Ironshore Specialty Insurance v. United States , 871 F.3d 131 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-1589
IRONSHORE SPECIALTY INSURANCE COMPANY,
in its own right and as subrogee of NORTHEAST SHIP REPAIR, INC.,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA; AMERICAN OVERSEAS MARINE COMPANY, LLC,
Defendants, Appellees,
GENERAL DYNAMICS AMERICA OVERSEAS MARINE CORPORATION,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Barron, Stahl, and Lipez,
Circuit Judges.
George M. Chalos, with whom Chalos & Co, P.C. was on brief,
for appellant.
Anne Murphy, Attorney, Civil Division, U.S. Department of
Justice, with whom Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Carmen Milargros Ortiz, United States Attorney,
and Matthew M. Collette, Attorney, Civil Division, U.S. Department
of Justice, was on brief, for appellee United States of America.
Thomas J. Muzyka, with whom Olaf Aprans and Clinton & Muzyka,
P.C. were on brief, for appellee American Overseas Marine
Corporation.
September 15, 2017
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LIPEZ, Circuit Judge. This appeal arises out of an
incident on the South Boston Waterfront, where a large military
transport vessel, the FISHER, unexpectedly spilled over 11,000
gallons of fuel next to Boston Harbor. Ironshore Specialty
Insurance Company ("Ironshore"), the entity that paid the clean-
up costs, appeals from a district court order dismissing claims it
brought against American Overseas Marine Company, LLC ("AMSEA")
and the United States under the Oil Pollution Act of 1990 ("OPA"),
33 U.S.C. §§ 2701-2761, general admiralty and maritime law. After
carefully considering the parties' arguments and the relevant law,
we affirm in part and reverse in part.
I.
The FISHER is a large, medium speed, "roll on, roll off"
transport vessel and vehicle cargo ship. The Military Sealift
Command, a division of the United States Navy, owns the FISHER.
The vessel is deployed principally to carry military vehicles and
containerized cargo for the Department of Defense.
In 2010, the Military Sealift Command entered into a
contract with AMSEA, in which AMSEA agreed to crew, maintain, and
make routine repairs to the FISHER. In June 2014, pursuant to
that contract, the FISHER entered a Boston graving dock owned by
Boston Ship Repair ("BSR"), with whom AMSEA had subcontracted to
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perform routine maintenance.1 No aspect of the maintenance related
to fueling the FISHER, and only AMSEA crew members were permitted
to conduct fuel transfers. On July 9, while the FISHER was propped
up on blocks within the graving dock, an oil spill occurred as a
result of the allegedly negligent conduct of AMSEA crew members.
More than 11,000 gallons of diesel fuel poured out of the vessel
and into the graving dock. To prevent the fuel from escaping into
Boston Harbor -- and to minimize damages to the FISHER and BSR's
graving dock -- BSR quickly acted to contain and remove the fuel.
BSR incurred nearly $3,000,000 in costs associated with
cleaning up the FISHER's fuel spill, which Ironshore reimbursed as
BSR's pollution policy insurer. As BSR's subrogee, Ironshore filed
this action in the United States District Court for the District
of Massachusetts against AMSEA and the United States to recover
the money it paid to reimburse BSR's cleanup costs. Ironshore's
three-count complaint sought (1) cleanup costs and damages under
the OPA; (2) a declaratory judgment finding AMSEA and the United
States to be strictly liable parties under the OPA; and (3) damages
sounding in general admiralty and maritime law as a result of
AMSEA's and the United States' alleged negligence.
1 A "graving dock" is "a permanent structure on land with
gates that allow vessels to enter and that then can be closed to
drain out the water. In other words, it is a drydock." Vasquez
v. GMD Shipyard Corp., 582 F.3d 293, 298 (2d Cir. 2009) (quoting
San Francisco Drydock, Inc. v. Dalton, 131 F.3d 776, 777 (9th Cir.
1997)).
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The United States and AMSEA each filed a motion to
dismiss Ironshore's OPA claims under Federal Rule of Civil
Procedure 12(b)(6). AMSEA also asked the district court to dismiss
Ironshore's negligence claims against it. The district court
granted both parties' motions to dismiss in full. The district
court went further, however, and also dismissed sua sponte
Ironshore's negligence claim against the United States, concluding
that the OPA foreclosed the option of bringing any negligence claim
relating to oil spills under general admiralty and maritime law.
