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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`BOSTON DIVISION
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`Case No.:
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`In Admiralty
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`UNITED STATES OF AMERICA,
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`Plaintiff,
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`PATRIOT MARINE, LLC,
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`Defendant.
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`________________________________________________|
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`COMPLAINT
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`Plaintiff United States of America alleges as follows:
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`NATURE OF THE ACTION
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`1.
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`This action is brought by the United States in accordance with the Oil
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`Pollution Act of 1990 (“OPA”), 33 U.S.C. §§ 2701-2761, to recover removal costs
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`arising from the clean-up and removal of oil discharged by the M/V OCEAN KING into
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`the waters of Great Harbor, Woods Hole, Massachusetts, on or about January 20-21,
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`2018.
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`2.
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`Federal oil spill removal actions may be financed through the Oil Spill
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`Liability Trust Fund (the Fund). See 26 U.S.C. §§ 4611 and 9509. Under OPA Section
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`1012(a), 33 U.S.C. § 2712(a), the Fund can be used, inter alia, for the payment of federal
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`and state removal costs; certain claims against the Fund related to uncompensated
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`removal costs; and certain federal administrative, operational and personnel costs and
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`expenses under OPA. As will be shown, the Fund was used to pay for the removal of oil
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`from the navigable waters of Great Harbor following the oil spill.
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`Case 1:21-cv-10243-NMG Document 1 Filed 02/12/21 Page 2 of 13
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`3.
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`The United States also seeks a declaratory judgment on liability for
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`removal costs and damages against the Defendant, pursuant to the Declaratory Judgment
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`Act, 28 U.S.C. § 2201(a), and OPA Sections 1002(a), 1005, 1015, and 1017(f)(2), 33
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`U.S.C. §§ 2702(a), 2705, 2715, and 2717(f)(2), that is binding in this action and will be
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`binding on any subsequent action or actions against the Defendant, for all removal costs,
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`natural resource damages, and interest resulting from the oil spill.
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`4. With respect to natural resource damages, the United States seeks a
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`declaratory judgment under Section 1017(f)(2) that addresses only the elements of
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`liability under Section 1002(a) of OPA that apply in common with liability for removal
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`costs and liability for natural resource damages. The United States is not seeking an
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`award of natural resource damages in this action, nor is it seeking declaratory judgment
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`on what injury, destruction, or loss of natural resources has occurred as a result of the
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`unlawful discharge of oil by the Defendant. Any such injury to, destruction of, or loss of
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`natural resources and the damages that should be awarded are reserved for determination
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`in a subsequent action or actions under Sections 1015(c) and 1017(f) of OPA, 33 U.S.C.
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`§§ 2715(c), 2717(f).
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`JURISDICTION AND VENUE
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`5.
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`This Court has jurisdiction over the subject matter and over the parties
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`pursuant to 33 U.S.C. § 2717(b), and 28 U.S.C. §§ 1331, 1333 and 1345.
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`6.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) and 33
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`U.S.C. § 2717(b).
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`Case 1:21-cv-10243-NMG Document 1 Filed 02/12/21 Page 3 of 13
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`7.
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`Authority to bring this action is vested in the United States Department of
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`Justice pursuant to 28 U.S.C. §§ 516 and 519.
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`8.
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`This action includes an admiralty and maritime claim against the
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`Defendant, within the meaning of Rule 9(h) of the Federal Rules of Civil Procedure.
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`PARTIES
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`9.
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`Defendant Patriot Marine, LLC (“Patriot Marine”) is a limited liability
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`company that was organized in Massachusetts in 2005. The company is engaged in
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`marine construction and dredging. At the time of the matters at issue in this complaint,
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`Patriot Marine had a place of business at 550 Pleasant Street, Suite 104, Winthrop,
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`Massachusetts, 02152, and was doing business in the Commonwealth of Massachusetts
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`and within the jurisdiction of this Court through, inter alia, the ownership and operation
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`of the towboat M/V OCEAN KING.
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`10.
