Amicus Curiae Brief — CITGO Asphalt Refining Company, et al., Petitioners v. Frescati Shipping Company, Ltd., et al.

No. 18-565

IN THE

Supreme Court of the United States

CITGO ASPHALT REFINING COMPANY; CITGO PETROLEUM

CORPORATION; CITGO EAST COAST OIL CORPORATION,

v.

Petitioners,

FRESCATI SHIPPING COMPANY, LTD.; TSAKOS SHIPPING &

TRADING, S.A.; AND UNITED STATES,

Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF OF AMICI CURIAE THE AMERICAN FUELS &

PETROCHEMICAL MANUFACTURERS ASSOCIATION

AND INTERNATIONAL LIQUID TERMINALS

ASSOCIATION IN SUPPORT OF PETITIONERS

RICHARD MOSKOWITZ

AMERICAN FUEL &

PETROCHEMICAL

MANUFACTURERS

1800 M STREET, N.W.

WASHINGTON, DC 20036

(202) 457-0480

BRENDAN COLLINS

Counsel of Record

EDWARD D. GREENBERG

KRISTINE O. LITTLE

GKG LAW, P.C.

1055 THOMAS JEFFERSON

STREET N.W.

SUITE 500

WASHINGTON, D.C. 20007

(202) 342-5200

BCOLLINS@GKGLAW.COM

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST ....................................1

ARGUMENT ...............................................................4

I.

The Third Circuit’s Decision Imposes

Inappropriate

Obligations

on

Charterers ..............................................6

A.

Wharfinger and Charterers’

Duty to Provide a Safe Berth

Should

Be

Similarly

Construed, Not Construed

Asymmetrically ...........................9

B.

Safe Berth Clauses are

Conditions, Not Warranties,

Under Which a Charterer has

a

Duty

of

Reasonable

Diligence to Select a Safe

Berth. ......................................... 13

C.

The Third Circuit’s Rationale

Runs

Afoul

of

WellEstablished Admiralty Law

Policies and Introduces Unfair

and Uncertain Allocations of

Liability ..................................... 22

CONCLUSION .......................................................... 30

ii

TABLE OF AUTHORITIES

Page

Cases

Atkins v. Fibre Disintegrating Co.,

2 F. Cas. 78 (E.D.N.Y. 1868) (No. 601), aff’d, 85

U.S. (18 Wall) 272 (1873) ..................... 6, 13, 20, 29

Berwind-White Coal Mining Co. v. City of N.Y.,

48 F. 2d 105 (2d Cir. 1931) .................................. 12

Cities Service Transportation Co. v. Gulf Refining

Co.,

79 F.2d 521 (2d Cir. 1935) ................................... 18

City of Milwaukee v. Illinois,

451 U.S. 304 (1981) .............................................. 24

Eastchester Plymouth Transp. Co. v. Red Star

Towing & Transp. Co,

20 F.2d 357 (2d Cir. 1927) ................................... 12

Excel Shipping Corp. v. Seatrain Int’l S.A.¸

584 F. Supp. 734 (E.D.N.Y. 1984) ....................... 24

Frescati Shipping Co., Ltd.,

718 F.3d 184 (3d Cir. 2013) ................................. 16

Gard Marine and Energy Ltd. v. China Nat’l

Chartering Company Ltd.,

[2017] UKSC 35 (U.K.) ................................ passim

In re Frescati Shipping Co., Ltd.,

886 F.3d 291 (3d Cir. 2018) ......................... passim

Japan Line, Ltd. v. U.S.,

1976 A.M.C. 355 (E.D. Pa. 1975), aff’d 1977

AMC 265 (3d Cir. 1976) ....................................... 26

iii

Kodros Shipping Corp. v. Empresa Cbana de

Fletes,

[1982] 2 Lloyd’s Rep. 307 (H.L.) (U.K.) ............... 17

M. & J. Tracy,

283 F. 100 (2d Cir. 1922) ............................... 11, 12

Moragne v. States Marine Lines, Inc.,

398 U.S. 375 (1970) .............................................. 24

Orduna S.A. v. Zen-Hoh Grain Corp.,

913 F.2d 1149 (5th Cir. 1990) ...................... 7, 8, 21

Park S.S. Co. v. Cities Serv. Oil Co.,

188 F.2d 804 (2d Cir. 1951) ................................. 19

People of State of California v. S/T Norfolk,

435 F. Supp. 1039 (N.D. CA. 1977) ..................... 10

Red Star Barge Line Inc. v. Lizza Asphalt Constr.

Co.,

264 F.2d 467 (2d Cir. 1959) ................................. 12

Senator Linie GMBH & Co. KG v. Sunway Line,

Inc.,

291 F.3d 145 (2d Cir. 2002) ........................... 22, 23

Smith v. Burnett,

173 U.S. 430 (1899) ................................................9

The Gildersleeve No. 339,

68 F.2d 845 (2d Cir. 1934) ................................... 12

The Lottawanna,

88 U.S. (21 Wall.) 558 (1874) ............................... 22

The Pass of Leny,

[1936] 54 Lloyd’s List Rep. 288 (Adm.) (U.K.) .... 14

Statutes and Regulations

33 C.F.R. § 110.157 (2018) ........................................ 27

iv

33 C.F.R. §110 Subparts A and B ............................. 27

Carriage of Goods by Sea Act of the United States,

46 U.S.C. § 30701 note ......................... 4, 20, 22, 24

The Oil Pollution Act of 1990,

33 U.S.C. §§ 2701 et seq. .......................................2

Treaties

International Convention for the Unification of

Certain Rules of Law Relating to Bills of

Lading, Article 4 § 3,

120 LNTS 187, 51 Stat. 233 (Aug. 25, 1924)....... 22

Other Authorities

79 Cong. Rec. 13340-43 (1935) reprinted in 1

Legislative History of the Carriage of Goods by

Sea Act and the Travaux Preparatoires of the

Hague Rules (Michael F. Sturley, ed. 1990) ....... 23

Carriage of Goods by Sea: Hearing Before the

Comm. on Commerce, 74th Cong. 37 (1935),

reprinted in 3 Legislative History of the

Carriage of Goods by Sea Act and the Travaux

Preparatoires of the Hague Rules 359 (Michael

F. Sturley, ed. 1990) ............................................. 23

David R. Maass, The Safe-Berth Warranty and Its

Critics,

39 TUL. MAR. L.J. 317 (2014) ............................... 14

Despiona Aspragkathou, The Asbatankvoy

Charterparty Clauses for the Commencement

of Laytime-Interpretation under England and

American Law,

40 J. MAR. L. & COM. 133 (2009) ...........................6

v

Grant Gilmore & Charles L. Black, Jr., THE LAW

OF ADMIRALTY (2d Ed. 1975) ................ 8, 19, 29, 30

J. Bond Smith, Jr., Time and Voyage Charters:

Safe Port/Safe Berth,

49 TUL. L. REV. 860 (1975) ............................... 8, 14

JULIAN COOKE ET AL., VOYAGE CHARTERS (3d ed.

