Opposition — S.S. Zoe Colocotroni v. Puerto Rico
Supreme Court brief1981
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No. 80-758
| In the
Supreme Court of the United States
OcrosBer TERM, 1980
THE SS ZOE COLOCOTRONI, MARBONANZA COMPANIA
NAVIERA, S.A., COLOCOTRONI LTD., COLOCOTRONI
BROTHERS, S.A., THE WEST OF ENGLAND SHIP OWNERS
MUTUAL PROTECTION AND INDEMNITY ASSOCIATION
(LUXEMBOURG) AND THE WEST OF ENGLAND SHIP
OWNERS MUTUAL INSURANCE ASSOCIATION (LONDON)
LIMITED,
PETITIONERS,
U.
THE COMMONWEALTH OF PUERTO RICO AND THE
ENVIRONMENTAL QUALITY BOARD OF THE
COMMONWEALTH OF PUERTO RICO,
RESPONDENTS.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
FIRST CIRCUIT
i
5
i
¢
/
RESPONDENTS’ BRIEF IN OPPOSITION
NICOLAS JIMENEZ
Of Counsel: G.P.O. Box 6104
WILLIAM A. GRAFFAM San Juan, Puerto Rico 00936
Jimenez & FusteE (809) 767-1030
G.P.O. Box 6104 Attorney for Respondents
San Juan, Puerto Rico 00936
Blanchard Press. Inc.. Boston, Mass. -Law Printers
TABLE OF CONTENTS
Page
eS Se ree ey reer ere re l
A. Summary of Pertinent Facts................ ]
1. The Grounding and Subsequent Oil Spill. 1
Di FP a reo ks ce suek brace son ees 2
B. The Proceedings Below.................... 3
1. The Proceedings in the District Court.... 3
2. The Proceedings in the Court of Appeals. 5
ee REET TIT Le Tee 5
b. The Striking of the Pleadings.... 7
i. Fee BR csass sddesenes 8
Reasons for Denying the Writ....................05: 8
I. The Court of Appeals’ Decision Upholding Per-
sonal Jurisdiction Over the West of England, Is
in Consonance With the Mandate of This
Court and, Therefore, the Writ Should Be
w)
®
S.
s
oo
A. West of England’s Presence in Puerto Rico 9
B. The Decision of the Court of Appeals Is
Not in Conflict With World-Wide
Volkswagen Corp. v. Woodson, supra... 14
C. The Court Below Did Not Devise a
“Minimum Contact” Rule for West of
EE 6 os Siacexekneschecaeeeeeuenes 16
II. Defendants’ “Second Reason for Granting the
Writ” Is Being Improperly Presented to This
Court as They Raised a Defense That Was
Stricken and Otherwise Waived by the Defen-
| SPD eA A ORs ar oe eh hrm pike asa 18
III. The Clear Language of Section 1131(29), 12
L.P.R.A. 1131(29) of the Public Policy En-
vironmental Act of the Commonwealth of
Puerto Rico Provides of Recovery of the Total
Value of the Damages Caused to the Environ-
ment and/or Natural Resources by the Polluter 22
CP ee APT COL A ope hire cw 31
ii Table of Contents
Page
Appendix A—Order of the United States District Court
Dated August 8, 1979 and Entered August
ES eee eee 32
Appendix B— West of England’s Written Instructions to
Their Correspondents in Foreign Ports.... 38
Appendix C—Pertinent Pages of West of England’s List
of Correspondents Throughout the World. 50
Appendix D—Contains the Following Statutes: 48
U.S.C.A. 746, 747, 749; 12 L.P.R.A. 43,
Ma EBs g SS bss ncccccnsees 55
Appendix E—Various Federal and State Statutes Re-
lated to Recovery for Living, Natural Re-
PU EPMUMITD. 00 cece cers cncnne 58
TABLE OF AUTHORITIES
Cases
Barger v. Hanson, 426 F.2d 640 (C.A. 9th 1970)........ 28
Burgess v. M/V Tamano, 564 F.2d 964 (C.A. Ist 1977)
cert. den. 435 U.S. 941 (1978). .......... ccc eee eens 26
California Department of Fish and Game v. SS Bourne-
mouth, 307 F.Supp. 922 (1969)...............-.0 26
Complaint of Steuart Transportation, 435 F.Supp. 798
(E.D.Va. 1977), aff'd, Steuart Transportation Co. v.
Allied Towing, 596 F.2d 609 (C.A. 4th 1979)........ 29
Department of Pollution Control v. International Paper
eS een 26
DeSpirito v. Bristol County Water Co., 102 R.I. 50,
SEE vnc c ns cccccveccncccccncces 29
Hanson v. Denckla, 357 U.S. 235 (1958)......... 9, 14, 18
Higuera v. Pueblo International, Inc., 585 F.2d 555
Rss nin slats sar ccprreccccuwereces 7
Illinois v. Milwaukee, 406 U.S. 91, Note 5 (1972)....... 28
Table of Contents iii
Page
In Re Complaint of Allied Towing, 478 F.Supp. 398
CE TAVA TOF ei ccc dnc shcsrdesesvtveheceaeaes 29
International Shoe Co. v. Washington, 326 U.S. 310,
1 SESS eres ih tree et ere 9, 14, 18
Levi v. Schwartz, 201 Md. 575, 95 A.2d 322 (1953)..... 29
Louisville ¢ Nashville R. Co. v. Becker, 126 Ky. 328,
Fe @& fF. |) rerererrrerr. yrverer ery. 29
Lumbermen’s Mutual Casualty Company v. Elbert, 348
TAS 7). ror rr errr Teer 21
Maine v. M/V Tamano, 357 F.Supp. 1097 (D.Me. 1973)
ahita dh banc ee Oe CRE Ghee eed bald eee aS 23, 26
Maryland v. Amerada Hess, 350 F.Supp. 1060 (D.Me.
BUG cad ie Phattone pests seeaxheet eae eee 23, 26
Matter of Oswego Barge Co., 439 F.Supp. 312 (D.N.Y.
Ee COREE EOE ELC Pert) eri eee ee 23
McGee v. International Life Insurance Company, 355
Jf & 7), rere erer rrr. Cor 14, 17
National Steel Corp. v. Great Lakes Towing Co., 547
F.9d 390 (C.A. Oth 1078)... 0... ccc ec ceecenvcens 28
Olympic Towing v. Nebel Towing Co., 419 F.2d 230
PPP rr erry: rere et nce oe 21
Rector, Wardens & Vestry of St. Christopher's Episcopal
Church v. C. S. McCrossan, Inc., 306 Minn. 535, 235
8 of f fi oo, Serer reriyrs rier 29
Standard Oil Corp. v. Southern Pacific Co., 268 U.S.
i) yr Tren reer ere rr rrr. ere 28
State v. Jersey Power and Light Co., 308 A.2nd 671
FRAME rer rye fryers oie ek yx 26
State Ex-Rel Pollution Control v. Kerr, McGee Corp.,
S98 P.9d 1986 (Olde. 1075)... 2... ccc ceccvccccens 26
Stephenville, N. & S.T.Ry. Co. v. Baker (Texas Court
of Civil Appeals) 203 S.W. 385 (1918)............... 29
The Baltimore, 75 U.S. 377 (1869)..........000ceceee: 28
Table of Contents iv
Page
United States v. SS Ocean Eagle, 47 F.R.D. 519 (1969).. 12
Watson v. Employers’ Liability Assurance Corporation,
Pe eS fe er eee 20
World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
fs Re eee eee re 9, 14, 15, 17
Constitutional Provisions
Art. VI, Sec. 19 of the Constitution of the Common-
Se oe UD view a we eae) 22, 30
Statutes
Clean Water Act, Section 311, 33 U.S.C. 1321(F)(5). 26, 28
OCS Lands Act, 43 U.S.C. 1813(b)(3).............05. 26
CER RE ES eee res ee ee eter eee 9
Mes Ses ck recs ew ham reels oes tees 9
Organic Act of Puerto Rico, 48 U.S.C. 737 ............ 9
a I FU Pk ob .0-o bex aes Ves ves bine 22, 30
gs FS ee RTE Te ee Toe ere eet 22, 30
Public Policy Environmental Act of the Commonwealth
of Puerto Rico, Section 1131(29), 12 L.P.R.A. 1131(29)
lame reer ON ed Ee 4, 8, 22, 23, 26, 30
Ee fs tL ae ery eee ie 23
Insurance Code of the Commonwealth of Puerto Rico, .
Chapter 11, 26 L.P.R.A. 1101-1137......... 18, 19
Section 11.190, 26 L.P.R.A. 1119.............. 18
Section 20.010, 26 L.P.R.A. 2001........... 20, 21
OF Re a INS, Via ss eek baa kind va Kas eon’ 22, 30
Florida (F.S.A. Sec. 376.11(5)(c) (1974)............05- 26
Maryland (A.C.Md. Natural Resources Sec. 8-1411(f)
CES Ve Jdr hn see aks 46 0Aan s wdeen gt iawen ed oes 26
Massachusetts (M.G.L.A. c. 21 Sec. 27(10) (1973)...... 26
Mississippi (M.A.C. Sec. 49-27-55 (1979 Supp.) )....... 26
New Jersey (N.J.S.A. 58:10-23.11g(a)(2) (1979 Supp.) ) 26
Table of Contents Vv
Page
New York (N.Y. Nar.L. 181(2)(b) (1979 Supp.) )....... 26
North Carolina (N.C.G.S. Sec. 143-215.90 (1979 Supp.) ) 26
Oklahoma (82 O.S.A. Sec. 937(b) (1971) )............. 26
Oregon (O.R.S. Sec. 468.745 (1977) ).........0000005. 26
Virginia (VA. Code Sec. 62.1-44.15(11)(a)............. 26
Washington (R.C.N. Sec. 90.48.142 (1977)............ 26
Other Authorities
Restatement (Second) of Torts, Section 929, l(a) 1979 24, 29
In the
Supreme Court of the United States
OcrosBer Term, 1980
No.80-758
THE SS ZOE COLOCOTRONI, MARBONANZA COMPANIA
NAVIERA, S.A., COLOCOTRONI LTD., COLOCOTRONI
BROTHERS, S.A., THE WEST OF ENGLAND SHIP OWNERS
MUTUAL PROTECTION AND INDEMNITY ASSOCIATION
(LUXEMBOURG) AND THE WEST OF ENGLAND SHIP
OWNERS MUTUAL INSURANCE ASSOCIATION (LONDON)
LIMITED,
PETITIONERS,
v~.
THE COMMONWEALTH OF PUERTO RICO AND THE
ENVIRONMENTAL QUALITY BOARD OF THE
COMMONWEALTH OF PUERTO RICO,
RESPONDENTS.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
FIRST CIRCUIT
RESPONDENTS’ BRIEF IN OPPOSITION
STATEMENT OF THE CASE
A. Summary of Pertinent Facts
1. The Grounding and Subsequent Oil Spill
On March 15, 1973, the SS ZOE COLOCOTRONI
departed La Salina, Venezuela, with a full load of crude oil
2
for Guayanilla, Puerto Rico. At 0110 hours on March 18, eigh-
teen or twenty miles due south of Puerto Rico the ship’s master
was not able to establish her position. At 0300 hours on March
18 the ZOE COLOCOTRONI ran out of water and went hard
aground 3 miles due south of Puerto Rico. About 10 minutes
after the grounding the ZOE COLOCOTRONI dumped
5,170.1 tons or 1.5 million gallons of oil into the sea. This oil,
displaced by the elements, came ashore at Bahia Sucia, a
natural shoreline mangrove forest in the southwestern tip of
Puerto Rico. The oil devastated the entire Bay. The cause of
the grounding was the fact that the ship’s crew was hopelessly
lost while making the approach to Puerto Rico. The factors
which directly contributed to this condition were (1) lack of
proper charts and nautical publications onboard, (2) the
failure of the master to properly compensate for a westerly set
in the current, (3) inoperative or defective navigational equip-
ment among which were: (a) the gyro compass, (b) the gyro
compass recorder, (c) the fathometer, (d) the fathometer
recording device, (e) the radio direction finder, (f) the radar
and (g) the radio equipment; (4) an incompetent crew (the
third officer, the radio operator and two engineers were
unlicensed) and (5) the failure to post a bow lookout. The ZOE
COLOCOTRONI was a rust bucket. (58a-67a)'
2. The Parties
As a result of the spill the Commonwealth of Puerto Rico
and its principal environmental agency, the Environmental
Quality Board (hereinafter referred to as “E.Q.B.”) on March
19, 1973, filed an admiralty suit in rem and in personam
against the SS ZOE COLOCOTRONI and her owners, Mar-
bonanza Compania Naviera, S.A. and/or Colocotroni Ltd.,
' Page references to defendants-petitioners’ Appendix, which is
bound separately are cited “ a”. Page references to the 10-Volume
Appendix used before the Court of Appeals are cited “A ", and the
3-Volume Consolidated Supplemental Appendix as “SA ”.
3
and/or Colocotroni Brothers, $.A. and the underwriters, The
West of England Ship Owners Mutual Protection and Indem-
nity Association (Luxembourg) and The West of England Ship
Owners Mutual Insurance Association (London) Limited
(hereinafter referred to as “West of England”). (58a)
B. The Proceedings Below
1. Proceedings in the District Court
Plaintiffs claimed clean up costs and damages to the natural
resources of Bahia Sucia. Admiralty and maritime jurisdiction
of the District Court was invoked pursuant to 28 U.S.C.A.
1333. (7a)
West of England moved to quash the service of process
made pursuant to the Puerto Rico Long Arm Statute and to
dismiss the action. This motion was denied by the District
Court in its opinion and order of January: 14, 1977. (109a)
On October 21, 1977, the District Court struck defendants’
pleadings on the issue of liability and their petition for ex-
oneration from and/or limitation of liability. The District
Court left open the question of damages. (103a, 58a)
The District Court found that defendants had exhibited
“bad faith and callous disregard of their responsibilities in this
litigation”, characterized defendants’ conduct as “an affront
to this court’s dignity” and found that the conduct had se-
verely prejudiced plaintiffs’ preparation of their case as well as
the court’s attempts to assure that the trial proceeded as sched-
uled. (107a) The facts upon which those findings were based
appeared fully stated by the Court of Appeals’ Opinion of
August 12, 1980. (16a-24a)
The trial on the question of damages commenced on
November 7, 1977 and lasted six weeks.
On August 15, 1978, the District Court ruled that the Com-
monwealth of Puerto Rico had standing to sue by reason of its
4
proprietary interest in the affected property and pursuant to
the common law doctrines of “trustees of the public trust” and
“parens patriae”. The Court also held that the Environmental
Quality Board had a cause of action arising under Section
1131(29) of the Puerto Rico Public Policy Environmental Act, 12
L.P.R.A. 1131(29). (67a-70a) The District Court found that 5
years after the spill there was still 23 acres on the west side of
Bahia Sucia containing oil impregnated sediments. (84a-86a).
