Amicus Curiae Brief — United States v. Locke

i FILED.

9 ©

Nos. 98-1701 & 98-1 OCT 31 9

THE INTERNATIONAL ASSOCIATION OF INDEPENDENT

TANKER OWNERS (INTERTANKO), et ai.,

Petitioners,

v.

GARY LOCKE, GOVERNOR OF THE

STATE OF WASHINGTON, ef al.,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICI CURIAE,

BALTIC AND INTERNATIONAL MARITIME COUNCIL

AND CHAMBER OF SHIPPING OF AMERICA,

IN SUPPORT OF PETITIONERS

DENNIS L. BRYANT

Counsel of Record

CHARLES L. COLEMAN, III

MATTHEW P. VAFIDIS

BRIAN D. STARER

Jovi TENEV

HAIGHT GARDNER HOLLAND & KNIGHT

A LAW OFFICE OF HOLLAND & KNIGHT LLP

2100 Pennsylvania Avenue, NW

Suite 400

Washington, DC 20037-3202

(202) 828-1865

PRESS OF BYRON S. ADAMS ¢ WASHINGTON, D.C. # 1-800-347-8208

nr 4

Zz \

. CONGRESS HAS PLENARY AUTHORITY

TO PREEMPT STATE AND LOCAL LAWS

AFFECTING FOREIGN OR INTERSTATE

. THIS COURT’S HOLDING IN RAY V.