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`In February of 2019, Patriot Marine reorganized and changed the location
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`of its principal office from Winthrop, Massachusetts to New Haven, Connecticut. Patriot
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`Marine’s current principal office is located at 2 Poplar Street, New Haven, Connecticut,
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`06513. Patriot Marine also maintains corporate records at 256 Marginal Street, East
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`Boston, MA, 02128.
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`11.
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`The M/V OCEAN KING, Official Number 259410, is a 199 gross register
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`ton, 95 foot long, commercial towing vessel, built in 1950. Patriot Marine purchased this
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`towing vessel in 2011.
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`Case 1:21-cv-10243-NMG Document 1 Filed 02/12/21 Page 4 of 13
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`12. At all material times, the M/V OCEAN KING was owned and operated by
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`Patriot Marine, and was, at all material times, within the jurisdiction of this Court with
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`respect to the matters alleged in this Complaint.
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`STATUTORY AND REGULATORY BACKGROUND
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`13. OPA Section 1002(a), 33 U.S.C. § 2702(a), provides that:
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`“Notwithstanding any other provision or rule of law, and subject to the provisions of this
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`Act, each responsible party for a vessel or a facility from which oil is discharged, or
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`which poses the substantial threat of a discharge of oil, into or upon the navigable waters
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`or adjoining shorelines or the exclusive economic zone is liable for the removal costs and
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`damages specified in subsection (b) that result from such incident.”
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`14. At all material times, the M/V OCEAN KING was a “vessel” within the
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`meaning of OPA, 33 U.S.C. § 2701(37).
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`15. Under OPA Section 1017(f)(2), 33 U.S.C. § 2717(f)(2), in any action for
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`recovery of removal costs referred to in OPA Section 2702(b)(1), 33 U.S.C. § 2702(b)(1),
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`the court shall enter a declaratory judgment on liability for removal costs or damages that
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`shall be binding on any subsequent action or actions to recover further removal costs or
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`damages.
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`16. OPA Section 1002(b)(2), 33 U.S.C. § 2702(b), provides that the “damages”
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`referred to in Section 1002(a) of OPA, 33 U.S.C. § 2702(a), include damages for injury
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`to, destruction of, or loss of, or loss of use of, natural resources.
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`17. OPA Section 1001(20), 33 U.S.C. § 2701(20), provides that “‘natural
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`resources’ includes land, fish, wildlife, biota, air, water, ground water, drinking water
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`Case 1:21-cv-10243-NMG Document 1 Filed 02/12/21 Page 5 of 13
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`supplies, and other such resources belonging to, managed by, held in trust by,
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`appertaining to, or otherwise controlled by the United States (including the resources of
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`the exclusive economic zone), any State or local government or Indian tribe, or any
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`foreign government.”
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`18. Under OPA Section 1006, 33 U.S.C. § 2706, liability for natural resource
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`damages shall be to the United States and/or a State for natural resources belonging to,
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`managed by, controlled by, or appertaining to the United States and/or a State.
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`19.
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`The United States is involved in the ongoing work of, and incurring costs
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`related to, assessing injury, destruction, loss, or loss of use of natural resources belonging
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`to, managed by, controlled by, or appertaining to the United States resulting from the
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`unlawful discharge of oil from the M/V OCEAN KING.
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`GENERAL ALLEGATIONS
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`20. On January 20, 2018, the M/V OCEAN KING sustained hull damage when
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`it ran aground in Sequetucket Harbor in Harwich, Massachusetts. After the grounding,
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`the M/V OCEAN KING transited from Harwich to Woods Hole, Massachusetts, where it
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`moored at the Woods Hole town dock.
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`21.
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`In the morning of January 21, 2018, the M/V OCEAN KING departed
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`Woods Hole. Several hours later, the Coast Guard’s National Response Center received
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`a report from a private citizen of a 100 yard by 100 yard sheen, which smelled of motor
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`oil, in the water and on the rocks in Great Harbor, Woods Hole, Massachusetts. Later
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`that day, personnel from the Coast Guard’s Marine Safety Detachment Cape Cod arrived
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`on scene to conduct a preliminary assessment and collect oil samples from the spill.
