Amicus Curiae Brief — United States v. Locke

¢v wy, BIBED

NO. 98-

—— 28 1999

In the OSEIOE OF THE CLER

Supreme Court of the United 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

James Patrick Cooney

2200 Chase Tower

600 Travis Street

Houston, Texas 77002

Attorneys for Maritime Law

Of Counsel Association of the United

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

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

i

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE................ 2

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

pd BE Parte eee rer re 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

A EN er Pe ag ae ee Pee 10

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

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

C. THE PREEMPTION ANALYSIS FOLLOWED

IN INTERTANKO 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

I ka ig ks 4s 0 oe 15

3. THE PREEMPTIVE EFFECT OF

INTERNATIONAL TREATIES... .... 16

4. THE PREEMPTIVE EFFECT OF COAST

GUARD REGULATIONS. .. . 18

Po PELE VU eee ee er eee ee 20

il

TABLE OF CITED AUTHORITIES

Page

Cases:

Air Logistics, Inc. v. Tallentire,477 US. 207

American Dredging Co. v. Miller, 510 US. 443

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

6 0 08 0b 6 0 dele 6d eee a Ae ee (1973)4, 14

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

1006 (Mem) (1908)... ccnsvcncsivessdbebendcvess 4

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

(10GB) ....ccccunctscecacuetebenee saben aurea 18

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 2395

(19GB)... cccesceecebceavenseeeasenens eaues 13, 17

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

(190). ccc cccdcweude-c cba aeseeeeeeee ae 4

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

(1977) .. . 0 c6ceb és dees bbe beer eee esa eee eee 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, 446,

(1000) .. 0 6 odes ¢eeed eens yee eee 20

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

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

So hi ean 4,6, 11, 12, 14, 15, 16, 18, 20

ot eprint nde toad

Panama R.R. Co. v. Johnson, 264 US. 375, 386

(Sh ai RA er aa a aaa 5, 8

Ray v. Atlantic Richfield Co. 435 US. 151

ORR ERENEOS Sy 4,5, 18

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

EM en se

ete

‘Statutes:

ee lig ctis ek 3

28 U.S.C. §§ 1330, 1602-1611 .................. 3

a 3

I oe rnsk., cei Sie. 14

EE Se 5

SB UBC. 9 9008-2078... eee cess 3

SB UBC. SIMBIOME... 6.6... icc. 13

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

iv

3B DBL. GBGGED is «6 vic vikines ced deeehes 0444 6

SD OE, G GEA 5 5 00d 0 bdo peweviensctevvan 11

@ GHG. GHRRGE. 6 6 icc cédvcceduusncavesvies 13

@ CRCGIIITE o.ccndeic wiscnvcdvdecneass 14

Pfs oe RE Serer re Pry 10

46 U.S.C. §§3710(a) and 3711(a). .. 2... ee ee ees 6

6B UB. CO. GIGS ko vies dove kins ike vedios wee il

GO RBG GOOOE sion vt fesdee wet ccwkewiivind il

Pgh bok |) DS) |) PT ae ee ee 3

GOI: Br a.s hin no & 60 6.0 von dkke dence 11

68 UBD. GOGRE 2. occ cede se dde ve csvmiebda il

OBS BO 66 cca dice hadi sess 11

66 UBL. 6B GNGE, GOGR o's ia dk eae Secth Kase ds 11

Oil and Hazardous Substances Spill Prevention and

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

Ch. GROBBIO. 60: GOR. . 0 ca 5 tee Owe Ws 6A 6

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

Pub. L. No. 95-474, 92 Stat. 1471 (1978). ........... 6

Wash. Admin. Code $§317-21-010 et seq... ......... 10

—

Vv.

United States Constitution:

Treaties and Conventions:

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

SUNG eect cate cece 3

Regulations:

58 Fed. Reg. 27,268 (1993)................-.. .. 10

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

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

Other

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

(Hamilton),

24(Hamilton) and 64 (Jay)... 6. ce wee 5

Craig H.Allen, Federalism in the Ear of International

Standards: Federal and State Government Regulation of

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

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

ee. PLT Pee ee ee ey eee 6, 14, 17

United States

October Term, 1998

THE INTERNATIONAL ASSOCIATION OF

INDEPENDENT TANKER OWNERS (INTERTANKO),

PETITIONER

Vv.

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, represent all maritime interests, including shipowners,

charterers, cargo interests, port authorities, seaman,

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 Comté Maritime International and as

an affiliated organization of the American Bar

‘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.

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 Comté Maritime International,’

seeking international uniformity in maritime laws through

int tional ti

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

Association of the United States considers it

of the utmost importance and in the public

*46 U.S.C.§§1300-1315.

‘9 U.S.C. §§1-5.

°28 U.S.C. $§ 1330, 1602-1611.

* E.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;

4

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 Intertanko 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

*E.g. Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970),

Askew v. American Waterways Operators, 411 U.S. 325 (1973); Ray v.

Atlantic Richfield Co., 435 U.S. 151 (1978); Air Logistics, Inc. v.

Tallentire, 477 U.S. 207 (1986); Chick Kam Choo v. Exxon Corporation,

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

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

v. Calhoun, 515 U.S. 1186 (1996); Exxon Co., U.S.A. uv Sofec, Inc.,516

U.S. 1091 (1996); Bouchard Transp. Co., Inc. v. U.S.,U.S., 119 §.Ct. 1095

(Mem.) (1999).

5

balance to be achieved among the competing state,

federal and international interests 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

statutes 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 us. Atlantic Richfield Co."° and the

preemptive effect of international conventions dealing

with vessel safety te which the United States is a

party.