Ironshore timely appealed, asserting that (1) the district court
inappropriately considered documents outside the pleadings when it
decided the defendants' motions to dismiss; and (2) it erroneously
dismissed each of Ironshore's OPA and negligence claims.
II.
We review a district court's grant of dismissal under
Rule 12(b)(6) de novo, treating as true all well-pleaded facts in
the complaint. Isla Nena Air Servs., Inc. v. Cessna Aircraft Co.,
449 F.3d 85, 87 (1st Cir. 2006).
A. Documents Outside the Pleadings
Ironshore argues that, as a threshold matter, the
district court committed reversible error when it relied upon
materials outside the pleadings in granting AMSEA's and the United
States' 12(b)(6) motions to dismiss. Specifically, Ironshore
challenges the district court's decision to consider the Military
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Sealift Command's contract with AMSEA. Ironshore did not include
or append this contract to its complaint. Rather, AMSEA and the
United States provided excerpts of the contract to the district
court alongside their respective motions to dismiss, and the United
States appended the full contract to its reply to Ironshore's
opposition to its motion to dismiss.2 Ironshore asserts that, by
relying on the contract in its disposition of the defendants'
motions, the district court inappropriately converted the Rule
12(b)(6) motions to dismiss into Rule 56 summary judgment motions
that "could not be properly resolved until the completion of
discovery." We disagree.3
"Ordinarily[] . . . any consideration of documents not
attached to the complaint, or not expressly incorporated therein,
is forbidden, unless the proceeding is properly converted into one
for summary judgment under Rule 56." Watterson v. Page, 987 F.2d
1, 3 (1st Cir. 1993). We have recognized, however, that when
2 AMSEA also submitted a number of other documents outside
the pleadings along with its motion to dismiss, but the district
court only relied upon one document outside the pleadings -- the
contract between the Military Sealift Command and AMSEA -- in its
memorandum of decision.
3 Ironshore has also argued that even if it may have been
appropriate to convert the defendants' Rule 12(b)(6) motions to
dismiss into Rule 56 motions for summary judgment, the district
court failed to provide Ironshore reasonable opportunity to
present any additional material pertinent to such a summary
judgment motion as required under Rule 12(d). Because we find no
such conversion occurred, we need not address this grievance.
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considering 12(b)(6) motions to dismiss, "courts have made narrow
exceptions for documents the authenticity of which are not disputed
by the parties; for official public records; for documents central
to plaintiffs' claim; or for documents sufficiently referred to in
the complaint." Id. Moreover, "[u]nder First Circuit precedent,
when 'a complaint's factual allegations are expressly linked to -
- and admittedly dependent upon -- a document (the authenticity of
which is not challenged),' then the court can review it upon a
motion to dismiss." Diva's Inc. v. City of Bangor, 411 F.3d 30,
38 (1st Cir. 2005) (alteration in original) (quoting Alternative
Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 34
(1st Cir. 2001)).
Although Ironshore's complaint does not explicitly
reference the contract between the Military Sealift Command and
AMSEA or the relationship between the two parties, the complaint
alleges that the United States was the owner of the FISHER and
that AMSEA was "[a]t all times material [to the dispute] the
operator" of the FISHER. It further alleges that AMSEA and the
United States are "responsible parties," subject to strict
liability under the OPA. Because the OPA indisputably exempts
public vessels from liability, 33 U.S.C. § 2702(c)(2), Ironshore's
OPA claims hinge upon the question of whether the FISHER qualifies
as a public vessel. That question, in turn, requires an
examination of the contractual relationship between the Military
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Sealift Command and AMSEA. Ironshore has not preserved any
challenge to the authenticity of the contract, and, as we explain
below, the contract answers the determinative OPA question.4
Hence, the district court did not commit a reversible error by
considering the contract between AMSEA and the Military Sealift
Command when it decided the defendants' motions to dismiss.
