Under OPA 90 is tug owner the 'operator'?

Incase of oil pollution in US nav. waters, primary response and clean up obligations are triggered by OPA 90. The act makes a “responsible party” liable for clean up costs, and defines it as “…any person owning, operating, or demise chartering the vessel…”. The word ‘operating’ is however not defined. In a recent case, the question that arose is – if pollution emanates from dumb barges being towed then is tug owner the 'operator'?

Two dumb barges were being towed, and one of them struck a bridge resulting in leakage of 9000 gallons of oil. Tug owner spent nearly $3m on clean up whereas various govt. entities spent additionally nearly $1m. Owners were now seeking reimbursement of over $2m from National Pollution Funds Center on grounds that their liability should be limited by the tonnage of the tug and not barges. US govt counterclaimed for $792k, which they spent in clean up.

Taking cue from an old case under CERCLA act, where the operator was held to be someone who conducts the affairs of; manages: operates a business, it held that under OPA 90, an “operator” would include someone who directs, manages, or conducts the affairs of a vsl. This encompasses the act of moving a vessel, thus holding that tug owners were ‘operating’ the barge at the time of pollution.

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