The Court further found that over 92 million marine animals
were destroyed as a result of the oil spill. (85a) Based on the
uncontradicted evidence in the record, the Court concluded
that said animals could not be replaced at a cost of less than six
cents per animal. The District Court rejected part of plaintiffs’
restoration proposal of restoring the area by removing the oil
impregnated sediments and replacing said sediments with new
material, but did grant plaintiffs the cost of replanting 23
acres of mangrove and the cost of monitoring the plantation
for five years. Thus; the court entered judgment in favor of the
plaintiffs in the amount of $78,108.89 for plaintiffs’ proven
and unreimbursed clean up costs; $559,500 for replanting 23
acres of mangrove and monitoring them for five years; and
$5,526,583.20 for the replacement cost of the marine animals
that were destroyed by the oil spill. (85a-86a)
After filing a timely appeal, defendants asked the Court of
Appeals for permission to file in the District Court motions
under Rule 60(a) and 60(b) of the Federal Rules of Civil Pro-
cedure for the correction of alleged clerical mistakes and for
relief from judgment. The Court of Appeals, on June 11, 1979,
held that leave was not required prior to filing a Motion for
Relief in the District Court under Rule 60(b). (49a-56a)
Defendants then filed Rule 60(a) and (b) Motions before the
District Court. In support of their Motion they filed
voluminous expert studies and affidavits that they labeled
newly discovered evidence. The Commonwealth, on the other
hand, had to rebut all this alleged newly discovered evidence.
—
5
In essence, the defendants retried the case before the District
Court on documents.
On August 8, 1979, the District Court denied defendants’
Rule 60 Motions. The Court expressed its serious reservations
as to whether the Motions complied with the requirements of
Rule 60(b) (2), but in any event examined defendants’
materials and found nothing that would move it to alter its
original decision.®
2. The Proceedings in the Court of Appeals
The United States Court of Appeals affirmed the District
Court’s findings as to in personam jurisdiction over the in-
surance company (24a-30a) and that the E.Q.B. had
cognizable cause of action to recover the total value of the
damages caused to the environment and/or the natural
resources. (3la-33a) The Court of Appeals, however, vacated
the District Court’s award of damages as measured on the
basis of six cents per animal (45a-46a) and remanded the case
to the District Court for reevaluation of the damages
(47a-48a). A cross-petition for writ of certiorari on said issue
has been timely filed by the Commonwealth of Puerto Rico
and the E.Q.B., respondents herein.
a. Jurisdiction
On the issue of whether West of England properly availed
itself of the privilege of conducting business transactions
within the Commonwealth of Puerto Rico, thus invoking the
benefit and protection of the laws of the Commonwealth of
Puerto Rico, the Court decided that the files of the Puerto Rico
correspondent of West of England revealed the many instances
2 In its Order of August 8, 1979, the District Court gives a de-
tailed reasoning as to the method it adopted for computing the
damages awarded. The same is attached to the instant Brief as
Appendix “A”.
6
in which ships insured by West of England were involved in
incidents giving rise to claims or potential claims while the
ships were present in Puerto Rico waters. In each of these in-
stances West of England’s local correspondent was instructed
to take action to forestall claims, to provide services for the
shipowners or to prepare for any eventual litigation. The West
of England advertised to insured shipowners the fact that such
services would be available through its local Puerto Rico cor-
respondent. The contract of insurance contained no provision
preventing any ship from calling on Puerto Rico or limiting
coverage in the event it did. Not only did West of England
know that vessels mentioned in West of England’s correspon-
dent’s files visited Puerto Rico but it stood to reason that many
other West of England insured vessels also did, as West of
England’s correspondent’s files would name only vessels on
which claims or other noteworthy incidents occurred. While
West of England was not engaged in selling insurance in
Puerto Rico, its retention of a correspondent to perform ser-
vices for insured owners and vessels in Puerto Rico
demonstrated that West of England plainly expected its
worldwide business of insuring maritime risks to embrace the
territorial waters of Puerto Rico with some regularity. West of
England plainly knew that vessels it insured would call on
Puerto Rico from time to time and it made no apparent effort
to halt or limit this practice. In fact by advertising the name of
its local correspondent in San Juan, West of England affir-
matively encouraged such commerce. It was further deter-
mined that this is not a case of a single isolated and unpreven-
table appearance of an insured vessel in Puerto Rico waters;
the record shows that such appearances were a readily
foreseeable part of the normal course of business.
The Court of Appeals, after distinguishing the instant case
from World-Wide Volkswagen Corp v. Woodson, 444 U.S.
286 (1980) held:
7
“Where as here, the insurer has the means available to
structure its primary conduct so as to control the area
within which it will be subject to direct action, where it is
undoubtedly aware that the objects of its policies are
regularly present in a particular jurisdiction, and where
it not only does not act to curtail such presence but ac-
tively promotes it by providing contractual services in the
jurisdiction, we hold that such an insurer is amenable to
personal jurisdiction in the forum.” (Emphasis added)
(30a)
b. The Striking of the Pleadings
Defendants contended that the District Court abused its
discretion by striking their pleadings on the issue of liability
and their petition for exoneration from and/or limitation of
liability. The Court of Appeals, after reviewing the record and
analyzing the facts, held:
“.. .the record supports the District Court’s findings that
defendants’ conduct was inexcusably recalcitrant and
that it materially prejudiced plaintiffs’ trial preparation
and the court's legitimate efforts to keep this protracted
law suit moving forward.” (Emphasis added) (21a)
The Court of Appeals, citing Higuera v. Pueblo Interna-
tional, Inc., 585 F2d 555, 557 (C.A. Ist 1978) stated:
_ “There comes a point when the question arises who is
running the court — counsel or the judge. To this there
can be but one answer.” (22a)
The defenses being stricken, defendants are now precluded
or estopped from raising them before this Court much less
argue them.
c. The Damages
The Court of Appeals held that the Commonwealth of
Puerto Rico, exercising its undisputed authority to protect and
conserve its natural environment, had, by statute (Section
1131(29) of the Puerto Rico Public Policy Environmental Act,
12 L.P.R.A. 1131(29)), authorized one of its agencies to main-
tain actions of this sort.
The Court correctly rejected defendants’ contention that
damages should be measured by any diminution in market
value or loss of use of the affected property or of any loss of
commercially valuable plant or animal life. The Court held
that a strict application of the diminution in value rule would
deny the Commonwealth of Puerto Rico any right to recover
meaningful damages for harm to such areas and would
frustrate appropriate measures to restore or rehabilitate the
environment. The Court of Appeals set the following standard
for determining damages in a case such as this:
“We think the appropriate primary standard for deter-
mining damages in a case such as this is the cost
reasonably to be incurred by the sovereign or its
designated agency to restore or rehabilitate the environ-
ment in the affected area to its pre-existing condition or
as close thereto as is feasible without grossly dispropor-
tionate expenditures.” (40a-41a)
REASONS FOR DENYING THE WRIT
I. THe Court or APPEALS’ DeEcIsION UPHOLDING PERSONAL
JurispicrioN Over THE WEST OF ENGLAND, IS IN CON-
SONANCE WITH THE MANDATE OF THIS CoURT AND
THEREFORE, THE Writ SHOULD BE DENIED.
The Court of Appeals’ decision that the District Court’s ex-
ercise of personal jurisdiction over West of England did not of-
9
fend the limitations imposed by the Due Process Clause of the
United States Constitution follows the decisions of this Court.®
Its decision followed the decision of this Court that “due pro-
cess requires only that in order to subject a defendant to a
judgment in personam, if he be not present within the ter-
ritory of the forum, he has certain minimum contacts with it
such that the maintenance of the suit does not offend ‘tradi-
tional notions of fair play and substantial justice’”. Interna-
tional Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). The
Court of Appeals also followed the ruling of this Court in
World-Wide Volkswagen Corp v. Woodson, supra. For West
of England to be subjected to the jurisdiction of the District
Court it had to, “purposefully avail itself of the privilege of
conducting activities within the foreign state, thus invoking
the benefits and protection of its laws”. Hanson v. Denckla,
357 U.S. 235, 253 (1958). In this respect the Court of Appeals
stated:
“The record makes clear that West of England did
precisely that.” (26a)
A. West of England’s Presence in Puerto Rico
West of England for years had a correspondent in Puerto
Rico. The correspondent was appointed by West of England in
San Juan to service and assist insured shipowners, their agents
3 Petitioners’ reference at pages 2 and 11 of their brief to the Due
Process and Equal Protection Clauses of Section 2 of the Organic Act
of Puerto Rico, 48 U.S.C. 737 is not accurate. Section 2 was repealed
except for the last paragraph by Section 5 of Public Law 600, ap-
proved July 3, 1950, which provided that at such time as the Con-
stitution of Puerto Rico becomes effective, Section 2 of the Organic
Act of 1917, except the last paragraph, shall be deemed repealed.
See Historical Note at 48 U.S.C. 731. The Constitution of Puerto
Rico was approved by Congress on July 3, 1952, and came into force
and effect on July 25, 1952, see 48 U.S.C. 731d.
10
and masters of vessels insured in cases of emergency and dif-
ficulty connected with matters covered by West of England's
policy of insurance.*
West of England, in a document entitled “Investigation of
Claims in Foreign Ports”, provided its Puerto Rican correspon-
dent with written instructions of how to conduct its business in
order to provide insured shipowners, their agents and masters
of insured vessels, while in Puerto Rico, services in cases of
emergency or difficulty connected with matters covered by
West of England’s policy of insurance.°
In the first paragraph of page 3, that document states:
“The day-to-day business of The West of England
(Luxembourg) is managed by The West of England (Lon-
don) to whom all correspondence should be addressed.
The Association does not appoint agents. Commercial
and also legal firms are, however, appointed in the prin-
cipal ports of the world in order to assist Masters and
Ship’s Agents when required in relation to claims which
‘ Upon defendants filing their motion to quash service and dismiss
the complaint, plaintiffs took the deposition of one of the partners of
the Law Firm of Hartzell, Ydrach, Mellado, Santiago, Perez &
Novas, West of England’s correspondent in San Juan and sub-
poenaed the documents in Hartzell’s possession to establish (1) Hart-
zell’s relationship with West of England and (2) West of England’s
business contacts with Puerto Rico. West of England produced a
pamphlet of instructions to members and correspondents entitled,
“Investigation of Claims in Foreign Ports”, which was marked as
Exhibit I; it also produced its “List of Vessels” insured marked as Ex-
hibit 2; West of England's “List of Correspondents” as Exhibit 3 and
West of England’s “Rules or Policy” as Exhibit 4. It also produced 20
files containing approximately 320 documents from where West of
England’s activities with Puerto Rico clearly appeared. All this
evidence was submitted by plaintiffs to the court in support of its
Brief filed in opposition to defendants’ motion to quash summons
and to dismiss the complaint on January 30, 1976. (S.A. 48-623).
5 Said document is reproduced as Appendix B to the instant Brief.
(pp. 38-49 infra)
il
fall within the scope of the cover afforded to its Members
by the Association, as set out in the Rules.”
West of England’s “List of Correspondents” contains the
name and addresses of all its correspondents throughout the
world, and in the introductory paragraph of that document at
page 9, it provides:
“Whilst the Association does not appoint agents, the
following are the names of experts and lawyers usually
engaged to advise on claims in which the Association is
concerned. Captains and agents should consult them in
cases of emergency and difficulty connected with matiers
covered by the Rules to this Association, when there is not
time to apply to their owners for instructions.
“In ports where the Association is not specially
represented the Captain or his agents should com-
municate with the Association or telegraph
(“WESTENG” - London) for instructions in connection
with any serious claim covered by the Rules.”
At page 20 of that same Exhibit the name of West of
England’s representative in Puerto Rico appears advertised. It
reads:
“San Juan (Puerto Rico) - *Hartzell, Ydrach, Mellado,
Santiago, Perez & Novas, 1530 Banco Popular Center,
Hato Rey, Telephone (809) 765-6075, Telex CW-WUI
3654204 (Hartzell).”
* Asterisk denotes Lawyers. (S.A.183, 172).°
In presenting to this court the questions to be decided, West
of England intimates that the only function of West of
® Pertinent pages of this document appear reproduced, as Appen-
dix “C” to the instant Brief (pp. 50-54 infra).
12
England’s correspondent in Puerto Rico was that of lawyers
and nothing else. When West of England appoints a commer-
cial firm as correspondent in a given port, the function of that
correspondent obviously is not that of a lawyer for West of
England in that particular port. Its functions are going to be
related with the insurance business.’
Plaintiffs proved to the District Court that West of England’s
Puerto Rico correspondent acted on its behalf in 27 instances
in which a total of 25 vessels had incidents prior to the ZOE
COLOCOTRONI casualty.’ In relation to those incidents the
correspondent performed the following services: Made all the
arrangements for the burial of a deceased seaman with ap-
propriate religious observances; repatriated by air several
other sailors; contracted surveyors to conduct numerous
surveys; investigated claims for damages or injuries; adjusted
and settled claims; appointed ship agents for insured
shipowners; paid insured shipowners’ agent's disbursements
incurred in attending vessels in Puerto Rico; repatriated
stowaways and deserters; recommended to West of England
lawyers in the Dominican Republic; took care of and rendered
assistance to sick and injured foreign seamen while in Puerto
Rico and the Virgin Islands; assisted insured owners in collec-
7 In United States v. SS. Ocean Eagle, 47 F.R.D. 519 (1969) a
West of England competitor, The London Steam-Ship Owners’
Mutual Insurance Association Ltd., appointed William Munch,
Inc., a cargo surveyor and marine claims settling agent as its
representative in Puerto Rico. The London Club in that case made
the same jurisdictional allegations that West of England is making in
the instant case and the court upheld the jurisdiction. The court in
arriving at the decision analyzed not just the London Club’s mode of
operating but the many instances in which it conducted business
within Puerto Rico through William Munch, Inc., a non-lawyer.
The Hartzell law firm, while acting as correspondent for West of
England, carried out the same activities for West of England as
William Munch, Inc., a commercial firm, conducted for The Lon-
don Club according to the facts of that case.
® The evidence proving these facts is analyzed in S.A. 14-34.
13
ting freight; arranged for insured owners salvage services;
assisted insured owners whenever a ship caused damage to
port facilities; assisted in the release of seamen from jail and
repatriation; and mitigated Immigration fines imposed to in-
sured shipowners. West of England advertised to insured
shipowners the fact that such services would be available
through its local Puerto Rican correspondent.°
Yet, defendants, as a reason for granting the Writ, ignoring
the voluminous evidence in the record evidencing the many
business contacts West of England had with the forum prior to
the ZOE COLOCOTRONI’s casualty, and ignoring the
analysis of that evidence made by both the District Court and
the Court of Appeals in their respective decisions, argued that
the District Court predicated Long Arm jurisdiction on West
of England’s insurance contract with the owners of the ZOE
COLOCOTRONI which insured against risks encountered
whenever the vessel might travel. Said party unbelievably
argued that no action was cited by the Court of Appeals as a
ground upon which the District Court exercised personal
jurisdiction. Furthermore it intimated that the only basis for
upholding jurisdiction was West of England’s failure
specifically to exclude Puerto Rico from the coverage of the in-
surance policy. That is definitely not what the evidence in the
record and the two lower court opinions reflect. One receives
the impression, following defendants’ argument, that the
Court automatically will have in personam jurisdiction over
West of England for its failure to exclude Puerto Rican ports
from the coverage of the policy. Defendants failed to bring to
the attention of the Court that besides the non-exclusion of the
ports from coverage in the policy for years West of England
had engaged in business transactions in Puerto Rico through its
correspondent. So the basis upon which the Court predicated
Long Arm jurisdiction in this case is not just the fact that West
® The evidence proving all the above facts appears in S.A. 48-623.
14
of England failed to exclude or exempt the Puerto Rican ports
from the policy but also the various business contacts it had
with Puerto Rico.
As this argument of defendants has no merit and is contrary
to what the record reflects, the Petition for Writ of Certiorari
should be denied.
B. The Decision of the Court of Appeals is Not in Conflict
with World-Wide Volkswagen Corp. v. Woodson,
Supra.
