
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 97-1321                         IN THE MATTER OF:  THE COMPLAINT OF                             METLIFE CAPITAL CORP., ETC.,                                Plaintiff - Appellant,                                 ____________________                         COMMONWEALTH OF PUERTO RICO, ET AL.,                               Plaintiffs - Appellees,                                          v.                             M/V EMILY S., ETC., ET AL.,                               Defendants - Appellees.                                 ____________________          No. 97-1322                    IN THE MATTER OF:  BUNKER GROUP, INC., ET AL.,                               Plaintiffs - Appellants,                                 ____________________                         COMMONWEALTH OF PUERTO RICO, ET AL.,                               Plaintiffs - Appellees,                                          v.                             M/V EMILY S., ETC., ET AL.,                               Defendants - Appellees.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]                                                ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                Lynch, Circuit Judge,                                       _____________                             and Keeton,* District Judge.                                          ______________                                _____________________               Michael  Mirande, with  whom Robert  F.  Bakemeier, Bogle  &               ________________             _____________________  ________          Gates P.L.L.C., Jos   E. Alfaro-Delgado and Calvesbert,  Alfaro &          ______________  _______________________     _____________________          L pez-Conway  were  on   brief  for  appellant   Metlife  Capital          ____________          Corporation.               John M. Woods, with whom  Andrew J. Garger, Thacher Proffitt               _____________             ________________  ________________          & Wood,  William  A. Graffam,  Patricia  A. Garrity  and  Jim nez          ______   ___________________   ____________________       _______          Graffam & Lausell were on brief for appellant Bunker Group, Inc.          _________________               Mee Lon Lam,  Trial Attorney, Torts Branch,  Civil Division,               ___________          U.S. Department of Justice, with  whom Frank W. Hunger, Assistant                                                 _______________          Attorney General,  Civil  Division,  and  Guillermo  Gil,  United                                                    ______________          States  Attorney, were  on  brief for  appellee United  States of          America.               Antonio  J.  Rodr guez,  with  whom  Rice  Fowler,  Jos   A.               ______________________               ____________   ________          Fuentes-Agostini, Attorney General, Commonwealth of Puerto  Rico,          ________________          John F.  Nevares and Smith &  Nevares were on brief  for appellee          ________________     ________________          Commonwealth of Puerto Rico.                                 ____________________                                  December 24, 1997                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                                         -2-                    TORRUELLA,   Chief   Judge.      These   two   actions,                    TORRUELLA,   Chief   Judge.                                 _____________          consolidated for  appeal, challenge  the district  court's ruling          that the Oil Pollution Act of 1990 ("OPA"), 33 U.S.C.    2701-61,          repealed  the Limitation  of Shipowner's  Liability  Act of  1851          ("Limitation Act"),  46 U.S.C.  app.    181-96,  as to  oil spill          claims for removal  costs and damages arising under  the OPA.  We          hold that  claims arising  under the OPA  (for pollution  removal          costs  and  damages)  are  not  subject  to  the  substantive  or          procedural  law of  the Limitation  Act  or to  the concursus  of          claims  under  Rule  F  of the  Supplemental  Rules  for  Certain          Admiralty  and Maritime  Claims  of the  Federal  Rules of  Civil          Procedure ("Rule F").                                    I.  BACKGROUND                                    I.  BACKGROUND                    On January 7, 1994, the towing wire between the tug M/V          EMILY  S and  the barge  MORRIS J.  BERMAN parted,  grounding the          barge  off  of Punta  Escambr n,  San  Juan,  Puerto Rico.    The          grounding caused much of the MORRIS J. BERMAN's cargo of fuel oil          to spill into the waters of the Commonwealth  of Puerto Rico (the          "Commonwealth").  