2007) ..................................................................... 20

SIR ALAN ABRAHAM MOCATTA ET AL., SCRUTTON ON

CHARTERPARTIES AND BILLS OF LADING, Art. 66,

Note, at 124-125 (18th ed. 1974) ............. 17, 20, 21

1

STATEMENT OF INTEREST 1

Amici, The American Fuel & Petrochemical

Manufacturers (“AFPM”) and the International

Liquid Terminals Association (“ILTA”), are adversely

affected by the Third Circuit’s decision to impose

absolute liability on charterers, who enter into

contracts for the marine transport of goods, including

oil and petrochemical products. 2 The decision does not

merely affect the Petitioner but all parties who enter

into charter agreements using standard forms that

provide that the charterer shall procure a “safe place

or wharf” that the vessel can “proceed thereto, lie at,

and depart therefrom always safely afloat.”

The matter arises from a voyage charter

agreement—a marine contract for the carriage of a

cargo of crude oil by ship—between Star Tankers Inc.,

a time charterer or chartered owner of the M/T Athos

I (“Athos” or “Vessel”), and Citgo Asphalt Refining

Company (“CARCO” or “Charterer”).

An oil spill occurred in the Delaware River on

November 26, 2004, when the Athos allided with a

hidden anchor that had been abandoned in Federal

Anchorage No. 9 (“Anchorage”). The allision occurred

1 Pursuant to this Court’s Rule 37.6, no counsel for any party

authored this brief in whole or in part and no person other than

amici, their members, or their counsel made any monetary

contribution intended to fund the preparation or submission of

this brief. Pursuant to this Court’s Rule 37.2(a), counsel of record

received timely notice of the intent to file this brief and all parties

have consented to its filing.

2 Such

contracts are referred to as “charter agreements” or

“charter parties” and the shippers are referred to as “charterers.”

2

300 yards from the destination terminal, in an area

dredged and maintained by the Army Corp of

Engineers.

Remediation of the incident was administered

in accordance with The Oil Pollution Act of 1990

(“OPA”), 33 U.S.C. §§ 2701-2761. Frescati Shipping

Co. Ltd. (“Frescati”), as owner of the Vessel that

discharged the oil, initially was designated as the

“responsible party” for the clean-up. Frescati was able

to limit its liability and obtain reimbursement above

a certain amount from the OPA’s Oil Spill Liability

Trust Fund (the “Fund”). Frescati applied for

exoneration from liability under a provision in OPA

allowing such exoneration if the incident was the sole

fault of another party – here the party that discarded

the anchor. Frescati later inexplicably withdrew this

claim. Petition for a Writ of Certiorari Appendix

(hereinafter “Pet. at App.”) at App. D 284a n.6.

Subsequently, Frescati and the United States

(“Government”), who administers the Fund, joined

forces and pursued recovery from CARCO, by

implicating it as the party responsible for the allision.

The AFPM and ILTA have members who are

stakeholders in maritime transportation, storage and

oil refining and petrochemical industries. And they

have an interest in the proper allocation of

responsibilities under maritime law. Members of the

amici are similarly situated as CARCO, and their

operations will be adversely affected if the Third

Circuit’s decision is not reversed.

AFPM (formerly the National Petrochemical

and Refiners Association) is a national trade

3

association whose members include nearly all United

States petroleum refining and petrochemical

manufacturing capacity, one of whom is CITGO.

AFPM members supply consumers with a variety of

products that are used daily in homes and businesses.

Many AFPM members operate marine terminals.

Amici often wear two hats: one as a shipper (or

charterer) and one as a wharfinger. As such, they

often act both as wharfingers and as shippers of cargo

under charter agreements and shippers or consignees

under bill of lading contracts. Member companies

with terminals along the Delaware River and its

tributaries include Monroe Energy and PBF Energy.

See: http://www.afpm.org/ for more information.

ILTA is composed of more than 80 member

companies that own and/or operate about 1,000 bulk

liquid storage terminals in 37 countries. In the U.S.,

ILTA members operate in all 50 states. Member

companies with terminals along the Delaware River

and its tributaries include Buckeye Partners, L.P.,

Contanda LLC, Kinder Morgan Inc., Magellan

Midstream Partners, L.P., MIPC, LLC, Plains All

American Pipeline, L.P., and Energy Transfer L.P.

See: http://www.ilta.org/ for more information.

The matter before the Court is of critical

importance not only to amici’s commercial operations,

but also to the appropriate administration of the U.S.

marine transportation system. The duties and

responsibilities of the participants in the marine

transportation industry must be consistently applied

and uniformly enforced.

4

Amici object to the Third Circuit’s imposition of

absolute liability on charterers entering into charter

agreements for damages that may occur during the

voyage. That decision disregards, indeed, it fails to

even acknowledge, Supreme Court authority holding

that a safe berth provision in a charter agreement

does not constitute a warranty and introduces

uncertainty into amici’s operations. The Third Circuit

decision runs afoul of well-established maritime

policies as reflected in the Carriage of Goods by Sea

Act of the United States (“COGSA”), 46 U.S.C. § 30701

note, and is flatly contrary to English common law

which does not impose liability on charterers where,

as here, the damages result from an abnormal

occurrence rather than inherent conditions of the

port.

For these reasons, amici have a direct,

substantial, and vested interest in the outcome of this

litigation. The Third Circuit’s decision is contrary to

sound law and policy and, if left to stand, will have

far-reaching negative consequences.

ARGUMENT

The Third Circuit’s decision is internally

inconsistent, holding that a wharfinger satisfies its

obligation to provide a safe berth when it exercises

due diligence but a charterer who designates the use

of the same berth is liable regardless of fault. No

logical rationale is offered, or exists, however, as to

why a wharfinger who offers a safe berth is held to a

standard of due diligence, but a charterer who

designates the same safe berth is deemed to have

5

assumed an absolute duty to prevent harm to the

vessel.