In Woodson, supra, the Court dealt with facts completely
different from those of the instant case. Furthermore, the
scope of the Commonwealth of Puerto Rico’s Long Arm in
personam jurisdiction as defined by the case of International
Shoe v. Washington, supra; McGee v. International Life In-
surance Company, 355 U.S. 220 (1957); Hanson v. Denckla,
supra, and other more recent cases, has been reaffirmed by
Woodson. Woodson by no means supports defendants’ posi-
tion.
In Woodson, supra, respondents did not adduce any
evidence that either the dealer or the distributor did any
business in Oklahoma, site of the accident. They did not pre-
sent either any evidence that they shipped or sold any products
to or in the state; nor did it have an agent to receive process
there; nor did it purchase advertisements in any media
calculated to reach Oklahoma. It was even conceded that
there was no showing that any automobile sold by respondents
had ever entered Oklahoma with the single exception of the
vehicle involved in that case.
In the present action, West of England, through its ap-
pointed correspondent, conducted business in Puerto Rico and
prior to the ZOE COLOCOTRONI oil spill West of England
had attended business matters of other ships in Puerto Rico
through its correspondent. These considerations alone are suf-
ficient to factually distinguish Woodson, supra, from this case.
15
There can be little, if any, comparison between a car
distributor and a dealer whose operations are limited to no
more than three states and a Shipowners’ Mutual Insurance
Association, like West of England, whose business is
worldwide, as is clearly shown by its list of correspondents. '°
That ships insured by West of England would come to Puer-
to Rico was a foreseeable event. It was not only foreseeable
that some of the ships insured by West of England would run
into difficulties in Puerto Rico, it was actually expected. What
other reasons could there exist for the appointment of a cor-
respondent in Puerto Rico?
Foreseeability is a relevant factor to determine whether or
not in personam jurisdiction exists over a party. In Woodson,
supra, at 297 the Court held:
“The foreseeability that is critical to due process analysis
is not the mere likelihood that a product will find its way
into the forum State. Rather it is that the defendant’s con-
duct and connection with the forum State are such that
he should reasonably anticipate being haled into court
there.”
A ship, unlike a car, does not usually move within a limited
area, much less a tanker in today’s oil-strained world. This was
a well-known fact to West of England. The presence of the
ZOE COLOCOTRONTI in Puerto Rico was much more than a
mere likelihood. It was an expected event. West of England
foresaw that it could have been haled into court in this forum.
Unlike in Woodson, supra, West of England availed itself of
the benefits and privileges of the laws of Puerto Rico through
its correspondent. Unlike in Woodson, plaintiffs did not seek
to base jurisdiction on one isolated occurrence of fortuitous
characteristics. Unlike in Woodson, it is reasonable to require
West of England to defend this particular suit and Puerto
© (SA167-186)
16
Rico’s interest in adjudicating this dispute is a relevant factor
that has to be considered. Finally, Puerto Rico does not offend
the Due Process Clause by exercising its jurisdiction over a cor-
poration which voluntarily insures ships which knowingly
engage in commerce between ports of the world and Puerto
Rico.
The instant case does not deal with a foreign corporation
whose only contact with the forum was the fortuity that the
car they sold passed through the forum after it had left their
hands. Here West of England had appointed a correspondent
to attend to the obligations it had assumed in the policy
towards its insured shipowners, their agents and ships’ cap-
tains, “in cases of emergency and difficulty connected with
matters covered by the Rules of the Association”. (SA172)
The West of England argued it had no property in Puerto
Rico; never solicited nor sold insurance in Puerto Rico; no
member of West of England is a resident of Puerto Rico. But,
West of England cannot ignore the fact that surveying, in-
vestigating, adjusting and settling of claims and providing its
insured shipowners, their agents and ships in Puerto Rico with
whatever services are needed in cases of emergency and dif-
ficulty connected with matters covered by the policy are very
important parts of West of England’s insurance business.
In the light of all the above, plaintiffs submit that West of
England was at the time of the casualty present in Puerto Rico
and the Petition for Writ of Certiorari should be denied.
C. The Court Below Did Not Devise a “Minimum Con-
tact” Rule for West of England
The Court did not deny West of England's right to the equal
protection of the laws. Defendants argue that the Court of Ap-
peals devised a special minimum-contacts rule for insurance
companies which would deny them equal protection of the
laws. They base this argument on what the Court of Appeals
said in Footnote 18 of the Opinion, which reads as follows:
17
“ ..the result we reach is further buttressed by the
Supreme Court’s occasional suggestions that the test for
measuring minimum contacts for insurance companies
may be somewhat less stringent than for other nonresi-
dent corporations because of the forum state’s public
policy interest in promoting effective redress for injuries.
See McGee v. International Life Insurance Co., 355 U.S.
220, 223 (1957); cf. Hanson v. Denckla, 357 U.S. 235,
252 (1958). Here the maritime accident resulted in injury
to Puerto Rico’s coastal environment, and plaintiffs
represented this forum-related interest.” (30a)
With that statement the court was adding support to results
already reached in the decision. The Court found jurisdiction
over West of England not because Puerto Rico’s public policy
interest in promoting effective redress for injuries made the
contacts for insurance companies somewhat less stringent than
for other nonresident corporations. Jurisdiction was upheld
because of West of England’s frequency, quantity and quality
of all its contacts within Puerto Rico.
Defendants would be correct in making such an argument
had the contacts of West of England with Puerto Rico been
non-existent or insignificant as in Woodson, supra. Upholding
jurisdiction resting on that type of contact would obviously
constitute the discriminatory treatment that West of England
is alleging. However, defendants fail to inform the Court that
West of England’s contacts with Puerto Rico were not that
meaningless. They were frequent and substantial; much more
substantial than the contact International Life Insurance Co.
had with the State of California in McGee v. International
Life Insurance Co., 355 U.S. 220 (1957).
In McGee an insurance policy which had been taken out
with an Arizona corporation was later assumed by the defen-
dant, a Texas corporation, which issued a reinsurance cer-
tificate by mail to the insured in California. Thereafter, the
18
defendant mailed premium notices to the insured in California
who in turn mailed the premium payments to the defendant in
Texas. The insurance company had absolutely no other con-
tact with the forum. In the instant case West of England ap-
pointed a correspondent in Puerto Rico. Then a number of in-
sured ships were sent to Puerto Rico, where their owners,
agents and masters received from West of England, through its
‘correspondents, those services which it had to provide in ac-
cordance with the policy.
This Court, in Hanson v. Denckla, supra, repeated and
followed the privileged concept enunciated in International
Shoe Co., supra, Id. 319, 321. Denckla stands for the proposi-
tion that to be present the defendant must voluntarily do some
act, which, if performed, is expected to have effects in the
forum state. West of England’s appointment of a correspon-
dent in Puerto Rico through which its business could be tran-
sacted, is the act to which this Court referred in International
Shoe Co., supra, and Denckla, supra.
II. DerenpaAnts’ SECOND REASON FOR GRANTING THE WRIT IS
BEING IMPROPERLY PRESENTED TO THIS Court aS THEY
RaisE A DerensE THAT Was STRICKEN AND OTHERWISE
WAIVED BY THE DEFENDANTS.
In their second reason for granting the writ defendants
argued that they are free to oppose the “no action” clause in
the policy because the invalidation of these clauses in Section
11.190 of the Insurance Code of Puerto Rico (26 L.P.R.A.
1119) is ineffective, as the policy was not delivered or issued
for delivery in Puerto Rico.
Section 11.190 does not apply to the facts of this case, not
because of the reason advanced by defendants in pages 16-17
of the Petition but because the cited section is part of Chapter
II of the Insurance Code of the Commonwealth of Puerto Rico
(26 L.P.R.A. 1101-1137) which in Section 11.010 (26
19
L.P.R.A. 1101) expressly excluded protection and indemnity
insurance from its scope. It provides:
“1101 Scope of Chapter
“(1) The applicable provisions of this chapter shall
apply to insurance other than ocean marine ...
“(2) For the purpose of subsection (1) and this title,
‘ocean marine and foreign trade insurances’ shall include
only; (a) insurances upon vessels, crafts, hulls and of in-
terest therein or with relation thereto; (b) insurance of
marine builders risks, marine war risk, and contracts of
marine protection and indemnity insurance. . .” (Em-
phasis added)
In the fourth question presented for review by this Court
and in the argument commencing on page 16 of the Petition,
defendants did not raise a jurisdictional question, rather they
posed the question of whether the complaint failed to state a
claim against West of England upon which relief can be
granted, one of the affirmative defenses which they could have
raised in their responsive pleadings or by separate Motion. If
the alleged “no action” clauses preclude plaintiffs’ direct ac-
tion for the reasons advanced by defendants, the question is
one of sufficiency of the cause of action or claim for relief, not
one of jurisdiction over the person or over the subject matter.
Presenting this question for review to this Court is most im-
proper. If that defense was raised in the responsive pleadings,
same was stricken by the Court on October 21, 1977.
Moreover the question of whether the District Court abused
its discretion in striking their pleadings and defenses and the
question of whether it erred in upholding in personam
jurisdiction over West of England were presented for review
before the Court of Appeals, but there the defendants failed to
make the argument they are now making, thus depriving the
Court of Appeals from ruling on it. The Court of Appeals for
20
the reasons stated in its Opinion affirmed the District Court.
(16a-23a)
In their Petition defendants did not present for review that
part of the Court of Appeals’ decision upholding the District
Court’s striking of defendants’ pleadings and preventing their
defenses from being considered on the merits. Yet they dare
argue a defense that was struck below and of which they did
not seek review before this Court. Defendants are precluded
from arguing this question before this Court as a reason for
granting the Writ.
Assuming arguendo that defendants could raise that defense
before this Court, their argument would still be meritless.
What defendants call the “no action” clause in the policy" is
actually a prohibition which only affects the insured not the
injured. The insured shipowner cannot exercise his “right to
recover from the funds” of West of England “in respect of any
liability” until “he shall first have discharged or paid the
same”. That is not a “no action” clause. The “no action” clause
prevents suits of recovery by any person against the insurer.
See text of a “no action” clause in Watson v. Employers’
Liability Assurance Corporation, Ltd., 348 U.S. 66, 74-75
(1954). But assuming arguendo the clause is a “no action”
clause, the same is expressly prohibited by section 20.010 of
the Insurance Code of Puerto Rico, 26 L.P.R.A. 2001, which
provides:
“The insurer issuing a policy insuring any person against
loss or damage through legal liability for the bodily in-
jury, death, or damage to property of a third person,
'! Payment First by Insured Owner
“18. Unless the Association in its absolute discretion shall other-
wise determine it shall be a condition precedent of an insured
Owner's right to recover from the funds of the Association in respect
of any liability, costs or expenses that he shall first have discharged
or paid the same.” (SA 198)
21
shall become absolutely liable whenever a loss covered by
the policy occurs, and payment ef such loss by the insurer
to the extent of its liability therefore under the policy
shall not depend upon payment by the insured or upon
any final judgment against him arising out of such occur-
rence.” (Emphasis added)
It has been held that the direct action statute nullifies
altogether a “no action” clause and gives to the injured person
the right to proceed against the insurer directly either alone or
together with the insured before recovery of a judgment
against the insured. Olympic Towing v. Nebel Towing Co..,
419 F2d 230, 236-237 (1969).
The “no action” clause defense, like “failure of notice” is a
technical defense in respect to which the insurer is severly
restricted in advancing if not foreclosed from asserting.
Lumbermen’s Mutual Casualty Company v. Elbert, 348 U.S.
48, 51 (1954).
The loss being claimed by the plaintiffs was covered by the
policy.'*
'2 EF. (1) For loss or damage caused to any property or for infringe-
ment of any rights relating to property, whether on land or on water
or whether fixed or movable,...
(2) Subject to acceptance in writing of the risk by the Associa-
tion on such terms and conditions as the Association may determine,
for liabilities arising under the Tanker Owners Voluntary Agree-
ment concerning Liability for Oil Pollution dated 7th January, 1969
(TOVALOP) and also for any costs and expenses reasonably incur-
red with the prior approval of the Association (regardless of fault on
the part of the insured vessel) for the purpose of avoiding or
minimising such liabilities; PROVIDED ALWAYS that the Associa-
tion’s liability under this Sub-Rule shall in respect of each incident
be limited to U.S. $100 per G.R.T. subject to a maximum of U.S.
$10,000,000. (S.A. 193-194) -
22
Il]. THe Cuear LANcuace or Section 1131(29), 12 L.P.R.A.
1131(29) or THE PuBLic Poticy ENVIRONMENTAL ACT OF
THE COMMONWEALTH OF PuerTO Rico PROVIDES FOR
RECOVERY OF THE TOTAL VALUE OF THE DAMAGES CAUSED
TO THE ENVIRONMENT AND/OR NATURAL RESOURCES BY
THE PC_LUTER.
Plaintiffs, respondents herein, are filing a cross-petition for
a Writ of Certiorari on the issue of the measure of damages.
The discussion that follows is limited to the reasons advanced
as to why Certiorari should not issue on the Petition filed by
the defendants.
Defendants do not question, nor could they, the power of
the Commonwealth of Puerto Rico to enact legislation for the
protection and conservation of its natural resources. 48 U.S.C.
746, 747, 749, Art. VI, Sec. 19, Const. Com. of P.R.; 12
L.P.R.A. 43, 44; 31 L.P.R.A. 1023.'° In the exercise of this
undisputed authority to protect and conserve the resources
held in trust for its people, the Commonwealth has by statute
authorized one of its agencies, co-plaintiff, the Environmental
Quality Board, to maintain actions to recover from polluters
the value of the damages caused to the environment. 12
L.P.R.A. 1131(29). This exercise of the police power of the
Commonwealth of Puerto Rico has not been alleged to be in-
valid.'*
'3 The previously cited Constitutional and statutory provisions,
Art. VI, Sec. 19 of the Constitution of Puerto Rico; 48 U.S.C.A. 746,
747, 749, 12 L.P.R.A. 43, 44; 31 L.P.R.A. 1023, are set forth in full
in Appendix “D” (pp. 55-57 infra)
'4 In addition to the E.Q.B.’s allegation in the complaint under
Section 12 L.P.R.A. 1131(29), the Commonwealth of Puerto Rico
also alleged a cause of action under its common law right as trustee
of the Commonwealth’s natural resources, in its quasi-sovereign
capacity and in its capacity as parens patriae. The District Court
found that the Commonwealth had standing to sue to recover for oil
pollution harr to Bahia Sucia and related resources “because it has
proprietary interest in the same ... . because it is the trustee of the
23
Under Section 1131(29) of 12 L.P.R.A., the E.Q.B. has,
among others, the following duties, powers and functions:
“To bring, represented by the Secretary of Justice, by the
Board's attorneys or by a private attorney contracted for
such purpose, civil actions for damages in any court of
Puerto Rico or the United States of America to recover the
total value of the damages caused to the environment
and/or natural resources, upon committing any violation
of this chapter and its regulations. The amount of any
judgment collected to such effect shall be converted into
the special account of the Board on environmental qual-
ity.” (Emphasis added) . (160a)
The Court of Appeals found that this statute both created a
cause of action as the type described by its terms and
designated the E.Q.B. as the proper party to bring such an ac-
tion (33a), upon violation of the anti-pollution provisions, 24
L.P.R.A. 595.'5
public trust in those resources...and additionally, in its capacity as
parens patriae...” (69a). The Court of Appeals held that the Com-
monwealth had by statute authorized the E.Q.B. as the proper
party to bring this action, and in order to avoid the risk of double
recovery and possible confusion, the Court found it unnecessary to
consider whether, had the Legislature of Puerto Rico not delegated
to the E.Q.B. the right to maintain such suits, the Commonwealth
would have an inherent right to bring it itself (33a-34a). However,
other Federal courts have addressed this question and have held that
a state has a sovereign interest in its coastal waters and natural
resources sufficient to maintain a “parens patriae” action on behalf
of its citizens to protect such interests. Maine v. M/T Tamano, 357
F.Supp. 1097 (D.Me. 1973); Matter of Oswego Barge Co., 439
F.Supp 312, 321-322 (D.N.Y. 1977); Maryland v. Amerada Hess,
350 F.Supp 1060 (1972).
'® “It shall be unlawful for any person, directly or indirectly to
throw, discharge, pour or dump or permit to throw, discharge, pour
or dump into the waters, any organic or non-organic material
capable of polluting or leading to the pollution of said waters as to
place them out of the minimum standards of purity that the
Secretary of Health may establish under Section 599 of this Title.”
