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UNITED STATES v. J.R. NELSON VESSEL

February 24, 1998

UNITED STATES OF AMERICA, Plaintiff,
v.
J.R. NELSON VESSEL, LTD., and SIGMUND BATRUK, a.k.a., SIGMUND BACRUK and/or SIGMUND BARTRUK, in personam, and F/V J.R. NELSON, Official Number D560966, its engines, tackle, apparel, appurtenances, etc., in rem, Defendants.



The opinion of the court was delivered by: GERSHON

MEMORANDUM AND ORDER

 GERSHON, United States District Judge:

 This is an action brought by the United States for recovery of costs for cleaning up an oil spill and for a declaratory judgment that the defendants are responsible for the removal from a harbor of a vessel that has been determined to be a hazard to navigation. The United States has moved for summary judgment. For the reasons stated below, the motion will be granted.

 FACTS

 The following facts are undisputed. The F/V J.R. Nelson ("the Nelson") is a 112.7 foot, 276 gross ton fishing vessel. The Nelson was owned and operated by J.R. Nelson, Ltd., a New York corporation formed in 1987 and dissolved in 1992, of which Sigmund Batruk was the sole officer and shareholder.

 During 1992 and 1993, the Nelson was moored in Greenport Harbor, New York, at a pier owned by the Greenport Yacht and Shipbuilding Co., Inc. During a severe storm on December 13, 1992, the Nelson partially sank while at the pier. In response to a report of the sinking received that day, the Coast Guard Port Safety Detachment for Long Island Sound dispatched Petty Officer Michael MacDonald to the scene. Officer MacDonald filed a report that states, inter alia, that he observed that the Nelson was leaking oil.

 On the following day, Officer MacDonald telephoned Batruk to inform him of the sinking. The call was taken by Batruk's wife, who informed MacDonald that, due to her husband's ill health, all matters concerning the Nelson should be referred to Batruk's attorney, Frederick Hayes, Esq., who is also representing the defendants in the present action. That same day, December 14, 1992, Officer MacDonald faxed Hayes and Mrs. Batruk a "Notice of Federal Direction," which informed Batruk of his responsibility for costs relating to cleaning up any oil spilled from the Nelson. Upon receipt of the notice, Hayes called the Coast Guard to inform them that Batruk could not assume responsibility for clean-up costs because of financial hardship.

 Also on December 14, 1992, the Coast Guard hired Miller Environmental Group ("MEG") to conduct clean-up procedures. MEG initially deployed divers in an unsuccessful attempt to raise the Nelson. The divers reported that water was entering the vessel and recommended that the vessel's compartments be sealed. MEG's clean-up efforts continued through March 26, 1993, during which time approximately 500 gallons of oil were recovered from inside the Nelson and the waters surrounding it. Water samples analyzed by the U.S. Coast Guard Marine Safety Laboratory determined that oily water from the Nelson's bilge area matched samples of oily water taken from the area surrounding the Nelson. In addition, a Coast Guard investigatory report, dated March 18, 1993, determined the Nelson's sinking had been the result of holes in the vessel's starboard side that had been caused by the pounding of the unattended vessel against its mooring during a storm.

 The Coast Guard sent Batruk two bills relating to the clean-up, which included MEG's charges as well as the costs of Coast Guard monitoring of the spill site. The first bill, dated March 22, 1993, totaled $ 51,665.92 and the second bill, dated November 22, 1993, totaled $ 7,051.05. The total amount billed, less certain of MEG's charges totaling $ 4,987.06 that were later disallowed by the Coast Guard, amounts to $ 53,729.91. To date, Bartruk has made no payment.

 In a letter, dated January 5, 1993, the Department of the Army, New York District, Corps of Engineers, informed Batruk that the Nelson constituted a hazard to navigation and directed him to immediately remove the vessel from its mooring in Greenport Harbor. To date, the Nelson has not been removed.

 DISCUSSION

 Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." It is the movant's burden to demonstrate the absence of any genuine issue of material fact, see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970), which are facts whose resolution would "affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). *fn1" Demonstration of the absence of a material fact is defeated by the non-movant's presentation of sufficient evidence to establish "that a reasonable jury could return a verdict for the non-moving party." Id. In making a determination as to whether a genuine dispute as to a material fact exists, "all justifiable inferences" from the factual record before the court are to be drawn in favor of the non-movant. Id. at 255.

 A. Oil Spill Clean-Up Costs.

 The United States seeks to recover the costs of cleaning up the oil spill pursuant to the Oil Pollution Liability and Compensation Act of 1990, 33 U.S.C. §§ 2701-2715 ("OPA"). Section 2702(a) of OPA states that "each responsible party for a vessel or a facility from which oil is discharged . . . is liable for the removal costs . . . that result from such incident." Section 2701(32)(A) defines a "responsible party" with respect to a vessel that has spilled oil as "any person owning, operating, or demise chartering the vessel." It is undisputed that Batruk is a responsible party with respect to the Nelson. The defendants, however, assert that material issues of fact as to OPA liability exist because 1) any damage sustained by the Nelson that caused it to leak oil was the result of third-party ...


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