33 U.S.C. § 2703 — Defenses to liability

Page 879 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2703 (E) Profits and earning capacity Damages equal to the loss of profits or im- pairment of earning capacity due to the in- jury, destruction, or loss of real property, personal property, or natural resources, which shall be recoverable by any claimant. (F) Public services Damages for net costs of providing in- creased or additional public services during or after removal activities, including protec- tion from fire, safety, or health hazards, caused by a discharge of oil, which shall be recoverable by a State, or a political sub- division of a State. (c) Excluded discharges This subchapter does not apply to any dis- charge— (1) permitted by a permit issued under Fed- eral, State, or local law; (2) from a public vessel; or (3) from an onshore facility which is subject to the Trans-Alaska Pipeline Authorization Act (43 U.S.C. 1651 et seq.). (d) Liability of third parties (1) In general (A) Third party treated as responsible party Except as provided in subparagraph (B), in any case in which a responsible party estab- lishes that a discharge or threat of a dis- charge and the resulting removal costs and damages were caused solely by an act or omission of one or more third parties de- scribed in section 2703(a)(3) of this title (or solely by such an act or omission in com- bination with an act of God or an act of war), the third party or parties shall be treated as the responsible party or parties for purposes of determining liability under this subchapter. (B) Subrogation of responsible party If the responsible party alleges that the discharge or threat of a discharge was caused solely by an act or omission of a third party, the responsible party— (i) in accordance with section 2713 of this title, shall pay removal costs and damages to any claimant; and (ii) shall be entitled by subrogation to all rights of the United States Government and the claimant to recover removal costs or damages from the third party or the Fund paid under this subsection. (2) Limitation applied (A) Owner or operator of vessel or facility If the act or omission of a third party that causes an incident occurs in connection with a vessel or facility owned or operated by the third party, the liability of the third party shall be subject to the limits provided in sec- tion 2704 of this title as applied with respect to the vessel or facility. (B) Other cases In any other case, the liability of a third party or parties shall not exceed the limita- tion which would have been applicable to the responsible party of the vessel or facility from which the discharge actually occurred if the responsible party were liable. (Pub. L. 101–380, title I, § 1002, Aug. 18, 1990, 104 Stat. 489.) Editorial Notes REFERENCES IN TEXT This Act, referred to in subsec. (a), is Pub. L. 101–380, Aug. 18, 1990, 104 Stat. 484, known as the Oil Pollution Act of 1990, which is classified principally to this chap- ter. For complete classification of this Act to the Code, see Short Title note set out under section 2701 of this title and Tables. The Intervention on the High Seas Act, referred to in subsec. (b)(1)(A), is Pub. L. 93–248, Feb. 5, 1974, 88 Stat. 8, which is classified generally to chapter 28 (§ 1471 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under sec- tion 1471 of this title and Tables. The Trans-Alaska Pipeline Authorization Act, re- ferred to in subsec. (c)(3), is title II of Pub. L. 93–153, Nov. 16, 1973, 87 Stat. 584, which is classified generally to chapter 34 (§ 1651 et seq.) of Title 43, Public Lands. For complete classification of this Act to the Code, see Short Title note set out under section 1651 of Title 43 and Tables. § 2703. Defenses to liability (a) Complete defenses A responsible party is not liable for removal costs or damages under section 2702 of this title if the responsible party establishes, by a prepon- derance of the evidence, that the discharge or substantial threat of a discharge of oil and the resulting damages or removal costs were caused solely by— (1) an act of God; (2) an act of war; (3) an act or omission of a third party, other than an employee or agent of the responsible party or a third party whose act or omission occurs in connection with any contractual re- lationship with the responsible party (except where the sole contractual arrangement arises in connection with carriage by a common car- rier by rail), if the responsible party estab- lishes, by a preponderance of the evidence, that the responsible party— (A) exercised due care with respect to the oil concerned, taking into consideration the characteristics of the oil and in light of all relevant facts and circumstances; and (B) took precautions against foreseeable acts or omissions of any such third party and the foreseeable consequences of those acts or omissions; or (4) any combination of paragraphs (1), (2), and (3). (b) Defenses as to particular claimants A responsible party is not liable under section 2702 of this title to a claimant, to the extent that the incident is caused by the gross neg- ligence or willful misconduct of the claimant. (c) Limitation on complete defense Subsection (a) does not apply with respect to a responsible party who fails or refuses— (1) to report the incident