Amicus Curiae Brief — United States v. Locke

No. 98-1706, 98-1701

In the

Supreme Court of the Ynited States

October Term, 1998

THE INTERNATIONAL ASSOCIATION OF

INDEPENDENT TANKER OWNERS (INTERTANKO),

PETITIONER

v.

GARY LOCKE, Governor of the State of Washington;

CHRISTINE O. GREGORIE, Attorney General of the State of

Washington; BARBARA J. HERMAN, Administrator of the

State of Washington Office of Marine Safety; DAVID

MACEACHERN, Prosecutor of Whatcom County; K. CARL

LONG, Prosecutor of Skagit County; JAMES H. KRIDER,

Prosecutor of Snohomish County; NORMAN MALENG,

Prosecutor of King County; NATURAL RESOURCES

DEFENSE COUNCIL; WASHINGTON ENVIRONMENTAL

COUNCIL and OCEAN ADVOCATES, Respondents

UNITED STATES OF AMERICA, PETITIONER

v.

GARY LOCKE, GOVERNOR OF THE

STATE OF WASHINGTON, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT

AMICUS BRIEF BY THE MARITIME LAW

ASSOCIATION OF THE UNITED STATES IN SUPPORT

OF PETITION’S INTERTANKO AND UNITED STATES

Howard M. Mc Cormack

Jame Patrick Cooney

2200 Chase Tower

600 Travis Street

Houston, Texas 77002

Attorneys for Maritime’s Law

Of Cousel Association of the United

Healy and Bailie, L.L.P. States as Amicus Curiae

Royston, Rayzor Vickery & Williams, L.L.P.

45%

al

TABLE OF CONTENTS

INTEREST OF AMIC'JS CURIAE................ 2

SUMMARY OF ARGUMENT.................... 4

eg Tee fo te eee ee re ees aN 5

I. THE INTERTANKO POSES A SIGNIFICANT

THREAT TO THE ABILITY OF THE UNITED STATES

TO UNIFORMLY AND CONSISTENTLY REGULATE

THE OPERATION OF MERCHANT VESSELS....... 5

Il. THE DECISION BELOW IS FUNDAMENTALLY

FLAWED SO THAT REVIEW BY THIS COURT IS

i in.s the cdvaneeki ibe thweséeneuisa 10

A. THE REGULATORY OVERLAP........ 10

B. THE DECISION BELOW............... 11

C. THE PREEMPTION ANALYSIS FOLLOWED

ININTERTANKO IS FLAWED........... 13

1. SECTION 1018 OF OPA90 DOES NOT

SAVE STATE VESSEL REGULATION

FROM FEDERAL PREEMPTION..... 13

2. OPA 90 DOES NOT BEST REVEAL

THE OVERREACHING PURPOSE OF

CONGRESS IN THE FIELD OF

TANKER REGULATION ........... 15

3. THE PREEMPTIVE EFFECT OF

INTERNATIONAL TREATIES... .... 16

4. THE PREEMPTIVE EFFECT OF

COAST GUARD REGULATIONS... .. 17

ERE C hae RiS cee ee bb eah eae nt soe bes 19

TABLE OF CITED AUTHORITIES

Page

Cases:

Air Logistics, Inc. v. Tallentire,477 U.S. 207

(ROBE). . . . 00.0 00.2000 0% .bises) ek 8 bee 4

American Dredging Co. v. Miller, 510 U.S. 443

C2ODE) oc. cc cvecsc.000 pect gunees bs aenea eee 4

Askew v. American Waterways Operators, 411 U.S. 325

veecceeveces sueeees s5 nee (1973)4, 14

Bouchard Transp. Co., Inc. v. U.S., ___ U.S.__, 119

S.Ct. 1006 (Mem) (2000) .... .cssandasecscuseeneansue 4

California v. ARC America Corp., 490 U.S. 93, 100-01

(TORR) . ow vcccvees caceces eas bese 17

Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483, 1984

AMC 2395 (9 Cir. 1984)cert. denied sub nom. Chevron

U.S. A., Inc. V. Sheffield, 471 U.S. 1140, 1985 AMC

SIGS CRBBS).. «2 cnn vacceesch ubewe etna 13, 17

Chick Kam Choo v. Exxon Corporation, 486 U.S. 140

(2OGR) o.oo ccccnncesesscusuns 6 kpanee eee 4

Douglas v. Seacoast Products, Inc., 431 U.S. 265, 286

(1077)... ncecccctdencepecsnsiad sien 7

Exxon Co., U.S.A. v Sofec, Inc.,516 U.S. 1091 (1996) 4

Hines vs. Davidowitz, 312 U.S. 52, 67 (1941) ..... 12

Huron Portland Cement Co. v. Detroit, 362 U.S. 440,

I Se UM os ae er Ne ek ve wok 19

Int'l Assoc. of Indep. Tanker Owners v. Locke, 148 F.3d

1053, 1063 (1998),reh. denied, 159 F.3d 1220 (9" Cir.

