

seeking

exoneration from or

the

Limitation

and

limitation of liability.

Rule

At

F,

the same time,

the appellant MetLife, as owner of

action

under

the Limitation

the EMILY S, filed a separate

Act.

On

district court issued

a notice

actions

of injunction, or

and an order

August 25,

to claimants

1994,

of the

the

limitation

monition, enjoining the

commencement of any actions against the limitation plaintiffs for

claims

arising out

of the

grounding

of the

actions filed in the limitation proceeding.

a concursus

of all claims

NEMS,

BGPR,

BGI,

provided notice

to

and

MetLife

(the

actual claimants

claimants in a Notice of

on August

in a single

for

The monition created

consolidated proceeding.

"Limitation

as

well as

Plaintiffs")

to

potential

Monition in the newspaper El Nuevo D a

_____________

26, 1994, directing

before October 15, 1994.

barge except

them to

file their claims

on or

At

the

conclusion

of

the

monition

period,

the

-4-

Limitation

all

Plaintiffs filed motions for entry of default against

persons

claimants,

who

failed

to

file.

Subsequently,

numerous

including the Commonwealth and the United States (the

"Government"),

seeking recovery

filed

actions

in

the

limitation

proceedings,

of damages under the OPA, general maritime law,

and other law.

In their claims,

Government asserted that

both the Commonwealth and

their OPA claims should not

the

be subject

to concursus.

Three other claimants,

Rico,

Inc., Puerto Rico

Hilton International of

Tourism Company, and

Hotel Development

Corporation (collectively, the "Hilton claimants"), filed

under

seal

in

administrative

National

Hilton

the

limitation

claims, which

Pollution Funds

claimants

relief in

an

injunction

order

moved the

preserve their OPA

them from the concursus.

issued

Center ("NPFC"),

simultaneously

order to

proceedings

had already

On June

suspending

issued in

the

August

the limitation

been

claims

while

the

pending.

The

were

district

court for

they withdrew

the district

25,

their

filed with

claims if

28, 1996,

Puerto

1994

proceedings.

order

This

court

of

order

allows

"any

claims

for

oil

resulting from or in any way

barge

MORRIS

J.

BERMAN

independently

of

the

Subsequent to the

issuance of

removal

costs or

damages

connected with the grounding of the

January 7,

limitation

withdrew their limitation

administrative

on

spill

of

1994

to

liability

the order,

be

proceedings."

the Hilton

claims in order to proceed

claims before the

-5-

NPFC.

However,

asserted

claimants

with their

their motions

served as the vehicle for

presented to this court.

BGI, BGPR,

1996 order.

all parties to brief the

question now

On August 7, 1996, the appellants NEMS,

and MetLife timely filed this

appeal of the June 28,

-6-

II.
II.

Interpretations

subject to de
__

novo review.
____

of

DISCUSSION
DISCUSSION

federal

statutes

See Strickland
___ __________

and

rules

v. Commissioner, Me.
_________________

Dept. of Human Servs., 96 F.3d 542, 545 (1st Cir. 1996).

_____________________

A.
A.

The Limitation Act and the OPA

The Limitation Act and the OPA

are

The

Limitation

shipbuilding and

shipping

Act

to induce

industry.

Southern Pac. Co.,

__________________

See
___

investment in

273 U.S.

out of the

post-accident value of

U.S.C.

1851

to promote

the growing

American

207 (1927).

The law

v.

permits the

liability as to certain claims for

voyage of his

or her vessel

the vessel plus pending freight.

to the

See 46
___

183, 186.

Rule

limitation action.

later

in

Hartford Accident & Indem. Co.

_________________________________

shipowner to limit his or her

damages arising

was enacted

than

governs

The

six months

the

filing

and

vessel owner must

after

receipt

of a

adjudication

file a

claim

of

complaint no

as

well as

depositing the amount of the limitation fund with the court.

See
___

Rule F(1).

Rule F concursus, once

referred to as the "heart" of

a limitation action, Maryland Cas. Co. v. Cushing, 347 U.S. 409,

__________________
_______

417 (1954),

requires multiple claimants

to pursue

relief in

single forum and marshals the assets of a limited fund.

F(3),

F(7).

Concursus is

economical disposition to

415.

of

intended

controversies."