Reading the safe berth provision of the charter

agreement as imposing strict liability on a shipper

also runs contrary to the policy goals reflected in

COGSA, which reflects not only nationwide but

worldwide standards governing the maritime

shipment of cargo. COGSA expressly provides that

shippers cannot be held liable for damages sustained

by a carrier or a vessel absent a showing of negligence

and that contracts providing to the contrary are void.

Reading the safe berth provision of the voyage charter

contract to impose liability on CARCO, where it was

not negligent, runs flatly contrary to the plain

language and policy goals of COGSA.

Imposing

liability

for

unknown

and

unknowable dangers based upon a safe berth

provision also creates an unnecessary rift between the

maritime laws of the United States and those of the

United Kingdom – two of the world’s largest, and most

legally influential, maritime nations. Under wellestablished English law, a charterer providing a safe

port only promises that the berth is safe in normal

circumstances. Neither logic nor consistency warrant

imposing absolute liability on the inherently

ambiguous language at issue, particularly given that

the owner of a vessel, as opposed to a charterer, is best

situated to obtain insurance in order to protect

against unknown and unknowable risks encountered

on the high seas.

Finally, imposing absolute liability upon a

charterer based upon a safe berth provision while

6

simultaneously recognizing that the same entity

acting as a wharfinger cannot be held liable absent a

showing of negligence, is particularly inappropriate

here. This allision occurred 300 yards from the

wharfinger’s premises in a federally-maintained

anchorage outside of the wharfinger’s control.

Because a wharfinger has no duty to protect vessels

against harm that occurs in adjacent navigable

waters, imposing liability upon a charterer for

damages for a purported violation of a safe berth

provision lacks any legitimate basis.

I.

The Third Circuit’s Decision Imposes

Inappropriate Obligations on Charterers

The Third Circuit’s decision – that legal and

policy reasons warrant imposing strict liability on

charterers rather than an obligation to exercise due

diligence – lacks merit. Holding that a safe berth

provision in the ASBATANKVOY forms 3 imposes

strict liability on innocent charterers conflicts with

the Supreme Court’s decision in Atkins v. Fibre

Disintegrating Co., 2 F. Cas. 78 (E.D.N.Y. 1868) (No.

601), aff’d, 85 U.S. (18 Wall) 272 (1873), as well as

better reasoned Fifth Circuit authority and the laws

of the United Kingdom governing how to interpret

such language.

3 The ASBATANKVOY charter party agreement forms are the

most widely used charter forms for tanker voyages. Despiona

Aspragkathou, The Asbatankvoy Charterparty Clauses for the

Commencement of Laytime-Interpretation under England and

American Law, 40 J. MAR. L. & COM. 133, 133 (2009).

7

Safe berth clauses, such as the one at issue, are

standard in maritime charter contracts. Here, the

clause at issue provides that CARCO was to designate

a “safe place or wharf” where the Vessel could

“proceed thereto, lie at, and depart therefrom always

safely afloat.” Pet. at App. B 88a-89a.

When confronted with this language, the Fifth

Circuit has held that a charter agreement providing

that the charterer should designate “safe discharging

berths [the] vessel being always afloat,” does not

impose liability without fault against the charterer.

Orduna S.A. v. Zen-Hoh Grain Corp., 913 F.2d 1149,

1156, n. 6 (5th Cir. 1990). The Fifth Circuit explained

that although its decision was contrary to Second

Circuit authority, commentators have strongly

criticized those decisions. Id. at 1156. The Fifth

Circuit also recognized that the vessel master on the

scene is in the best position to judge the safety of a

particular berth. Id. The court further reasoned that

requiring negligence as a predicate for the shipper’s

liability does not increase the risk that the vessel will

be exposed to an unsafe berth. Id. Instead, because

courts have interpreted a safe berth clause to free the

master from any obligation to enter into an unsafe

port or berth, “it is by no means necessary that they

be given the quite different meaning of creating an

affirmative liability of charterer to ship, in case of

mishap.” Id. (citations omitted). The Fifth Circuit also

recognized that, as discussed below, the Supreme

Court’s affirmance of Atkins supported its holdings.

Based upon all of those considerations, the

Fifth Circuit concluded that:

8

We agree with commentators cited above that

no legitimate legal or social policy is furthered

by making the charterer warrant the safety of

the berth it selects. Such a warranty could

discourage the master on the scene from using

his best judgment in deterring the safety of the

berth. Moreover, avoiding strict liability does

not increase risk because the safe berth clause

itself gives the master the freedom to take his

vessel into an unsafe port.

Orduna S.A. at 1157. 4

The Third Circuit’s reasoning is predicated

upon a finding that when a wharfinger invites a party

to use its dock facilities it is agreeing to use due

diligence, but the same wharfinger (as a charterer)

designating the same wharf in a charter agreement,

is necessarily assuming an absolute obligation to

protect against any harm regardless of fault. Such a

holding cannot withstand scrutiny. Further,

4 One of the foremost commentators, GRANT GILMORE & CHARLES

L. BLACK, Jr., THE LAW OF ADMIRALTY, 204-05 (2d ed. 1975),

observed that “there is no reason in policy or interpretation, for

holding the charterer liable for ship’s damages on the basis of the

safe port and safe berth clauses.” The treatise further suggested:

“It is to be hoped that the Supreme Court will one day . . .

reaffirm the principle of the Atkins decision, confining

charterer’s liability to the case wherein his special knowledge or

actions make it reasonable to charge him.” Id. at 207. Other

commentators similarly have observed that basic fairness

requires that decisions imposing strict liability on the charterer

be reconsidered. J. Bond Smith, Jr., Time and Voyage Charters:

Safe Port/Safe Berth, 49 TUL L. REV. 878 (1975).

9

interpreting a safe berth clause 5 as imposing liability

without fault runs contrary to well-established

admiralty precedent, including COGSA and other

international conventions, which expressly hold as a

matter of maritime policy that shippers should not be

held liable for damages absent a showing of the

shipper’s negligence. In choosing to read the language

of a safe berth clause as imposing strict liability, the

Third Circuit ignores this sound public policy and

invites confusion in maritime law.

A.