ARGUMENT

1. The Intertanko 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 develop, implement and

°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 (9" Cir. 1998) (hereafter

"Intertanko")

"See, e.g., The Federalist, No. 11,(Hamilton); Panama R.R. Co.

v. Johnson, 264 a s. 375, 386 (1923).

6

enforce an effective mandatory international legal regime

designed to promote merchant vessel 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 Intertanko, 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 open to the States

and their political subdivisions” to effectively displace the

federal government in its role as the principal regulator of our

‘For a listing of the International convention implicated,

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 II), 29 J. Mar.L.& Com. 565 (1998)

(Allen Part IT)

“See, e.g., 46 U.S.C. §§3710(a) and 3711(a).

'8Oil and Hazardous Substances Spill Prevention and Response

Act, 1991 Wash. Laws ch. 200 Wash. Rev. Code ch. 88.46.010 et seq.,;

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

'*It 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 sought allows

not only the states, but state port authorities, municipalities and other

political subdivisions to regulate vessel operations concurrently with the

federal government.

oe

This possible displacement of the federal government

as 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

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

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

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 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.

"The Constitutional basis of the preemptive federal role in the

regulation of maritime commerce is clear. Article 1, 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 shall extend * * * To

all cases of admiralty and maritime jurisdiction." It 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 (2990) , 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 notwithstanding.”

9

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

, 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

context, however, the environmental interests of the States

must be balanced against the 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.”

*Unfortunately, the problem is not restricted to vessel actually

calling on ports within the State of Washington, since the Washington

(continued...)

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.

II. 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 I is

codified at Sections 1221-1227 of Title 33 U.S.C.and authorizes

(...continued)

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.

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

=F g., 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.

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

ond uel Gea f an ant lifications.

lot nat ici )

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 Intertanko that the

Washington statute and regulations dealing with vessel

operation and management are not preempted by OPA9O,

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 interprsted as preempting, the

authority of any State or political subdivision thereof from

ee eee een eee

. the discharge of oil or the po. lution by oil within such

— e aconr elerdrcar States or any State

or political subdivision thereof . . . to impose additional

liability or additional requirements . . . relating to the

"46 U.S. C. §3703.

*46 U.S.C. §2104.

"46 U.S.C. §§ 9101, 9102.

*46 U.S.C. §7702.

46 U.S.C. §8104(n).

"46 U.S.C. § 3703a.

"33 U.S.C. §2718(a).

12

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 OPA9O. As the most recent federal

statute in the 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

complement.”

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

demonstrates Congress's willingness to permit

state efforts in the areas of cil-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 all federal statutes dealing with vessel regulation.

* Intertanko, supra, 14% F 3d at 1062.

"Id at 1062.

13

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

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 Fuca

Region, and the Uniited: 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

legislative history of the PWSA/PTSA refers to

congressional intent to abide by international

: bj t to fe 1, lj . li tL 3%

C. The Preemption Analysis Followed in Intertanko is

Flawed.

1. Section 1018 of OPA90 does not save state vessel

“supra, note 6,

726 F.2d 483, (9 Cir. 1984) cert. denied sub nom., Chevron

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

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

14

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 Authorization Act (TAPPA),” and the

Deepwater Port Act.” The language has never been construed

and removal activities.“ A consideration of the legislative

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

"33 U.S.C. §1321(0)(2).

"42 U.S.C. §9614(a).

"43 U.S.C.§1656(e(1).

“33 U.S.C. §1517(k).

“See, e.g. yoo vy. American Waterways Operators, Inc., 411 U.S. 325

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

Craig H_ Allen, Federalism in the Ear of International Standards. Feceral and State

Government Regulation of Merchant Vessels in the United States (Part iil), 30 J.

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

® See generally, Intertanko , \59 F.3d 1220 (% Cir. 1998) (Graber, CJ,

esenting)

15

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

assigned to it.

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

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 vesse] 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

“Allen, surpa, note 41, at 132.

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

U.S 52, 67(1941).

16

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 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

“ Imertanko, supra, 148 F 3d at 1062.

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

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

(continued...)

17

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) thai 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 affect the ability of the states to 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 accomplishment and execution of the "full

(...continued)

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. 565, 565-575 (1998)

“supra, note 34.

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

us. 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 I 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

The Ray decision goes on to observe that Title I of PWSA

authorizes the Secretary to issue regulations to implement

such provisions and that 22 U.S.C. $1222(b) prohibits States

from issuing “higher safety equipment requirements or safety

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

Hines v. Davidowitz, supra.,312 US $2 (1941).

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

history and no authority cited by the court in Intertanko II, 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, it 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, sec,

Robert H. Nicholas, Jr. Federal and State Preemption Regarding Vessel

Construction and Operation, 73 Tulane Law Review | (1999); Charles L. Coleman,

lll, Federal Preemption of State "BAP Laws; Repelling State Boarders in the

Interest of Uniformity, 9 U.S. F. Mar. L.J. 305 (1997).

* Supra note 6..

" Intertanko, supra, 148 F.3d at 1064.

“Ray, supra, 435 U.S. at 171.

19

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.”

In this case, the Coast Guard has issued regulations

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

OPA90, dealing within the very activities sought to be

regulated by 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 preerpt 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

“Ray , supra, 435 U.S. at 171-172

“The Court added:

It may be that rules will be forthcorning that will

preempt the State's present tug-escort rule, but until

that occurs, the State's requirement need not give

way under the Supremacy Clause.

Id. at 172.

20

regulations are preempted.”

CONCLUSION

If a governmental 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 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 barred 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 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

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

(1960).

21

Howard M. McCormack

(212) 943-3980