PRS SEW EU ce bb debe occcat 4,6, 11, 12, 13,15

Moragne v. States Marine Lines, Inc., 398 U.S. 375

EST IE SS ee Re a 4

Panama R.R. Co. v. Johnson, 264 U.S. 375, 386

ice wi aes acd idepubeeectcevees 5, 8

Ray v. Atlantic Richfiela Co., 435 U.S. 151

SEN EGE A REL 4,5,18

Sisson v. Ruby, 497 U.S. 358 (1990) ............... 4

Steuart Transp. Co. v. Allied Towing Corp., 596 F2d

ht beilece 14

Yamaha Motor Corp., U.S.A. v. Calhoun, 515 U.S.

cvs ovo daeaadetbinn chbteseseusetcoeteé 4

Statutes:

ES OO Oe ar ee 3

B36 U.B.C. 66 1950, 1608-1611... ww cece 3

LD nn sc ee en ctee be 3

ee, ks 6 lnc cetnccaveee 14

a al a i een ee eeeerese 5

SP eS OES 0 ccc covescceccesere 3

SOSA. GRP een ccvvccscccdovsswsanbec 13

33 U.S.C. Sections 1221-1227... .........2054.. 10

TO CBG. GIVE 6 i. eve eevee ccveee eet eean 6

ae Ga G, GEGOOUGD ccivcvns wer <évtetcoses ten 11

SO Gee GOSS Mees sete relies veeve ere eee

Ge TAS GOD 6 0 6 0 0 emad ovb nd ad Gecdeees 13

GS GL GEIIED 0 ct cindsvscevesisen ven 14

GE. CG. GGG oe ivic ccs ewe eet ic bet viene 10

46 U.S.C. §§3710(a) and 3711(a). .............4... 6

FR PON er ee eee 10

GD eee GN ce Se ccvevescsvockueese uh ctasn 10

GS CEE 6 occ vn ashi dw tds Sees 3

Ce Se 366 0.695 dt base viat ee ends chant 11

Gy Ge obo ee Kkdsa ceks “desk cunnee 11

GP eh ad 5 bb nnd dudedenkns ends cha 11

GS Gas Be a Gc hate ndvctiawecadecates 10

Oil and Hazardous Substances Spill Prevention and

Response Act, 1991 Wash. Laws ch. 200 Wash. Rev.

COD Ge, GEG, ok bvececccivecesdsdéet 6

Pub. L. No. 92-340, 86 Stat. 424 (1972)........... 10

Vv

Pub. L. No. 95-474, 92 Stat. 1471 (1978)............

Wash. Admin. Code §§317-21-010 et seq........ ... 6

United States Constitution:

Treaties and Conventions:

SOLAS, Part II, note 420, art. VI(d).......... ... 16

RE 6-6 Cone danced raebissds ceveguues 3

Regulations:

58 Ped. Reg. 27,268 (1993)... 0.6 ccc ecw eens es 10

58 Fed. Reg. 68,274, 68,277 (1993)... .. 2... 2.645. 10

60 Fed Reg. 24,767, 24, 771 (1995)

Other Authority:

The Federalist, Nos. 11 (Hamilton), 13 (Hamilton), 15

(Hamilton),

24(Hamilton) and 64 (Jay) .... 2.6... cece 5

Craid H.Allen, Federalism in the Ear of International

Standards: Federal and State Government Reulation of

Merchant Vessels in the United States (Part III), 30 J.

Mar.L.& Com. 85, 124 (1999) (hereafter "Alien, III"). .

ow chedse dea chicchebvebawtale vécareel es 6, 14, 16

l

No. 98-1706

No. 98-1701

In the Supreme Court

of the

United States

October Term, 1998

THE INTERNATIONAL ASSOCIATION OF

INDEPENDENT TANKER OWNERS (INTERTANKO),

PETITIONER

Ve

GARY LOCKE, Governor of the State of Washington;

CHRISTINE O. GREGORIE, Attorney General of the State of

Washington; BARBARA J. HERMAN, Administrator of the

State of Washington Office of Marine Safety; DAVID

MACEACHERN, Prosecutor of Whatcom County; K. CARL

LONG, Prosecutor of Skagit County; JAMES H. KRIDER,

Prosecutor of Snohomish County; NORMAN MALENG,

Prosecutor of King County; NATURAL RESOURCES

DEFENSE COUNCIL; WASHINGTON ENVIRONMENTAL

COUNCIL and OCEAN ADVOCATES, Respondents

UNITED STATES OF AMERICA, PETITIONER

v.

GARY LOCKE, GOVERNOR OF THE

STATE OF WASHINGTON, ET AL.

2

BRIEF OF MARITIME LAW ASSOCIATION

OF THE UNITED STATES, AMICUS CURIAE,

IN SUPPORT OF PETITION FOR CERTIORARI

The Maritime Law Association of the United States

(hereinafter "MLA") respectfully submits this brief as amicus

curiae in support of the Petitions for Writ of Certiorari filed by

the United States of America and the International Association

of Independent Tanker Owners. *

INTEREST OF AMICUS CURIAE

The MLA is a nationwide bar association founded in

1899, with a membership of about 3,600 attorneys, law professors

and others interested in maritime law. Its attorney members,

most of whom are specialists in admiralty law, represe~t all

maritime interests, including shipowners, charterers . irgo

interests, port authorities, seaman, longshoremen, passengers,

underwriters, and other maritime claimants and defendants.

The purposes of the MLA are stated in its Articles of

Association:

The objectives of the Association shall be to

advance reforms in the Maritime Law of the

United States, to facilitate justice in its

administration, to promote uniformity in its

enactment and enforcement, to furnish a forum

for the discussion and consideration of problems

affecting the Maritime Law and its

administration, to participate as a constituent

member of the ComitO Maritime International

and as an_ affiliated organization of the

American Bar Association, and to act with other

"This Brief was authored by James Patrick Cooney, attorney for the Maritime

Law Association of the United States, and Howard M. McCormack, President of the

Maritime Law Association of the United States. No person or entity other than the

Maritime Law Association made a monetary contribution to the preparation or

submission of the Brief.