Wharfinger and Charterers’ Duty to

Provide a Safe Berth Should Be

Similarly Construed, Not Construed

Asymmetrically

The law has been well established for over a

century that a wharfinger does not guarantee the

safety of vessels coming to his wharf but instead is

bound to exercise reasonable due diligence in

assessing the condition of the berths and to give notice

if there is any known dangerous obstruction to the use

of its berth. See Smith v. Burnett, 173 U.S. 430, 433

(1899). The Third Circuit recognized as much in its

2013 and 2018 decisions, holding that a wharfinger is

not a guarantor of a visiting ship’s safety but instead

is only bound “to use reasonable diligence to ascertain

whether the approach to its berth is safe for an invited

vessel.” Pet. at App. A 26a.

It is illogical to impose more onerous duties to

provide a safe berth on a charterer, particularly when

5 The brief refers to safe port/safe berth clauses interchangeably.

10

the assurances being provided are identical. In both

instances, parties have a duty to select a safe berth

that the vessel can safely enter and exit. In the

ASBATANKVOY form, this is framed as the ability to

proceed to the port, “lie at, and depart therefrom

always safely afloat.” The same assurances provided

by the same party as a wharfinger and charterer of

the vessel are not transformed into an absolute

warranty when charterers contractually agree to use

a safe berth.

People of State of California v. S/T Norfolk, 435

F. Supp. 1039 (N.D. CA. 1977), is instructive

regarding the illogic involved in holding a charterer to

a higher standard than a wharfinger. There, the state

of California sued a charterer (who was also a

wharfinger) for damages arising from an allision

between a vessel and a bridge. In denying liability, the

court concluded that the wharfinger was not liable

because it had exercised reasonable diligence in

furnishing a safe berth. Id. at 1048. In rejecting the

claim against the wharfinger in his capacity as a

charterer, the court recognized that there was no

basis for applying different obligations upon a

charterer as opposed to a wharfinger. Id. Here, the

Third Circuit’s analysis turns that logical conclusion

upside down by imposing an absolute warranty on the

charterer while simultaneously and (correctly)

holding that the wharfinger is not liable absent a

failure to exercise due diligence. 6

6 In re Frescati, below, the court failed to explain why safe berth

provisions are a warranty, merely citing the District Court’s

11

Almost a century ago, the Second Circuit

recognized the fallacy of imposing a different and

more onerous legal standard on shippers and

consignees as opposed to wharfingers, as the Third

Circuit has done here (and as the Second Circuit itself

has done in some cases). In M. & J. Tracy, 283 F. 100

(2d Cir. 1922), 7 the court adopted the same reasoning

as the Fifth Circuit later did in Orduna, holding that:

The consignee of a vessel is “bound to provide a

safe berth,”. . . which means no more than that

such consignee while not guaranteeing the

safety of the destinated wharf, “is bound to

exercise diligence in ascertaining the condition

of the dock and of the berths, and to give to

notice of any obstruction or of any danger to

vessels.” This also, is an obligation to exercise

due care according to the circumstances, and as

against a consignee it is as necessary to prove

negligence as against a wharfinger. There is no

warranty or insurance in either instance. Yet

a distinction has been suggested between the

standard of duty required of a wharf owner and

that of a consignee.

The difference between the obligations of

consignees and wharfingers does not rest upon

any legal distinction that can be drawn

between their respective “standards of duty.”

opinion without analysis. In re Frescati Shipping Co., Ltd., 886

F.3d 291, 300-01, 306-08 (3d Cir. 2018).

7 Although the case did not involve a voyage charter, the court’s

interpretation of the meaning of the words “safe berth” are

equally applicable to a voyage moving under a charter.

12

Both are bound to the exercise of care and

diligence under the circumstances; . . . a

consignee, who knows that a berth has a good

reputation, that it has been used for years

without complaint or known accident, is

entitled to transact business on that

reputation.

Id. (citations omitted).

In M. & J. Tracy, this meant that the consignee

could not be held liable for damages caused by a

boulder lying on “an otherwise safe and soft bottom,”

the existence of which was not known to the consignee

or the public. 283 F. at 102. Subsequently, the Second

Circuit cited M. & J. Tracy for the proposition that a

consignee could not be held liable where the “damage

[occurred] in a berth which had been frequently and

safely used and had a good repute.” The Gildersleeve

No. 339, 68 F.2d 845, 848 (2d Cir. 1934). 8 Thus, the

Second Circuit, which inconsistently has held that

safe berth provisions constitute an express warranty,

has also held that the duty to ensure a safe berth

requires only reasonable care. 9

8 See also Berwind-White Coal Mining Co. v. City of N.Y., 48 F.

2d 105, 107 (2d Cir. 1931) (ruling that a steamship line was not

liable for damages where there was no reason to believe that

hidden risks existed and “the slip was one in common use”).

9 See, e.g., Eastchester Plymouth Transp. Co. v. Red Star Towing

& Transp. Co, 20 F.2d 357, 358-59 (2d Cir. 1927) (consignee

failed to exercise reasonable care by failing to adequately

safeguard against known dangers of low tide); Red Star Barge

Line Inc. v. Lizza Asphalt Constr. Co., 264 F.2d 467, 468-69 (2d

Cir. 1959) (consignees have a duty of reasonable care).

13

B.

Safe Berth Clauses are Conditions,

Not Warranties, Under Which a

Charterer has a Duty of Reasonable

Diligence to Select a Safe Berth.

In imposing strict liability on CARCO based

upon a safe berth provision, the Third Circuit ignores

binding Supreme Court precedent. One and a half

centuries ago, this Court held that a safe berth

provision is a condition to a master’s obligation to

perform, not a warranty by the charterer regardless of

fault. Atkins v. Fibre Disintegrating Co., 2 F. Cas. 78,

aff’d, 85 U.S. (18 Wall.) 272 (1873). Atkins involved a

charter agreement providing for the charterer to

select a “safe port.” 2 F. Cas. at 79-80. The district

court refused to find the charterer liable even though

it admitted that the port was unsafe. Id. Although the

charterer failed to nominate a safe port, by proceeding

to the port anyway without objection, the master

waived the charterer’s failure to meet the safe berth

condition. Id. at 79. In so holding, the district court

flatly rejected the argument that the master could not

have waived its right to object to the designated port

because the safe port representations constituted a

“warranty.” This Court expressly approved the

district court’s reasoning and conclusion on the

merits, namely that a safe berth provision in a charter

agreement was a condition that merely gives a ship

master an option not to proceed to a designated port if

it is unsafe, and not a warranty. Atkins, 85 U.S. at

299; Atkins, 2 F. Cas. at 79.

