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UNITED STATES v. GEORGETOWN UNIV.

September 2, 1971

UNITED STATES of America
v.
GEORGETOWN UNIVERSITY



The opinion of the court was delivered by: RICHEY

This case came before the Court in a criminal proceeding pursuant to an indictment returned by the Grand Jury charging the defendant corporation, Georgetown University, with discharging large quantities of No. 6 fuel oil into the Potomac River in violation of the Rivers and Harbors Appropriation Act § 13, 33 U.S.C. § 407 (1964) and 22 D.C.Code § 1703 (1967). The case was tried before the Court without a jury. Upon the consideration of all the evidence adduced at the trial and the Government's brief and memorandum, and the arguments of counsel for the respective parties, the Court concludes as to each count in the indictment that the defendant is not guilty because the Government has failed to carry its burden of proof and for the additional reasons and findings hereinafter set forth.

The Court feels constrained to say that the facts in this case are significantly different from the facts in the cases upon which the Government supported its argument. This decision should not be regarded as a precedent contrary to the decisions of the United States Supreme Court or other federal courts upholding criminal laws imposing strict liability. In other words, this decision is limited to the peculiar facts and circumstances of the instant case.

 The Court finds that the following eight essential facts give rise to the inescapable conclusion that the defendant did not on November 13, 1970, which was the date of the alleged oil spill, have sufficient control over the facilities and mechanical apparatus, so as to make them criminally liable under the aforementioned statutes:

 (1) Sometime prior to 1969, Georgetown University contracted with Thomas F. Ellerbe, Architects and Engineers of St. Paul, Minnesota, to prepare the specifications and drawings for the design and construction of a heating and cooling plant for Georgetown University in Washington, D.C.

 (2) Ellerbe Architects was responsible for inspection, examination and testing of all materials and workmanship and to "reject defective material and workmanship or require its correction" by all trades and contractors working on the construction of this power plant.

 (3) The mechanical contractor working under Ellerbe Architects was Erie City Iron Works. Part of the responsibility of Erie City Iron Works was to conduct tests of the oil system in the plant. A test of the oil system of the plant was conducted under the direction of Erie City Iron Works on November 12, 1970, at Georgetown University. It was made pursuant to instructions from Ellerbe, which had previously submitted to Erie City Iron Works on September 23, 1970, a punch list, containing numerous items which had been improperly constructed, installed or adjusted showing that various subcontractors had provided improper materials and workmanship and that many items required correction under their various contracts and the specifications. Moreover, the following colloquy from the Grand Jury testimony of Mr. Henry F. Ohme, Power Plant Supervisor for Georgetown University, placed into evidence by the Government, shows conclusively that the boiler part of the power plant was not only in the control of the contractors on the date of the alleged oil leak, but that the design and construction of the plant was either improper or not fit at that stage for the use and purpose for which it was intended:

 
"Q. Okay. Now, at 3:00 o'clock in the afternoon of the 12th, did there come a time when there was an attempt made to change to oil heat?
 
Mr. Ohme. There was.
 
Q. Who decided to make that attempt?
 
Mr. Ohme. The boiler contractor's representative.
 
Q. Why did he want to make that attempt?
 
Mr. Ohme. It's-it was his-
 
Q. Why did he want to go on oil?
 
Mr. Ohme. The contractor was to provide the customer, Georgetown University with an operable boiler that would operate on both fuels. Up to this point the boiler had never been fired on oil or never really fired correctly on oil. So he was attempting to adjust the combustion controls so that it would operate on oil satisfactory ...

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