"The MLA has received and filed the written consent of Governor Gary

Locke and the other state respondents in both Nos. 98-1701 and 98-1706 and the written

consent of the International Association of Independent Tanker Owners, the Petitioner

in in No. 98-1706. The MLA has requested, but has not received written consent from

the United States and requests that this Brief also be considered a Motion for Leave

to File an Amicus Brief in No. 98-1701.

3

associations in efforts to bring about a greater

harmony in the shipping laws, regulations and

practices in different nations.

In furtherance of these objectives, the MLA has

sponsored a wide-range of legislation dealing with maritime

matters during its 100 years of existence, including the Carriage

of Goods by Sea Act,* the Federal Arbitration Act, ‘ and the

Foreign Sovereign Immunities Act.° The MLA has also

cooperated with congressional committees in the formulation of

other maritime legislation. °

The MLA assists in maritime projects undertaken by

agencies of the United Nations, and works closely with the

International Maritime Organization (IMO).

The MLA is one of some 57 national maritime law

associations constituting the ComtO Maritime International, ’

seeking international uniformity in maritime laws through

international conventions.

Uniformity in maritime law, both national and

international, prompted the adoption in 1975 by the MLA of a

Resolution which states:

RESOLVED, that the Maritime Law

46 U.S.C §$1300-1315.

9 U.S.C...

28 U.S.C. §§ 1330, 1602-1611.

* B.g., Water Pollution Control Act Amendments of 1972, 33 U.S.C.$$1251-

1376; Convention of the International Regulations to Prevent Collisions at Sea, 28

U.S.T. 3459, as amended T.1.A.S. 10672; United States Inland Navigation Rules, 33

U.S.C. §§2001-2073.

4

Association of the United States considers it of

the utmost importance and in the public interest

that maritime law be uniform to the maximum

extent possible throughout the United States. In

1986, the MLA reaffirmed the policy by the

following Resolution:

Now, therefore, this Association

reaffirms its support of the importance of

maintaining national uniformity in maritime law

and approves action, subject to the By-Laws, to

express such support, including filing amicus

briefs and supporting proposed legislation or

other action which favors uniformity in maritime

law, and opposing proposed legislation or other

action with impairs uniformity in maritime law.

In furtherance of its policy on uniformity, the MLA has

appeared before this Court as amicus curiae on numerous

occasions to argue in favor of the principle of uniformity in the

substance and application of the Maritime Law of the United

States. *

SUMMARY OF ARGUMENT

1. The decision of the Ninth Circuit in /ntertanko vs. Locke

poses a significant threat to the ability of the United

States to uniformly and consistently regulate the

operation of merchant vessels calling at American ports

and to effectuate any coherent national policy consistent

with its international treaty obligations directed to the

safe operation of such vessels and the protections of the

environment. A Writ of Certiorari should be granted in

this case to allow this Court to settle the significant

issues raised regarding the balance to be achieved among

the competing state, federal and international interests

"Eg. Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970), Askew v.

American Waterways Operators, 411 U.S. 325 (1973); Ray v. Atlanne Richfield Co., 435

U.S. 151 (1978); Air Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986);Chick Kam Choo

v. Exxon Corporaton, 486 U.S. 140 (1989); Sisson v. Ruby, 497 US. 358 (1990);

American Dredging Co. v. Miller, 510 U.S. 443 (1994); Yamaha Motor Corp., U.S.A. v.

Calhoun, $15 U.S. 1186 (1996); Exxon Co., U.S.A. v Sofec, Inc.516 U.S. 1091 (1996);

Bouchard Transp. Co., Inc. v. U.S.U.S., 119 $.Ct. 1095 (Mem.) (1999).

5

regarding the regulation of vessel safety and operations.

2. The decision below is fundamentally flawed so that

review by this Court is required. It then holds that

OPA90 best reveals the overarching purpose of Congress

in regulating vessel safety so that the state statues

directed to the prevention of marine pollution cannot be

preempted by federal regulation. ° It then holds that

OPA90 best reveals the overarching purpose of Congress

in regulating vessel safety so that directed to the

prevention of marine pollution cannot be preempted by

federal regulation.

3. The decision ignores the preemptive effect of federal

regulation in the area of maritime safety as recognized

in Ray vs. Atlantic Richfield Co." and the preemptive

effect of international conventions dealing with vessel

safety to which the United States is a party.

ARGUMENT

I. The /ntertanko Decision" Poses a Significant Threat to

the Ability of the United States to Uniformly and

Consistently Regulate the Operation of Merchant

Vessels

From the earliest days of our nation, courts, legislatures

and scholars have recognized that the regulation of waterborne

commerce between the States and with foreign counties demands

a uniform and consistent approach and, therefore, is an area to be

dealt with primarily at the federal level. '* More recently, the

United States has opted to participate in international efforts

through the International Maritime Organization (IMO) to

‘tevelop, implement and enforce an effective mandatory

international legal regime designed to promote merchant vessel

33 :U.S.C. $1018.