as required by law if the responsible party knows or has reason to know of the incident; Page 880 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2703 (2) to provide all reasonable cooperation and assistance requested by a responsible official in connection with removal activities; or (3) without sufficient cause, to comply with an order issued under subsection (c) or (e) of section 1321 of this title or the Intervention on the High Seas Act (33 U.S.C. 1471 et seq.). (d) Definition of contractual relationship (1) In general For purposes of subsection (a)(3) the term ‘‘contractual relationship’’ includes, but is not limited to, land contracts, deeds, easements, leases, or other instruments transferring title or possession, unless— (A) the real property on which the facility concerned is located was acquired by the re- sponsible party after the placement of the oil on, in, or at the real property on which the facility concerned is located; (B) one or more of the circumstances de- scribed in subparagraph (A), (B), or (C) of paragraph (2) is established by the respon- sible party by a preponderance of the evi- dence; and (C) the responsible party complies with paragraph (3). (2) Required circumstance The circumstances referred to in paragraph (1)(B) are the following: (A) At the time the responsible party ac- quired the real property on which the facil- ity is located the responsible party did not know and had no reason to know that oil that is the subject of the discharge or sub- stantial threat of discharge was located on, in, or at the facility. (B) The responsible party is a government entity that acquired the facility— (i) by escheat; (ii) through any other involuntary trans- fer or acquisition; or (iii) through the exercise of eminent do- main authority by purchase or condemna- tion. (C) The responsible party acquired the fa- cility by inheritance or bequest. (3) Additional requirements For purposes of paragraph (1)(C), the respon- sible party must establish by a preponderance of the evidence that the responsible party— (A) has satisfied the requirements of sub- section (a)(3)(A) and (B); (B) has provided full cooperation, assist- ance, and facility access to the persons that are authorized to conduct removal actions, including the cooperation and access nec- essary for the installation, integrity, oper- ation, and maintenance of any complete or partial removal action; (C) is in compliance with any land use re- strictions established or relied on in connec- tion with the removal action; and (D) has not impeded the effectiveness or integrity of any institutional control em- ployed in connection with the removal ac- tion. (4) Reason to know (A) Appropriate inquiries To establish that the responsible party had no reason to know of the matter described in paragraph (2)(A), the responsible party must demonstrate to a court that— (i) on or before the date on which the re- sponsible party acquired the real property on which the facility is located, the re- sponsible party carried out all appropriate inquiries, as provided in subparagraphs (B) and (D), into the previous ownership and uses of the real property on which the fa- cility is located in accordance with gen- erally accepted good commercial and cus- tomary standards and practices; and (ii) the responsible party took reason- able steps to— (I) stop any continuing discharge; (II) prevent any substantial threat of discharge; and (III) prevent or limit any human, envi- ronmental, or natural resource exposure to any previously discharged oil. (B) Regulations establishing standards and practices Not later than 2 years after August 9, 2004, the Secretary, in consultation with the Ad- ministrator of the Environmental Protec- tion Agency, shall by regulation establish standards and practices for the purpose of satisfying the requirement to carry out all appropriate inquiries under subparagraph (A). (C) Criteria In promulgating regulations that establish the standards and practices referred to in subparagraph (B), the Secretary shall in- clude in such standards and practices provi- sions regarding each of the following: (i) The results of an inquiry by an envi- ronmental professional. (ii) Interviews with past and present owners, operators, and occupants of the fa- cility and the real property on which the facility is located for the purpose of gath- ering information regarding the potential for oil at the facility and on the real prop- erty on which the facility is located. (iii) Reviews of historical sources, such as chain of title documents, aerial photo- graphs, building department records, and land use records, to determine previous uses and occupancies of the real property on which the facility is located since the property was first developed. (iv) Searches for recorded environmental cleanup liens against the facility and the real property on which the facility is lo- cated that are filed under Federal, State, or local law. (v) Reviews of Federal, State, and local government records, waste disposal records, underground storage tank records, and waste handling, generation, treat- ment, disposal, and spill records, con- cerning oil at or near the facility and on the real property on which the facility is located. (vi) Visual inspections of the facility, the real property on which the