Today, many question the

the Limitation

Act.

to provide

and

U.S. at

continued usefulness and vitality

See, e.g.,
___ ____

Admiralty and Maritime Law (2d

___________________________

See Rule
___

a "prompt

Cushing, 347
_______

Thomas J.

ed. 1994) (the

-7-

Schoenbaum,

Limitation Act's

"original purpose . . . seems to have lost much of its force with

the availability of insurance, bills of lading statutes

substantial

limits on liability for

to limit

claims

repealed

the act,

by contract").

cargo loss, and the ability

However, Congress

and therefore,

that put

courts continue to

has

never

apply it.

See, e.g., Keller v. Jennette, 940 F. Supp. 35 (D. Mass. 1996).

___ ____ ______
________

The Oil

1989

Exxon

comprehensive

Pollution Act

Valdez

tanker

compensation and

was passed in

disaster

and

the wake

created

liability scheme

of the

more

for oil

spill

pollution than had

the

OPA, the

existed under earlier legislation.

Federal

Water

(commonly known as the Clean

provided

liability

Control

Act

Water Act), 33 U.S.C.

limitations

costs associated with

imposes

Pollution

for federal

oil spills.

See
___

id.
__

Prior to

("FWPCA")

1251-1387,

pollution

removal

1321(c).

The OPA

strict liability for pollution removal costs and damages

on the "responsible party" for a vessel

oil is discharged.

See 33 U.S.C.
___

or a facility from which

2702(a).

Responsible parties

include owners, operators, or demise charterers of a vessel.

id.
__

See
___

2701(32).

The

OPA limits

the

liability of

based upon the type of vessel and its tonnage.

the limit can be as high as $10 million.

Id.
__

responsible parties

For tank vessels,

2704(a)(1).

For

all other vessels, the limit is the greater of $600 per gross ton

or $500,000.

unlimited

Id.
__

2704(a)(2).

Responsible parties

may face

liability for, inter alia, acts of gross negligence or

_____ ____

willful misconduct.

In addition, state law applies free of these

-8-

liability limits.

See id.
___ __

2718(a), 2718(b).

Finally, the OPA

consolidated previously established oil

Oil Spill Liability

Trust Fund (the

pollution funds into the

"Fund"), which pays

claims

brought under the OPA after they have first been presented to the

responsible party,

the

if the

defense,

or

reached.

See 33 U.S.C.
___

responsible party

liability limit

under

is

the

entitled to

statute has

2708(a), 2713(b)(1)(B).

been

See generally
___ _________

Schoenbaum, supra, at 384.

_____

B.
B.

The OPA's Impact on the Limitation Act

The OPA's Impact on the Limitation Act

The

OPA specifically

addresses its

relationship with

the Limitation Act and other legislation when it states:

Notwithstanding any other provision or

_________________________________________
rule
of law,
______________

and

provisions

of

this

responsible

party

for

subject

to

chapter,
a

vessel

the
each
or

facility from which oil is discharged, or

which poses

the substantial threat

of a

discharge of oil, . . . is liable for the

removal

costs and

subsection

(b)

damages specified

that

result

from

in
such

incident.

33 U.S.C.

that

2702(a) (emphasis added).

Appellant MetLife asserts

this provision imposes the OPA's increased liability limits

notwithstanding any previously

Limitation Act,

but does

applicable limitations under

___________

not eviscerate

the

preexisting limitation

procedure under the Limitation Act.

_________

Thus, the appellant argues,

Limitation

available

Act

concursus

remains

to

responsible

parties.

However, a

plain reading

that the OPA repealed the

cost and damages

of

the subsection

suggests

Limitation Act with respect to removal

claims against responsible parties.

See In re

___ _____

-9-

JAHRE SPRAY II K/S, 1996

__________________

WL 451315, *4 (D.N.J. 1996);

accord In
______ __

re Odin Marine Corp., No. 96-5438, slip op. at 6 (S.D.N.Y.

_____________________

7, 1997); Tug Capt. Fred Bouchard Corp.

_____________________________

v. M/V BALSA 37, No. 93____________

1321, slip op. at 2 (M.D. Fla. Oct. 22, 1996).

procedural

rules

incorporated

into

Aug.

the

Accordingly, the

Limitation

Act

are

inapplicable as well

language

in

to such

the FWPCA,

claims.

courts

In interpreting

have

held

that the

"notwithstanding" phrase precludes application of the

Act to

claims by the

costs.