B. Oil Pollution Act Claims
In 1989, the oil tanker Exxon Valdez ran aground in the
Prince William Sound on the Alaska coast, causing the largest oil
spill at that point in U.S. history. Congress enacted the OPA in
response.5 See Metlife Capital Corp. v. M/V EMILY S., 132 F.3d
818, 820 (1st Cir. 1997). Before passage of the OPA, the Clean
Water Act "provided liability limitations for federal pollution
removal costs associated with oil spills." Id. The OPA altered
the Clean Water Act framework by "impos[ing] strict liability for
pollution removal costs and damages on the 'responsible party' for
4 In the district court, Ironshore urged the court to exclude
the contract from consideration when ruling on the motions to
dismiss, noting that the motions included only excerpts of the
contract and that Ironshore -- a nonparty -- had never seen the
entire document. After the government subsequently provided the
full document, Ironshore did not challenge the full document either
by seeking leave to file a written objection or at the hearing on
the motions to dismiss. In these circumstances, we deem waived
any challenge to the contract's authenticity.
5 Although we refer to the OPA's rules regarding "oil spills,"
the statute applies equally to diesel fuel spills, such as the
spill occurring on the FISHER. 33 U.S.C. § 2701(23).
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a vessel . . . from which oil is discharged." Id. at 820-21
(citing 33 U.S.C. § 2702(a)). In turn, the OPA limits the total
dollar amount for which a responsible party can be held liable, so
long as that party has not committed acts of gross negligence or
willful misconduct. Id. at 821. Finally, the statute
"consolidated previously established oil pollution funds into the
Oil Spill Liability Trust Fund[,] . . . which pays claims brought
under the OPA after they have first been presented to the
responsible party, if the responsible party is entitled to a
defense, or the liability limit under the statute has been
reached." Id.In the context of oil spills occurring from a ship, the
OPA defines a "responsible party," in part, as "any person owning,
operating, or demise chartering the vessel." 33 U.S.C.
§ 2701(32)(A). But there is a caveat. The OPA explicitly states
that the statute "does not apply to any discharge . . . from a
public vessel." Id. at § 2702(c)(2). Furthermore, in spelling
out which vessels fall under the purview of the OPA, the statute
defines the term "vessel" as "every description of watercraft or
other artificial contrivance used, or capable of being used, as a
means of transportation on water, other than a public vessel."
Id. at §2701(37) (emphasis added). The statute defines a "public
vessel" as "a vessel owned or bareboat chartered and operated by
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the United States[] . . . except when the vessel is engaged in
commerce." Id. at § 2701(29).
Ironshore seeks to recover costs that it incurred when
it reimbursed its insured, BSR, for cleaning up the diesel spill.
All parties agree that the OPA applies to diesel spills occurring
in graving docks such as the one owned by BSR, and no party argues
that the FISHER was engaged in commerce when it discharged its
fuel. AMSEA and the United States both assert that the FISHER is
exempt from the OPA because it was both owned and operated by the
United States at the time of the spill and, hence, qualifies as a
public vessel under the act. Ironshore responds that while the
United States was the owner of the FISHER at the time of the spill,
AMSEA was its sole operator. Because AMSEA crew operated the ship
rather than government employees, Ironshore argues, the FISHER
does not qualify as a "public vessel" under the OPA, and Ironshore
can recover from both parties under the statute.
Although the OPA states that vessels "owned and . . .
operated by the United States" are public vessels, the statute
provides no definition of the word "operated." Nor are we aware
of any federal court, aside from the district court in this case,
that has been required to interpret the precise definition of
"public vessel" under the OPA. But the OPA is not the only federal
statute that employs the term "public vessel." Congress enacted
the Public Vessels Act in 1925, waiving the United States'
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sovereign immunity and allowing parties to sue the government for
damages arising from the negligent operation of public vessels.
See Canadian Aviator, Ltd. v. United States, 324 U.S. 215, 218-19
(1945). Unlike the OPA, the Public Vessels Act has provided a
substantial body of case law interpreting the term "public
vessels."