435 U.S. 151 (1978)

"Int'l Assoc. of Indep. Tanker Owners v. Locke.148% F.3d 1053 (9th Cir. 1998),

reh. denied, 159 F.3d 1220 (PCir. 1998) (hereafter * /ntertanko”)

"See, ¢.g., The Federalist, No. 11,(Hamilton); Panama

264 U.S. 375, 386 (1923). (Hamilton), RR. Co. v. Johnson,

6

safety and prevent marine pollution by vessels. '’ It has also

become party to numerous international conventions and other

agreements establishing comprehensive rules and standards for

merchant vessels. These rules and standards have been adopted

by our domestic laws, so that vessels meeting international

standards are also in compliance with our national vessel

requirements and on that basis are allowed to enter our ports. “

The statutes and regulations of the State of Washington

which are at issue in this case '* attempt to impose standards

regarding vessel safety and the prevention of pollution that differ

from both the federal and international standards. In /ntertanko,

the Ninth Circuit has held that the Washington State statute and

regulations were not preempted by either federal law or by

international convention. If the Ninth Circuit decision is allowed

to stand, the ability of the national government, and the United

States Coast Guard in particular, to effectively regulate the

operation of tankers and other vessels calling on the ports of this

nation will be significantly eroded. The way will be left to open

to for the Siates and their political subdivisions * to effectively

displace the federal government in its role as the principal

regulator of our maritime commerce.

This possible displacement of the federal government as

“For a listing of the International convention implicated, see, Petition of

United States of America for writ of Certiorari in no. 98-1701: See , Craig H. Allen,

Federalism in the Era of International Standards: Federal and State Government

Regulation of Merchant Vessels in the United States (Part 1l),29 3. Mar.L.& Com. 565

(1998) (Allen Part Il)

“See, e.g, 46 '.S.C.$$3710(a) and 371 l(a).

‘Oil and Hazardous Substances Spill Prevention and Response Act, 1991

Wash. Laws ch. 200 Wash. Rev. Code ch. 88.46.010ef seg; Wash. Admin. Code§§317-

21-010 ef seq.

"h should be noted that the statutory provision upon which the Ninth

Circuit's preemption analysis is based, Section. 1018 of OPA90, preserves the authority

of States and their political subdivisions to impose requirements with respect to the

discharge of oil. 33 U.S.C.§2718b. Arguably, the decision for which review is being

political subdivisions to regulate vessel operations concurrently with the federal

government.

7

the principal regulator of maritime commerce is made all the

more troublesome when considered in the context of the growing

body of international law dealing with safety at sea generally and

the prevention of pollution in particular, since it is this body of

international law that forms the basis of the federal government's

approach to vessel regulation. If, indeed, statutory efforts of a

state to regulate the operation of tankers and other ocean going

vessels cannot be preempted by treaty or by federal statutes and

regulation, the stage will be set for the balkanization of vessel

regulation in the United States and the collapse of the current

approach of our federal government to achieve vessel safety

through a mandatory international legal regime. Efforts to

provide uniform rules and regulations consistent with the various

international conventions regarding safety at sea and various

other maritime issues to which the United States is a signatory

will be frustrated and international treaties and federal statutes

and regulations will be relegated to the status of “minimum

standards,” '’ to be augmented by the states and local regulation.

Any sense of uniformity in the area of maritime regulation will be

lost and a patch work of local standards will come into existence,

creating “precisely the sort of Balkanization of interstate

commercial activity that the Constitution was intended to

prevent."

It is this threat to the uniformity of the maritime law of

the United States that constrains the MLA to appear before this

Court as amicus curiae to urge that the Petitions for Writ of

Certiorari filed by the International Association of Independent

Tanker Owners and the United States be granted and that the

decision of the Court of Appeals in this case be reversed. The

very nature of maritime commerce demands that its regulation be

uniform and consistent. It goes without saying that the United

States is the principal maritime trading nation of the world. At

the same time, our own merchant marine has been substantially

reduced so that we are dependent to a great extend on foreign

vessels to transport goods to and from our shores. To encourage

and facilitate our ocean borne commerce, to provide for the safe

operation of vessels coming to our shores and to meet our

international treaty obligations, uniform and consistent national

" See Intertanko, 148 F.3d 1053, 1063.

“Douglas v. Seacoast Products, Inc., 431 U.S. 265, 286 (1977).

standards are necessary. For these reasons, the primary

responsibility for the regulation of vessel operation and safety

must be left to the federal government. The state statute at issue

here encroaches and overlaps into an area that must remain

preemptively federal and to that extent should be preempted by

federal law and regulations under the Supremacy Clause of the

U.S. Constitution. ”

At the heart of this matter is the heightened awareness of

and concern for the environment resulting from several significant

and well-publicized oil spills resulting from vessel casualties, the

most notable being the Exxon Valdez spill in 1989 which lead to

the passage of the OPA90 and the Washington statute here at

issue. The policy determination made by the Congress to allow

the states and their political subdivisions a role in the area of

environmental regulation raises the question of how to reconcile

the interests of the several states to protect their environments

with the need for uniform and consistent regulation of maritime

commerce. There is no question that the States have the inherent

right under their police power to prohibit the discharge of

pollutants into the environment within their boundaries, to

establish standards regarding the response and abatement of such

a discharge, and to impose civil and criminal liabilities to deter

such harm to the environment. Implicit in this right to prohibit

pollution is the interest of the states in the implementation of

laws and regulations aimed at the prevention of pollution within

their borders. In the maritime coniext, however, the

environmental interests of the States must be balanced against the

"The Constitutional basis of the preemptive federal role in the regulation of

maritime commerce is clear. Article I, Section 8, Clause 3 (The Commerce Clause)

states: "The Congress shall have power * * * to regulate commerce with foreign nations,

and among the several states. Article I, Section 8, Clause 18 (The Necessary and Proper

Clause) states that "The Congress shall have power * * * To make all laws which shall

be necessary and proper for the carrying into Execution the foregoing Powers * * *. *