14

To the extent that English 10 and American

courts have erroneously backtracked from the

recognition that charterers are not warrantors under

safe berth clauses, such decisions are of relatively

recent vintage and in the case of English decisions

clearly are no longer good law. 11 See, e.g., J. Bond

Smith, Jr., Time and Voyage Charters: Safe Port/Safe

Berth, 49 TUL. L. REV. 860, 862 (1975) (“Until

comparatively recently, the decisions, with few

exceptions, held that the charterer’s liability under

safe port clauses was not that of an insurer or

warrantor. While the charterer was held responsible

to the owner if it acted negligently, it was required to

exercise only ordinary and reasonable care under the

circumstances.”); The Pass of Leny, [1936] 54 Lloyd’s

List Rep. 288, 293-94 (Adm.) (safe berth provision’s

words “as near thereunto as she may safely get” are

neither an express nor implied warranty).

Under existing English law, CARCO would not

be liable for unknown and unknowable dangers

lurking in the Federal Anchorage based upon a

charter party’s safe berth provision. Thus, although

English case law sometimes uses the language of

“warranty” in describing safe berth clauses, the

10 “The interpretation of the clause in English law is important

because charter parties are commonly governed by English law,

and as a result, that law has been influential on the American

law of charter parties.” David R. Maass, The Safe-Berth

Warranty and Its Critics, 39 TUL. MAR. L.J. 317, 323 (2014).

11

See Gard Marine and Energy Ltd. v. China National

Chartering Company Ltd., [2017] UKSC 35 [14]-[16] (“Ocean

Victory”).

15

holdings thereunder make clear that liability cannot

be imposed where the damages do not arise out of an

inherent condition of the port. Any uncertainty that

might have existed in this regard has been dispelled

by the Supreme Court of the United Kingdom’s recent

decision in Gard Marine and Energy Ltd. v. China

Nat’l Chartering Company Ltd., [2017] UKSC 35 [10][11] (“Ocean Victory”). In Ocean Victory, the court

unanimously recognized that a safe port warranty

does not impose liability on a charterer if the damage

sustained by the vessel was caused by an “abnormal

occurrence.” Id. at 5. Specifically, the court recognized

that a port will not be safe unless a ship can reach it,

use it and return from it without, “in the absence of

some abnormal occurrence, being exposed to dangers.

. . .” Id. (emphasis supplied.). Thus, if a vessel could

enter and exit the designated port under normal

circumstances, a claim for breach of a safe berth

clause would not lie. “So a charterer did not assume

the risk of loss from an unusual event which was not

characteristic of the port at the time when the ship

would be there. The obligation to give indemnity for

the loss from such unusual events lay properly and

legally with the owner’s hull insurer.” Id. 12 at 6.

In finding the charterer not liable for damages

due to an unusual confluence of storm patterns, that

12 The evidence suggests that the parties here operated under

the assumption that CARCO would not be responsible for oil

spills as Star Tankers, the time charterer of the vessel, was

obligated to maintain $1 billion in “insurance coverage for oil

pollution” throughout the period of the charter. Brief of

Petitioners dated July 9, 2019, at pg. 26.

16

court noted that the test is not whether the event

causing the loss is reasonably foreseeable but instead

whether the relevant event is an abnormal

occurrence. Id. at 7. 13 Thus, in order to breach a safe

port clause, the damage must occur as a result of the

“set-up” or a characteristic of the port. Id. at 7-8. Most

tellingly, the court rejected as “heresy” the position

adopted by the Third Circuit below that “there was an

absolute continuing contractual promise that at no

time during her chartered service would the ship find

herself in any port which was or had been unsafe for

her.” Id. at 9. 14

Based on these policy considerations, the court

held that: 1) a safe port promise is not a continuing

warranty; and 2) the promise of a safe port necessarily

assumes normality, i.e., the characteristics, features,

systems and state of affairs which are normal at the

port at the particular time the vessel should arrive.

Id. at 10. Applying this standard, the court concluded

that analysis of safe port disputes should be

13 The distinction drawn is that the mere fact that a danger is

foreseeable does not turn a rare event into a normal

characteristic or attribute of the port. Id. at 16. Thus, while an

earthquake in San Francisco may be foreseeable, it is still an

abnormal occurrence. Here, even under a “foreseeability test,”

CARCO could not reasonably have foreseen the existence of the

hidden anchor at issue.

14 It is noteworthy that the Third Circuit recognized that there

is an exception under a safe port promise for “abnormal weather

or other occurrences” but then failed to address why damages

from an unknown and unknowable danger would not constitute

an abnormal occurrence. See Frescati Shipping Co., Ltd., 718

F.3d 184, 200 (3d Cir. 2013).

17

straightforward. “Was the danger alleged an

abnormal occurrence, that is something rare and

unexpected, or was it something which is normal for

the particular port for the particular ship’s visit and

the particular time of the year?” Id. at 10.

The court reasoned that this approach provides

a coherent allocation of risks such that: 1) the vessel

owner assumes responsibility for damages avoidable

by good navigation and seamanship; 2) the charterer

is responsible for predictable losses caused by dangers

that are normal at the time when the ship is at the

nominated port; and 3) the owner’s insurer is

responsible for loss caused by abnormal occurrences. 15

Applying this straightforward and commonsense approach here, there can be no legitimate

dispute that CARCO should not be held liable for the

damages at issue. The fact that a long-lost anchor

resting in the Federal Anchorage somehow

miraculously flipped over and its flanges tore a hole in

15 The same logic applies to previous cases where English courts

recognized that when changes arose making a port unsafe after

formation of the charter agreement, there is no breach of the safe

berth provision. See SIR ALAN ABRAHAM MOCATTA ET AL.,

SCRUTTON ON CHARTERPARTIES AND BILLS OF LADING, Art. 66,

Note, at 124-125 (18th ed. 1974) (no liability where port

“becomes unsafe, through some unusual event, between the date

of the order and the arrival of the ship.”); see also Kodros

Shipping Corp. v. Empresa Cbana de Fletes, [1982] 2 Lloyd’s Rep.

307, 315 (H.L.) (safe berth provision means that, when the order

is given, that port or place is prospectively safe). For the same

reason that a charterer should not be held liable for changed

circumstances, it should not be liable for damages resulting from

unknown hazards not discoverable through reasonable diligence.