24
Unable to challenge the E.Q.B.’s right to maintain this ac-
tion, and unable to allege any constitutional bar to the legisla-
tion that empowers the E.Q.B. to seek damages to recover the
total value of the damages caused to the environment and/or
natural resources (33a), defendants in their eleventh hour, at-
tack the clear language contained in the statute and allege that
the Court of Appeals’ interpretation of the same is “novel and
expansive”. (Defendants’ Petition, p. 17).
Defendants argue that the measure of damages envisioned
by the E.Q.B.’s statute is the common law “diminution in
value” rule. Under said rule the measure of damages for tor-
tious injury to real property is the difference in the commercial
or market value of the property before and after the event
causing injury. They cite Restatement (2nd) of Torts, Section
929, 1(a) 1979. Defendants’ next argue that since there has
been no reduction in the per acre commercial market value of
the land area of Bahia Sucia, the Commonwealth of Puerto
Rico and the E.Q.B. are not entitled to recover any damages
for the injuries caused by defendants’ intentional dumping of
1-1/2 million gallons of crude oil into the coastal waters of
Puerto Rico.'® Defendants’ reasoning is clearly contrary to the
manifest intent of Puerto Rico’s Environmental Statute which
authorizes the E.Q.B. to recover the total value of the
damages caused to the environment and/or natural resources.
(36a) Acceptance of defendants’ proposition which finds ab-
solutely no support in the statute or in logic, would effectively
deny the government the power to regulate and protect the
natural resources entrusted to its care while permitting
polluters to escape liability for the destruction of natural
resources they often cause.
The Court of Appeals placed defendants’ allegations in pro-
per perspective when it stated:
16 Defendants candidly state that it is “undisputed that Mangrove
trees and marine organisms were killed by the oil spill ... and that
the Commonwealth of Puerto Rico is the owner of the entire area
polluted by oil. (Defendants’ Petition, p. 3).
25
“We believe that defendants have misconceived the
character of the remedy created by Section 1131. The
E.Q.B. is not concerned with any loss in the market or
other commercial value of the Commonwealth’s land. In
point of fact, the E.Q.B. concedes the land has no signifi-
cant commercial or market value. The claim, rather, is
for the injury— broadly conceived—that has been caused
to the natural environment by the oil spill. ...the District
Court found that the once flourishing natural environ-
ment of the West Mangrove had been seriously damaged
by the oil, to the point where some of the underlying
sediments were no longer capable of supporting any but
the most primitive forms of organic life, such as worms.
The Puerto Rico statute authorizing this action specifical-
ly empowers the E.Q.B. to recover ‘the total value of the
damages caused to the environment and/or natural
resources’ upon a violation of the antipollution provi-
sions. 12 L.P.R.A. 1131(29). Implicit in this choice of
language we think is a determination not to restrict the
state to ordinary market damages. Many natural areas of
considerable ecological value have little or no commercial
or market value. Indeed, to the extent such areas having
commercial value it is logical to assume that they will not
long remain unspoiled, absent some governmental or
philanthropic protection. A strict application of the
diminution value rule would deny the state any right to
recover meaningful damages for harm to such areas, and
would frustrate measures to restore or rehabilitate the en-
vironment.” (36a-37a)!”
'7 Inasmuch as the Court of Appeals recognized that the E.Q.B. is
entitled to recover the “total value of the damages to the environ-
ment, and/or natural resources” and that the damage determination
is not restricted to “ordinary market value”, it was an error to vacate
the District Court’s award based on replacement cost of the animals
destroyed. This matter is covered at length in the Commonwealth's
Cross-Petition for Writ of Certiorari.
26
Puerto Rico’s environmental statute is by no means unique
or novel. Governmental and public awareness of the need to
conserve and protect limited natural resources, as well as their
growing knowledge of the consequences of oil pollution has led
the Federal government and the governments of various states
to enact legislation.'®
Various Federal and state courts have recognized the right
of a state to seek damages for injury to living non-commercial
resources. Burgess v. M/V Tamano, 564 F.2d 964 (C.A. Ist
1977), cert. den., 435 U.S. 941 (1978); California Department
of Fish and Game v. SS Bournemouth, 307 F.Supp 922 (1969);
Maine v. M/V Tamano, 357 F.Supp 1102 (1973); State Ex-Rel
Pollution Control v. Kerr, McGee Corp, 532 P2d 1386 (Okla.
1975); State v. Jersey Power and Light Co., 308 A.2nd 671
(1973); Maryland v. Amerada Hess, 350 F.Supp 1060 (D. Me.
1972); Department of Pollution Control v. International
Paper Co., 329 S.2nd 5 (Fla. 1976). Defendants have not ad-
vanced any valid reason that would justify disregarding the
clear language of Section 1131 and apply a rule of common
law damages which was intended for private property, real
and personal, with a market value, and which has no place in
a case filed by a sovereign seeking to recover damages to the
'® Restoration or replacement costs of the natural resources
damaged is the measure of damages contained in the Clean Water
Act, 33 U.S.C. 1321(f)(5) and the OCS Lands Act, 43 U.S.C.
1813(b)(3). Replacement cost is also being used in state programs
established to recover for living, natural resources damage. Florida
(F.S.A. Sec. 376.11(5) (c) (1974);
Maryland (A.C.md. Natural Resources Sec. 8-1411(f) (1974);
Massachusetts (M.G.L.A. c.21 Sec. 27(10) (1973); Mississippi
(M.A.C. Sec, 49-27-55 (1979 Supp.)); New Jersey (N.J.S.A.
58:10-23.1lg(a) (2) (1979 Supp.)); New York (N.Y. Nar. L.
181(2)(b) (1979 Supp.)); North Carolina (N.C.G.S. Sec. 143-215.90
(1979 Supp.)); Oklahoma (82 O.S.A. Sec. 937(b) (1971)); Oregon
(O.R.S. Sec. 468-745 (1977)); Virginia (Va. Code Sec.
62.1-44.15(11) (a)); Washington (R.C.W. Sec. 90.48.142 (1977)).
The previously cited statutory provisions are set forth in full in
Appendix “E” to the instant brief.
27
natural resources that have been entrusted to its protection.
The importance of preserving and protecting these resources
carries with it the need of an adequate remedy against the
tortfeasor to recover the value of the damage caused to the en-
vironment or the natural resources. (36a-39a, 67a, 70a).
As the Court of Appeals stated:
“In recent times, mankind has become increasingly
aware that the planet’s resources are finite and that por-
tions of the land and sea which at first glance seemed
useless, like salt marshes, barrier reefs, and other coastal
areas, often contribute in subtle but critical ways to an
environment capable of supporting both human life and
other forms of life on which we all depend. The Puerto
Rico statute is obviously aimed at providing a damages
remedy with sufficient scope to compensate for and deter
the destruction of such resources; and while we can see
many problems in fashioning such a remedy, we see no
reason to try and frustrate that endeavor. We, therefore,
do not limit damages herein to the loss of market value of
the real estate affected.” (39a)
The Commonwealth of Puerto Rico, in the present action,
does not stand as a private citizen seeking to recover tradi-
tional damages to an injury to real property, but rather the
claim of Puerto Rico is one for the loss of living, non-
commercial resources of immense value to the People of Puerto
Rico. (36a)
Ironically, the narrow scope of defendants’ arguments
overlook the most basic rule of tort recovery, one which was
recognized by the Courts below—to place the injured party as
nearly as possible inthe same position he would have been in
had there been no tort. (85a)
Defendants’ oil spill constituted a breach of Federal
maritime law (35a) and plaintiffs’ claim for relief came within
28
the admiralty jurisdiction of the District Court. As stated by
the Court of Appeals:
“Where the injury occurs in the territorial waters of a
state, the general rule is that admiralty will give ‘broad
recognition of the authority of the states to create rights
and liabilities with respect to conduct within their
borders, when the state action does not run counter to
Federal laws or the essential features of an exclusive
Federal jurisdiction (citations omitted) ...” (35a)
The measure of damages in this case would be no different
than the measure of damages under maritime collison law.
The maritime doctrine of restitutio in integrum calls for
restoration of Bahia Sucia to its condition prior to the spill.
The Baltimore v. Rowland, 75 U.S. 377, 385 (1869); Barger v.
Hanson, 426 F.2d 640 (C.A. 9th 1970); Standard Oil Corp. v.
Southern Pacific Co., 268 U.S. 146 (1925); National Steel
Corp. v. Great Lakes Towing Co., 574 F.2d 339 (C.A. 6th
1978).
As recognized by the Court of Appeals, states may seek
damages for injury to all natural resources, including those not
generally traded commercially (37a-42a). As noted by the
Court of Appeals, the course of recent Federal legislation in
the area of oil pollution allowing representatives of any State
to act on behalf of the Public Trust of the natural resources to
recover for the cost of replacing or restoring such resources fur-
ther shows the incompatibility of the diminution rule in
recovery for environmental damages.'® (37a-38a). Contrary to
defendants’ assertion, a State’s claim is not precluded or
limited by Section 311 of the Clean Water Act. 33 U.S.C. 1321
'® Although these statutes came into effect after the trial, this
Court has stated that environmental protection statutes may provide
useful guidelines for interpreting the common law. Illinois v.
Milwaukee, 406 U.S. 91, Note 5 (1972).
29
Complaint of Steuart Transportation, 435 F.Supp 798 (E.D.
Va. 1977), affd. Steuart Transportation Co. v. Allied Tow-
ing, 596 F.2d 609 (C.A. 4th 1979); In Re Complaint of Allied
Towing, 478 F.Supp 398 (E.D. Va. 1979).
Defendants have requested that a Writ of Certiorari be
granted, alleging that the rejection of the diminution rule by
the District Court and the Court of Appeals is in direct ir-
reconcilable conflict with other decisions of other Court of Ap-
peals. This statement is incorrect. Defendants have not
cited one single case in which a Federal court has held that a
state or its designated agency is limited to the diminution in
the value of the real property when seeking compensation for
the damages caused to its natural resources.
The cases cited by defendants in support of the “diminution
value” rule merely restate common law principles for measur-
ing losses resulting from injury or destruction of marketable or
commercial property but are entirely inapprorpriate for
measuring the damage society suffers when valuable living
non-commercial resources are destroyed. As defendants are
forced to admit (p. 20 of the Petition) when property has a
special significance damage claims are not constrained by the
diminution of market value. Restatement (2nd) of Torts, Sec.
929 (1)(a) Comment B (1979). DeSpirito v. Bristol County
Water Co., 102 R.I. 50, 227 A.2nd 782 (1967) (damage for
destruction of wearing apparel not limited to market value);
Rector Wardens & Vestry of St. Christopher's Episcopal
Church v. C. 8. McCrossan Inc., 306 Minn. 535, 235 N.W.2d
609 (1975) (damage for destruction of shade tree not limited to
market value diminution of land); see also Stephenville N.&
S.T.Ry. Co. v. Baker (Texas Court of Civil Appeals) 203 S.W.
385 (1918) and Louisville & Nashville R. Co. v. Beeker, 126
Ky. 328, 103 S.W. 300 (1907); Levi v. Schwartz, 201 Md.
575, 95 A.2nd 322 (1953) (replacement costs in excess of
market value diminution awarded for loss due to removal of
lateral support). (39a)
30
The special significance and importance that Puerto Rico
has placed on its limited natural resources cannot be
overstated. Sec. 19 of Article VI of the Commonwealth’s Con-
stitution provides that:
“It shall be the public policy of the Commonwealth to
conserve, develop and use its natural resources in the
most effective manner possible for the general welfare of
the Community.”
The Commonwealth is entrusted with the control of all the
beaches and maritime terrestial zone abutting the navigable
waters of Puerto Rico as well as the living and non-living
resources there located, for the benefit of the People. 48
U.S.C.A. 746, 747, 749, 12 L.P.R.A. 43, 44. Because of the
importance of these coastal areas and the natural resources
they contain, these areas are not susceptible to private owner-
ship, and, therefore, they cannot have a market value as does
marketable or commercial property. 31 L.P.R.A. 1023.
For the foregoing reasons it is submitted that coastal
resources such as those in Bahia Sucia having special
significance to the People of Puerto Rico, damage claims to
said natural resources are not constrained by the diminution of
market value of the real estate, and in accordance with Section
11(29) of the Puerto Rico Environmental Act, the Com-
monwealth has a right to recover the total value of the
damages caused to the environment and/or its natural
resources.
31
CONCLUSION
For the foregoing reasons it is respectfully submitted that
the Petition for a Writ of Certiorari to the United States Court
of Appeals for the First Circuit should be denied.
Respectfully submitted,
NICOLAS JIMENEZ
G.P.O. Box 6104
San Juan, Puerto Rico 00936
(809) 767-1030
Attorney for Respondents
Of Counsel,
WILLIAM A. GRAFFAM
JiMENEz & FusTE
G.P.O. Box 6104
San Juan, Puerto Rico 00936
32
APPENDIX A
In Tue Unirep States Districr Court
For Tue Districr Or Puerto Rico
Civil Number: 252-73
THE COMMONWEALTH OF PUERTO RICO and the
ENVIRONMENTAL QUALITY BOARD OF THE
COMMONWEALTH OF PUERTO RICO
Plaintiffs
v.
THE S.S. ZOE COLOCOTRONI, her engines,
appurtenances, etc., et al.,
Defendants
ORDER
Pursuant to the Orders of the United States Court of Ap-
peals for the First Circuit, April 24, 1979 and June 11, 1979,
Defendants have filed two Motions under Rules 60(a) and (b)
of the Rules of Federal Procedure, 28 U.S.C., for the correc-
tion of clerical mistakes and the vacating of Judgment. In the
present Order we entertain both Motions.
Separate analysis of each follows below.
I. The Rule 60(b) Motion.
Although Rule 60(b) is a liberal remedial rule which draws
on the historical authority of a court to avoid injustice it has its
time, place, and circumstances. See gen.: 7 Wright & Miller,
Federal Practice and Procedure, §2857 et seq. 7 Moore's
Federal Practice, §60.18(8)-§60.24(5). It is not an invitation
for a de novo assestment of the evidence, Williams v. McKen-
zie, 576 F. 2d 566, 570 (C.A. 4, 1978), or an opportunity to
relitigate, Posttape Associates v. Eastman Kodak Company,
68 F.R.D. 323 (E.D.Pa., 1975), nor is it a substitute for an ap-
peal, Fackelman v. Bell, 564 F. 2d 734 (C.A. 5,1977). Extraor-
dinary relief, such as contemplated by Rule 60(b), calls for ex-
33
ceptional circumstances. See: Horace v. St. Louis
Southwestern Railroad Company, 489 F. 2d 632 (C.A. 8,
1974).