facility is located, and adjoining properties. (vii) Specialized knowledge or experience on the part of the responsible party. Page 881 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2704 (viii) The relationship of the purchase price to the value of the facility and the real property on which the facility is lo- cated, if oil was not at the facility or on the real property. (ix) Commonly known or reasonably as- certainable information about the facility and the real property on which the facility is located. (x) The degree of obviousness of the pres- ence or likely presence of oil at the facil- ity and on the real property on which the facility is located, and the ability to de- tect the oil by appropriate investigation. (D) Interim standards and practices (i) Real property purchased before May 31, 1997 With respect to real property purchased before May 31, 1997, in making a deter- mination with respect to a responsible party described in subparagraph (A), a court shall take into account— (I) any specialized knowledge or expe- rience on the part of the responsible party; (II) the relationship of the purchase price to the value of the facility and the real property on which the facility is lo- cated, if the oil was not at the facility or on the real property; (III) commonly known or reasonably ascertainable information about the fa- cility and the real property on which the facility is located; (IV) the obviousness of the presence or likely presence of oil at the facility and on the real property on which the facil- ity is located; and (V) the ability of the responsible party to detect oil by appropriate inspection. (ii) Real property purchased on or after May 31, 1997 With respect to real property purchased on or after May 31, 1997, until the Sec- retary promulgates the regulations de- scribed in clause (ii), the procedures of the American Society for Testing and Mate- rials, including the document known as ‘‘Standard E1527–97’’, entitled ‘‘Standard Practice for Environmental Site Assess- ment: Phase I Environmental Site Assess- ment Process’’, shall satisfy the require- ments in subparagraph (A). (E) Site inspection and title search In the case of real property for residential use or other similar use purchased by a non- governmental or noncommercial entity, in- spection and title search of the facility and the real property on which the facility is lo- cated that reveal no basis for further inves- tigation shall be considered to satisfy the re- quirements of this paragraph. (5) Previous owner or operator Nothing in this paragraph or in subsection (a)(3) shall diminish the liability of any pre- vious owner or operator of such facility who would otherwise be liable under this Act. Not- withstanding this paragraph, if a responsible party obtained actual knowledge of the dis- charge or substantial threat of discharge of oil at such facility when the responsible party owned the facility and then subsequently transferred ownership of the facility or the real property on which the facility is located to another person without disclosing such knowledge, the responsible party shall be treated as liable under section 2702(a) of this title and no defense under subsection (a) shall be available to such responsible party. (6) Limitation on defense Nothing in this paragraph shall affect the li- ability under this Act of a responsible party who, by any act or omission, caused or con- tributed to the discharge or substantial threat of discharge of oil which is the subject of the action relating to the facility. (Pub. L. 101–380, title I, § 1003, Aug. 18, 1990, 104 Stat. 491; Pub. L. 108–293, title VII, § 703(c), Aug. 9, 2004, 118 Stat. 1072; Pub. L. 115–232, div. C, title XXXV, § 3547(b), Aug. 13, 2018, 132 Stat. 2328.) Editorial Notes REFERENCES IN TEXT The Intervention on the High Seas Act, referred to in subsec. (c)(3), is Pub. L. 93–248, Feb. 5, 1974, 88 Stat. 8, which is classified generally to chapter 28 (§ 1471 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1471 of this title and Tables. This Act, referred to in subsec. (d)(5), (6), is Pub. L. 101–380, Aug. 18, 1990, 104 Stat. 484, known as the Oil Pollution Act of 1990, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2701 of this title and Tables. AMENDMENTS 2018—Subsec. (d)(5). Pub. L. 115–232 inserted ‘‘section’’ before ‘‘2702(a)’’. 2004—Subsec. (d). Pub. L. 108–293 added subsec. (d). § 2704. Limits on liability (a) General rule Except as otherwise provided in this section, the total of the liability of a responsible party under section 2702 of this title and any removal costs incurred by, or on behalf of, the respon- sible party, with respect to each incident shall not exceed— (1) for a tank vessel the greater of— (A) with respect to a single-hull vessel, in- cluding a single-hull vessel fitted with dou- ble sides only or a double bottom only, $3,000 per gross ton; (B) with respect to a vessel other than a vessel referred to in subparagraph (A), $1,900 per gross ton; or (C)(i) with respect to a vessel greater than 3,000 gross tons that is— (I) a vessel described in subparagraph (A), $22,000,000; or (II) a vessel described in subparagraph (B), $16,000,000; or (ii) with respect to a vessel of 3,000 gross tons or less that is— (I) a vessel described in subparagraph (A), $6,000,000; or