18

the Athos cannot be described as anything but an

abnormal occurrence. It certainly is not a

characteristic of the terminal (or more accurately

characteristic of a government-maintained area 300

yards away from the terminal) given that countless

ships have traversed those same waters for decades

without encountering any harm. See In re Frescati

Shipping Co., Ltd., 886 F.3d 291, 297 (3d Cir. 2018)

(“between 2001 and the allision in 2004, 241 vessels

went to CARCO’s Paulsboro berth, and many others

have anchored in the anchorage over the years”

without incident.). 16

Beginning in Cities Service Transportation Co.

v. Gulf Refining Co., 79 F.2d 521 (2d Cir. 1935), the

Second Circuit ignored the holdings in M & J Tracy

and its progeny and, in a terse per curiam opinion,

found liability based upon a charterer employee’s

representations regarding a “fair” berth when the ship

ran aground in shallow water. There, the court added

in dictum, without justification, that “the charter

party was itself an express assurance, on which the

master was entitled to rely, that at the berth

‘indicated’ the ship would be able to lie ‘always

afloat.’” Id.

From this dictum morphed a line of cases that

ultimately were followed by the Third Circuit below.

In Park S.S. Co. v. Cities Serv. Oil Co., 188 F.2d 804,

16 The anchor appears in a geographical study of the river done

in 2001, App. A at 8a, but the anchor is believed to have been lost

long before that. Thus, the number of vessels that entered and

exited the Paulsboro berth without incident is likely of a

magnitude greater than the figure cited by the Third Circuit.

19

806 (2d Cir. 1951), the Second Circuit ruled that safe

berth clauses entail a warranty because “the

charterer bargains for the privilege of selecting the

precise place for discharge and the ship surrenders

that privilege in return for the charterer’s acceptance

of the risk of its choice.” But, as Gilmore and Black’s

leading admiralty law treatise observes, the only risk

conceded by a charterer in safe berth clauses is the

risk of non-performance by the vessel master if the

charterer selects an unsafe port, which is a significant

concession as it expressly allows a master to refuse to

enter an unsafe port without liability for delay. See

GRANT GILMORE & CHARLES L. BLACK, JR., THE LAW OF

ADMIRALTY §4-4 (2d Ed. 1975) (“[T]he master, by the

very words of the usual clauses, is not obligated to

take his vessel to any unsafe port or berth. The very

purpose of the clauses is to free him of this

obligation.”).

It is noteworthy that in many cases, despite

stating that safe berth clauses are warranties of

liability without fault by charterers, those courts have

found exceptions to the purported “warranty.” In

other words, courts routinely refuse to hold charterers

strictly liable when accidents are not charterers’ fault.

Thus, where the master or shipowner is negligent, i.e.,

has failed to exercise good navigation and seamanship

to avoid an avoidable risk, courts universally refuse to

find a breach of the safe berth provision. Ocean

Victory at 19.

A safe port, by definition, does not mean a port

free from risk. As the court recognized in Ocean

Victory, a port is safe when “the particular ship can

reach it, use it and return from it without, in the

20

absence of some abnormal occurrence being exposed to

danger which cannot be avoided by good navigation

and seamanship.” Id. at 5; see also JULIAN COOKE ET

AL., VOYAGE CHARTERS ¶ 5.137 (3d ed. 2007); Scrutton,

supra, Art. 66, at 123 (noting that known, avoidable

risks and temporary dangers or obstacles do not mean

a port is unsafe).

This Court in Atkins, similarly defined a “safe

port” as “a port which this vessel could enter and

depart from without legal restraint, and without

incurring more than the ordinary perils of the seas.”

Atkins, 2 F. Cas. at 79. In other words, Atkins

expressly acknowledged that charterers did not

breach safe berth clauses if a port was rendered

unsafe by abnormal occurrences. There is no logical or

legal basis for concluding that latent, unknown

dangers like an abandoned anchor are not within this

exclusion from the safe port definition. 17

Although United States courts generally have

not elaborated on the meaning of “abnormal

occurrence” (as the Supreme Court of the United

Kingdom did in Ocean Victory), abnormal occurrences

or conditions should be construed to include Acts of

God and Perils of the Sea. Acts of God, which by

definition include accidents “due to natural causes …

without human intervention,” are those acts that

“could not have been prevented by any amount of

foresight, pains and care, reasonably expected from

17

COGSA specifically provides that the carrier is not

“responsible for loss or damages arising or resulting from . . . (c)

Perils, dangers, and accidents of the sea or other navigable

waters.” 46 U.S.C. § 30701 note.

21

him” and are already exceptions to shipowner

liability. Scrutton, supra, Art. 104, at 219 (emphasis

added).

The “exceptions” noted above suggest that

courts are applying a standard of reasonable diligence

ex ante, i.e., liability with fault, which is implicit in

charterer’s obligation to select a berth. See Orduna

S.A. v. Zen-Noh Grain Corp., 913 F.2d 1149, 1157 (5th

Cir. 1990) (“a charter party’s safe berth clause does

not make a charterer the warrantor of the safety of a

berth. Instead the safe berth clause imposes upon the

charterer a duty of due diligence to select a safe

berth.”).

The

Third

Circuit

below

expressly

acknowledged the exception for abnormal occurrences

yet failed to consider that a latent abandoned anchor

presented an abnormal occurrence such that CARCO

did not breach the safe port clause. See In re Frescati

Shipping Co., Ltd., 886 F.3d 291, 300 (3d Cir. 2018) (A

port is deemed safe “without, in the absence of

abnormal weather or other occurrences, being exposed

to dangers which cannot be avoided by good

navigation and seamanship.”) (emphasis added).

Given, as the Third Circuit itself recognized,

hundreds if not thousands of vessels have used the

terminal at issue without incident, the condition

confronted by the Athos was an abnormal occurrence

and certainly not a characteristic of the port. Under

these circumstances, the Third Circuit should have

applied the law it cites and concluded that CARCO

was not in breach of the charter party.

22

C.

The Third Circuit’s Rationale Runs

Afoul of Well-Established Admiralty

Law Policies and Introduces Unfair

and

Uncertain

Allocations

of

Liability

The Third Circuit’s decision imposing liability

without fault against charterers runs afoul of the

policy goals reflected in maritime law, including

COGSA.

Federal admiralty law should be “a system of

law coextensive with, and operating uniformly in, the

whole country.” The Lottawanna, 88 U.S. (21 Wall.)

558, 575 (1874). Congress furthered this goal by

establishing COGSA, which governs “all contracts for

the carriage of goods by sea to or from ports of the

United States in foreign trade.” 46 U.S.C. § 30701

(note § 13).