See
___

United States for FWPCA

Limitation

In re Oswego Barge Corp., 664 F.2d 327, 340 (2d Cir.

________________________

Alaska 1981).

See also
_________

broadly supersedes the

to damages

statute's

pollution removal

1981); In re Hokkaido Fisheries Co., Ltd., 506 F.

__________________________________

(D.

similar

law").

Schoenbaum, supra,
__________ _____

We find these

"[n]either the

language

history

suggests

OPA's

contrary

to the

settled law

of

cases to

OPA

provisions

applicable to

nor

state law,

be persuasive

its

should

("OPA

with respect

under both federal and

because

that

at 376

Limitation of Liability Act

and removal costs

including common

Supp. 631, 643

legislative

be

FWPCA when

construed

OPA was

enacted."

Effect

William M.

Duncan, The Oil

on the Shipowner's Limitation of

Pollution Act

of 1990's

Liability Act, 5 U.S.F.

L. Rev. 303, 316 (1993).

In addition to the

four

other provisions

Limitation Act with

U.S.C.

in

"notwithstanding" clause, at

the

statute

explicitly

least

repeal

respect to certain types of claims.

the

See 33
___

2702(d)(1)(A) (repealing the Limitation Act as to third

parties solely responsible

for a spill); 2718(a)

-10-

(repealing the

Limitation

Act

2718(c)(1)

(repealing

liability

to

state

the

2718(c)(2)

or penalties).

to the OPA.

Limitation

The

statutory

Act

as

to

remedies);

additional

States, any state, or political

Limitation

appellants contend that,

the Limitation Act continues

Act

as to

outside of

to apply

The Bunker Group, citing one commentator, notes that

"[i]f Congress'

repealed

local

(repealing the

these specific instances,

repeal

and

imposed by the United

subdivision);

fines

as

intent in

the Limitation

it only

with

Duncan, supra, at 319.

_____

Act,

enacting OPA

it

would

respect to

had been

not

certain

have

to completely

painstakingly

types of

actions."

When

we

consider

explicitly repeal the

these

the

OPA

provisions

Limitation Act as well as

irreconcilably in conflict,

repealed

five

arising under the OPA in

others that are

see infra, we find that

___ _____

Limitation Act

as to

oil spill

the instant case.

which

the OPA has

pollution claims

"'[W]here provisions

in the two acts are in irreconcilable conflict, the later act

the extent of

the conflict constitutes an implied

earlier one . . . .'"

497,

503

repeal of the

See Radzanower v. Touche Ross & Co., 426

___ __________
__________________

U.S. 148, 154 (1976) (quoting

U.S.

to

(1936)

Posadas v. National City Bank, 296

_______
__________________

(noting

standard

for

repeal

by

implication

is

implication)).

While

the

repeal

of

statutes

by

disfavored, see Tennessee Valley Auth. v. Hill, 437 U.S. 153, 189

___ ______________________

(1978),

several key provisions

inconsistent.

First,

____

of the two

statutes are plainly

the Limitation Act limits

the shipowner's

-11-

liability to the

freight, 46

post-accident value of the

U.S.C.

183, while the

vessel plus pending

OPA contemplates

a strict

liability regime with statutory limits of at least $2 million for

tanks vessels and $.5 million for

2702, 2704.

Moreover,

2704(c).

obvious

U.S.C.

imposes

the responsible party.

See 33
___

Second, the provisions on jurisdiction are in

tension.

limitation

33

in certain instances, the OPA

virtually unlimited liability on

U.S.C.

all other vessels.

Only federal

proceedings.

See,
___

courts

e.g.,
____

have jurisdiction

over

Complaint of Dammers &

_________________________

Vanderheide & Scheepvaart Maats Christina B.V., 836 F.2d 750, 755
______________________________________________

(2d Cir.

1988).

In

courts jurisdiction

contrast, the OPA grants

to decide

2717(b), 2717(c).

procedural

OPA.

Finally, the

rule that implements

the Limitation Act,

oil pollution

cannot be

See Part C, infra.

___
_____

federal and state

_________

cases.

provisions of

and which is

reconciled with

33

U.S.C.

Rule F,

the

incorporated into

sections of

the

Even assuming arguendo that

________

the legislative history

As

this

court has

interpretation

is

is consistent

noted,

to

the language is ambiguous,

the

give

with our

interpretation.

"chief objective

effect

to

of

statutory

legislative

will."