In the instant action Defendants, citing different parts of
the record and proceedings, have filed for relief from a judg-
ment which in their view should not stand because of newly
discovered evidence, surprise, mistake, fraud, and
misrepresentation and misconduct by Plaintiffs.
Central and foremost in Defendants claims of entitlement to
relief is the argument that a mistake was committed in the
calculation of the area which sustained damage. From this,
Defendants follow that the calculations as to the total animal
and plant destruction must also be erroneous. In our decision
of August 29, 1978 we made a finding of damage to marine
organisms in approximately 20 acres and damage to mangrove
area covering about 23 acres. We believed then, as we do now,
that our study of the evidence submitted and our examination
during the on site inspections justified such a finding. Nothing
added by Defendants as an afterthought convinces us to the
contrary.
As further grounds for relief Defendants state that they were
surprised, misled, and misrepresented to by Plaintiffs. Surprise
is claimed on the specifics of Plaintiffs’ theory of recovery.
Misrepresentation is alleged on the nature and source of
authority for such a theory. Defendants state they were misled
when Plaintiffs changed their claim for relief. With respect to
these contentions we simply state that the amended complaint
sufficiently put Defendants on notice as to what it was that
compensation was sought for, and that the record of discovery
proceedings would reveal that Defendants had adequate
notice as to what this compensation encompassed. We cannot
label these contentions a “surprise” if Defendants chose not to
further investigate, pursue, or follow up on information it had
received in the pleadings and during discovery.' Nor can we
' Curiously enough no allegation is made under the “excusable
neglect” provision of Rule 60(b).
34
iabel them “misleading” if Defendants chose to disbelieve and
pursue another avenue of litigation strategy. “Rule 60(b) is not
to be invoked to give relief to a party who has chosen a course
of action which in retrospect appears unfortunate or where er-
ror or miscalculation is traceable really to a lack of care.”
Sadowsky v. Bombardier Ltd., 530 F. 2d 615, 618 (C.A. 7,
1976).
The argument that Plaintiffs misrepresented their theory of
recovery is close to the argument that we erred in the method
we adopted to calculate the amount of damages. The gist of
both is that there is no authority for such a formula for relief
and that Plaintiffs’ witness misrepresented that there was.
In the present action we have found a recoverable wrong. It
is an ancient, elementary, and hardly novel principle of law,
that a transgressor correct or compensate that party which he
has injured.* Where the assestment of the amount of recovery
is a complex question by reason of the facts and the relative
newness of the field in question, the Court’s task will un-
doubtedly be more difficult. But this can hardly excuse the
fashioning of an adequate remedy. And in terms of difficulty,
we cannot compare the present case’s situation with that en-
countered in the valuation of human life or limbs, an everyday
occurrence in the courts, on which subject no aid is received
from available catalogues.°
The law knows no magic formula for computation of an
award of damages.‘ What is required is only that damages
* See gen.: Wigmore, “Responsibility for Tortious Acts: Its
History”, 7 Harv. L. Rev. 315, 1383, 448 (1894).
> Note: 74 Am.Jur. 2d., Torts, §74.
‘ Upon close examination the method we adopted is in fact no
radical deviation from traditional norms. In most general terms
damages for “physical harm to [property] is closely tied with the
concept of value... Value necessarily involves the idea of some stan-
dard by which it can be determined. What we are looking for is the
financial equivalent of the property or the harm to it. ... The theory
underlying this is that the Plaintiff, given his financial equivalent,
35
awarded have their bases in the evidence presented before a
Court. Here there was sufficient evidence to sustain our fin-
dings. We are of the opinion that the method used, the “lowest
possible replacement cost”, has support in the record and is a
fair and equitable method of assessing damages under the par-
ticular setting of this case. To the extent the Defendants argue
that the method of damage computation is a judicial mistake,
that we wrongly decided a point of law, the issue is technically
the proper subject for adjudication on appeal rather than
review on a Rule 60(b) Motion. See: Silk v. Sandoval, 435 F.
2d 1266 (C.A. 1, 1971) cert. den. 402 U.S. 1012 (1971).
The last areas of concern in Defendants’ Motion for relief
concern the scientific accuracy of tests performed and submit-
ted into evidence and objected references to certain catalogues
which set or did not set market values on the organisms
destroyed in the case before us. With respect to these points
Defendants have submitted: the report of an expert done after
the entry of Judgment, and affidavits from nine persons in-
volved in some facet of the biological supply field. Both sub-
missions are impressive examples of steps that should have
taken place prior to trial. During trial these concerns should
have properly been the subject of cross examination and rebut-
tal evidence. The “mere second thought” of a litigant does not,
however, compel Rule 60 (b) relief. Mayberry v. Maroney,
529 F. 2d 332, 337 (C.A. 3, 1976). Having examined Defen-
can go out on the open market and replace the property by buying
other property freely offered for sale.” Prosser, Cases and Materials
on Tort (Foundation Press, 1971) p. 1069. The validity of this
general principle is not diminished by the uniqueness of the market
or the non-salability of the object. See Id., at p. 1071. Just as Defen-
dants argue that the “lowest replacement cost” is unfound as
resulting in too high an award, Plaintiffs may argue that it was too
low. Arguments of this type fall under no category of relief under
Rule 60(b).
36
dant’s materials® we find nothing that would move us to alter
our original decision.
II. The Rule 60(a) Motion.
Defendants sought, and were granted, leave to file a Rule
60(a) Motion, correction of clerical mistakes, and instead now
seek relief more properly brought pursuant to Rule 10(e) of the
Fed.R.App. P. The issue, succinctly, is the correction of the
record on appeal.
Under Rule 10(e) the parties may by stipulation direct that
an omission or misstatement be corrected. From Defendant's
Motion and Plaintiffs’ opposition we find that such is the case
with respect to six of the contested items that make up the
record on appeal. The following, on stipulation, shall be
STRICKEN from the record.
(1) Exhibit 50 a Transcript of Trial Cr. 61-73.
(2) Exhibit 50 b Certified copy of Information and Judgment
in Criminal 61-73.
(3) Exhibit 39 The Ecology of A Mangrove (Booklet)
(4) Exhibit 43 Mangroves cf Arid Environments in P.R.
(Booklet)
(5) Exhibits 2C a and 20 c Field Notes.
(6) The items listed in the Supplemental Index transmitted to
the Court of Appeals on May 1, 1979.
All other issues regarding this Motion deal with whether or
not the items in dispute were admitted into evidence. Defen-
dants seek correction of the record by striking these items.
Plaintiffs oppose by stating that they were admitted. Counsel
for Defendants has filed an affidavit wherein he states that it
5 A great deal of Defendants’ documents,reports, affidavits, and
other exhibits are filed as “newly discovered” evidence. Although we
have examined and considered them on ruling on this Motion we
have serious reservations that they qualify as that type of “evidence
which by due diligence could not have been discovered in time to
move for a new trial”, or that with due diligence could not have
been presented at trial. Cf. Posttape Associates v. Eastman Kodak
Company, supra at p. 327.
37
was his understanding that under this Court’s Order he was to
meet with opposing counsel and the Courtroom Clerk and
mark proposed exhibits for identification purposes only. This
was not the Order of this Court. Further this is a completely
and totally erroneous interpretation of the same. The parties
were to mark items as to which there was no objection as Ex-
hibits; if there was an objection to its admissibility it was to be
marked as an identification. See esp.: pages 122-123 of the
transcript of Trial Proceedings. This is part of the Local Rules
of this Court, see Local Rule 9, and it has always been the
operating policy of this Judge.
For all the above-cited reasons the Motion for Relief from
judgment, Rule 60(b), is DENIED. The Motion for Correction
of the Record, except as otherwise stipulated and noted in this
Order, is DENIED. The Clerk of the Court is instructed to in-
sure that the Clerk of the Court of Appeals for the First Circuit
and all counsel of record are expeditiously notified.
IT IS SO ORDERED. -
In San Juan, Puerto Rico, this 8th day of August, 1979.
/s/ JUAN R. ToRRUELLA
Juan R. TorRUELLA
U. S. Districr Court JupcE
38
APPENDIX B
THE WEST OF ENGLAND SHIP OWNERS MUTUAL
PROTECTION & INDEMNITY ASSOCIATION
(LUXEMBOURG)
To Members and Correspondents
The day-to-day business of The West of England (Luxem-
bourg) is managed by The West of England (London) to
whom all correspondence should be addressed. The Associa-
tion does not appoint agents. Commercial and also legal firms
are, however, appointed in the principal ports of the world in
order to assist Masters and Ship’s Agents when required, in
relation to claims which fall within the scope of the cover af-
forded to its Members by the Association, as set out in the
Rules.
A list of these correspondents is included in the Book of
Rules, a copy of which is issued to Owners and Master of each
vessel entered in the Association, and also to the said cor-
respondents.
When assistance is required in United Kingdom ports,
Masters or Ship’s Agents should contact tho Association’s
Managers in London who will, if necessary, arrange for legal
and/or technical assistance to be provided at the port con-
cerned.
In ports where both commercial and legal firms have been
appointed, the former should, in the first instance, be con-
tacted by Masters or Ship’s Agents. If the matter is one which
the commercial representatives consider requires the Interven-
tion of lawyers, they will make the nccessary arrangements
with the Association’s local lawyers, or with lawyers of their
own choosing, if the Association has no appointed legal
representative.
It is very desirable that there should be the closest liaison
between the respective correspondents in a port, and although
the assistance of lawyers should not be sought unnecessarily,
39
where the matter concerned involves (or may involve) the
vessel in a substantial claim, or where the circumstances pre-
sent particular difficulties, the Association’s lawyers should be
consulted promptly in order that a thorough investigation can
be conducted while the vessel is still in port.
The general requirements of the Association from its cor-
respondents is that they fully investigate the circumstances
relating to the matter on which they have been consulted, ob-
taining full statements from the ship’s officers and/or crew and
independent witnesses (if any). Where necessary, competent
surveyors should be engaged in conjunction with the ship’s
agents.
Advice should be given to the Master about any procedural
steps which should be taken by him to protect his, or his
Owners’ position, in accordance with local or statutory law,
e.g. Noting Protest.
Arrangements should be made to obtain authenticated
abstracts from the log books relating to the matter under in-
vestigation, and in the case of claims for damage and/or loss of
cargo such abstracts should cover the whole of the voyage, i.e.
from the loading of the cargo to its discharge.
When investigations have been completed a full report
should be made to the Association’s Managers in London
together with the witnesses’ reports etc. The Association
welcomes the views of its correspondents as to, (1) the cause of
the accident or loss and (2) the legal responsibility of the ship.
In no case should liability be admitted or any payment
made unless authorised by the Association.
It should be pointed out that although, generally speaking,
the vessels entered in the Association are owned by the
Members concerned, and claims made against them would be
in their capacity as Owners, the Association also accepts en-
tries on behalf of Time Charterers and Voyage Charterers.
The vessels which are the subject of such entries do not appear
in the printed list of vessels, but the Master should have in his
40
possession evidence of entry in the Association. Cor-
respondents can always obtain confirmation of the Associa-
tion’s interest by cabling direct to the Association’s London
Managers.
In some cases the Association has entries for both the
Owners and the Charterers of a particular vessel.
The list of vessels entered in the Association as issued to cor-
respondents should be regarded as no more than a guide—
vessels may be withdrawn from, or new vessels entered in, the
Association after the list is printed. Special terms of entry app-
ly to some members under which certain risks are excluded or
subject to special deductibles.
It is therefore essential that prompt advice of claims is given
to the Association’s London Managers in order that the extent
of its interest can be confirmed.
The attention of correspondents is drawn to Rule 19 which
sets out the deductibles applying to certain types of claims,
and to Rule 16 which lays down the conditions under which
costs and expenses may be recovered from the Association. It
will be noted that such costs, etc., are only recoverable in
respect of claims for which the Association has (or could have
had) liability. It follows, therefore, that costs and expenses in-
curred in respect of claims for which the Association could
never have had any liability are not recoverable from the
association. Where such claims are referred to correspondents
for their attention they should point out to the Members or
their agents that, as the Association’s liability is not involved,
their advice and assistance is provided on the understanding
that their charges will be for account of the Members con-
cerned. It may help to avoid misunderstanding to set out the
rules of practice which we apply.
(1) If the ship concerned is named in our list, the Club
will pay direct to the Correspondent his fee and
disbursements, provided only that the service he
rendered was in respect of a matter within the
41
terms of a full cover; but
(2) Every Correspondent is required to give the Club
notice of a new case as soon as possible. If the ship
concerned is named in our list but the matter for
which a Correspondent has rendered a service is ex-
cluded from that ship’s cover by a special term,
(e.g. a special deductible), the Correspondent will
be so informed in the Club’s reply.And in that event
the Club will send the Member a copy of the Cor-
respondent’s letter, at the same time advising him
that the Club is not concerned and that the cost of
handling the case will be for his account. The Cor-
respondent, if he wishes to continue to handle the
case, is recommended to write to the Member also,
asking whether the Member wants him to carry on
with the case. The Club will pay direct to the Cor-
respondent his charge for services reasonably
rendered until the time he received the Club’s
reply, provided that there was no unnecessary delay
in giving the Club notice of the case. Notwithstan-
ding this payment the Member remains responsible
to reimburse the Club; and
(3) As our list of entered ships is published only once a
year and it is not practicable to circulate amend-
ments from time to time, it might well happen that
a Member or Agent of a ship that is not named in
our list rightly insists that she is nevertheless entered
with the Club. In such cases Correspondents are
recommended to telex us for instructions and
render any service that cannot await our reply.
Even if the ship is not entered, the Club will pay
the Correspondents for any charge reasonably in-
curred before our reply is received.
Correspondents should submit their accounts to the Associa-
tion as promptly as possible after completion of the case or
42
when their services are no longer required in relation to the
matter concerned.
In the event of a vessel being arrested (or threatened with
arrest) and bail or other security required to obtain the vessel's
release, the Association may, in its sole discretion, provide
such bail or security on application being made to the Associa-
tion’s Managers in London. No bail or other security should be
provided on behalf of the Association, without the express
authority of the Association first being obtained.
CARGO CLAIMS. It is sometimes assumed by the Charterers’
Agents that because a vessel is entered in the Association by
the Owner, the Association’s correspondents should advise on,
and/or approve payment of, cargo claims. If under the terms
of the Charter Party the Owners are relieved of liability for
cargo claims, and the Charterers have not covered their cargo
risks with the Association, the Charterers’ agents should be
referred to their Principals for instructions.
As a general rule it is not necessary that minor cargo claims
of a routine nature (e.g. shortages) be submitted to the
Association’s correspondents. Before settling such claims,
however, ship’s agents should be satisfied that the ship’s liabil-
ity is involved and the amounts claimed do not exceed the car-
rier’s contractual or statutory limit of liability. The Associa-
tion’s correspondents should be consulted in all cases where the
ship may be involved in a heavy cargo claim, and in dealing
with such claims, correspondents should bear in mind the bill
of lading conditions and exceptions and the established law
relating to such claims. Where the bill of lading incorporates
the terms, conditions and exceptions of the Charter Party a
copy of the latter document can usually be supplied by the
Master for inspection. If, however, it is not available the cor-
respondents should advise the Association’s London Managers
who will obtain a copy and advise them as to liability of
Owners and/or Charterers.
Correspondents should not approve claims for settlement
43
without first satisfying themselves that the sum claimed is not
in excess of any limitation provided by the bill of lading.
Where damage to cargo occurs a surveyor should be ap-
pointed to attend aboard the ship with a view to ascertaining
the cause and extent of the damage. If the Master anticipates
that the cargo has suffered damage, he should radio his
Owners to this effect, in order that the Association can ar-
range, through its correspondents, for a surveyor to attend
aboard immediately on arrival of the vessel.
