# Amicus Curiae Brief — United States v. Locke

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0274%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 89

## Text

¢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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0274%3A10. Public record. Not legal advice.