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`Case 1:21-cv-10243-NMG Document 1 Filed 02/12/21 Page 6 of 13
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`22. Because no responsible party was found on-scene, Cape Waterman Inc.,
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`d/b/a Sea Tow Cape and Islands (“Sea Tow”), was authorized to commence clean-up
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`operations, which began on January 21. Sea Tow continued as the primary responder for
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`clean-up operations in Woods Hole from January 21 until February 15, 2018.
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`23.
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`The oil spill, which spread out from the M/V OCEAN KING on the surface
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`of the water, impacted approximately two miles of shoreline within Great Harbor, up to
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`the high tide line.
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`24. While the clean-up was ongoing, the Coast Guard investigated the spill and
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`collected oil samples from the M/V OCEAN KING’S bilge water. The oil samples from
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`the M/V OCEAN KING matched the oil samples from the January 2018 Woods Hole
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`spill.
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`25. On January 31, 2018, the Coast Guard issued a Notice of Designation to
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`Patriot Marine, formally designating the M/V OCEAN KING as the source of the
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`discharge.
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`26. On February 9, 2018, the Coast Guard issued an Administrative Order
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`directing Patriot Marine to dispose of waste materials associated with the clean-up, and
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`opened Federal Project Number (FPN) B18003 to track associated disposal costs.
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`27. On February 12, 2018, a Notice of Federal Assumption was issued to
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`Patriot Marine. The Notice of Federal Assumption provided notice that the actions taken
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`by Patriot Marine to abate or remove the oil were unsatisfactory to the Federal On-Scene
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`Coordinator (FOSC), and that the government would assume partial response activities,
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`including proper disposal of the materials used during the clean-up.
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`28. On February 14, 2018, George Chalos, an attorney for Patriot Marine, sent
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`a letter to Sea Tow, stating “In accordance with the Oil Pollution Act of 1990 (33 USC
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`2714(c)), Patriot Marine LLC, as owner and operator of the Tug OCEAN KING, has
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`voluntarily accepted responsibility for an accidental discharge of bilge water and oil into
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`the Great Harbor on or about January 21, 2018. Claims for certain uncompensated
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`damages and removal costs may be submitted to Patriot Marine LLC.”
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`29. On February 15, 2018, pursuant to a contract with Clean Harbors
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`Environmental Services (“Clean Harbors”), the Coast Guard had the oil contaminated
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`materials properly disposed of.
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`30. Over the course of the 26 day clean-up period, the Coast Guard incurred
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`$17,545.74 in costs. These costs include use of the Coast Guard’s resources for
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`monitoring clean-up activities, oil sampling and analysis, and contract fees associated
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`with hiring Clean Harbors to dispose of oily waste materials. The Fund paid the total
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`removal costs incurred by the Coast Guard.
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`31.
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`Sea Tow presented a request for compensation for removal costs related to
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`the incident to Patriot Marine as the Responsible Party. However, Patriot Marine never
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`paid the costs or otherwise settled Sea Tow’s claim.
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`32. On July 20, 2018, Sea Tow sent a claim to the National Pollution Funds
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`Center (“NPFC”) in the amount of $1,088,560.25 for uncompensated removal costs. This
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`claim was received by the NPFC on July 30, 2018.
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`33. On February 1, 2019, the Fund paid Sea Tow $1,004,001.35 as full
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`compensation for its claim, denying $84,558.90 as non-compensable costs.
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`Case 1:21-cv-10243-NMG Document 1 Filed 02/12/21 Page 8 of 13
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`34.
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`The Fund’s oil spill removal costs are as follows:
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`Coast Guard contract with Clean Harbors $15,263.00
`Coast Guard equipment
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` $2.24
`Coast Guard personnel
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` $1,254.50
`Marine Safety lab
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` $1,026.00
`Sea Tow claim
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`$1,004,001.35
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`Total:
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`$1,021,547.09
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`35. On May 15, 2019, the NPFC sent a Notice of Potential Liability (NOPL)
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`letter to Patriot Marine, stating that Patriot Marine was responsible for the M/V OCEAN
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`KING pollution incident.