Article III, Section 2, Clause 3 (The Admiralty Clause) states: "The judicial power shali

extend * * * To all cases of admiralty and maritime jurisdiction.” ht is now firmly

recognized that these provisions empower Congress to make maritime law. See Panama,

supra, note 129. Cf Miles v. Apex Marine Corp. 498 U.S. 19, 36 (1990) , noting that

"Maritime tort law is now dominated by federal statute..." Article VI, Section 2, (The

Supremacy Clause) makes federal maritime law binding on the states: “This

Constitution, and the Laws of the United States which shall be made in pursuance

thereof, and all Treaties made, or which shall be made, under the Authority of the

United States, shall be the supreme Law of the Land; and Judges in every State shall

be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary

itt fi 7

9

federal responsibility to provide for the uniform and consistent

regulation of maritime commerce.

As is the case here, the effort of the State of Washington

to protect its waters and shores from oil pollution brings it into

direct conflict with the efforts of the federal government to

address identical and related concerns on a national and

international level. Washington has issued broad and

comprehensive regulations establishing standards in the areas of

incident reporting, watch keeping and lookout practices, bridge

resource management, navigational practices, engineering

practices, testing of engineering, navigational and propulsion

systems, emergency procedures, record keeping, personnel

training, drug and alcohol testing, personnel job performance

evaluation, work hours, language proficiency, and management

practices. All of these regulations are for the stated purpose of

preventing pollution. The decision below has upheld the right of

the State of Washington to regulate these areas of vessel activity

notwithstanding the fact that these areas are dealt with

comprehensively by federal statute and international convention.

Vessels that call in ports of the State of Washington must comply

not only with the standards and requirements imposed by federal

regulation, but also the additional and differing standards and

requirements of the State of Washington. *°

If the decision below is allowed to stand, the legal

framework on which we regulate our maritime commerce will

become fragmented, uncertain, and unnecessarily contentious. *'

The question of whether this dual state-federal regulation of

vessel operations in the United States is constitutionally

permissible is one of overwhelming concern to the maritime

industry and should be addressed by this Court now, without

waiting for action by other States or further parallel developments

in the lower courts.

“Unfortunately, the problem is not restricted to vessel actually calling on

ports within the State of Washington, since the Washington statute would apply to

vessels required to pass through state waters en route to ports in Canada, implicating

our treaty obligations with Canada and the right of innocent passage generally.

“As noted the Petition of the United States of America in No. 98-1701 at 26

. many nations have protested the Washington state regulations.

10

Il. The Decision Below Is Fundamentally Flawed so that

Review by this Court is Required.

A. The Regulatory Overlap.

At issue in this case is a statute of the State of Washington

directed to the protection of state waters from oil pollution by oil

tankers and regulations of the State of Washington issued

pursuant thereto dealing with, inter alia, event reporting,

operating procedures and watch practices, navigational practices,

engineering practices, crew training, crew work hours, language

requirements, and record keeping. The same areas are dealt with

by OPA90, the Ports and Waterways Safety Act (PWSA), ” a

comprehensive body of regulations issued by the United States

Coast Guard pursuant to these statutes, * and a number of

international treaties and conventions dealing with maritime

safety and the environment. “ The PWSA contains two titles.

Title | is codified at Sections 1221-1227 of Tithe 33 U.S.C.and

authorizes the establishment of vessel traffic control systems, the

restriction of the operations of tankers not having specified

capabilities and the negotiation of international treaties on vessel

safety. Title II is codified in Title 46 of the U.S. Code and requires

the Secretary of Transportation to adopt uniform federal

regulations for tanker design, construction, equipment, and

operation, ** and delegates the Secretary's obligations to issue

regulations to the U.S. Coast Guard. * The PWSA was

supplemented in 1978 by the Port and Tanker Safety Act

(PTSA),*’ which requires the Secretary of Transportation to

establish regulations dealing with vessel management, drug and

“Pub. L. No. 92-340, 86 Stat. 424 (1972).

"Eg, 58 Fed. Reg. 27,268 (1993) (regulating watch keeping practices); 60

Fed Reg. 24,767, 24, 771 (1995) (regulating steering gear), 58 Fed. Reg. 68,274, 68,277

(1993) (regulating drug testing)

“See Petition of United States for Writ of Certiorari in No. 98-1701, at 3.

"46 U.S. C. $3703.

"46 U.S.C § 2104.

"46 U.S.C.$§ 9101, 9102.

alcohol testing, seafarer training and qualifications, casualty

reporting, seafarer discipline, manning, work hours, pilotage, and

language proficiency requirements.

Finally, OPA90 imposes several requirements including

a provision for random drug and alcohol testing, “limited working

hours for tanker crews,” and a requirement that tankers be

equipped with double hulls. ”

B. The Decision Below.

The Ninth Circuit held in /ntertanko that the Washington

statute and regulations dealing with vessel operation and

management are not preempted by OPA90, PWSA, PTSA, or by

any relevant international treaty or convention. In so holding, the

Court relied on section 1018 of OPA90 “, which provides that

“nothing in this Act. . . shall affect, or be construed or interpreted

as preempting, the authority of any State or political subdivision

thereof from imposing any additional liability, or requirements

with respect to... the discharge of oil or the pollution by oil

within such State,” or that “the authority of the United States or

any State or political subdivision thereof . . . to impose additional

liability or additional requirements . . . relating to the discharge,

or substantial threat of a discharge of oil." The Court assumed

without discussion that the state regulations dealing with vessel

operations constituted “oil spill prevention requirements” and that

such regulations were “with respect to” or “related to" the

discharge of oil and thus could not be preempted by anything

contained in OPA90.

