Third Circuit Addresses Cleanup Cost Apportionment and Related Affirmative Defenses

by Pillsbury - Gravel2Gavel Construction & Real Estate Law

On March 29, the U.S. Court of Appeals for the Third Circuit decided an important oil spill cost recovery case: In re Petition of Frescati Shipping Co., Ltd. v. Citgo Asphalt Refining Co., et al. It is a case concerning the apportionment of oil spill-related cleanup costs and related affirmative defenses, including subrogation, equitable recoupment, and liability limitations under the Oil Pollution Act of 1990 (OPA).

In November 2004, the M/T Athos I, an oil tanker owned by Frescati Shipping Company (Frescati), was chartered by CITGO East Coast Oil Corporation (CARCO) to deliver a shipment of Venezuelan crude oil to CARCO’s berth in Paulsboro, NJ. As this single-hulled oil tanker approached the berth, it struck an abandoned anchor located on the bottom of the Delaware River, spilling approximately 264,000 gallons of crude oil into the river. Frescati cleaned up the spill, which took many days, at a cost of $143M. Under OPA, Frescati’s liability was capped at $45M, and the U.S. reimbursed Frescati for the remainder of $88M.

In the above cost recovery litigation, Frescati sued CARCO for breach of contract, seeking $55M, which included $10M for associated cleanup costs for damages that fell outside the scope of OPA’s liability cap. The U.S., as a partial subrogee for some of Frescati’s claims, also sued CARCO, and CARCO also filed its own claims.

The U.S. District Court for the Eastern District of Pennsylvania held that Frescati was entitled to nearly $56M in damages from CARCO based on its determination that CARCO breached its contractual duty to comply with a “safe berth warranty” as well as prejudgment interest of $16M; the U.S. was awarded half of its claim for $88M on its subrogated breach of contract claim, plus $4.6M in prejudgment interest.

The claim of the U.S. was reduced by the District Court because of CARCO’s “equitable recoupment” defense, based on the argument that three federal agencies— the National Oceanic and Atmospheric Administration (NOAA), U.S. Coast Guard and US Army Corps of Engineers—misled CARCO into believing they “were maintaining the anchorage free of obstructions.” Otherwise, CARCO’s motion for summary judgment was denied.

The Third Circuit affirmed the District Court’s ruling with respect to Frescati, and reversed the finding regarding CARCO’s equitable recoupment defense against the U.S., concluding that this defense was not available to CARCO, and the United States was entitled “to a full recovery.” In addition, CARCO’s late-filed affirmative defense that it was also entitled to OPA’s limited liability cap under 33 U.S.C. § 2702(d)(2)(B) was filed too late and without the “requisite clarity,” and was waived and failed on the merits. The Third Circuit also affirmed the District Court’s ruling denying CARCO’s motion for partial summary judgment on its limitation of liability defense. The case was returned to the District Court for additional consideration of certain prejudgment issues.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Pillsbury - Gravel2Gavel Construction & Real Estate Law | Attorney Advertising

Written by:

Pillsbury - Gravel2Gavel Construction & Real Estate Law

Pillsbury - Gravel2Gavel Construction & Real Estate Law on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.