Soon after the spill, the Commonwealth  filed a          damages action  in  the  United States  District  Court  for  the          District of Puerto Rico naming numerous defendants including: (i)          the demise charterer  of the EMILY S Bunker  Group, Inc. ("BGI");          (ii) the operator  of the EMILY S Bunker Group  Puerto Rico, Inc.          ("BGPR"); (iii)  the owner and  operator of the MORRIS  J. BERMAN          and the  co-demise charterer  of the EMILY  S New  England Marine                                         -3-          Services ("NEMS"); (iv) the owner  of the EMILY S MetLife Capital          Corporation  ("MetLife");  and (v)  the  EMILY  S  in rem.    The                                                             __ ___          Commonwealth arrested the  EMILY S and  sought damages under  the          OPA,  general  federal   maritime  law,  and  Puerto   Rico  law.          Subsequently,  several  other  civil actions  were  filed  in the          District of Puerto Rico by private parties seeking recovery under          a variety of  theories for  damages.  Each  of these actions  was          either consolidated with the Commonwealth's action or dismissed.                    Within  six months  of the  oil  spill, the  appellants          NEMS, BGI,  and BGPR (collectively,  the "Bunker Group")  filed a          complaint   under  the  Limitation   Act  and  Rule   F,  seeking          exoneration from or  limitation of liability.  At  the same time,          the appellant MetLife, as owner of  the EMILY S, filed a separate          action  under  the Limitation  Act.    On  August 25,  1994,  the          district court issued  a notice  to claimants  of the  limitation          actions  and an order  of injunction, or  monition, enjoining the          commencement of any actions against the limitation plaintiffs for          claims  arising out  of the  grounding  of the  barge except  for          actions filed in the limitation proceeding.  The monition created          a concursus  of all claims  in a single  consolidated proceeding.          NEMS,  BGI,  BGPR,  and  MetLife  (the  "Limitation  Plaintiffs")          provided notice  to  actual claimants  as  well as  to  potential          claimants in a Notice of  Monition in the newspaper El  Nuevo D a                                                              _____________          on August  26, 1994, directing  them to  file their claims  on or          before October 15, 1994.                    At   the  conclusion  of   the  monition   period,  the                                         -4-          Limitation  Plaintiffs filed motions for entry of default against          all  persons  who   failed  to  file.     Subsequently,  numerous          claimants,  including the Commonwealth and the United States (the          "Government"),  filed  actions  in  the  limitation  proceedings,          seeking recovery  of damages under the OPA, general maritime law,          and other law.   In their claims,  both the Commonwealth and  the          Government asserted that  their OPA claims should not  be subject          to concursus.                    Three other claimants,  Hilton International of  Puerto          Rico,  Inc., Puerto Rico  Tourism Company, and  Hotel Development          Corporation (collectively, the "Hilton claimants"), filed  claims          under   seal   in   the   limitation   proceedings  while   their          administrative  claims, which  had already  been  filed with  the          National  Pollution Funds  Center ("NPFC"),  were  pending.   The          Hilton  claimants  simultaneously  moved the  district  court for          relief in  order to  preserve their OPA  claims if  they withdrew          them from the concursus.  On June  28, 1996,  the district  court          issued  an  order  suspending  the  August  25,  1994  order   of          injunction  issued in  the limitation  proceedings.   This  order          allows  "any  claims  for  oil  spill  removal  costs or  damages          resulting from or in any way  connected with the grounding of the          barge  MORRIS  J.  BERMAN  on  January 7,  1994  to  be  asserted          independently  of  the  limitation  of  liability   proceedings."          Subsequent to the  issuance of  the order,  the Hilton  claimants          withdrew their limitation  claims in order to proceed  with their          administrative  claims before the  NPFC.  However,  their motions                                         -5-          served as the vehicle for  all parties to brief the  question now          presented to this court.  On August 7, 1996, the appellants NEMS,          BGI, BGPR,  and MetLife timely filed this  appeal of the June 28,          1996 order.                                         -6-                                   II.  DISCUSSION                                   II.  DISCUSSION                    Interpretations  of  federal  statutes  and  rules  are          subject to de  novo review.  See Strickland  v. Commissioner, Me.                     __  ____          ___ __________     _________________          Dept. of Human Servs., 96 F.3d 542, 545 (1st Cir. 1996).          _____________________                    A.  The Limitation Act and the OPA                    A.  The Limitation Act and the OPA                    The  Limitation  Act  was enacted  in  1851  to promote          shipbuilding and  to induce  investment in  the growing  American          shipping  industry.    See  Hartford Accident  &  Indem.  Co.  v.                                 ___  _________________________________          Southern  Pac. Co.,  273 U.S.  207 (1927).   The law  permits the          __________________          shipowner to limit his or her  liability as to certain claims for          damages arising  out of the  voyage of his  or her vessel  to the          post-accident value of  the vessel plus pending freight.   See 46                                                                     ___          U.S.C.    183, 186.                    Rule  F  governs  the  filing  and  adjudication  of  a          limitation action.   The  vessel owner must  file a  complaint no          later  than  six months  after  receipt  of a  claim  as  well as          depositing the amount of the limitation fund with the court.  See                                                                        ___          Rule F(1).  Rule F concursus, once  referred to as the "heart" of          a limitation action, Maryland Cas.  Co. v. Cushing, 347 U.S. 409,                               __________________    _______          417 (1954),  requires multiple claimants  to pursue  relief in  a          single forum and marshals the assets of a limited fund.  See Rule                                                                   ___          F(3),  F(7).   Concursus is  intended  to provide  a "prompt  and          economical disposition to  controversies."  Cushing, 347  U.S. at                                                      _______          415.  Today, many question the  continued usefulness and vitality          of  the Limitation  Act.    See, e.g.,  2  Thomas J.  Schoenbaum,                                      ___  ____          Admiralty and  Maritime Law (2d  ed. 1994) (the  Limitation Act's          ___________________________                                         -7-          "original purpose . . . seems to have lost much of its force with          the availability of insurance, bills of lading statutes  that put          substantial  limits on liability for  cargo loss, and the ability          to limit  claims  by contract").    However, Congress  has  never          repealed  the act,  and therefore,  courts continue to  apply it.          See, e.g., Keller v. Jennette, 940 F. Supp. 35 (D. Mass. 1996).          ___  ____  ______    ________                    The Oil  Pollution Act  was passed in  the wake  of the          1989   Exxon  Valdez   tanker  disaster   and   created  a   more          comprehensive  compensation and  liability scheme  for oil  spill          pollution than had  existed under earlier legislation.   Prior to          the  OPA, the  Federal  Water  Pollution  Control  Act  ("FWPCA")          (commonly known as the Clean  Water Act), 33 U.S.C.    1251-1387,          provided  liability  limitations  for federal  pollution  removal          costs associated with  oil spills.  See  id.   1321(c).   The OPA                                              ___  __          imposes  strict liability for pollution removal costs and damages          on the "responsible party" for a vessel  or a facility from which          oil is discharged.  See 33 U.S.C.   2702(a).  Responsible parties                              ___          include owners, operators, or demise charterers of a vessel.  See                                                                        ___          id.   2701(32).          __                    The  OPA limits  the  liability of  responsible parties          based upon the type of vessel and its tonnage.  For tank vessels,          the limit can be as high as $10 million.  Id.    2704(a)(1).  For                                                    __          all other vessels, the limit is the greater of $600 per gross ton          or $500,000.   Id.    2704(a)(2).   Responsible parties  may face                         __          unlimited  liability for, inter alia, acts of gross negligence or                                    _____ ____          willful misconduct.  In addition, state law applies free of these                                         -8-          liability limits.  See id.    2718(a), 2718(b).  Finally, the OPA                             ___ __          consolidated previously established oil  pollution funds into the          Oil Spill Liability  Trust Fund (the  "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.  See 33 U.S.C.    2708(a), 2713(b)(1)(B).  See generally                    ___                                       ___ _________          Schoenbaum, supra, at 384.                      _____                    B.  The OPA's Impact on the Limitation Act                    B.  The OPA's Impact on the Limitation Act                    The  OPA specifically  addresses its  relationship with          the Limitation Act and other legislation when it states:                      Notwithstanding  any  other  provision or                      _________________________________________                      rule   of  law,   and   subject  to   the                      ______________                      provisions   of   this    chapter,   each                      responsible  party  for  a  vessel  or  a                      facility from which oil is discharged, or                      which poses  the substantial threat  of a                      discharge of oil, . . . is liable for the                      removal  costs and  damages specified  in                      subsection  (b)  that  result  from  such                      incident.          33 U.S.C.   2702(a) (emphasis added).   Appellant MetLife asserts          that  this provision imposes the OPA's increased liability limits          notwithstanding any previously  applicable limitations under  the                                                     ___________          Limitation Act,  but does  not eviscerate  preexisting limitation          procedure under the Limitation Act.   Thus, the appellant argues,          _________          Limitation  Act  concursus   remains  available  to   responsible          parties.                    However, a  plain reading  of  the subsection  suggests          that the OPA repealed the  Limitation Act with respect to removal          cost and damages  claims against responsible parties.   See In re                                                                  ___ _____                                         -9-          JAHRE SPRAY II K/S, 1996  WL 451315, *4 (D.N.J. 1996);  accord In          __________________                                      ______ __          re Odin Marine  Corp., No. 96-5438, slip op. at 6 (S.D.N.Y.  Aug.          _____________________          7, 1997); Tug Capt. Fred Bouchard Corp.  v. M/V BALSA 37, No. 93-                    _____________________________     ____________          1321, slip op. at 2 (M.D. Fla. Oct. 22, 1996).   Accordingly, the          procedural  rules  incorporated  into  the  Limitation   Act  are          inapplicable as well  to such  claims.   In interpreting  similar          language  in  the FWPCA,  courts  have  held  that the  statute's          "notwithstanding" phrase precludes application of the  Limitation          Act to  claims by the  United States for FWPCA  pollution removal          costs.  See  In re Oswego Barge Corp., 664 F.2d 327, 340 (2d Cir.                  ___  ________________________          1981); In re Hokkaido Fisheries Co., Ltd., 506 F.  Supp. 631, 643                 __________________________________          (D.  Alaska 1981).   See  also  Schoenbaum, supra,  at 376  ("OPA                               _________  __________  _____          broadly supersedes the  Limitation of Liability Act  with respect          to damages  and removal costs  under both federal and  state law,          including common  law").   We find these  cases to  be persuasive          because  "[n]either the  language  of  OPA  nor  its  legislative          history  suggests  that  OPA's  provisions  should  be  construed          contrary  to the  settled law  applicable to  FWPCA when  OPA was          enacted."   William M.  Duncan, The Oil  Pollution Act  of 1990's          Effect  on the Shipowner's Limitation of  Liability Act, 5 U.S.F.          L. Rev. 303, 316 (1993).                    In addition to the  "notwithstanding" clause, at  least          four  other provisions  in  the  statute  explicitly  repeal  the          Limitation Act with  respect to certain types of claims.   See 33                                                                     ___          U.S.C.    2702(d)(1)(A) (repealing the Limitation Act as to third          parties solely responsible  for a spill); 2718(a)  (repealing the                                         -10-          Limitation  Act  as  to  state  and  local  statutory  remedies);          2718(c)(1)  (repealing  the  Limitation   Act  as  to  additional          liability  imposed by the United  States, any state, or political          subdivision);  2718(c)(2)  (repealing the  Limitation  Act  as to          fines  or penalties).   The  appellants contend that,  outside of          these specific instances,  the Limitation Act continues  to apply          to the OPA.  The Bunker Group, citing one commentator, notes that          "[i]f Congress'  intent in  enacting OPA  had been  to completely          repeal  the Limitation  Act,  it  would  not  have  painstakingly          repealed  it only  with  respect to  certain  types of  actions."          