In concluding that neither the PWSA nor the PTSA

preempted the Washington State statute and regulations, the

Ninth Circuit held:

In the field of tanker regulation, the overarching

purposes of Congress are best revealed by

OPA90. As the most recent federal statute in the

46 U_S.C.§7702.

46 U.S.C.$8104(n).

"46 U.S.C. §3703a.

"33: U.S.C.92718%a).

12

field, OPA90 reflects “the full purposes and

objectives of Congress.” (Citing Hines vs.

Davidowitz, 312 U.S. 52, 67 (1941)), better than

the PWSA, the PTSA or the Tank Vessel Act, all

of which OPA90 was designed to complemen. “

The Court went on to hold:

Section 1018 of OPA90 sheds considerable light

upon the purposes and objective of Congress in

effectuating a federal scheme of tanker

regulation. That provision demonstrates

Congress's willingness to permit state efforts in

the areas of o1l-spill prevention, removal, liability

and compensation. »

Under the reasoning utilized by the court below, the state

regulation of vessel operations is principally directed to the

prevention of oil spills, which is “in respect to” the discharge of oil

and as such the state regulation of vessel operation cannot be

preempted under section 1018 of OPA90. OPA90 is presumed to

be the definite expression of Congressional purpose and objective

in the area of vessel regulation, so that the saving effect of Section

1018 is extended to the all federal statutes dealing with vessel

regulation. Following this line of reasoning, the court concludes

that if the federal statutes upon which the federal regulation of

vessels is based cannot preempt state statutory efforts in the same

area, the Coast Guard regulations issued pursuant to such statutes

cannot preempt state regulation either.

The Ninth Circuit also holds that the Washington

regulations are not preempted by several conflicting international

treaties, including the International Convention for the Safety of

Life at Sea, the Protocol of 1978 Relating to the International

Convention for the Prevention of Pollution from Ships, the

Multilateral International Regulations for Preventing Collisions

at Sea, the Agreement for a Cooperative Vessel Traffic

Management System for the Juan de Puca Region, and the United

“Intertanko, supra, \48 F 4d at 1062

"Id. at 1062.

13

Nations Convention on the Law of the Sea, “ relying on its

decision in Chevron U.S.A., Inc. v. Hammond,” which held:

{Tihe PWSA/PTSA does not mandate strict

international uniformity. Although the legislative

history of the PWSA/PTSA refers to

congressional intent to abide by international

agreements regarding the regulation of tankers,

the statutes nonetheless give the Coast Guard

specific authority to establish stricter

requirements than those set by international

agreements. This indicates Congress’ view that the

international agreements set only minimum

standards, that strict international uniformity was

unnecessary, and that standards stricter than the

international minimums could be desirable in waters

subject to federal jurisdiction.”*

C. The Preemption Analysis Followed in /ntertanko is Flawed.

1. Section 1018 of OPA90 does not save state vessel regulations

from federal preemption.

The key component of the preemption analysis utilized

below is the broad construction placed on section 1018 of OPA 90.

The construction would seem to protect from preemption any

state vessel regulation that might contribute to the prevention of

vessel pollution in the broadest sense. The construction cannot

be sustained. First, there is no authority either in the legislative

history or the case law to support the broad construction placed

on section 1018. The language of section 1018 is substantially

identical to the saving clauses in the Clean Water Act, ” the

Comprehensive Environmental Response, Compensation and

Liability Act (CERCLA),™ the Trans-Alaska Pipeline

“supra note 6,

"726 F.2d 483, (P Cir. 1984) cert denied mb nom, Chevron US A. Inc. V.

Sheffield, 471 U.S. 1140, 1985 AMC 2395 (1985).

“Id, at 493-94 (emphasis in original).

"33 U.S.C. $1921(0)2).

42 U.S.C $9614).

14

Authorization Act(TAPPA), “and the Deepwater Port Act. “ The

language has never been construed to provide protection from

preemption beyond state liability and removal activities. “ A

consideration of the legislative history of OPA90 also creates

serious doubt that there was ever any intent on the part of

Congress to extend its effect to pollution prevention regulation or

even to the entirety of the consolidation of various legislative

initiatives into what eventually became OPA90. “

Second, for the Ninth Circuit's preemption analysis to

work, it must be accepted that the primary purpose of the

regulation of vessel operations and vessel safety is oil spill

prevention. Oil spill prevention, however, is only a subset of the

many purposes to which the regulation of vessel operations and

vessel safety is directed. For instance, regulations directed to the

prevention of vessel collision may be seen as directed to the

prevention of oil spills since collisions may result in oil spills.

Such regulations, however, are more realistically seen as

regulations directed to the prevention of the several consequences

that may result from a collision including loss of life, personal

injury, damage to property, as well as damage to the environment.

In the real world, the prevention of oil spills or environmental

damage is only one, and perhaps not the primary, purpose behind

the regulation of vessel operations. It would seem that the need

to protect human life and safety must be recognized as primary.

The federal regulation of vessel operations is not directed

exclusively to the prevention of oil spills and transcends the

limited purposes and objectives the Court below implicitedly

assigned to it.

"43 U.S.C.§1656(e(1).

“33 U.S.C. §1517(k).