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`36. On July 11, 2019, the NPFC sent Patriot Marine an invoice with a due date
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`of August 10, 2019.
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`37. As of this date, Patriot Marine has not reimbursed the NPFC for the oil spill
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`removal costs incurred as a result of the M/V OCEAN KING’s release of oil into the
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`navigable waters of Great Harbor.
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`38.
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`The United States has also incurred and continues to incur natural resource
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`damages, and the cost of assessment of such damages.
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`39.
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`The United States’ assessment of natural resource damages to natural
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`resources resulting from Defendant’s oil discharge is ongoing. Thus, the amount of
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`damages sustained by the United States resulting from the unlawful discharge of oil from
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`M/V OCEAN KING is not yet fully known.
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`Case 1:21-cv-10243-NMG Document 1 Filed 02/12/21 Page 9 of 13
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`FIRST CLAIM FOR RELIEF
`OIL POLLUTION ACT OF 1990
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`The United States incorporates by reference paragraphs 1 through 39 of this
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`40.
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`Complaint.
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`41.
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`Pursuant to OPA, 33 U.S.C. § 2701 et seq., each responsible party for a
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`vessel from which oil is discharged, or which poses the substantial threat of discharge,
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`into or upon the navigable waters or adjoining shorelines or the exclusive economic zone
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`of the United States, is strictly liable for all costs, damages, and/or disbursements
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`specified in the Act.
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`42. As owner and operator of the M/V OCEAN KING, Patriot Marine is
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`strictly liable for the oil spill removal costs incurred by the United States through the
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`NPFC.
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`43.
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`The NPFC incurred costs in the amount of $1,021,547.09 as a result of
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`paying Sea Tow’s claim and reimbursing the Coast Guard for its clean-up expenses.
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`44.
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`The actions taken by the Coast Guard and Sea Tow were necessary to
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`prevent, minimize or mitigate the effects of the M/V OCEAN KING oil spill. The clean-
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`up actions were directed by the FOSC or determined to be consistent with the National
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`Contingency Plan.
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`45.
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`Pursuant to OPA, and under the circumstances herein, the Defendant is
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`liable to the United States, without limitation, for all the aforesaid costs, damages, and/or
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`disbursements sustained by the United States as a result of the matters alleged in this
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`Complaint. The United States’ unreimbursed removal costs to date are $1,021,547.09.
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`Case 1:21-cv-10243-NMG Document 1 Filed 02/12/21 Page 10 of 13
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`SECOND CLAIM FOR RELIEF
`OIL POLLUTION ACT OF 1990
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`46.
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`The United States incorporates by reference paragraphs 1 through 45 of this
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`Complaint.
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`47.
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`Pursuant to OPA, the Fund shall be subrogated to all rights, claims, and
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`causes of action of claimants to whom it has paid compensation.
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`48. As a result of the matters alleged in this Complaint, the Fund may incur
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`costs, damages, and/or disbursements by reason of claims for removal costs and damages
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`brought against it under OPA.
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`49.
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`Pursuant to OPA, and under the circumstances herein, the Defendant is
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`liable to the United States, without limitation, for all such costs, damages, and/or
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`disbursements which may be sustained by the Fund as a result of the matters alleged in
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`this Complaint.
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`THIRD CLAIM FOR RELIEF
`OIL POLLUTION ACT OF 1990
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`50.
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`The United States incorporates by reference paragraphs 1 through 49 of this
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`Complaint.
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`51. At all times material herein, Defendant was the owner or operator of the
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`M/V OCEAN KING and has been and remains a “responsible party” for a “vessel”
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`within the meaning of OPA, 33 U.S.C. § 2701 et seq. The United States may sustain
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`“damages,” as that term is defined in 33 U.S.C. § 2702(b)(2), for, inter alia, injuries to,
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`destruction of, loss of, or loss of use of natural resources.
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`52. An actual controversy exists between the United States and the Defendant.
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`53.