Duncan, supra, at 319.                  _____                    When  we  consider  these  five  OPA  provisions  which          explicitly repeal the  Limitation Act as well as  others that are          irreconcilably in conflict,  see infra, we find that  the OPA has                                       ___ _____          repealed  the  Limitation Act  as to  oil spill  pollution claims          arising under the OPA in  the instant case.  "'[W]here provisions          in the two acts are in irreconcilable conflict, the later act  to          the extent of  the conflict constitutes an implied  repeal of the          earlier one . . . .'"   See Radzanower v. Touche Ross &  Co., 426                                  ___ __________    __________________          U.S. 148, 154 (1976) (quoting  Posadas v. National City Bank, 296                                         _______    __________________          U.S.   497,   503   (1936)  (noting   standard   for   repeal  by          implication)).                     While  the   repeal  of  statutes  by   implication  is          disfavored, see Tennessee Valley Auth. v. Hill, 437 U.S. 153, 189                      ___ ______________________    ____          (1978),  several key provisions  of the two  statutes are plainly          inconsistent.  First,  the Limitation Act limits  the shipowner's                                         -11-          liability to the  post-accident value of the  vessel plus pending          freight, 46  U.S.C.    183, while the  OPA contemplates  a strict          liability regime with statutory limits of at least $2 million for          tanks vessels and $.5 million for  all other vessels.  33  U.S.C.             2702, 2704.  Moreover,  in certain instances, the OPA  imposes          virtually unlimited liability on  the responsible party.   See 33                                                                     ___          U.S.C.    2704(c).  Second, the provisions on jurisdiction are in          obvious  tension.   Only federal  courts  have jurisdiction  over          limitation  proceedings.   See,  e.g.,  Complaint  of  Dammers  &                                     ___   ____   _________________________          Vanderheide & Scheepvaart Maats Christina B.V., 836 F.2d 750, 755          ______________________________________________          (2d Cir.  1988).  In  contrast, the OPA grants  federal and state                                                                  _________          courts jurisdiction  to decide  oil pollution  cases.  33  U.S.C.             2717(b), 2717(c).    Finally, the  provisions of  Rule F,  the          procedural  rule that implements  and which is  incorporated into          the Limitation Act,  cannot be  reconciled with  sections of  the          OPA.  See Part C, infra.                ___         _____                    Even assuming arguendo that  the language is ambiguous,                                  ________          the legislative history  is consistent  with our  interpretation.          As  this  court has  noted,  the  "chief objective  of  statutory          interpretation   is  to   give   effect  to   legislative  will."          Passamaquoddy Tribe v. State of Me., 75 F.3d 784 (1st Cir. 1996).          ___________________    ____________          In considering the OPA's liability provision, Congress stated:                      Liability under  this Act  is established                      notwithstanding  any  other  provision or                      rule of  the law.   This  means that  the                      liability  provisions of  this Act  would                      govern   limitations   compensation   for                      removal costs and damages notwithstanding                      any limitations  under existing  statutes                      such as the act of March 3, 1851 . . . .                                         -12-          H.R. Conf.  Rep. No.  101-653, at 103  (1990), reprinted  in 1990                                                         _____________          U.S.C.C.A.N.  779,  781  (Joint   Explanatory  Statement  of  the          Conference  Committee explaining    2702(a)).   Furthermore,  the          Senate Report  on the OPA  bill asserts that the  OPA "completely          supersedes  the  1851  statute with  respect  to  oil pollution."          S. Rep. No. 101-94,at 14, reprinted in 1990U.S.C.C.A.N. 722, 736.                                    ____________                    More  generally,  as  the  Ninth  Circuit  reasoned  in          finding an implicit repeal of the Limitation Act by the liability          provisions  of the  Trans-Alaska Pipeline  Authorization Act,  43          U.S.C.    1651-1655, "[a]pplication of the Limitation Act to [the          OPA]  would   frustrate  completely  [the   OPA]'s  comprehensive          remedial nature."  See In re Glacier  Bay, 944 F.2d 577, 583 (9th                             ___ __________________          Cir.  1991).   "The purpose  of OPA,  as well  as other  remedial          legislation   passed  by  Congress  and  the  states  to  address          environmental  disasters such  as oil  spills,  was to  encourage          rapid private party responses."   JAHRE SPRAY, 1996 WL 451315, at                                            ___________          *4.  However, the Limitation  Act "allows vessel owners virtually          to eliminate liability  for catastrophic damages."   Glacier Bay,                                                               ___________          944  F.2d at 583.   Hence, the OPA's  scheme is in irreconcilable          conflict with the Limitation Act.                    Some  claims  arising  from an  incident  in  which oil          pollution occurs do not escape  the Limitation Act.  For example,          that Act  remains in  force for general  maritime claims  such as          maritime tort  actions for harms to  persons or vessels.   See 33                                                                     ___          U.S.C.     2751(e)  ("[e]xcept  as  otherwise  provided  in  this          chapter,  this  chapter does  not  affect  .  . .  admiralty  and                                         -13-          maritime law").   The district  court below, in keeping  with the          OPA's savings  provision in    2751(e),  reserved the  Limitation          Plaintiffs'  right "to  seek limitation  of  liability for  those          claims   subject   to  reduction   under  the   Limitation  Act."          Therefore,  the  Bunker  Group's  contention  that  the  district          court's order exempts  from Rule F  concursus all claims  arising          from  the grounding, whether or not they  arise under the OPA, is          without merit.  The appellants remain free to avail themselves of          the Limitation Act and Rule F concursus for their non-OPA claims.                    C.  The Independent Application of Rule F Concursus                    C.  The Independent Application of Rule F Concursus                    The  appellants claim that  even if the  OPA supersedes          the Limitation Act, because the OPA fails to provide any guidance          on the  procedure  necessary to  implement it,  Rule F  concursus          applies to  actions under the OPA independently of the Limitation          Act.  To support their  contention, the appellants note that Rule          F  is  framed  generally  to  address  "limitation  of  liability          pursuant to statute."  Rule F(1).  Rule F was originally  written                      _______          by the Supreme Court  to implement the 1851  Limitation Act.   In          redrafting  the rules,  the Supreme  Court  substituted a  direct          reference to  the 1851 statute  in Rule F  with the "pursuant  to          statute"  language, which we find  reveals a more general purpose          for Rule F.                    We  conclude, however,  that Rule  F's requirements  on          venue and limitation of  liability cannot be reconciled  with the          OPA's provisions  regarding oil spill  damages.  Under Rule  F, a          limitation of liability  proceeding may be commenced  only in the                                         -14-          district where the vessel has  been seized, or if the  vessel has          not been  seized, in  any district  in which  the owner  has been          sued.  See Rule F(9).  If neither the vessel has  been seized nor                 ___          action commenced against the owner, the limitation  action may be          filed in the district where the vessel may be.  See id.  Venue is                                                          ___ __          proper in any district only if there is no pending litigation and          the vessel  is not within any district.  See  id.  Under the OPA,                                                   ___  __          in  contrast,  venue is  proper  in  any  district in  which  the          discharge of oil or  injury or damages occurred, or  in which the          defendant resides, may be found, has its principal office, or has          appointed an agent for service of process.  33  U.S.C.   2717(b).          Thus, the  OPA offers claimants  a much broader choice  of forums          while  Rule   F's  venue  requirements   are  significantly  more          restrictive.                    Rule  F's deadline for claims is also inconsistent with          the OPA's  statute of  limitation.  Once  a limitation  action is          commenced, the court issues a  notice to claimants requiring them          to file  their claims by the date fixed  in the notice.  See Rule                                                                   ___          F(4).   The court may fix a date that requires claims to be filed          in  as little as 30 days  after issuance of the  notice.  Id.  