Passamaquoddy Tribe v. State of Me., 75 F.3d 784 (1st Cir. 1996).

___________________
____________

In considering the OPA's liability provision, Congress stated:

Liability under

this Act

notwithstanding

any

rule of
liability
govern

the law.

is established

other
This

provisions of
limitations

provision or

means that
this Act

compensation

the
would
for

removal costs and damages notwithstanding

any limitations

under existing

statutes

such as the act of March 3, 1851 . . . .

-12-

H.R. Conf.

Rep. No.

U.S.C.C.A.N.

Conference

779,

781

(Joint

the

on the OPA

1851

(1990), reprinted in 1990

_____________

Explanatory

Committee explaining

Senate Report

supersedes

101-653, at 103

Statement

2702(a)).

bill asserts that the

statute with

respect

to

of

the

Furthermore,

the

OPA "completely

oil pollution."

S. Rep. No. 101-94,at 14, reprinted in 1990U.S.C.C.A.N. 722, 736.

____________

More

generally,

as

the

Ninth

Circuit

reasoned

in

finding an implicit repeal of the Limitation Act by the liability

provisions

U.S.C.

OPA]

of the

would

1991).

legislation

environmental

frustrate

completely

"The purpose

passed

by

Congress

However, the Limitation

F.2d at 583.

[the

of OPA,

disasters such

to eliminate liability

944

43

OPA]'s

comprehensive

See In re Glacier Bay, 944 F.2d 577, 583 (9th

___ __________________

as well

and

as oil

rapid private party responses."

*4.

Authorization Act,

1651-1655, "[a]pplication of the Limitation Act to [the

remedial nature."

Cir.

Trans-Alaska Pipeline

the

spills,

as other

states

to

was to

remedial

address

encourage

JAHRE SPRAY, 1996 WL 451315, at

___________

Act "allows vessel owners virtually

for catastrophic damages."

Hence, the OPA's

Glacier Bay,
___________

scheme is in irreconcilable

conflict with the Limitation Act.

Some

claims

arising

from an

incident

in

which oil

pollution occurs do not escape

that Act

remains in

maritime tort

U.S.C.

chapter,

force for general

actions for harms to

2751(e)

this

the Limitation Act.

("[e]xcept

chapter does

as

not

For example,

maritime claims

such as

persons or vessels.

See 33
___

otherwise

affect

provided

. .

in

admiralty

this

and

-13-

maritime law").

The district

court below, in keeping

with the

OPA's savings

Plaintiffs'

claims

provision in

right "to

subject

Therefore,

to

the

Bunker

court's order exempts

from

2751(e),

seek limitation

reduction

under

Group's

of

from Rule F

Limitation

liability for

those

Limitation

Act."

the

contention

that

the

concursus all claims

the grounding, whether or not they

without merit.

reserved the

district

arising

arise under the OPA, is

The appellants remain free to avail themselves of

the Limitation Act and Rule F concursus for their non-OPA claims.

C.
C.

The Independent Application of Rule F Concursus

The Independent Application of Rule F Concursus

The

appellants claim that

even if the

OPA supersedes

the Limitation Act, because the OPA fails to provide any guidance

on the

procedure

applies to

necessary to

implement it,

Rule F

concursus

actions under the OPA independently of the Limitation

Act.

is

To support their

framed

contention, the appellants note that Rule

generally

pursuant to statute."
_______

by the Supreme Court

redrafting

statute"

address

Rule F(1).

"limitation

the Supreme

the 1851 statute

of

liability

Rule F was originally

to implement the 1851

the rules,

reference to

to

Court

in Rule F

language, which we find

written

Limitation Act.

substituted a

In

direct

with the "pursuant

to

reveals a more general purpose

for Rule F.

We

conclude, however,

venue and limitation of

OPA's provisions

that Rule

liability cannot be reconciled

regarding oil spill

limitation of liability

F's requirements

damages.

-14-

with the

Under Rule

proceeding may be commenced

on

F, a

only in the

district where the vessel has

not been

sued.

seized, in

See Rule F(9).

___

been seized, or if the

any district

in which

the owner

If neither the vessel has

has been

been seized nor

action commenced against the owner, the limitation

filed in the district where the vessel may be.

vessel has

action may be

See id.
___ __

Venue is

proper in any district only if there is no pending litigation and

the vessel

is not within any district.