“See, e.g. Askew v. American Waterways Operators, Inc., 41 U.S. 325

(1973), Stewart Transp. Co. v. Allied Towing Corp., 596 F.2d 609 (4* Cir 1979),

Craig H Allen, Federalism in the Ear of International Standards: Federal and

State Government Regulation of Merchant Vessels in the United States (Part 111),

30 J. Mar.L.& Com. 85, 124 (1999).

” See generally, Intertanko , 159 F.3d 1220 (9 Cir. 1998) (Graber,

CJ, dissenting).

15

Finally, there is nothing to suggest that section 1018 of

OPA90 was intended to relieve the states of the preemptive effect

of international treaties dealing with marine safety or pollution

prevention. “

2. OPA90 does not best reveal the overreaching purpose of

Congress in the field of tanker regulation.

Instead of separately treating each of the several federal

statutes dealing with vessel safety to determine their preemptive

effect on conflicting state regulation, the Court below assumed

without analysis or authority that since OPA90 was the most

recent federal statute in the field, it reflected “the full purpose

and objectives of Congress” better than prior legislation in the

field.“ By doing so, the court reaffirmed the underlying

assumption of the decisions that the primary purpose of vessel

regulation is the prevention of pollution. Going one step further,

the court applied its expansive construction of section 1018 of

OPA90 to the entire field of tanker regulation and concluded that

section 1018 was a key to the determination of the principal

purposes and objectives of Congress in effectuating a federal

scheme of tanker regulation and demonstrated “Congress's

willingness to permit state efforts in the areas of oil-spill

prevention."“ The approach taken by the Ninth Circuit is

logically unsupportable. It totally disregards the strategy that has

been followed by the federal government in joining in a

mandatory international vessel regulation regime that is

implemented domestically through statute and Coast Guard

regulation. The purposes and objectives of the PWSA and the

PTSA must be considered apart from Congress’ purpose and

objective in enacting OPA90 or even the Congressional purpose

and objective in enacting the portions of OPA90 dealing with

pollution prevention. There is every indication that in

affirmatively directing the Secretary and the Coast Guard to issue

definitive regulations regarding vessel safety and spill prevention

“Allen, surpa, note 41, at 132.

“Intertanko, supra, 148 F 3d at 1062, citing Hines v. Davidowitz, 312

U.S 52, 67(1941).

“Intertanko, supra, 148 F 3d at 1062.

16

in the PWSA/ PTSA, and Title IV of OPA90, it was not the

purpose or objective of Congress to permit the states to enter the

field of vessel regulation. To the contrary, the clear implication

is that Congress intended for there to be a uniform national

approach to vessel regulation consistent with the international

treaties and conventions dealing with the various aspects of vessel

operation, safety, and pollution prevention to which the United

States is a party. The Ninth Circuit's failure to focus on the

totality of the regulatory approach of the United States to vessel

safety and pollution prevention is fatal to its conflict preemption

analysis. A proper analysis can lead to no other conclusion but

that the statutory and regulatory approach taken by the federal

government in this area requires the preemption of state

regulation.

3. Preemptive Effect of International Treaties.

The United States is a party to numerous conventions

dealing with vessel safety matters, including SOLAS, MARPOL,

and STCW, that expressly prohibit the parties to the conventions

from imposing stricter standards on foreign flag vessels calling in

domestic ports. “ These conventions seek to mandate compliance

with specific standards regarding the vessel design, construction,

maintenance, manning, personnel training, and management of

vessels imposed by the vessel's flag state (nation), in exchange for

assurance by the port state (nation) that compliance with the

mandatory international standards will be sufficient for vessels to

gain entry to the waters and ports of the port state. *’ If this

international vessel regulatory regime is to function in our federal

system, conventions entered into by the United States must be

accorded preemptive effect over state regulatory efforts seeking

to augment or strengthen the convention requirements, no matter

how desirable or benign the state regulations may appear.

The court below gave no consideration to how the

purposes and objectives of the relevant international conventions

“See, e.g., SOLAS, Part Il, note 420, art. Vi(d), which provides: "All

matters which are not expressly provided for in the present Convention remain

subject to the legislation of the Contracting Governments."

“See Craig H. Allen, Federalism in the Era of International

Standards. Federal and State Government Regulation of Merchant Vessels in the

United States (Part Il), 29 J}. Mar.1., & Com. $65, 565-575 (1998)

17

affect the ability of the states impose vessel regulations. Instead,

it gave global effect to its holding in Chevron U.S.A., Inc. vs.

Hammond “ that treaties can only create minimum standards and

that strict uniformity is not required by international treaties.

Having already concluded that all of the relevant congressional

purposes and objective of tanker regulation were embodied in

OPA90, and that nothing in OPA90 would be frustrated by the

Washington State regulations, the court found it unnecessary to

consider any legislative or foreign policy objectives that Congress

and the President may have sought to obtain through the various

conventions and treaties to which the United States is a party that

impact the regulation vessel safety. In so doing the Court cut

short the conflict inquiry in the preemption analysis by which it

must determine whether the state law stands as an obstacle to the

accomplishmeut and execution of the “full purposes and objective

of Congress."” Had the proper analysis been carried out, there

can be little doubt that the Court would have found the

Washington statute and regulations preempted by the various

international conventions that impact the field of vessel

regulation. ~

4. The Preemptive Effect of Coast Guard Regulations.

The Ninth Circuit points to this Court's decision in Ray vs.

“supra, note 34.

“See California v. ARC America Corp., 490 U.S. 93, 100-01 (1989),

Hines v. Davidowitz, supra.,312 US 52 (1941).