As noted by the Second Circuit, “COGSA is the

central statute in commercial admiralty, governing

over $200 billion worth of American foreign commerce

annually.” Senator Linie GMBH & Co. KG v. Sunway

Line, Inc., 291 F.3d 145, 168 (2d Cir. 2002). Lifted

almost completely from the Hague Rules of 1921, as

amended by the Brussels Convention of 1924, 18

COGSA codified the United States’ obligations under

the Hague Rules, and “applies ex proprio vigore to all

contracts of carriage of goods by sea between the ports

18 International Convention for the Unification of Certain Rules

of Law Relating to Bills of Lading, Article 4 § 3, 120 LNTS 187,

51 Stat. 233 (Aug. 25, 1924) (“Hague Rules”).

23

of the United States and the ports of foreign

countries.” Senator Linie, 291 F.3d at 153.

COGSA’s goal is to “foster international

uniformity in sea-carriage rules and allocating risks

between shippers and carriers in a manner that is

consistent and predictable.” Id. at 148; Carriage of

Goods by Sea: Hearing Before the Comm. on

Commerce, 74th Cong. 37 (1935), reprinted in 3

Legislative History of the Carriage of Goods by Sea

Act and the Travaux Preparatoires of the Hague Rules

359 (Michael F. Sturley, ed. 1990) (“Shipowners would

also benefit from the passage of H.R. 3830 through a

more definite and uniform fixing of their liabilities . .

.”).

COGSA and the Hague Rules standardized

liability to create international fairness. Senator

Linie, 291 F.3d at 158 (“In essence, the purpose of

these laws is to allow international maritime actors to

operate with greater efficiency and under a mantle of

fairness.”) (Citation omitted). The concern was not

only fairness between nations but placing charterers

and carriers on equal footing. “One of the outstanding

purposes of the proposed legislation (COGSA) is to

increase the character and degree of responsibility of

the carriers; and the bill was designed in large

measure in the interest of the shippers rather than of

the carriers.” 79 Cong. Rec. 13340-43 (1935) reprinted

in 1 Legislative History of the Carriage of Goods by

Sea Act and the Travaux Preparatoires of the Hague

Rules at 588.

COGSA expressly provides that “[t]he shipper

shall not be responsible for loss or damages sustained

24

by the carrier or the ship arising or resulting from any

cause without the act, fault, or neglect” of the shipper,

46 U.S.C. § 30701 (note §4). This principle did not exist

prior to the statute’s enactment when carriers could

completely limit their own liability. As reflected by its

plain terms, Section 30701 (note §4) has been read as

abolishing common law warranties and requiring that

a carrier prove actual fault or neglect on the part of a

shipper in order to recover damages or be indemnified.

See Excel Shipping Corp. v. Seatrain Int’l S.A.¸584 F.

Supp. 734, 747 (E.D.N.Y. 1984).

In construing whether the public policies

reflected in COGSA for the shipment of goods should

apply or whether maritime common law should be

adopted, this Court has stated that where the issue of

federal statutory or federal common law governs, “we

start with the assumption that it is for Congress, not

federal courts to articulate the appropriate standard

to be applied as a matter of federal law.” City of

Milwaukee v. Illinois, 451 U.S. 304, 317 (1981). Thus,

“when Congress addresses a question previously

governed by a decision rested on federal common law

the need for such an unusual exercise of lawmaking

by federal courts disappears.” Id. at 314.

Furthermore, the Court has previously extended

congressional policy decisions to areas not expressly

covered by federal statute to ensure the uniformity of

admiralty and maritime law. See Moragne v. States

Marine Lines, Inc., 398 U.S. 375, 397-403 (1970).

Congress’s policy of ensuring fair, uniform

limits on the contractual liability of shippers under

COGSA militates against interpreting safe berth

provisions to establish shippers’ liability without

25

fault. Just as COGSA and the Hague Rules were

designed to restrict carriers from contractually

limiting their liability, the unlimited imposition of

liability upon shippers should be avoided. In imposing

strict liability on charterers, the Third Circuit ignores

well-founded congressional policy decisions and

express statutory language reflecting a refusal to

impose liability on charterers like CARCO absent a

showing of negligence.

In imposing liability without fault on charterer,

the Third Circuit not only promotes inconsistency in

maritime law (both nationally and internationally) it

manages to advance a fundamentally unfair and

irrational public policy flatly contrary to the regime

established by COGSA. As the Supreme Court of the

United Kingdom recognized in Ocean Victory,

imposing liability on vessel owners and charterers

based upon their ability to prevent and insure against

such losses promotes fairness and a coherent

approach to allocation of risk. Utilizing that commonsense approach, vessel owners are responsible for

damages avoidable by good navigation and

seamanship, while charterers are responsible for loss

caused by dangers which are predictable as normal for

the parties at the time when the ship is entering or

exiting the nominated port. To the extent that

abnormal conditions are encountered, vessel owners

are best positioned to obtain insurance to address that

risk. Ocean Victory at 9-11. 19

19 CARCO and other AFPM members pay substantial sums into

the Fund established under OPA, which exists to address

circumstances like these. OPA provides that, ordinarily, owners

26

The Third Circuit’s decision will impair

maritime commerce by imposing duties and

responsibilities inconsistent with the language of

standard form charter contracts used throughout the

maritime shipping industry. By transforming a safe

berth condition into a safe berth warranty, the Third

Circuit unfairly imposes liability on charterers

despite no showing of charterer negligence. Holding

that safe berths are warranties leads to bizarre

results, particularly under the Third Circuit’s

expansive definition of “safe berth.” Here, for

example, the government (as subrogee) seeks to

recover from the charterer despite the fact that it had

control over and maintained the area in which the

accident occurred (Federal Anchorage No. 9). Pet. at

App. D 285a (noting that the area is dredged and

maintained by the Army Corps of Engineers, which

conducts hydrographic surveys and dredges as

necessary to maintain the Anchorage’s depth); Japan

Line, Ltd. v. U.S., 1976 A.M.C. 355, 364 (E.D. Pa.

1975), aff’d 1977 AMC 265 (3d Cir. 1976) (“Congress

of single hulled vessels such as the Athos are responsible parties

for oil spills. OPA further established the Fund to pay for cleanup when there is no viable responsible party to do so, which Fund

is financed by a tax on each barrel of oil imported into or

processed in the United States. Indeed, although CARCO paid

approximately $103 million into the Fund between 1990 and

2004, the Third Circuit’s decision dictates that although CARCO

was not at fault here, it faces potential liability of more than $140

million in damages for which CARCO is not entitled to any

reimbursement from the Fund. OPA was not intended to

incentivize the government to sue to recover Fund payments paid

out because of accidents occurring in waters the government

itself maintains.