In                                                                    __          the  instant case,  the monition period  terminated approximately          ten months  after the date  of the MORRIS J.  BERMAN's grounding.          The  OPA, however,  allows claimants  three years to  commence an          action to  recover removal costs and  damages.  See 33  U.S.C.                                                             ___          2717(f)(1),  2717(f)(2).  In addition, if the claimant decides to          seek  recovery from  the  Fund,  the claimant  has  six years  to                                         -15-          present removal  costs claims,  see 33  U.S.C.    2712(h)(1), and                                          ___          three  years to  present damage  claims.   See id.    2712(h)(2).                                                     ___ __          Finally,  section 2717(f)(4)  extends the  limitation period  for          subrogation actions by  three years from the date the Fund pays a          subrogated claim.  See 33 U.S.C.   2717(f)(4).                             ___                    One  concern we have  with the shortened  claims period          under  Rule F is that it would  interfere with the United States'          subrogation  rights under  the  OPA.   If  oil  spill claims  are          subject  to Rule  F concursus,  claimants who  are barred  by the          court imposed  deadline from  recovering against  the responsible          party, are likely  to present their claims to the Fund.  Once the          Fund  pays a  claim, the  United  States acquires  all rights  of          subrogation.  See 33 U.S.C.     2712(f), 2713, 2715(a).  However,                        ___          at that point, the United States may then be denied access to the          proceedings against  the responsible party, and consequently, the          Fund will bear the financial burden of these late claims.                    The  appellants   respond  that,  under  Rule   F,  the          government's subrogation rights do not  necessarily lapse because          "[f]or cause shown,  the court may enlarge the  time within which          claims may  be  filed."   Rule  F(4).   We  believe  though  that          subjecting  the government's subrogation rights to the discretion          of the trial court in every oil spill action  fails to adequately          secure those rights.   Congress specifically examined  this issue          in creating the OPA's statute of limitation and giving the courts          discretion  over this matter  is contrary to  legislative intent.          Moreover,  even if the  courts consistently enlarge  the monition                                         -16-          period for  subrogation claims,  in many  instances, the  limited          fund established  by the  concursus procedure  will already  have          been exhausted.                    Finally,  contrary to  the appellants'  contention that          the OPA  fails to provide  any procedural guidance, the  OPA does                                     ___          establish a  claims procedure.   The OPA requires all  claims for          removal costs or damages to be presented first to the responsible          party or guarantor.  See 33 U.S.C.   2713(a).  If the responsible                               ___          party  denies liability  or the  claim is  not settled  within 90          days, the claimant  may proceed against the  responsible party in          court or present the claim  to the Fund.  See id.    2713(c).  In                                                    ___ __          some  enumerated instances, claims  may be presented  directly to          the Fund without first presenting them to  the responsible party.          See  id.    2713(b).   "The  purpose  of  the  claim presentation          ___  __          procedure  is   to  promote  settlement  and  avoid  litigation."          Johnson v. Colonial Pipeline Co., 830 F. Supp. 309, 310 (E.D. Va.          _______    _____________________          1993).  In contrast to the OPA's claims procedure, Rule F  forces          all claimants  into litigation  against the vessel  owner.   If a          claimant  fails to  appear in  the limitation  action within  the          monition period, he  or she is enjoined from  raising any claims.          See Rule  F(3).   In view of  these inconsistencies,  we conclude          ___          that Rule F  concursus even if independent of  the Limitation Act          is inapplicable to OPA claims.                                   III.  CONCLUSION                                   III.  CONCLUSION                    For  the reasons stated  in this opinion,  the district                                         -17-          court's order is affirmed.                           affirmed.                           ________                    Costs to be assessed against appellants.                                         -18-
