

                  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  &amp;                                                                           
Gates P.L.L.C., Jos   E. Alfaro-Delgado and Calvesbert,  Alfaro &amp;                                                                           
L pez-Conway  were  on   brief  for  appellant   Metlife  Capital                      
Corporation.
     John M. Woods, with whom  Andrew J. Garger, Thacher Proffitt                                                                           
&amp; Wood,  William  A. Graffam,  Patricia  A. Garrity  and  Jim nez                                                                           
Graffam &amp; 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 &amp;  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  &amp;  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 &amp;  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  &amp;                                                                           

Vanderheide &amp; 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

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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

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court's order is affirmed.                           affirmed.                                   

          Costs to be assessed against appellants.

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