“As noted by one commentator, “[njothing in OPA90 or its legislative

history and no authority cited by the court in Intertanko [], demonstrates a

congressional intent to relieve the states of the preemptive effect of the IMO-

sponsored marine safety or pollution prevention conventions." Allen, supra, note

41 at 132. Indeed, if it was not Congress’ understanding that the states were

generally preempted by federal statutes regulating maritime affairs, 1t would not

have been necessary to reserve to the states a role in the liability and response

aspects of marine pollution E.g. §1018,OPA90. For other commentaries on the

general area, see, Robert H. Nicholas, Jr. Federal and State Preemption

Regarding Vessel Construction and Operation, 73 Tulane Law Review | (1999),

Charles L. Coleman, II], Federal Preemption of State "BAP Laws; Repelling State

Boarders in the Interest of Uniformity, 9 U.S. F. Mar. LJ. 305 (1997).

18 19

In this case, the Coast Guard has issued regulations

pursuant to both Title I and Title Il of the PWSA and under

OPA90, dealing with very activities sought to be regulated by

Atlantic Richfield Co.,*' as “|t)he leading case on the subject of field

preemption of state statutes that regulate tankers,” ™ The

relevant issue addressed by Ray was a provision of Washington

State law requiring that certain oil tankers satisfy certain design

and safety standards or be required to use tug escorts while

operating in Puget Sound. While the tug-escort provision was not

found to be a design requirement under Title II to the PWSA, it

was held to be “more akin to an operating rule [under Title | of

the PWSA] ... and, as such is a safety measure clearly with the

reach of the Secretary's [of Transportation] authority under [/

1221(3)(iii) and (iv) to establish ‘vessel size and speed limitations

and vessel operating conditions’ and to restrict vessel operations

to those with ‘particular operating characteristics and

capabilities.’"*’ The Ray decision goes on to observe that Title |

of PWSA authorizes the Secretary to issue regulations to

implement such provisions and that 22 U.S.C. 11222(b) prohibits

States from issuing “higher safety equipment requirements or

safety standards,” once the Secretary has issued regulations

implementing the provision. As this Court held:

The relevant inquiry under Title I with respect to

the State's power to impose a tug-escort rule is

thus whether the Secretary has either

promulgated his own tug requirement for Puget

Sound tanker navigation or has decided that no

such requirement should be imposed at all. ™

Noting that the Secretary had not issued any regulation leave

subject, the Court held that the tug escort requirements

promulgated by the State of Washington were not preempted. ~

™“ Supra note 6..

“Intertanko, supra, 148 F.3d at 1064.

“Ray, supra, 435 U.S. at 171.

“Ray , supra, 435 U.S. at 171-172

“The Court added:

It may be that rules will be forthcoming that will

preempt the States's present tug-escort rule, but

Washington State. Under the Ray analysis, to the extent that the

matters dealt with by the state regulations are within the purview

of the authority granted to the Coast Guard under Title II, the

state regulations should be preempted regardless of whether

regulations have issued. To the extent that regulations are

promulgated by the Coast Guard under Title I, such regulations

would preempt any state regulations dealing with the same

subject. Unless the federal government has relinquished its

power to issue preemptive regulations regarding vessel operations

and vessel safety with the passage of OPA90, the Washington

statute and regulations must be found to have been preempted

under the Ray decision. This would be the result even if the state

regulations are considered not to be in direct conflict with their

federal counterparts, but merely augmenting the federal

regulations. An “overlap” between the scope of the state and

federal regulations requires a finding that the state regulations

are preempted. “

CONCLUSION

If a go. -rnmental authority establishes a stricter standard

than is required by existing law, the new stricter standard

necessarily becomes the minimum standard for that jurisdiction.

That is the crux of the problem raised by the decision in the

Intertanko case. If the U.S. Coast Guard, acting pursuant to

federal statute, imposes a stricter standard than that required by

an international treaty, that standard becomes the minimum

standard in the United States. If a state is able to impose a

standard even stricter than imposed by the Coast Guard, the state

standard becomes the minimum standard for the state.

If it is at all important that national standards dealing

with maritime commerce are uniform, authority to impose stricter

until that occurs, the State's requirement need

not give way under the Supremacy Clause.

Id. at 172.

“See Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 446

(1960).

20

standards cannot be extended to the states or to their political

subdivisions. The result would be chaos. With a degree of

proliferation, in state regulation of vessel operation and

management, a vessel meeting all of the requirements imposed by

the United States under its statutes, regulations, and treaty

obligations could be from calling at many American ports.

It is to avoid this kind of practical disruption of maritime

commerce that the need for uniformity in maritime law is

grounded. As worthy as is the cause of the environment, we must

not be allowed us to lose sight of the need for a nationally, unified

approach to safety at sea and the prevention of pollution in the

maritime environment. The need for uniformity in regulation of

maritime commerce has not disappeared and perhaps is even

more acute today as we attempt to deal with environmental

threats that do not recognize either national or state boundaries.

The Petitions for Writ of Certiorari before the Court

should be granted so that this Court can settle the extremely

significant issues raised by this case concerning the roles of the

federal government and the states in the regulation of maritime

commerce.

Dated: June 28, 1999

Respectfully submitted,

Howard M. McCormack

James Patrick Cooney

2200 Chase Tower

600 Travis Street

Houston, Texas 77002

Attorneys for the Maritime Law

Association of the United States as Amicus Curiae

Of Counsel:

Healy & Baillie, L.L.P.

Royston, Rayzor, Vickery & Williams L.L.P.