ORDER AND MEMORANDUM
AND NOW, this 13th day of March, 1997, upon consideration of Plaintiff's Motion for Summary Judgment, defendant's Motion for Summary Judgment, and the responses thereto, it is hereby ORDERED that the plaintiff's Motion is DENIED and the defendant's Motion is GRANTED.
On November 17, 1994, the Master of the M/V ARGONAFTIS, Captain Dovas, requested permission from the United States Coast Guard to proceed from Big Stone Anchorage, Delaware, up the Delaware River to the SUN Refinery at Marcus Hook, Pennsylvania to unload the rest of its cargo. R.O. at 168-170; R.M. at 195-197.
The vessel's Tank Vessel Examination (TVE) Letter had expired. Id. Dovas assured the Coast Guard that all the ship's vital signs were satisfactory and that there were no known deficiencies; the Coast Guard then granted Dovas' request to travel up the Delaware River and receive its Tank Vessel Examination at the SUN Refinery. Id.
On November 21, 1994, the Coast Guard conducted the TVE on the vessel. Id. Before the Coast Guard began this examination, Dovas told the Coast Guard that there was a crack in the sideshell of the number four starboard wing tank. Id. Dovas told the Coast Guard that he had seen the crack while he was at Big Stone Anchorage. Id. A representative of plaintiff Chronos Shipping, the superintendent, was also present. He stated that he was made aware of the crack at 4 a.m. on November 21, 1994 when he was notified by Dovas. Id. Dovas did not notify the Coast Guard because he thought the superintendent would; the superintendent did not do so because he knew the Coast Guard would soon be on board to conduct the TVE. Id.
The Coast Guard eventually imposed civil penalties against both Dovas and Chronos for violating 33 C.F.R. § 160.215 which provides that
whenever there is a hazardous condition either aboard a vessel or caused by a vessel or its operation, the owner, agent, master, operator, or person in charge shall immediately notify the nearest Coast Guard Marine Safety office or Group office.
This regulation is promulgated pursuant to the Ports and Waterways Safety Act, which allows for civil penalties up to $ 25,000 to be assessed for each violation. See 33 U.S.C. § 1232(a); 33 C.F.R. § 160.1. The civil penalty assessed against Chronos was $ 10,000; the amount assessed against Dovas was $ 20,000. R.O. at 99-100; R.M. at 159-160.
Plaintiffs instituted this action, arguing that Chronos' and Dovas' failure to report the crack was a single violation for which a maximum penalty of $ 25,000 should have been assessed and that assessing more than $ 25,000 total was arbitrary and capricious, violated due process, and constituted Double Jeopardy. In Count II, plaintiffs contend that Chronos was the operator not the owner of the ship, and therefore, the regulation does not apply to it. The parties have filed cross-motions for summary judgment. For the reasons stated below, the defendant's motion is granted.
Summary Judgment Standard
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). At the summary judgment stage, the court does not weigh the evidence and determine the truth of the matter. Rather, it determines whether or not there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party has the burden of showing there are no genuine issues of material fact, Gans v. Mundy, 762 F.2d 338, 340-41 (3d Cir. 1985), and, in response, the non-moving party may not rely merely upon bare assertions, conclusory allegations, or suspicions. Fireman's Ins. Co. v. DeFrensne, 676 F.2d 965, 969 (3d Cir. 1982).
Source of Jurisdiction
This court has jurisdiction pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 702. While the APA does not provide an independent grant of jurisdiction, the APA in combination with 28 U.S.C. § 1331 provides jurisdiction for this court to review the constitutionality of the Coast Guard's actions. See Lawrence v. United States, 631 F. Supp. 631, 638 (E.D. Pa. 1982); see also Virgin Islands Hous. Auth. v. Coastal Gen. Constr. Servs. Corp., 27 F.3d 911, 915 (3d Cir. 1994)(holding that the APA is not an independent source of jurisdiction).
This court, however, does not have jurisdiction under the Ports and Waterways Safety Act, 33 U.S.C. § 1221 et seq., as the plaintiffs contend. See Am. Compl. P 3. Plaintiffs contend that this court has jurisdiction pursuant to 33 U.S.C. § 1232(d). Section 1232(d) provides:
The United States district courts shall have jurisdiction to restrain violations of this chapter or of regulations issued hereunder, for cause shown.