See

id.

Under the OPA,

___

in

contrast,

venue is

discharge of oil or

proper

in

any

__

district in

injury or damages occurred, or

which

the

in which the

defendant resides, may be found, has its principal office, or has

appointed an agent for service of process.

Thus, the

while

OPA offers claimants

Rule

F's

venue

U.S.C.

2717(b).

a much broader choice

of forums

requirements

33

are

significantly

more

restrictive.

Rule

the OPA's

F's deadline for claims is also inconsistent with

statute of

limitation.

commenced, the court issues a

to file

F(4).

in

Once

a limitation

action is

notice to claimants requiring them

their claims by the date fixed

in the notice.

See Rule
___

The court may fix a date that requires claims to be filed

as little as 30 days

after issuance of the

notice.

Id.

In

__

the

instant case,

ten months

The

2717(f)(1),

seek

after the date

OPA, however,

action to

the monition period

of the MORRIS J.

allows claimants

recover removal costs and

2717(f)(2).

recovery from

the

terminated approximately

BERMAN's grounding.

three years to

damages.

commence an

See 33
___

U.S.C.

In addition, if the claimant decides to

Fund,

the claimant

-15-

has

six years

to

present removal

costs claims,

three

present damage

years to

Finally,

section 2717(f)(4)

subrogation actions by

subrogated claim.

One

under

subject

court imposed

See 33 U.S.C.
___

rights under

pays a

See id.
___ __

2712(h)(2).

limitation period

claims period

interfere with the United States'

OPA.

F concursus,

If

oil

claimants who

spill claims

are barred

recovering against

United

States acquires

are

by the

the responsible

to present their claims to the Fund.

claim, the

for

2717(f)(4).

with the shortened

the

deadline from

party, are likely

claims.

2712(h)(1), and

three years from the date the Fund pays a

concern we have

to Rule

U.S.C.

extends the

Rule F is that it would

subrogation

Fund

see 33
___

Once the

all rights

of

subrogation.

See 33 U.S.C.
___

2712(f), 2713, 2715(a).

However,

at that point, the United States may then be denied access to the

proceedings against

the responsible party, and consequently, the

Fund will bear the financial burden of these late claims.

The

appellants

respond

that,

government's subrogation rights do not

"[f]or cause shown,

under

Rule

F(4).

F,

the

necessarily lapse because

the court may enlarge the

filed."

Rule

We

time within which

claims may

be

subjecting

the government's subrogation rights to the discretion

of the trial court in every oil spill action

secure those rights.

believe

though

that

fails to adequately

Congress specifically examined

this issue

in creating the OPA's statute of limitation and giving the courts

discretion

over this matter

is contrary to

legislative intent.

Moreover,

even if the

courts consistently enlarge

the monition

-16-

period for

subrogation claims,

fund established

by the

in many

instances, the

concursus procedure

limited

will already

have

been exhausted.

Finally,

the OPA

contrary to

fails to provide

the appellants'

contention that

any procedural guidance, the

___

OPA does

establish a

claims procedure.

The OPA requires all

claims for

removal costs or damages to be presented first to the responsible

party or guarantor.

party

See 33 U.S.C.
___

denies liability

days, the claimant

or the

claim is

to the Fund.

enumerated instances, claims

id.
__

2713(b).

procedure

is

to

"The

promote

purpose

of

settlement

within 90

responsible party in

See id.
___ __

may be presented

the Fund without first presenting them to

See
___

If the responsible

not settled

may proceed against the

court or present the claim

some

2713(a).

2713(c).

In

directly to

the responsible party.

the

and

claim presentation

avoid

litigation."

Johnson v. Colonial Pipeline Co., 830 F. Supp. 309, 310 (E.D. Va.
_______
_____________________

1993).

In contrast to the OPA's claims procedure, Rule F

forces

all claimants

claimant

into litigation

fails to

appear in

monition period, he

See Rule
___

F(3).

that Rule F

against the vessel

the limitation

or she is enjoined from

In view of

action within

If a

the

raising any claims.

these inconsistencies,

concursus even if independent of

owner.

we conclude

the Limitation Act

is inapplicable to OPA claims.

III.
III.

For

CONCLUSION
CONCLUSION

the reasons stated

-17-

in this opinion,

the district

court's order is affirmed.

affirmed.
________

Costs to be assessed against appellants.

-18-