27

has charged the Secretary of the Army and the Chief

of Engineers with the responsibility of seeing the

navigable waterways remain unobstructed and safe

for navigation.”); In re Frescati Shipping Co., Ltd., 886

F.3d 291, 296-97 (3d Cir. 2018) (defining “safe berth”

to include areas adjacent to and in the general vicinity

of the berth, over which a charterer has no control and

has no specific duty to maintain even when it is also a

wharfinger).

Charterers

contemplating

waterborne

commerce with U.S. ports may rightfully fear the

increased liability and increased risk of danger from

federal waterways due to the Third-Circuit’s decision,

because charterer strict liability means the

government can avoid depleting OPA’s Funds by

recovering from charterers under safe berth clauses

no matter the circumstance, thereby decreasing the

government’s incentives to maintain its waterways.

Distrust of federally-maintained anchorages will

harm maritime commerce and should be avoided

under uniform federal maritime policy. There are 16

federal anchorages in the Delaware Bay and River

alone. See 33 C.F.R. § 110.157. In total, there are 67

federal anchorage grounds, plus 101 more federal

special anchorage areas, all with one or more

anchorages. See 33 C.F.R. Subparts A and B. There is

already a uniform system in place for disseminating

navigational information to vessels in U.S. waters.

This system is designed to encourage United States’

trading partners to participate in maritime commerce.

The Third Circuit’s decision suggests to our trading

partners that the United States has shed its

responsibility for maintaining this uniform system,

28

leaving our trading partners to decide which of the

many wharfs and ports can be trusted to provide a

safe berth. These harms readily can be avoided by

holding that safe berth clauses only require

reasonable due diligence, because few charterers

would be held negligent in relying on the reputation

of Federal Anchorage areas in choosing which ports

and berths through which chartered vessels will

travel.

The Third Circuit’s decision could lead

charterers to take extreme precautions to ensure a

safe berth. First, to avoid liability, charterers would

have to engage in wasteful practices to ensure the

safety of the berth. The difficulty in locating every

conceivable obstruction potentially within a few

hundred yards of a berth is daunting because it is

never conclusive that no further obstructions remain.

Here, it took more than 40 days of searching by

Frescati and the Government to locate the anchor (it

was finally discovered on January 5, 2005), despite

knowing the GPS track of the Athos, the area of

allision, and the location of the allision based on the

oil scour marks on the boom. See In re Frescati

Shipping Co., Ltd., 886 F.3d 291, 297 (3d Cir. 2018). 20

Second, the charterer also would be compelled

to micromanage the vessel’s decision-making process,

even though its master or local pilot (with local

knowledge) is best positioned on-the-spot. As Gilmore

and Black explain, the charterer ordinarily does not

20 Discovering the anchor required 93 survey runs with a side

scanner, and the use of divers who were ultimately unable to

locate the anchor. Id.

29

have an informational advantage to the ship master, 21

nor does a charterer’s selection of a port or berth cause

the master to enter an unsafe port or berth because

safe berth clauses excuse a master from entering an

unsafe port or berth. Often, a shipper or charterer is

not even situated at the destination. 22 As this Court

agreed, “[t]he master is the navigator, presumed to

know best the channel of the ports within the natural

range of the adventure, and the capacities of his

vessel; and he is the proper person to determine

whether his vessel can or cannot enter any particular

port.” Atkins, 2 F. Cas. at 79; Atkins, 85 U.S. at 299.

Thus, the notion that a shipper from Australia or

Europe is better equipped to assess and prevent

damage to a vessel than a pilot who operates regularly

in the Delaware River lacks foundation. Even if the

charterer is aware of special factors making a port or

berth unsafe, which the master does not have, tort

liability provides an adequate remedy for harms

21 GILMORE & BLACK, supra, §4-4 (“It is the master who ordinarily

has the best means of judging the safety of a port or berth, first

because he is an expert in navigation, furnished with aids

thereto, secondly because he knows his vessel (including its draft

and its present trim), and thirdly because he is on the spot. The

charterer, on the other hand, need not be a nautical expert at all,

knows nothing about the vessel except its capacity, and normally

is far from the scene of decision as to safety; his designations of

port and berth are made (and are known to be made) on

commercial rather than nautical grounds.”).

22 While CARCO’s facility was in the area where this mishap

occurred, many, if not most, charter agreements are entered into

by shippers who are thousands of miles from the intended

destination wharf.

30

resulting from concealing information from the ship

master. 23 This is especially true because charterers,

like amici, frequently are wharfingers or consignees,

which carry their own independent tort duties. Unless

reversed, the decision below would have enormous,

adverse consequences for shippers and charterers

worldwide, all of whom would be charged with

knowledge of any potential, hidden obstacles at

terminals around the world.

CONCLUSION

This Court should follow its long-established

precedent as articulated in Atkins that a safe berth

provision is not a warranty by the charterer

regardless of fault. In so doing, the Court will align

United States maritime law with international norms

and adopt a coherent and rational policy of risk

allocation between charterers and owner of vessels.

23 GILMORE & BLACK, supra, §4-4 (“[I]t may well be that the

charterer or consignee ought to be held liable, not because of the

‘safe port’ and ‘safe berth’ clauses, but because it ought to be held

to be an actionable wrong for him to invite the ship without

warning into a peril known to him, with or without the clauses.”).

This does not mean masters are at the mercy of careless

charterers—“[t]he very purpose of the [safe berth] clauses is to

free him of this obligation” to enter unsafe ports, and a

reasonable diligence standard ensures that charterers remain

liable for negligence. GILMORE & BLACK, supra, §4-4.

31

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted,

BRENDAN COLLINS

Counsel of Record

EDWARD D. GREENBERG

KRISTINE O. LITTLE

GKG LAW, P.C.

1055 THOMAS JEFFERSON STREET N.W.

SUITE 500

WASHINGTON, D.C. 20007

(202) 342-5200

BCOLLINS@GKGLAW.COM

RICHARD MOSKOWITZ

GENERAL COUNSEL

AMERICAN FUEL & PETROCHEMICAL

MANUFACTURERS

1800 M STREET, N.W.

WASHINGTON, DC 20036

(202) 457-0480

Counsel for Amici Curiae The American

Fuels & Petrochemical Manufacturers

Association and The International Liquid

Terminals Association

JULY 16, 2019