UNITED STATES of America, Appellant, v. The BARGE SHAMROCK, her tackle appurtenances, etc., and Harbor Towing Corporation, Shell Oil Company and Water Quality Insurance Syndicate, Appellees, 635 F.2d 1108

SPROUSE, Circuit Judge: On September 6, 1978, the United States filed this action to recover $462,098.00 in costs expended by the Government in removing an oil spill. The district court, holding the action barred by a statute of limitations, granted

summary judgment for the defendants and the Government appeals. The Barge Shamrock discharged the oil while being loaded at Wagners Point, Baltimore Harbor, Maryland, on August 10, 1975. The defendants are Shell Oil Company (which was loading the barge) and Harbor Towing Corporation (which owned the barge) (collectively, Companies). Three years elapsed between the spill of August 10,1975, and filing of the action on September 6, 1978. We hold that the computation of time for filing the action commenced on September 12, 1975, when the government completed the oil removal.

Since less than three years elapsed from that event until the action was filed, the case must be reversed and remanded for trial. The Shamrock lay moored at Shell’s Wag-ners Point petroleum terminal at about 1:00 a. m. on August 10,1975, and began loading from Shell’s shoreline at that time. Approximately 135,000 gallons of oil soon overflowed from the Shamrock’s tanks into the Patapsco River. Neither Harbor Towing nor Shell attempted to remove the oil.

The complaint alleged that the Shamrock was unseaworthy and undermanned, that her crew was careless, incompetent, overworked, fatigued, and asleep on watch during loading, that Shell Oil’s dockman was careless, incompetent, overworked, fatigued, and asleep on duty during the loading, and that both companies were willfully negligent in that they knew of these conditions concerning their respective personnel yet did nothing to remedy the conditions. The Government, in answering interrogatories, furnished the Coast Guard report covering the entire incident.

Among the details disclosed was the oil removal completion date-September 12, 1975. The action was brought under the Federal Water Pollution Control Act (the Act) Subsection, 33 U.S.C. 1321(b)(3), which prohibits discharges of oil or hazardous substances into certain navigable waters of the United States. The Act contains a variety of penalty and cleanup cost-recovery provisions for oil spills. Administrative penalties up to $5,000 may be imposed, without a showing of fault. The administrator of the Act may also seek judicially-imposed penalties.

The Government may recover the actual cost of cleanup operations for spills from vessels up to a maximum of $250,000, even without fault. It may recover all actual removal costs without maximum limitation on the showing of willful negligence or willful misconduct. 33 U.S.C. §§ 1321(b)(6)(A), 1321(b)(6)(B), 1321(f)(1). There is no specific statute of limitations contained in the Act. The Companies contend that 28 U.S.C. § 2415 controls this action.

Section 2415 expresses generally the time limitations barring actions against the Government. The Companies argue that the oil spill was a tort, and is thus governed by the three-year time bar specified for torts in

section 2145. The district court agreed and held that since the oil spill occurred on August 10, 1975, more than three years prior to filing of suit on September 6, 1978, the action was time-barred. The Government contends that Congress did not intend the Federal Water Pollution Control Act to be subject to the provisions of

section 2145. It argues, alternatively, that even if the three-year time bar for torts is applicable, the complaint was timely filed on September 6, 1978. Although the spill occurred on August 10, 1975, the Government argues that the cause of action did not accrue until September 12, 1975-when the oil removal was completed. We agree with this latter contention and reverse and remand for trial. We need not consider the other arguments advanced by the parties since, under any of those theories, the action would not be time-barred. The primary duty for cleaning the oil spill, was of course, upon the Companies. Cf.

Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967) (removal of sunken barges); United States v. Perma Paving Co., 332 F.2d 754 (2nd Cir. 1964) (removal of man-made shoal). See also Askew v. American Waterways Operators, Inc., 411 U.S. 325, 332-334, 93 S.Ct. 1590, 1595-1596, 36 L.Ed.2d 280 (1973).

Section 1321(c)(1) of the Act provides: Whenever any oil or a hazardous substance is discharged, . . . the President is authorized to act to remove or arrange for the removal of such oil or substance at any time, unless he determines such removal will be done properly by the owner or operator of the vessel, onshore facility, or offshore facility from which the discharge occurs. 33 U.S.C. § 1321(c)(1). The President is thus authorized to arrange for removal of the spill unless he determines that the removal will be done properly by the owner or operators of the facilities involved.

