In Nguyen v. American Commercial Lines, L.L.C., the U.S. Fifth Circuit clarified the presentment requirements set forth in the Oil Pollution Act of 1990 (“OPA 90”). Although the fishermen’s information submitted was sufficient to present a claim, the Court refused to allow some of the claimants from pursuing litigation because they failed to comply with both of the time limitations set forth in the Act.
OPA 90 contains two important time restrictions affecting potential claimants. First, under its “presentment requirement,” a claimant must first present their claim(s) to the designated “responsible party” and wait until liability is denied or until 90 days has passed since presentment of the claim to bring suit against the responsible party. Second, OPA 90 also provides a three (3) year statute of limitations that begins on the date the oil discharge incident occurred.
On July 23, 2008, a collision occurred causing oil to discharge from a barge owned by American Commercial Lines, L.L.C. (“ACL”). The Coast Guard designated ACL as the “responsible party” under OPA 90. In June 2009, certain commercial fishermen and others affected by the oil spill submitted claims to ACL’s attorney. On July 22, 2011- one day shy of the three-year statute of limitations – ACL received notice of new and amended claims involving additional claimants who were not part of the initial claim sent in 2009. Three days later all of the claimants filed suit.
Two issues were before the Fifth Circuit in this case: (i) whether the fishermen had presented enough information to ACL in order to comply with the OPA 90’s presentment requirement and (ii) whether the fishermen had to comply with both the 90-day waiting period after presentment before filing suit and the three (3) year statute of limitations.
The fishermen had submitted letters to ACL including their fishing licenses and dock receipts for seafood sold, a statement alleging losses from the oil spill and an evaluation of damages. ACL had responded by requesting a list of additional information it needed in order to process their claims. The fishermen refused to provide all of the information requested. ACL argued that the fishermen failed to comply with the presentment requirements because other sections in OPA 90 required the claimants to provide “evidence to support” their claims, specifically, those sections relating to filing a claim for damages to a federally-established fund. Therefore, ACL claimed it had the right to demand this additional information.
However, the Fifth Circuit found that federal-fund requirements did not apply to claims being brought against a “responsible party.” The Court focused on the language in OPA 90 providing that “all claims for removal costs or damages shall be presented first to the responsible party.” The Act defines “claim” as “a request, made in writing for a sum certain, for compensation for damages or removal costs resulting from an incident.” Also, “damages” are defined to include loss of subsistence use of natural resources, loss of revenues, loss of profits, etc. Thus, the Court held that ACL was improperly conflating the requirement of filing claims against the federal fund with those of presenting claims to a responsible party. The Fifth Circuit found the fishermen had submitted sufficient information with their claim letters to ACL, because nothing in the plain language of the statute suggested that they needed to provide any explanation or documentation beyond what they submitted.
Second, the Fifth Circuit evaluated OPA 90’s two separate time restrictions. The Court clarified that the two time requirements “operate independently” of one another. Meaning, the fishermen could not rely on compliance with the period of limitations as a way to circumvent the presentment requirements.
The fishermen pointed to at least one case in which the Court had allowed a claimant to commence an action without waiting the full 90 days. However, in that case, extenuating circumstances existed because the Coast Guard had not designated the responsible party until 55 days before the end of the three-year period. In this case, the claimants could not point to any similar extenuating circumstances as the Coast Guard identified ACL as the responsible party well outside the 90-day period.
The fishermen also argued that ACL tacitly denied their claims because it had not responded to any of the initial clams in 2009, and therefore, it was assumed it would not respond to the claims presented in July 2011. However, the Court found this unpersuasive and stated that “[w]ithout an actual denial of all liability for a claim by the responsible party or compliance with the 90-day waiting period, the presentment requirement has not been satisfied.” Tacit denial by a nonresponse would not satisfy compliance with the presentment requirement. The Court held that the claimants who failed to present their claims at least 90 days prior to commencing the action were found to be barred from pursuing a claim against ACL.
Thus, the Fifth Circuit clarified that as long as a claimant provides enough information or material in accordance with the plain language of OPA 90, a court will likely find compliance with the presentment requirements. Unfortunately, this means that in order for a responsible party to gain additional information it may need to evaluate the claims and be in a better negotiating position, it may have to wait for litigation to be instituted where more information may be obtained through the discovery process.
Also, the Fifth Circuit found the statutory language of OPA 90 required compliance with both the 90-day waiting period and the three-year statute of limitations. Thus, if a claimant does not submit a claim to the responsible party at least 90 days before the expiration of the three-year statute of limitations, the claim will be barred. This opinion is favorable for a responsible party as it further clarifies the onus put on claimants who may have a claim under OPA 90 to exhaust their presentment requirements within the relatively strict time limitations provided by the statute. However, it is important for a responsible party to ensure they do not take any actions that could be interpreted as a denial of liability and that they don’t hastily deny liability for a claim that would otherwise be barred.