Surveyors representing cargo interests should not be allowed
abocrd unless accompanied by the ship’s surveyor and the
ship’s agent. In this respect it should be mentioned that
surveyors appointed by Lloyds Agents almost invariably repre-
sent cargo interests.
Where cargo has been damaged by water which has ob-
tained entry to the cargo compartment through a broken pipe
or valve and it is found necessary for a renewal to be made the
old part should be carefully preserved so that, if required, it
can be produced as evidence in the vessel’s defence.
In respect of cargo carried on deck, claims for damage
and/or loss of deck cargo should be rejected by reference to bill
of lading clauses and conditions.
Where there is evidence that deck cargo has been lost over-
board during heavy weather the Master should be advised to
Note Protest, and the consignees supplied, if required, with
copy of the Protest and relevant log extract to enable them to
claim on their Insurers.
CUSTOMS PENALTIES. The Customs Regulations of all
Countries are designed primarily to protect the State from
infringements of its rights and statutes, both from inside and
outside of the Country, and are of necessity very wide in their
application.
It follows, therefore, that the import vessel is the object of
particular attention by the Customs Authorities and all shipp-
ing documents are closely scrutinized. As a result any errors in
44
Manifests as to quantity or description of goods on board may
result in heavy fines being imposed on the vessel. Failure to ac-
curately manifest all dutiable goods whether owned by the
ship, crew or passengers invariably involves the imposition of
not only heavy fines, but also confiscation of unmanifested
property, in some countries it is an offence for a vessel to enter
a port when she has been “constructed, adapted, altered or fit-
ted for the purpose of concealing goods”.
It is a requirement in certain countries that ship’s
documents, such as Crew List, bill of Health, etc., must be
visaed by their Consuls at loading ports and/or the last port of
‘call, and failure to do this involves the vessel in a penalty on
arrival at the discharging port.
Members should, therefore, impress upon their Masters and
Agents the necessity of fully acquainting themselves, before or
at the time of loading, with the relative Customs requirements
at the port or ports of discharge, and that all documentation
complies with such requirements.
In the event of a fine being imposed on the vessel, the
Association’s correspondents should immediately be consulted
by the ship’s agents, in order that they can consider whether a
petition should be made to the Director of Customs for
cancelation of or a reduction in the fine.
PERSONAL INJURY AND SICKNESS CLAIMS. When
medical assistance is required, Masters and/or ship’s agents
should apply to the Association's local correspondent.
If hospital treatment is necessary the Association’s cor-
respondent will give advice as to a hospital whose charges are
considered reasonable. Private Clinics should, as a general
rule, be avoided.
All medical and hospital accounts (exceeding 450) must be
submitted to the Association’s correspondent for approval
before payment, in order to avoid overcharges. Accounts ap-
proved for payment by the Association’s correspondents should
be endorsed as follows:
45
“Examined and approved for payment subject to the con-
ditions of the vessel’s entry in the West of England Steam-
ship Owners Protection and Indemnity Association Ltd.”
If an account is considered excessive and a suitable reduction
cannot be obtained, such account should be endorsed to the ef-
fect that it is considered excessive and the Association advised
accordingly.
All serious accidents to members of the crew, and all in-
juries, no matter how trivial they may appear to be, suffered
by passengers, longshoremen or third parties should be
reported to the Association’s correspondents in order that the
correspondents may, at their discretion, conduct on-board in-
vestigations into the cause and circumstances of the accident.
Such statements should contain details of any witness con-
cerned, to enable him to be contacted if this should become
necessary. In the case of crew members, the man’s home ad-
dress and the official number of his Seaman’s Book of Service
should be quoted. The greatest care must be exercised to pre-
vent any part of the ship’s gear (the breakage or failure of
which may have caused or contributed to the accident), from
being removed from the ship by any unauthorised person.
Such gear should, immediately following the accident, be
taken out of use and, in the case of portable gear such as ropes,
wires or blocks, be handed to the Association’s correspondents
at the earliest possible moment, in case it is required for ex-
amination by a Specialist to determine the cause of the failure,
and/or for forwarding to the place where claim is subsequently
brought. Where the broken gear is a part of the vessel’s struc-
ture, or is not easily removable ashore, the Association’s cor-
respondents/lawyers investigating should arrange for the
defective part to be properly surveyed and photographed. In
the event that a claim arising out of the accident is intimated,
the Association’s London Managers should immediately be in-
formed with the fullest possible details and should be kept
closely advised regarding all developments.
46
When an officer or seaman is left behind, the ship’s agents
should be instructed to arrange for the man’s repatriation on
the cheapest terms available. Provision is made under the
British Merchant Shipping Acts (Distressed Seamen’s Regula-
tions) for a seaman from a British vessel to be sent home as a
Distressed British Seaman (D.B.S.) on a conveyance order
issued by the Consul or Shipping Master. Every effort should
be made to obtain this means of repatriation. Seamen from
foreign vessels can often be sent home on another vessel of the
same flag at victualling rates, by arrangement with the Master
or Owner concerned.
Where is it necessary, for any reason, to repatriate crew
members by air, excess baggage charges should, where possi-
ble, be avoided or otherwise kept to a minimum. This can be
achieved by forwarding any heavy articles, not immediately
and necessarily required, by sea as personal effects.
STOWAWAYS. When stowaways are discovered on board
subsequent to sailing, the Master should immediately radio the
ship’s Agents at the next scheduled port of call: -
(1) The stowaway’s port of embarkation, date of sail-
ing from that port and place and estimated date of
arrival at next port of call.
(2) Full particulars of stowaway: -
(a) Full names.
(b) Last known address prior to stowing away.
(c) Date and place of birth. ,
(d) Nationality claimed by stowaway.
(e) Full names and last known address of wife,
parents or next-of-kin.
(f) Details, including description. Official number
and date and place of issue of any Passport or
other identification document in the
stowaway ’'s possession.
If the vessel is due to arrive at her next scheduled port of call
within a few days of discovery of the stowaway, the above in-
47
formation should also be repeated by radio to the Association's
correspondents (either direct or via the ship’s agents) at that
port, thereby enabling our correspondents to advise their local
Immigration Authorities of the man’s impending arrival, and
to make any necessary arrangements for his custody on board,
or ashore, whilst the vessel is in port.
In the event that the stowaway possesses a valid passport or
other identification documents, the Association’s cor-
respondents should make immediate application to the local
Consulate of the country of which the man is, or claims to be,
a National, in order to obtain official permission for his re-
entry to that country. Where such permission is obtained, the
authority of the local Immigration Officials should be sought
for the stowaway to be landed from the ship with a view to his
deportation, at the first available opportunity, to the country
which has authorised his re-entry.
Since, in many instances, a stowaway does not possess any
valid identification or travel documents, and the possibility of
landing and effecting his deportation from the vessel's first
port of call is therefore remote. Owners or their Agents on
receipt of the Master’s radio advice should pass on to the
Association in London the full details received from the
Master, together with information concerning the vessel’s
future movements, i.e. future ports of call and estimated dates
of arrival in those ports, so that the Association may, through
its correspondents in the country of which the stowaway
claims to be a national, endeavour to obtain verification of his
claim and official permission and documents enabling him to
return to that country. Such documents and authority will,
when obtained, be forwarded in advance of the vessel’s arrival
with the stowaway on board, to our correspondents at a subse-
quent port of call, with instructions relative to the landing and
repatriation of the man from their port.
48
DESERTERS. In countries where the act of desertion by
members of the crew constitutes a breach of the local immigra-
tion Laws or Regulations which is punishable by a fine upon
the ship, the Master, if he has reason to suspect that any
member of his crew intends to desert, should notify the
Association’s local correspondents prior to or immediately on
arrival in port, thereby enabling the latter to make such ar-
rangements as may be required to prevent the man’s desertion.
In the U.S.A. the boarding Immigration Official may,
without giving reason for so doing, order any member(s) of the
crew to be detained on board throughout the vessel's stay in a
U.S. port. On service of a “Notice to detain” upon the ship, the
Master should inform the Association’s local correspondents
who will arrange for the employment of suitable shore guards
to prevent the detainee(s) from leaving the ship. Under no cir-
cumstances should a crew member be permitted to set foot
ashore until he has been cleared by the local Immigration
Authorities and been granted a landing permit. In the event
that, despite all precautions, a man does desert, the fact
should be reported immediately by the Master to the Associa-
tion’s correspondents and/or the ship’s agents so that Immigra-
tion Authorities may be notified—the earlier the Authorities
know of the desertion the greater are the chances of the
deserter being apprehended.
When a fine in respect of a deserter is levied upon a ship,
our correspondents should be notified when they will, in con-
junction with our local lawyers, take all possible steps to ob-
tain remission or mitigation of the fine imposed.
On a deserter being apprehended after the vessel has sailed,
the Association’s correspondents will assist the ship’s agents in
deporting the deserter at the minimum possible cost to the
shipowner.
49
THE WEST OF ENGLAND SHIP OWNERS MUTUAL
INSURANCE ASSOCIATION (LONDON) LIMITED
CLASS II—FREIGHT, DEMURRAGE & DEFENCE. The
scope of this Class is much wider than might be supposed from
the three items that are traditionally used to describe it. It may
be assumed that the Association is interested in almost any
matter affecting a ship entered in this Class, other than mat-
ters which are the concern of the P. & I. Association.
Members of the Class are covered by the Association only for
the costs and expenses incurred in prosecuting or defending a
matter that comes within it, and it is particularly important,
therefore, that correspondents should send the Association
reports regularly so that the Member may be kept informed of
the progress of the matter.
Whenever a Master of ship’s agent applies to a correspon-
dent for advice or assistance the correspondent should ascer-
tain whether the ship concerned is entered in this particular
Class by reference to the list of entered vessels. If there is any
doubt as to whether or not the vessel is entered, the correspon-
dent should write or cable to the Association, depending on
the urgency of the matter.
It is also important that the correspondent should send a
report to the Association on any matter which he receives
direct from the Shipowner, Master or ship’s agent, so that the
Association may be advised of the matter as soon as possible
and assume conduct of it. Before any action is taken involving
expense, correspondents should immediately communicate
with the Association so that its interests in the matter may be
confirmed and its approval of the proposed procedure given.
June 1971
50
APPENDIX C
LIST OF CORRESPONDENTS
Whils. the Association does not appoint agents, the follow-
ing are the names of experts and Lawyers usually engaged to
advise on claims in which the Association is concerned. Cap-
tains and agents should consult them in case of emergency and
difficulty connected with matters covered by the Rules of this
Association, when there is not time to apply to their owners for
instruction.
In ports where the Association is not specially represented
the Captain or his agents should communicate with the
Association or telegraph (“WESTENG” London) for instruc-
tions in connection with any serious claim covered by the
Rules.
Telegraphic Addresses shown thus: (Westeng).
Asterisk denotes Lawyers.
Abadan
Gray, Mackenzie & Co. Ltd. Telephone 2488 (Gray)
Abidjan
Societe Navale Chargeurs Delmas-Vieljieux. 17, Av. Louis Barthe,
P.O.B. 1281
Telephone 22-88-41 Telex 617 (Samled)
Acapulco
Agencias Maritimas del Pacifico, S.A., Presidente Miguel Aleman s/n.,
Muelle Fiscal, Acapulco, Gro.
Telephone 2-19-56 (Ammsa Acapulco)
Adelaide
*Finlayson & Co., Epworth Bldg., 33, Pirie St.
Telephone 86901 Telex AA 82779 (Galicia)
Luke, Thomas & Co. (Aden Shipping) Ltd., Steamer Point
Telephone 4861-4 (Thomas)
r
Societe Marocaine de Protection Maritime, c/o., Mr. Canal, Bungalow
Marhaba, Av.
Mohamed V. Telephone 31-52 Telex Somaf 21048 (Tranpeschaud)
Alexandria
*Abdel Hadi & Yansouni, 32, Bd. Saad Zaghioul, P.O. Box 152,
ALEXANDRIA
Telephone 21351 (Aicoss Alexandria)
51
Algiers & District
Almeria
Witty S.A., Plaza Medinaceli 5, BARCELONA
Telephone 222-07-70 Telex 54707
(Witty Barcelona)
Amsterdam
Phs. Van Ommeren (Amsterdam) NV., 120 De Ruijterkade, P.O.B.
1457
Telephone 6-22-88 (Esomins)
Van Der Faltz & Voute, Herengracht 499
Telephone 24-01-94 Telex 14291
(Addis)
Post & Co. N.V., P.O.B. 443, 93, Westersingel, ROTTERDAM
Telephone 36-20-33 (After hours (01804) 52-81) Telex 11277
(Jacspost Rotterdam)
Ancona
Humbert Kane, 2 Piazza S. Maria, P.O.B. 157
Telephone 24352 Telex 56069 Agebrok
(Kane)
Annaba
Raymond Barthelemy, 5, Rue de Flandre Annaba
Telephone 35-21 Telex 93040
(Expermari)
Antigua & Montserrat
*Sir Fred Phillips, C.V.O., LL.B., c/o, C.O.R. Phillips, O.C., Phillips
& Phillips, St. Mary Street, St. John’s, Antigua
Antofagasta
The Pacific Steam Navigation Company, Casilla 990
Telephone 21032 (Pacific Antofagasta)
Antwerp
M.F. Caethoven & Co. P.V.B.A., 37, Frankrijklei
Telephone 33-59-63 Telex 32370
(Caethoven)
pa
*Gerald Impey, Barclays Bank Chambers, 40, Marina, P.O. Box 2879,
Lagos, Nigeria
Telephone 26159 (Impey Lagos)
Aqaba
Abou Zeid & Nazzal, P.O.B. 194 AMMAN
Telephone 24104 (Nakel Amman)
Arica
Hansen y Cia. Ltda., Casilla 115 Telephone 31188 (Band Arica)
M. Dizengoff & Co. Ltd., (P & I section) P.O. Box 255.
Athens
*Deucalion Rediadis & Sons, 18/20, Anatasiou Tsoha Street, Athens
602
Telephone 662-719 (Derediadis Piraeus)
Commercial Representative
P.P.D. Holman, see Piraeus Telephone 676054
52
Auckland
*Hesketh & Richmond, 6th Floor, Norwich Union Bldg., Cnr. Queen
& Durham Sts. |
Telephone 20-389 (Herisco)
A
Ditta Carlo A. Ali, Via Dusmet 131, Catania, Sicily. P.O.B. 209
Telephone 214-922 (Expoship) or (Ali)
S. Tagliavia & Cia., c/o Frateli Bonanno, Via Garibaldi 3/5
Telephone 74319 (Tagilaviaco Augusta)
San Francisco
*McCutchen, Doyle, Brown, Trautman & Enersen, 601, California
Street, San Francisco 8
Telephone (415) 981-3400 (Macpag)
*Lillick, McHose, Wheat, Adams & Charles, (Claims Dept.), 500,
Sansome St.
Telephone (415) 981-8666 (Pandiclub)
San Juan (Puerto Rico)
*Hartzell, Ydrach, Mellado, Santiago, Perez & Novas, 1530 Banco
Popular Center Hato Rey, San Juan, P.R. 00918
Telephone (809) 765-6075 Telex CW-WUI 3654204 (Hartzell)
Santa Marta
W. Moller & Cia, Ltda., c/o Ricardo Fuentes Almaceny Fuentes,
Apartado Aereo 524
Telepnone 2067 (Mollercol)
Santos
L. Figueriedo S.A., Rua Visconde do Rio, Branco 2, Caixa Postale 813
Telephone 2-7135 Telex 22841 (Doralice Santos)
Savannah, Ga.