In order to avoid the obvious consequences of possible delay or ineffectiveness Congress, with this section, provided the Executive Branch an option. The option is sufficiently broad to effect the Congressional purpose of efficiently removing contaminants and fixing responsibility. The President may act or decline to act. Presumably, once a government cleanup is started it can be delayed at the direction of the President. He could direct a responsible party to become involved. Government action in appropriate circumstances might be terminated prior to completion.

The cause of action for recouping expenses incurred by the government does not fully accrue until the government has completely exercised its option and completed the cleanup operation. Supportive of this logic is 28 U.S.C. § 2416, which provides: For the purpose of computing the limitations periods established in

section 2415 [28 U.S.C.S. § 2415], there shall be excluded all periods during which- (

c) facts material to the right of action are not known and reasonably could not be known by an official of the United States charged with the responsibility to act in the circumstances .... See also United States v. Boyd, 520 F.2d 642, 645 (6th Cir. 1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 776, 46 L.Ed.2d 638 (1976). The Companies correctly contend that the September 12 removal completion date was not argued to the district court as the accrual date for the cause of action. They argue that this issue cannot be considered on appeal.

It is true that this Court does not generally pass on issues not previously raised. United States v. One 1971 Mercedes Benz, 542 F.2d 912 (4th Cir. 1976); United States v. Chesapeake & Ohio Ry. Co., 215 F.2d 213 (4th Cir. 1954). See also Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). There are instances, however, when issues not previously raised should be entertained on appeal. If the error is “plain” and a refusal to treat it would result in the denial of fundamental justice, it should be decided. In Ricard v.

Birch, 529 F.2d 214 (4th Cir. 1975) we considered an issue which was raised for the first time on appeal. The defendant argues, however, that the statute should not be applied because it was not raised in the district court.

Ordinarily, of course, we do not pass on questions that were not presented to or considered by the district court, but orderly rules of procedure do not require sacrifice of the rules of fundamental justice. “Indeed, if deemed necessary to reach the correct result, an appellate court may sua sponte consider points not presented to the district court and not even raised on appeal by any party.” Id. at 216, quoting Washington Gas Light v. Virginia Electric & Power Co., 438 F.2d 248 (4th Cir. 1971). See also Walker Manufacturing Co. v. Dickerson, Inc., 560 F.2d 1184, 1187 n. 2 (4th Cir. 1977).

This Court has also held: Rules of practice and procedure are devised to promote the ends of justice, not to defeat them. A rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with this policy. Orderly rules of procedure do not require sacrifice of the rules of fundamental justice. Washington Gas Light, supra at 250, quoting Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941).

The facts concerning the removal of the oil spill are documented in the record by the Coast Guard investigative report. The September 12 completion date is undisputed. The issue of whether it was the critical date should have been obvious to the parties and to the trial court. The Government’s failure to previously argue the September 12 date, therefore, does not inhibit us from considering it. It would be unjust to impose the costs on the government which was in no way involved in the spill while permitting the perpetrators of the damage to escape liability.

The case is reversed and remanded for proceedings consistent with the views expressed in this opinion. REVERSED AND REMANDED. . The opinion of the late Judge Blair is adopted as the principal part of the dissent. It should be noted, however, that the language of the district court quoted in the dissent was not considered in the majority opinion. The reasoning was not approved or disapproved because it was not necessary to the disposition of the case. As is discussed, infra, the conclusions of the majority are based on a later accrual date for the government’s cause of action. .

The record is brief because the case was decided on the defendants’ motion for

summary judgment. The Coast Guard investigative report was an integral part of the record. It was not only not contested, but was obviously an independent factual source. The defendants did not at trial nor on appeal contest the factual accuracy of the statement that the final clean-up was not completed until September 12. They only assert that the date of the spill rather than the date of clean-up completion initiates the statute of limitations. .

The dissent stresses the government’s admissions during discovery proceedings that August 10 was the day on which the cause of action accrued because the spill occurred on that date. There is no question, of course, that the spill occurred on August 10, just as there is no question that the clean-up operation was not completed until September 12. The issue as to whether the cause of action accrued on the date of the spill or the date of the clean-up completion, however, is a question of law. The majority believes, for the reasons expressed in the body of the opinion, that under the correct

interpretation of the applicable statutes the government’s cause of action did not finally accrue until the clean-up operation was completed.