In 1966, the Third Circuit faced an analogous set of
facts to those we face here in the case of In re United States,
367 F.2d 505 (3d Cir. 1966). There, the court had to decide
whether a military transport tanker owned by the U.S. Navy's
Military Sea Transportation Service and crewed by a private
contractor constituted a "public vessel" under the Public Vessels
Act. Id. at 507-08. The Third Circuit did not consider it a
difficult question, stating, "we would have thought it too clear
for serious argument that a ship owned by the United States and
used as directed by the Navy for the transportation of military
supplies is 'a public vessel of the United States.'" Id. at 509.
The court flatly rejected claimants' argument that only ships
crewed by public employees constitute "public vessels" under the
Public Vessels Act, concluding that "government ownership and use
as directed by the government exclusively for a public purpose
suffice without more to make a ship a public vessel." Id. (citing
Smith v. United States, 346 F.2d 449, 454 (4th Cir. 1965)).
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Likewise, the Second Circuit held in 1985 that a
government-chartered vessel operated by a private contractor
constituted a "public vessel" under the Public Vessels Act because
"Congress understood the term 'public vessel' in the [Public
Vessels Act] to include a vessel . . . used solely in public
service." Blanco v. United States, 775 F.2d 53, 59 (2d Cir. 1985).
Courts have continued to apply the same meaning to "public vessels"
under the Public Vessels Act since the passage of the OPA. See,
e.g., Taghadomi v. United States, 401 F.3d 1080, 1083 n.3 (9th
Cir. 2005); Favorite v. Marine Pers. & Provisioning, Inc., 955
F.2d 382, 385 (5th Cir. 1992).
It is a familiar principle of statutory construction
that "[s]tatutes which relate to the same subject matter should be
considered together so that they will harmonize with each other
and be consistent with their general objective scope." United
States v. Gray, 780 F.3d 458, 467 (1st Cir. 2015) (quoting Rathbun
v. Autozone, Inc., 361 F.3d 62, 68 (1st Cir. 2004)). Moreover,
the canon of in pari materia advises that Congress generally
intends specific words to carry consistent meaning when used in
the same context. Erlenbaugh v. United States, 409 U.S. 239, 243
(1972). When Congress opted to exempt "public vessels" from OPA
liability, it did so against a backdrop of federal law that had
consistently interpreted the term "public vessels" to include
government owned ships crewed by private contractors acting on
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behalf of the government. We harbor no doubt that Congress
intended the OPA term "public vessels" to be interpreted in the
same manner as "public vessels" under the Public Vessels Act. In
the context of the OPA, we therefore adopt the sound consensus of
our sister circuits, holding that if a vessel functioning in a
public capacity is owned (or bareboat chartered) by the United
States, but crewed by a private contractor, such a vessel
constitutes a "public vessel" so long as the private contractor is
acting under the operational control of the United States and
except when the vessel is engaged in commerce.6 See In re United
States, 775 F.2d at 53 ("[G]overnment ownership and use as directed
6 Ironshore insists that the term "public vessel" should be
interpreted more narrowly under the OPA than its interpretation
under the Public Vessels Act because the OPA is a "strict liability
statute," while the Public Vessels Act requires a higher burden of
proof associated with standard negligence. Ironshore, however,
points to no authority -- and we can find none -- for its
alternative interpretation. Instead, relevant legislative history
indicates that Congress intended for the term "public vessel" to
sweep quite broadly. In its final report on the OPA, the House
Committee on Merchant Marine and Fisheries -- the committee with
principal jurisdiction over the bill -- noted that a "'Public
Vessel' is a subclass of vessel that performs governmental
functions for federal, state, or local units of government." H.R.
Rep. No. 101-242, pt. 2, at 54 (1989). The only carve-out that
the committee report envisioned was for government-owned vessels
engaging in "commercial service," which the report defined as "all
types of trade or business involving the transportation of goods
or persons but exclud[ing] those vessels performing service as
combatant-vessels." Id. This carve-out for government owned
vessels "engaged in commerce" also appears in the enacted statute.
See 33 U.S.C. § 2701(29).
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by the government exclusively for a public purpose suffice without
more to make a ship a public vessel.").