*Lawton, Sipple & Chamlee, 26, East Bryan Street, P.O. Box 9523,
Georgia 31402
Telephone (912) 232-3165 (Lawton)
*Connerat, Dunn, Hunter, Houlihan, Maclean, & Exley, Savannah
Bank & Trust Bldg., P.O. Box 9848
Telephone (912) 233-6685 (Ancan)
Savona
Alfredo Saidelli, Via Santorre di Santarosa 2-5
Telex 27531 Saidelli (Saidelli)
*Studio Mordiglia, 14-17, Via XX Settembre, GENOA
Telephone 581-848 (Name Genoa)
Sete
L. Thos. & Geo. Budd, P.O. Box 842 Colbert, 8, Rue Beauvau, 13
Marseilles (1 er)
Telephone 33.71.36 (Budd Marseilles)
Seattle
Howard, Le Gros, Buchanan & Paul, 2910 Seattle First National Bank
Building,
1001 Fourth Ave., SEATTLE
Telephone Main 3-4990 (Hufhay Seattle)
53
Seoul
Hyopsung Shipping Corp., P.O. Box 236, Kwang Hwa Moon, Seoul
Telephone 22-2442 (Hyopsung Seoul)
Seville
MacAndrews & Co. Ltd., Plaza de Calvo Sotelo, 5, Apartado 99
Telephone 22-67-76 Telex 72049 MCSEV (Macandrews)
Sfax
Societe Commerciale Tunisienne, Rue de Remada, P.O. Box 154
Telephone 21-400 Telex 512 (Socotu)
Gray, Mackenzie & Co. Ltd. (Gray)
Shimizu
Shimizu Shipping K.K., Kashiwa Bldg., No. 10, 4, Chome,
Minato-cho
Telephone 2-8201 (Shiship Shimizu)
pore
Boustead Trading SDN, BDH., P.O. Box 899 Maritime Bldg., Collyer
Quay
Telephone 913355 Telex RS 21010 (Bousmarine)
*Drew & Napier, 30/35 Chartered Bank Chambers, P.O. Box 152
Telephone 982633 (Jures)
Skikda
M. Andre Raynal, c/o Societe Algerienne de Navigation, Charles
Schiaffina & Co.,
P.O.B. 119 Telephone 56-24A20 Telex 90 075 (Navgeri)
Sousse
Societe Commerciale Tunisienne, Cours De La Marine
Telephone 12 (Socoto)
SPAIN
General Representatives:
Witty S.A., Plaza Medinaceli 5, Barcelona
Telex 54707 (Witty Barcelona)
Hector Alinghieri, 19, Via Vittorio Veneto
Telephone 31179 (Hector La Spezia)
*Studio Mordiglia, 14-17, Via XX Settembre, GENOA
Telephone 581-848 (Nemo Genoa)
St. John, New Brunswick
Furness, Withy éc Co. Ltd., 22, King St.
Telephone (506) 693-2613 Telex 014-47212 (Furness)
*Guss, Taylor & Gregory, Ritchie Bldg., 50, Princess Street
Telephone 693-2565 (Argus)
St. John’s Newfoundland
Bowring Bros. Ltd., Box 4100
Telephone (709) 578-0431 Telex 016-202 (Bowring)
St. Kitts/Nevis/Anguilla
*Sir Fred Phillips, C.V.O., LL.B., c/o, Mr. Denis Byron, Chambers,
Basseterre
54
St. Lucia
*Sir Fred Phillips, C.V.O., LL.B., c/o Mr. Vincent F. Floissac, Q.C.,
LL.M., Chambers, P.O. Box 601, Columbus Square, Castries,
St. Lucia, West Indies.
Telephone 2887 (Flody)
St. Malo-St. Servan
Follin, Delamaire & Fourcade, 9 Chausses des Corsaires, P.O.B. 179,
St. Malo (I & V)
Telephone 34-83-21 Telex 73.926 (Naval. St. Malo) (Ships. St. Malo)
St. Nazaire
S.A. Jokelson & Handtsaem, Bd. Leferme 44
Telephone 70-20-10 Telex 71.931 (Jokelson or Trouvemar)
St. Vincent (Cape Verde Isles.)
Millers & Corys, Cape Verde Islands, Ltd. St. Vincent
Telephone 418 (Orlop Sanvicentedecaboverde)
55
APPENDIX D
48 U.S.C.A. § 746. Public lands and buildings; reserva-
tions; rights prior to July 1, 1902.
All public lands and buildings, not including harbor areas
and navigable streams and bodies of water and the submerged
lands underlying the same, owned by the United States in the
island of Puerto Rico and not reserved by the President of the
United States prior to July 1, 1903, pursuant to authority
vested in him by law, are granted to the government of Puerto
Rico, to be held or disposed of for the use and benefit of the
people of said island. Said grant is upon the express condition
that the government of Puerto Rico, by proper authority,
release to the United States any interest or claim it may have in
or upon the lands or buildings reserved by the President as
mentioned herein. Nothing herein contained shall be so con-
strued as to affect any legal or equitable rights acquired by the
government of Puerto Rico or by any other party, under any
contract, lease, or license made by the United States
authorities prior to the lst day of May 1900, July 1, 1902, c.
1383, § 1, 32 Stat. 731; May 17, 1932, c. 190, 47 Stat. 158.
48 U.S.C.A. § 747. Public property transferred
All property which may have been acquired in Puerto Rico
by the United States under the cession of Spain in the treaty of
peace entered into on the 10th day of December, 1898, in any
public bridges, road houses, wa‘er powers, highways, un-
navigable streams and the beds thereof, subterranean waters,
mines or minerals under the surface of private lands, all pro-
perty which at the time of the cession belonged, under the
laws of Spain then in force, to the various harbor works boards
of Puerto Rico, all the harbor shores, docks, slips, reclaimed
lands, and all public lands and buildings not reserved by the
United States for public purposes prior to March 2, 1917, is
placed under the control of the government of Puerto Rigo, to
56
be administered for the benefit of the people of Puerto Rico;
and the Legislature of Puerto Rico shall have authority, sub-
ject to the limitations imposed upon all its acts, to legislate
with respect to all such matters as it may deem advisable. Mar.
2, 1917, c. 145, § 7, 39 Stat. 954; May 17, 1932, c. 190, 47
Stat. 158.
48 U.S.C.A. § 749. Harbors and navigable waters
transferred
The harbor areas and navigable streams and bodies of water
and submerged lands underlying the same in and around the
island of Puerto Rico and the adjacent islands and waters,
owned by the United States on March 2, 1917, and not reserv-
ed by the United States for public purposes, are placed under
the control of the government of Puerto Rico, to be ad-
ministered in the same manner and subject to the same limita-
tions as the property enumerated in sections 747 and 748 of
this title. All laws of the United States for the protection and
improvement of the navigable waters of the United States and
the preservation of the interests of navigation and commerce,
except so far as the same may be locally inapplicable, shall ap-
ply to said island and waters and to its adjacent islands and
-vaters. Nothing in this chapter contained shall be construed so
as to affect or impair in any manner the terms or conditions of
any authorizations, permits, or other powers lawfully granted
or exercised in or in respect of said waters and submerged
lands in and surrounding said island and its adjacent islands by
the Secretary of the Army or other authorized officer or agent
of the United States prior to March 2, 1917. Mar. 2, 1917. c.
145, § 8, 39 Stat. 954; May 17, 1932, c. 190, 47 Stat. 158; July
25, 1947, c. 343, Title II, § 205(a), 61 Stat. 501. |
12 L.P.R.A. § 43. Ownership of fish
All species of fish, mollusks, crustaceans, aquatic mammals,
aquatic plants and all other species comprising the marine,
57
lacustrine and fluvial fauna and flora, are hereby declared to
be the property of the Commonwealth of Puerto Rico and of
common ownership and public use. They may be freely fished,
caught, utilized, or traded, subject to the limtations of sections
41-63 of this title and of the regulations for their enforcement.
May 13, 1936, No. 83, p. 438, § 3 July 1, 1953, No. 118, p.
458, § Il, eff. July 1, 1953.
12 L.P.R.A. § 44. Jurisdictional waters
For the purpose of sections 41—63 of this title, the limit of
the jurisdictional waters of the Commonwealth of Puerto Rico
shall be three (3) miles from the shoreline of Puerto Rico and
the islands politically belonging thereto.—May 13, 1936, No.
83, p. 438, § 4; July 1, 1953, No. 118, p. 453, § III, eff. July 1,
1953.
31 L.P.R.A. § 1023. Common things defined
Common things are those the ownership of which belongs to
no one in particular and which all men may freely use in con-
formity with their innate nature, such as air, rain » ater, the
sea and its shores. —Civil Code, 1930, § 254.
CONSTITUTION OF THE
COMMONWEALTH OF PUERTO RICO
Art. VI §19. [Natural resources; historic or artistic sites; penal
institutions; delinquents]
It shall be the public policy of the Commonwealth to con-
serve, develop and use its natural resources in the most effec-
tive manner possible for the general welfare of the communi-
ty; to conserve and maintain buildings and places declared by
the Legislative Assembly to be of historic or artistic value; to
regulate its penal institutions in a manner that effectively
achieves their purposes and to provide, within the limits of
available resources, for adequate treatment of delinquents in
order to make possible their moral and social rehabilitation.
58
APPENDIX E
Clean Water Act, 33 U.S.C. 1321(f) (5)
“(5) The President, or the authorized representative of any
State, shall act on behalf of the public as trustee of the natural
resources to recover for the costs of replacing or restoring such
resources. Sums recovered shall be used to restore,
rehabilitate, or acquire the equivalent of such natural
resources by the appropriate agencies of the Federal Govern-
ment, or the State government.”
OCS Lands Act, 43 U.S.C. 1813(b)(3):
“...(3) under paragraph (2)(C), by the President, as trustees
for natural resources over which the Federal Government has
sovereign rights or exercises exclusive management authority,
or by any State for natural resources within the boundary of
the State belonging to, managed by, controlled by, or apper-
taining to the State, and sums recovered under paragraph
(2)(C) shall be available for use to restore, rehabilitate, or ac-
quire the equivalent of such natural resources by the ap-
propriate agencies of the Federal Government or the State,
but the measure of such damages shall not be limited by the
sums which can be used to restore or replace such
resources;...”
Florida (F.S.A. Sec. 376.11(5)(c) (1974):
“376.11 Florida Coastal protection trust fund
(1) The purpose of this section is to provide a mechanism to
have financial resources immediately available for cleanup
and rehabilitation after a pollutant has been discharged, to
prevent further damage by the pollutant, and to pay for
damages. It is the legislative intent that this section be liberally
construed to effect the purposes set forth, such interpretation
being especially imperative in light of the danger to the en-
vironment and resources. . .”
59
“(5) Moneys in the Florida coastal protection fund shall be
disbursed for the following purposes and no others:
(a) Administrative expenses, personnel expenses, and
equipment costs of the department related to the enforcement
of this chapter subject to § 376.18.
(b) All immediate costs involved in the abatement of
pollution related to the discharge of pollutants covered by this
chapter and the abatement of other potential pollution
hazards as authorized herein.
(c) All costs and expenses of the cleanup and rehabilita-
tion of water fowl, wildlife, and all other natural resources
damaged by the discharge of pollutants, whether performed
or authorized by the department or any other state or local
agency.
(d) All provable costs and damages which are the prox-
imate results of the discharge of pollutants covered by this
chapter.
(6) The department shall recover to the use of the fund from
the person or persons causing the discharge or from the federal
government, jointly and severally, all sums owed or expended
therefrom, pursuant to section 376.12(4), except that
recoveries resulting from damage due to a discharge of a pollu-
tant or other similar disaster shall be approtioned between the
Florida coastal protection trust fund and the general revenue
fund so as to repay the full costs to the general revenue fund of
any sums disbursed therefrom as a result of such disaster. Re-
quests for reimbursement to the fund for the above costs, if not
paid within thirty days of demand, shall be turned over to the
department of legal affairs for collection.
Amended by Laws 1974, c. 74-336, § 11, eff. July 1, 1974.”
Maryland (A.C.Md. Natural Resources Sec. 8-1411(f) (1974):
“(f) Maryland Oil Disaster Containment, Clean-up and
Contingency Fund—Established; purpose; reimbursement by
polluters; credits; debits.—There is a Maryland Oil Disaster
60
Containment, Clean-up and Contingency Fund for the
Department to use to develop equipment, personnel, and
plans; for contingency actions to respond to, contain, clean-
up, and remove from the land and waters of the State
discharges of oil, petroleum products, and their by-products
into, upon, or adjacent to the waters of the State; and restore
natural resources damaged by discharges. The cost of contain-
ment, clean-up, removal, and restoration shall be reimbursed
to the State by the person responsible for the discharge. The
reimbursement shall be credited to the Fund. The Fund shall
be limited to the sum of $1,000,000. To this sum shall be
credited every license fee, fine, if imposed by the circuit court
for any county or the Criminal Court of Baltimore, as the case
may be, and any other charge related to this subtitle. To this
Fund shall be charged every expense the Department has
which relates to this section.
(1975, ch. 851; 1976, ch. 436; 1977, ch. 784, § 5.)”
Massachusetts (M.G.L.A. c.21 Sec. 27(14) (1973):
Ҥ 27. Powers and duties of division
It shall be the duty and responsibility of the division to
enhance the quality and value of water resources and to ex-
tablish a program for prevention, control, and abatement of
water pollution. Said division shall:...”
“(14) Undertake immediately whenever there is spillage,
seepage or other discharge of oil or hazardous material into or
proximate to any of the waters of the commonwealth or into
any offshore waters which may result in damage to the waters,
shores or natural resources utilized or enjoyed by citizens of
the commonwealth to cause said spillage, seepage or discharge
to be contained and removed by whatever method it considers
best. Chemicals shall not be used in the cleanup operation of
oil or hazardous material spills unless their use has been
authorized by the division, and if a public water supply or
4.
61
shellfish beds may be affected, by the department of public
health. In this clause, the word “oil” shall mean insoluble or
partially soluble oils of any kind or origin or in any form in-
cluding, but not limited to, crude or fuel oils, lube oil or
sludge, asphalt, insoluble or partially insoluble derivatives of
mineral, animal or vegetable oils.
The division shall determine the person responsible for caus-
ing such spillage, seepage or discharge and the names of all
persons who owned or controlled the oil or hazardous material
or who owned or controlled or leased the vessel, tank, pipe,
hose or other container in which the oil or hazardous material
was located when the spillage, seepage or discharge occurred.
Said persons shall be jointly and severally liable to the com-
monwealth for all costs and expenses incurred by the division
in making such investigation, and in containing and removing
the oil or hazardous material, and shall be jointly and severally
liable to the commmonwealth for all damages done to natural
and recreational resources, including all costs of restoring
damaged areas to their original condition, and to any other
person for any damages to his real and personal property. The
person responsible for causing such spillage, seepage or
discharge shall be punished by a fine of not more than ten
thousand dollars for each day such spillage, seepage or
discharge continues, or by imprisonment for not more than
two years or both.
Upon request of the director, the attorney general shall
bring an action to recover all costs and expenses incurred for
such investigation, containment, removal, and restoration.
Such costs and expenses shall be recovered in an action of
tort, and shall be credited to the account from which said sums
of money had been advanced and may, subject to appropria-
tion, be expended by the division for the purposes set forth in
this clause. In any such action the commonwealth may also
seek recovery for all loss and damage to the natural and recrea-
tional resources of the commonwealth.