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`Pursuant to OPA, 33 U.S.C. § 2717(f)(2), the United States is entitled to,
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`and hereby seek, a declaratory judgment that will be binding in any subsequent action or
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`actions that the Defendant is liable for removal costs and for natural resource damages
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`resulting from the discharge of oil from the M/V OCEAN KING.
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`54. With respect to natural resource damages, the declaratory judgment to
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`which the United States is entitled under Section 1017(f) of OPA, 33 U.S.C. § 2717(f), as
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`described in the immediately prior Paragraph, is a declaratory judgment on the elements
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`of liability for removal costs that also apply to liability for natural resource damages.
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`This partial declaratory judgement would not address what injury, destruction, loss of, or
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`loss of use of, natural resources has occurred resulting from the M/V OCEAN KING oil
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`spill. Any such injury to, destruction of, loss of, or loss of use of, natural resources and
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`the damages that should be awarded are reserved for determination in a subsequent action
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`or actions.
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`REQUEST FOR RELIEF
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`WHEREFORE, Plaintiff United States of America respectfully requests that this
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`Court:
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`(1) Enter a judgment against the Defendant and in favor of the United States, in
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`the amount of $1,021,547.09, plus all costs incurred by the United States by reason of
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`this claim, including interest (including prejudgment interest), administrative costs, and
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`attorney’s fees;
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`Case 1:21-cv-10243-NMG Document 1 Filed 02/12/21 Page 12 of 13
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`(2) Enter a declaratory judgment, pursuant to the Declaratory Judgment Act, 28
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`U.S.C. § 2201(a), and the OPA Sections 1002(a), 1005, 1015, and 1017(f)(2), 33 U.S.C.
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`§§ 2702(a), 2705, 2715, and 2717(f)(2), that Defendant is liable, without limitation, for
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`all removal costs and damages, including any injury, destruction, loss of, or loss of use
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`of, natural resources, including all reasonable assessment costs, shown in a subsequent
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`action or actions to recover natural resource damages, resulting from the oil discharge
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`from the M/V OCEAN KING, which will be binding on this action and on any
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`subsequent action or actions to recover removal costs or damages; and
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`(3) Grant such other relief as may be appropriate.
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`Dated: February 12, 2021
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`Respectfully submitted,
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`BRIAN M. BOYNTON
`Acting Assistant Attorney General, Civil
`Division
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`/s/ Michelle T. Delemarre
`MICHELLE T. DELEMARRE
`Senior Admiralty Counsel
`United States Department of Justice
`Civil Division, Torts Branch
`Post Office Box 14271
`Washington, DC 20044-4271
`Telephone: (202) 616-4037
`Facsimile: (202) 616-4002
`Email: Michelle.delemarre@usdoj.gov
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`Case 1:21-cv-10243-NMG Document 1 Filed 02/12/21 Page 13 of 13
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`ORLA M. BRADY
`Trial Attorney
`United States Department of Justice
`Civil Division, Torts Branch
`Post Office Box 14271
`Washington, DC 20044-4271
`Telephone: (202) 514-0372
`Facsimile: (202) 616-4002
`Email: Orla.M.Brady@usdoj.gov
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`JEAN E. WILLIAMS
`Acting Assistant Attorney General,
`Environment & Natural Resources Division
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`/s/ Anna Grace
`Anna Grace
`Trial Attorney
`United States Department of Justice
`Environment & Natural Resources Division
`Post Office Box 7611
`Ben Franklin Station
`Washington, D.C. 20010
`Phone: (202) 514-4091
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`Attorneys for the United States
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`OF COUNSEL:
`LCDR SHANNON PRICE
`National Pollution Funds Center, U.S. Coast Guard
`2703 Martin Luther King Jr. Avenue SE
`Washington, DC 20593
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`BRIAN JUDGE, Chief
`Office of Claims and Litigation (CG-LCL)
`U.S. Coast Guard Headquarters
`2703 Martin Luther King Jr. Ave, SE, Stop 7213
`Washington, DC 20593-7213
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`BRIANNA C. KENNY
`Office of the Solicitor, Northeast Region
`U.S. Department of the Interior
`15 State Street, 8th Floor
`Boston, MA 02109-3502
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`13
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