Applying this principle to the FISHER gives us little
pause. Although AMSEA agreed in its contract with the Military
Sealift Command to "provide personnel, operational and technical
support ashore and afloat, equipment, tools, provisions, and
supplies to operate, maintain, and repair the [FISHER]," the
contract clearly established that at all times the FISHER would be
controlled by the U.S. military. A section of the contract titled
"Operational Control" stipulated that the vessel would "operate in
the worldwide service under the ultimate operational control" of
one of five military commands.7 Moreover, a separate section
stated that the "Military Sealift Command Headquarters" would
exercise "Administrative Control" of the ship.
As part of its day-to-day operations, AMSEA was
"responsible for performing scheduled and unscheduled maintenance
and repairs, as necessary, on a 24 hour a day basis." It held
authority to subcontract for certain maintenance and repair work
outside its own crew's capabilities, though any subcontract
exceeding $100,000 -- and any changes altering a subcontract by
7 These commands, specifically, were the United States Fleet
Forces Command, the United States Transportation Command, the
Commander of the United States Pacific Fleet, the Commander of the
United States Naval Forces Europe-Africa, and the Commander of the
United States Naval Forces Central Command.
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more than $50,000 -- had to be approved in advance by the
government. Furthermore, AMSEA was required to incorporate
specific provisions into any subcontract it executed, including
the subcontract to use BSR's graving dock. Finally, at all times
AMSEA's civilian "Master" of the ship was under an obligation to
follow both a Navy standard operating manual and any additional
definitive instructions from the United States Navy.
The strict hierarchical relationship between the
Military Sealift Command and AMSEA establishes, as the district
court concluded, that AMSEA crewed the FISHER under the operational
control of the United States. AMSEA did not lease the FISHER from
the United States, nor was it permitted to use the vessel for its
private gain. Rather, all of AMSEA's work on the FISHER benefited
the Military Sealift Command and the United States directly. Under
the OPA, the United States both owned and operated the FISHER.
Because the FISHER is a military vessel owned and
operated by the United States, it qualifies as a public vessel
under the OPA. 33 U.S.C. § 2701(29). As such, it is exempt from
OPA liability. Id. at § 2702(c)(2). Hence, the district court
properly dismissed Ironshore's OPA claims against the United
States and AMSEA.
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C. Negligence Claims
Ironshore's remaining claims sound in negligence against the
United States and AMSEA under general admiralty and maritime law.
We address each party in turn.
1. Claims against the United States
The district court dismissed all of Ironshore's
remaining negligence claims brought under general maritime and
admiralty law, concluding that the OPA supplants and preempts all
such claims. For this principle, the district court quoted our
decision in South Port Marine, LLC v. Gulf Oil Ltd. P'ship, 234
F.3d 58 (1st Cir. 2000), where we noted that "Congress intended
the enactment of the OPA to supplant the existing general admiralty
and maritime law." Id. at 65. However, the district court
interpreted the holding of South Port Marine too broadly.
In South Port Marine, a private marina filed suit under
the OPA against a petroleum company to recover damages incurred
after an oil spill allegedly caused by the petroleum company's
employee. Id. at 60-61. The district court determined that
punitive damages were unavailable under the OPA. Id. at 61. We
affirmed the district court, concluding that when Congress
supplanted general admiralty and maritime law by passing the
OPA -- a statute that provides no punitive damages -- it sought to
eliminate punitive damages entirely in any case where OPA liability
applied. Id. at 65-66.
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Although we acknowledged in South Port Marine that the
OPA supplants general admiralty and maritime law when the OPA is
triggered, we said nothing about the statute's effect on general
admiralty and maritime law outside the OPA context. Put simply,
South Port Marine was silent regarding the OPA's effect on the
ability of parties to sue for negligence under general admiralty
and maritime law when a public vessel is the genesis of an oil
spill.
Fortunately, the statute itself is not silent. In a
subsection of its savings provision titled "Admiralty and Maritime
Law," the OPA states: "Except as otherwise provided in this Act,
this Act does not affect . . . admiralty and maritime law." 33
U.S.C. § 2751(e). Hence, because public vessels lie outside the
sweep of OPA liability, any preexisting admiralty and maritime law
that applied to public vessels before the OPA's passage survives
its enactment. The district court erroneously dismissed
Ironshore's negligence claims against the United States when it
did so sua sponte.