62
Any owner or operator of a vessel, vehicle, railroad car or
facility used for the production processing, transportation,
transfer or storage of oil or hazardous material shall, as soon as
he has knowledge of any such spillage, seepage or discharge of
oil or hazardous material into or proximate to waters of the
commonwealth, promptly notify the director of the division or
his representative of such discharge. Any person who fails so to
notify the director or his representative of such discharge shall
be punished by a fine of not more than five thousand dollars.
Any person who removes oil as defined in this clause, or
hazardous material, as defined in section twenty-six A, from
the waters of the commonwealth or adjoining shorelines shall
be entitled to reimbursement from any other person for the
reasonable costs expended for such removal, if such oil or
hazardous material resulted from the negligence of two or
more persons, each shall be liable to the others for his pro rata
share of the cost or removal.
Any person who gratuitously renders assistance at the re-
quest of a duly authorized officer in removing oil or hazardous
material from the waters of the commonwealth or adjoining
shorelines shall not be held liable, notwithstanding any other
provision of law, for civil damages as a result of any act of
omission by him in removing such oil or hazardous material,
except acts or omissions amounting to gross negligence or
willful or wanton misconduct.
Amended by St.1973, c. 546, § 3; St. 1979; c. 705, § 2.”
Mississippi (M.A.C. Sec. 49-27-55 (1979 Supp.)):
“§ 49-27-55. Civil liability of violators — restoration —
punitive damages — mandatory injunction — jurisdiction of
circuit or county court — remedies preserved.
(a) Any person who violates the provisions of this chapter
shall be liable to the State of Mississippi for the restoration of
all affected coastal wetlands to their condition prior to such
63
violation, insofar as such restoration is possible, and for any
and all damages to the wetlands. The appropriate chancery
court by writ of mandatory injunction shall allow a reasonable
time for completion of the restoration and may, in its discre-
tion, order as punitive damages a sum not to exceed fine hun-
dred dollars ($500.00) per day for each day such violation has
existed. The said chancery court may further order as punitive
damages a sum not to exceed five hundred dollars ($500.00)
per day for each day that the violation exists beyond the date
set by said court in its unjunction for the restoration of said
wetland. If injunctive relief is not sought, the appropriate cir-
cuit or county court shall have jurisdiction over any action for
damages and/or punitive damages as set forth in this
paragraph.
(b) Nothing in this chapter shall preclude other statutory or
common law remedies by public or private parties against
violators or nonviolators of this chapter.
SOURCES: Laws, 1973, ch. 385, § 8(d)(e), eff from and after
July 1, 1973.”
New Jersey (N.J.S.A. 58:10-23.11g(a)(2) 1979 Supp.)):
58:10-23.11g Liabilities for cleanup and removal costs and
direct and indirect damages
a. The fund shall be strictly liable, without regard to fault,
for all cleanup and removal costs and for all direct and indirect
damages no matter by whom sustained, including but not
limited to:
(1) The cost of restoring, repairing, or replacing any real or
personal property damaged or destroyed by a discharge, any
income lost from the time such property is damaged to the
time such property is restored, repaired or replaced, and any
reduction in value of such property caused by such discharge
by comparison with its value prior thereto;
(2) The cost of restoration and replacement, where possible,
of any natural resource damaged or destroyed by a discharge;
64
(3) Loss of income or impairment of earning capacity due to
damage to real or personal property, including natural
resources destroyed or damaged by a discharge; provided that
such loss or impairment exceeds 10% or the amount which
claimant derives, based upon income or business records, ex-
clusive or other sources of income, from activities related to
the particular real or personal property or natural resources
damaged or destroyed by such discharge during the week,
month or year for which the claim is filed;
New York (N.Y. Nar.L. 181(2)(b) (1979 Supp.)):
§ 181. Liability
1. Any person who has discharged petroleum shall be
strictly liable, without regard to fault, for all cleanup and
removal costs and all direct and indirect damages, no matter
by whom sustained, as defined in this section.
2. The fund shall be strictly liable, without regard to fault,
for all cleanup and removal costs and all direct and indirect
damages, no matter by whom sustained, including, but not
limited to:
(a) The cost of restoring, repairing, or replacing any real
or personal property damaged or destroyed by a discharge,
any income lost from the time such property is damaged to the
time such property is restored, repaired, or replaced, any
reduction in value of such property caused by such discharge
by comparison with its value prior thereto;
(b) The cost of restoration and replacement, where possi-
ble, of any natural resource damaged or destroyed by a
discharge;
(c) Loss of income or impairment of earning capacity due
to damage to real or personal property, including natural
resources destroyed or damaged by a discharge; provided that
such loss or impairment exceeds ten percent of the amount
which claimant derives, based upon income or business
records, exclusive of other sources of income, from activities
65
related to the particular real or personal property or natural
resources damaged or destroyed by such discharge during the
week, month or year for which the claim if filed;
(d) Loss of tax revenue by the state or local governments
for a period of one year due to damage to real or personal pro-
perty proximately resulting from a discharge;
(e) Interest on loans obtained or other obligations incur-
red by a claimant for the purpose of ameliorating the adverse
effects of a discharge pending the payment of a claim in full as
provided by this article.
North Carolina (N.C.G.S. Sec. 143-215.90 (1979 Supp.)):
§143-215.90. Liability for damage to public resources.
(a) Any person who discharges oil or other hazardous
substances in violation of this Article or violates any order, rule
or regulation of the Environmental Management Commission
adopted pursuant to this Article, or fails to perform any duty
imposed by this Article, or violates an order or other deter-
mination of the Environmental Management Commission
made pursuant to the provisions of this Article, including the
provisions of a discharge permit issued pursuant to G.S.
143-215.1, and in the course thereof causes the death of, or in-
jury to fish, animals, vegetation or other resources of the State
or otherwise causes a reduction in the quality of the Waters of
the State below the Standards set by the Environmental
Management Commission, shall be liable to pay the State
damages. Such damages shall be an amount equal to the cost
of all reasonable and necessary investigations made or caused
to be made by the Environmental Management Commission
in connection with such violation and the sum of money
necessary to restock such waters, replenish such resources, or
otherwise restore the rivers, streams, bays, tidal flats, beaches,
estuaries or coastal waters and public lands adjoining the
seacoast to their condition prior to the injury as such condition
is determined by the Environmental Management Commis-
66
sion in conference with the Wildlife Resources Commission,
and any other State agencies having an interest affected by
such violation (or by the designees of any such boards, com-
missions, and agencies).
(b) Upon receipt of the estimate of damages caused, the
Department shall give written notice by registered or certified
mail to the person responsible for the death, killing, or injury
to fish, animals, vegetation, or other resources of the State, or
any reduction in quality of the waters of the State, describing
the damages and their causes with reasonable specificity, and
shall request payment from such person. Damages shall
become due and payable upon receipt of such notice. Upon
written application to the Department within 30 days of
receipt of notice, the person assessed damages may request an
administrative hearing pursuant to G.S. 143-215.4. On such
hearing, the estimate of the replacement cost of fish or animals
or vegetation destroyed, and the estimate of costs of replacing
or restoring other resources of the State, and the estimate of
the cost of restoring the quality of waters of the State shall
be prima facie evidence of the actual replacement cost of fish,
animals, vegetation or other resources of the State, and of the
actual cost of restoring the quality of the waters of the State;
provided, that such evidence is rebuttable. In arriving at such
estimate, any reasonably accurate method may be used and it
shall not be necessary for any agent of the Department of
Wildlife Resources Commission to collect, handle, or weigh
numerous specimens of dead or injured fish, animals, vegeta-
tion or other resources of the State, or to calculate the costs of
restoring the quality of the waters using any technology other
than that which is existing and practicable, as found to be such
by the Secretary. Provided, that the Department may effect
such mitigation of the amount of damages as the commission
may deem proper and reasonable. Appeal from final deter-
mination of the commission or its agents pursuant to such a
hearing shall be pursuant to G.S. 143-215.5. If the damages
67
are not paid to the Department within 30 days of receipt of
notice, or if the amount of damages provided in an order
issued subsequent to an application to the Department is not
paid within 30 days of the issuance thereof, the Attorney
General, upon request of the Department, shall bring an ac-
tion to recover such damages in the name of the State, in the
Superior Court of Wake County, or in his discretion, in the
superior court of any other county in which the damages oc-
curred. Upon such action being brought, the scope of the
court’s review shall be as provided in G.S. 150A-51. Any
money recovered by the Attorney General or by payment of
damages by the person charged therewith by the Department
shall be transferred by the Environmental Management Com-
mission to appropriate funds administered by the State agen-
cies affected by the violation for use in such activities as food
fish or shellfish management programs, wildlife and water-
fowl management programs, water quality improvement pro-
grams and such other uses as may best mitigate the damage in-
curred as a result of the violation. No action shall be authoriz-
ed under the provisions of this section against any person
operating in compliance with the conditions of a waste
discharge permit issued pursuant to G.S. 143-215.1 and the
provisions of this Part.
(c) For the purpose of carrying out its duties under this Arti-
cle, the Environmental Management Commission shall have
the power to direct the investigation of any death, killing, or
injury to fish, animals, vegetation or other resources of the
State, or any reduction in quality of the waters of the State,
which in the opinion of the Environmental Management
Commission is of sufficient magnitude to justify investigation.
(1973, c. 534, s. 1; c. 1262, s. 23; 1979, c. 535, s. 24.)
Oklahoma (82 O.S.A. Sec. 937(b) (1971)):
§ 937. Penalties-Injunctions
(a) Any person who knowingly or willfully violates any pro-
perly promulgated order of the Pollution Control Coor-
68
dinating Board shall be guilty of a misdemeanor and upon
conviction shall be punished by a fine of not more than Five
Hundred Dollars ($500.00) per day for each of the first ten (10)
days of continuous violation and One Thousand Dollars
($1,000.00) for each day thereafter, or by imprisonment for a
term of not more than ninety (90) days or by both such fine
and imprisonment. Each and every day the violation occurs
shall constitute a separate violation.
(b) Any person, firm or corporation who violates any of the
provisions of, or fails to perform any duty imposed by this act
or regulation issued hereunder, or who violates any order or
determination of the Board promulgated pursuant to this act,
which violation causes the death of fish or other wildlife shall,
in addition to the penalties provided in subsection (a), be
liable to pay to the state an amount equal to the sum of money
reasonably necessary to restock such waters which shall in-
clude replacement cost of fish killed based on the most recent
fish values as officially published by the American Fishery
Society, Southern Division, and all other costs required for
such restocking including but not limited to shipment and‘
handling, or replenish such wildlife and all cost incurred in in-
vestigating, locating or establishing the responsible person,
firm or corporation as determined by the Oklahoma Wildlife
Conservation Commission and approved by the Board. Such
amount may be recovered by the Board on behalf of the state
in a civil action brought in the district court and shall be di-
vided among the agencies in accordance with the expenses in-
curred, as determined by the Board.
(c) It shall be the duty of the Attorney General on the re-
quest of the Board to bring an action for an injunction against
any person, firm or corporation violating the provisions of this
act, or violating any order or determination of the Board. In
any action for an injunction brought pursuant to this section,
any finding of the Board after hearing on due notice shall be
prima facie evidence of the fact or facts found therein.
69
(d) Upon showing by the Attorney General in behalf of the
Board that such person is violating or is about to violate the
provisions of this act or is violating or is about to violate any
order or determination of the Board, an injunction shall be
granted without the necessity of showing a lack of adequate
remedy at law.
Amended by Laws 1971, c. 338, § 10, operative July 1, 1971;
Laws 1976, c. 21, § 1.
Oregon (O.R.S. Sec. 468.745 (977)):
468.745 Liability for damage to fish or wildlife or habitat;
agency to which damages payable.
(1) Where the injury, death, contamination or destruction
of fish or other wildlife or injury or destruction of fish or
wiidlife habitat results from pollution or from any violation of
the conditions set forth in any permit or of the orders or rules
of the commission, the person responsible for the injury,
death, contamination or destruction shall be strictly liable to
the state for the value of the fish or wildlife so injured or
destroyed and for all costs of restoring fish and wildlife pro-
duction in the affected areas, including habitat restoration.
(2) In addition to the penalties provided for by law, the state
may seek recovery of such damages in any court of competent
jurisdiction in this state if the person responsible under subsec-
tion (1) of this section fails or refuses to pay for the value of the
fish or wildlife so destroyed and for all costs of restoring fish
and wildlife production in the affected areas, including
‘ habitat restoration, within a period of 60 days from the date of
mailing by registered or certified mail of written demand
therefor.
(3) Any action or suit for the recovery of damages described
in subsection (1) of this section shall be brought in the name of
the State of Oregon upon relation of the Department of En-
vironmental Quality or State Department of Fish and Wildlife
or the Attorney General. Amounts recovered under this sec-
70
tion shall be paid to the state agency having jurisdiction over
the fish or wildlife or fish or wildlife production for which
damages were recovered. [Formerly 449,109, 1979 c. 534 § 1]
Virginia (Va. Code Sec. 62.1-44.15(11) (a)):
§62.1-44.15. Powers and duties.
It shall be the duty of the Board and it shall have the
authority:...
(11) To investigate any large-scale killing of fish.
(a) Whenever the Board shall determine that any
owner, whether or not he shall have been issued a certificate
for discharge of waste, has discharged sewage, industrial
waste, or other waste into State waters in such quantity, con-
centration or manner that fish are killed as a result thereof it
may effect such settlement with the owner as will cover the
costs incurred by the Board and by the Commission of Game
and Inland Fisheries in investigating such killing of fish, plus
the replacement value of the fish destroyed, or as it deems pro-
per, and if no such settlement is reached within a reasonable
time the Board shall authorize its executive secretary to bring a
civil action in the name of the Board to recover from the owner
such costs and value, plus any court or other legal costs incur-
red in connection with such action.
Washington (R.C.W. Sec. 90.48.142 (1977)):
90.48.142 Violations-Liability in damages for injury or
death of fish, animals, vegetation-Action to recover
Any person who violates any of the provisions of this
chapter, or fails to perform any duty imposed by this chapter,
or violates an order or other determination of the commission
or the director made pursuant to the provisions of this chapter,
including the conditions of a waste discharge permit issued
pursuant to RCW 90.48.160, and in the course thereof causes
the death of, or injury to, fish, animals, vegetation or other
resources of the state, or otherwise causes a reduction, in the
71
quality of the state’s waters below the standards set by the
commission, thereby damaging the same, shall be liable to pay
the state damages in an amount equal to the sum of money
necessary to restock such waters, replenish such resources, and
otherwise restore the stream, lake or other water source to its
condition prior to the injury, as such condition is determined
by the commission. Such damages shall be recoverable in ac-
tion brought by the attorney general on behalf of the people of
the state of Washington in the superior court of the county in
which such damages occurred; Provided, that if damages oc-
curred in more than one county the attorney general may
bring action in any of the counties where the damages occur-
red. Any money so recovered by the attorney general shall be
transferred to either the state game fund or the department of
fisheries to use for food fish or shellfish management purposes
and propagation, or to any other agency of the state having
jurisdiction over the resource damaged and for which said
moneys were recovered, as appropriate: Provided, that the
agency receiving such money, shall utilize not less than one-
half of said money on activities or projects within the county
where the action was brought by the attorney general. No
action shall be authorized under this section against any per-
son operating in compliance with the conditions of a waste
discharge permit issued pursuant to RCW 90.48.160 [Added
by Laws Ist Ex Sess 1967 ch. 139 § 13; Amended by Laws Ist
Ex Sess 1970 ch. 88 § 12, effective February 23, 1970.]
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.