The United States argued in its brief that even though
Ironshore's general admiralty and maritime negligence claims
against the United States are not foreclosed by the OPA, Ironshore
has either abandoned or waived those claims because it alluded
only to Massachusetts state law claims in its opposition to AMSEA's
motion to dismiss. This argument is misguided. In responding to
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pretrial motions, Ironshore never had to assert its general
admiralty and maritime law claims against the United States,
because the United States had not moved to dismiss them. Rather,
as noted above, the district court dismissed those claims sua
sponte. Ironshore has since vigorously asserted its general
admiralty and maritime claims against the United States in its
briefing before us. We do not view those claims as abandoned or
waived.
2. Claims against AMSEA
Because we are reinstating Ironshore's negligence claims
against the United States, its claims against AMSEA, cannot
survive. In order to explain this conclusion, we must briefly
address the principle of sovereign immunity.
The United States, as sovereign, cannot be subject to a
suit unless it waives its sovereign immunity. See Thames Shipyard
& Repair Co. v. United States, 350 F.3d 247, 253 (1st Cir. 2003).
The provisions of such a waiver define its scope. Id. Ironshore
has filed its negligence claims against the United States pursuant
to the Suits in Admiralty Act, which includes an explicit sovereign
immunity waiver for certain admiralty and maritime claims.8 But
8 Under the Suits in Admiralty Act the United States waives
its sovereign immunity "[i]n a case in which, if a vessel were
privately owned or operated . . . a civil action in admiralty could
be maintained." 46 U.S.C. § 30903(a); see also Thames Shipyard &
Repair Co., 350 F.3d at 253.
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the strings attached to this sovereign immunity waiver prove fatal
to Ironshore's negligence claims against AMSEA.
The Suits in Admiralty Act states that "[i]f a remedy is
provided by this chapter, it shall be exclusive of any other action
arising out of the same subject matter against the . . . agent of
the United States . . . whose act or omission gave rise to the
claim." 46 U.S.C. § 30904 (emphasis added); see also Ali v.
Rogers, 780 F.3d 1229, 1233 (9th Cir. 2015). Ironshore argues
that AMSEA should not be considered an agent of the United States
for purposes of the Suits in Admiralty Act's exclusivity provision
because record evidence indicates it was "acting entirely on its
own behalf."
This argument is misguided. In cases filed pursuant to
the Public Vessels Act, other circuits have held that a private
contractor crewing a ship that qualifies as a public vessel is
necessarily an "agent of the United States" for purposes of the
Suits in Admiralty Act's exclusivity provision. See Favorite
Marine v. Marine Pers. & Provisioning, Inc., 955 F.2d 382, 388
(5th Cir. 1992) ("As a matter of legal definition, 'agent' of the
United States is an appropriate characterization of such a contract
operator of a public vessel." (quoting In re United States, 367
F.2d 505, 509-10 (3d Cir. 1966)); see also id. ("[T]he general
statement of an agency concept . . . include[s] any instrumentality
through and by which the public vessels are operated." (quoting In
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re United States, 367 F.2d at 510) (second alteration in
original)). Having already decided that the concept of a "public
vessel" has the same meaning under the OPA and the Public Vessels
Act (see supra Section II.B.), we conclude that contractors crewing
a ship deemed a "public vessel" for purposes of the OPA are -- as
a matter of legal definition -- agents of the United States for
purposes of the Suits in Admiralty Act's exclusivity provision.
Hence, AMSEA crewed the FISHER as an agent of the United States.
As such, the Suits in Admiralty Act's exclusivity provision
prevents Ironshore from advancing any claims against it.
III.
We affirm the district court's dismissal of Ironshore's
OPA claims against the United States, but we reverse the district
court's dismissal of Ironshore's general admiralty and maritime
negligence claims brought against the United States pursuant to
the Suits in Admiralty Act and remand those claims to the district
court for further proceedings consistent with this opinion. We
affirm the district court's dismissal of all of Ironshore's claims
against AMSEA. Each party shall bear its own costs.
So ordered.
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