ATLANTIC RICHFIELD CO. IS FULLY

DISPOSITIVE OF THIS CASE

II]. LEGISLATIVE AND REGULATORY

ACTIVITY SINCE THE RAY DECISION

PROVIDE ADDITIONAL EVIDENCE

THAT THE FEDERAL GOVERNMENT

HAS PREEMPTED THE FIELD WITH

RESPECT TO THE “OPERATION,

EQUIPPING, PERSONNEL Su eae CATION,

CONCLUSION

i

TABLE OF AUTHORITIES

CASES

Page

Argentine Republic v. Amerada Hess Shipping Corp.,

GES U.S. GEO CROCE D. ise saccrvicvekccsevisansintbemnsnbepheasckse l

Askew v. American Waterways Operators, Inc..,

GE U.S. SES. C TID a Sicsckovcssciedeocnieateailavietecaianels 8

Cipollone v. Liggett Group, Inc.,

SOS UF. FOS GOD pia iitsnsacrenssscctbbaesesisicbauas 4

City of Burbank v. Lockheed Air Terminal Inc.,

411 U.8. GO6 CIGTae wie vetetittane Sean )

Cooley v. Board of Wardens of the Port of Philadelphia,

SS U.S. BOO CRGGED o. isiccscccosssnccassstotassccetweae 6,7

Exxon Shipping v. Ellenwood,

SOS UES. TRE CGD ie: cesceicusnsnscccsadeobovedetcaaee l

Fidelity Federal Sav. & Loan Ass'n v. de la Cuesta,

SSG U.S. B48 CUGGED an ccesvcdsicicisvassvecsrgttatcaioetindion 17

Gibbons v. Ogden,

BS UD. A EIGD os sinnterrssceecncideveiasiciaetibe 5, 6

Huron Portland Cement Co. v. City of Detroit,

FOR UT, RP CID nicsisscstinsentevitshshippithictvleanepsiuedlets 8

Kelly v. State of Washington,

PO WE. BERNE vecsncasciscsncchetabaibianiectiohtenatals 7,8

Land and Lake Tours, Inc. v. Lewis,

738 F.2d 961 (8™ Cir. 1984). occ cccceccccecteeees 17

Northwest Airlines v. State of Minnesota,

322 U.S. 292 (1944) ...... etias int cediadencascoce idiabibihe 18

Ray v. Atlantic Richfield Co..,

a csacesmicay passim

Rice v. Santa Fe Elevator Corp.,

RRR I LE Ig i 4

Transportation Institute v. U.S. Coast Guard,

727 F.Supp. 648 (D.D.C. 1989) 20 nnn.. 17

United States v. South-Eastern Underwriters Ass'n,

REST Se 5

U.S. CONSTITUTION

Art. VI, Clause 2 (Supremacy Clause) .......00....0000000000000... 4

Art. I, Sectivsn 8, Clause 2 (Commerce Clause) ........... passim

STATUTES

Act to Prevent Pollution from Ships,

Pub. L. No. 96-478, 94 Stat. 2297 2.00... 13

Coast Guard Regulatory Reform Act of 1996,

Pub. L. No. 104-324, Title VI, 110 Stat. 3927 ........ 14

Oil Pollution Act of 1990,

Pub. L. No. 101-380, 104 Stat. 484 .................. 13,17

Partial Recodification of Title 46,

United States Code, Pub. L. No. 98-89, 97 Stat. 500 ..... 15,16

1V

Ports and Waterways Safety Act of 1972,

Pub. L. No. 92-340, 86 Stat. 427 .............. 8,9, 10, 12

Port and Tanker Safety Act of 1978,

Pub. L. No. 95-474, 92 Stat. 471} ooo. coccccccceeoeee 12

Tank Vessel Act of 1936,

“, 9 Geb aa mbes se. 9,12

33 U.S.C. § 1221 ef Seq. (1998) ooo... occcccccsscccsssssssseeseeeseee 12

33 U.S.C. § 1901 ef Seq. (1998) o.oo... cccccccsccsssssesssvssevveeeen 13

33 U.S.C. § 2701 ef seg. (1998) .o......ccccececssesesessssseseesseveen 13

46 U.S.C. § 3914 (1980) ooo ccccccccesseeeenee eee ace 10

46 U.S.C., Subtitle 1] (1998) o.o.o.....cccccccccssceessseseeveeee 16, 17

46 U.S.C. § 2103 (1998) .......... URE a 16, 17

46 U.S.C., Chapter 32 (1998) ..........cccccccccceccssssecessssseeseee 14

46 U.S.C., Chapter 37 (1998) ooo. SRR 10

SUSE tc ea 10

REGULATIONS

CGD Bi i ee 17

43 Fed. Reg. 12,257 (March 23, 1978) oo..oc...ccccccccssessseeen 19

43 Fed. Reg. 16,946 (April 20, 1978) ooo...cccccccccssseee oven 19

43 Fed. Reg. 32,112 (July 24, 1978) ooo.ooooccccccccccscsssssveeen 20

44 Fed. Reg. 25,986 (May 3, 1979) oooo.oocccccccccsssssssesseeen 20

Vv

44 Fed. Reg. 31,592 (May 31, 1979) oo... 20

44 Fed. Reg. 66,500 (November 19, 1979) oo... 20

44 Fed. Reg. 66,528 (November 19, 1979) .oo.....ccccoo- 20

44 Fed. Reg. 69,299 (December 3, 1979) 2.0.0... 20

45 Fed. Reg. 48,822 (July 21, 1980) 20... 20

45 Fed. Reg. 57,392 (August 28, 1980) 22.0... 20

45 Fed. Reg. 77,439 (November 24, 1980) 00.0.0... 20

46 Fed. Reg. 61,456 (December 17, 1981) 02.0.0... 20

47 Fed. Reg. 10,533 (March 11, 1982) 2........ccccccees 21

47 Fed. Reg. 15,210 (April 8, 1982) 20.2... 21

47 Fed. Reg. 17,968 (April 26, 1982) 2.....-..e.ceoeeccseees 21

47 Fed. Reg. 34,388 (August 9, 1982) 2.0. cee. 21

47 Fed. Reg. 50,494 (December 30, 1982) 2.2.00... 21

48 Fed. Reg. 35,402 (August 4, 1983) 2.2... 21

48 Fed. Reg. 38,646 (August 25, 1983) 2... 21

48 Fed. Reg. 44,534 (September 29, 1983) 02.2.0... 21

48 Fed. Reg. 45,718 (October 6, 1983) 2.0... cece 21

48 Fed. Reg. 50,996 (November 4, 1983) 2..2.......0..000. 21

49 Fed. Reg. 11,170 (March 26, 1984) 2... 21

49 Fed. Reg. 16,794 (April 20, 1984) 22... 22

vi

49 Fed. Reg. 32,178 (August 13, 1984) o.........--ccccceceee 22

49 Fed. Reg. 43,463 (October 29, 1984) o.oo... cece 22

50 Fed. Reg. 87,30 (March 5, 1985) o......ccccccscceeeneeeereen 22

50 Fed. Reg. 11,622 (March 22, 1985) ......-..cccsseeseeeeeee 22

50 Fed. Reg. 21,166 (May 22, 1985) o........csccccssseeeseeeenee 22

51 Fed. Reg. 17,962 (May 16, 1986) o........ccccceccceevennneen 22

$1 Fed. Reg. 19,338 (May 29, 1986) o.o.......ccccccscceeeseeeenee 22

52 Fed. Reg: 7744 (March 12, 1987) .o.......cccccessceessvessneee 22

52 Fed. Reg. 7765 (March 12, 1987) ..........cccscsseeeeseeeeees 22

52 Fed. Reg. 47,526 (December 14, 1987) 00.0.0... 23

53 Fed. Reg. 7745 (March 10, 1988) .oo........ccccccssreeeeen 23

53 Fed. Reg. 17,820 (May 18, 1988) ooo.....-ooccccescesesveoen 23

53 Fed. Reg. 47,064 (November 21, 1988) 00.0.0... 23

54 Fed. Reg. 15,173 (April 17, 1989) o.....cccccccccccsseseesseen 23

54 Fed. Reg. 18,384 (April 28, 1989) o.oo. ocooccccceeereen 23

$4 Fed. Reg. 40,590 (October 2, 1989) ooo....ccccccccsceeveeen 23

55 Fed. Reg. 634 (January 8, 1990) ooo... ceccccccseceeesreeeen 23

$5 Fed. Reg, 21,548 (May 25, 1990) ooo.....c.cccscccseseseeeenee 23

55 Fed. Reg. 25,396 (June 21, 1990) oo......cccccccsseveeesneenee 23

55 Fed. Reg. 30,658 (July 26, 1990) ooo......ccccscessssveeeneeeen 24

vii

55 Fed. Reg. 32,244 (August 8, 1990) .o.........00.ccccee 24

55 Fed. Reg. 36,248 (September 4, 1990) o.oo... 24

56 Fed. Reg, 31,030 (July 8, 1991) o....-ooecccsscccsssseeneees 24

56 Fed. Reg. 37,475 (August 7, 1991) .....-...ccccceeee 24

$7 Fed. Reg. 14,483 (April 21, 1992) 2......-..ccccsessennen 24

57 Fed. Reg. 36,222 (August 12, 1992) .o........cc0ceeen 24

57 Fed. Reg. 41,812 (September 11, 1992) .............00000 24

58 Fed. Reg. 7376 (February 5, 1993) ooo... 24

58 Fed. Reg. 17,316 (February 5, 1993) oo... 24

58 Fed. Reg. 27,628 (May 10, 1993) oo......c.cscscssssseenns 25

58 Fed. Reg. 48,434 (September 15, 1993) 2.........000000 25

58 Fed. Reg. 52,598 (October 8, 1993)... RS 25

58 Fed. Reg. 67,988 (December 22, 1993) .........0.00000000 25

58 Fed. Reg. 68,274 (December 23, 1993) 2..........00000000 25

59 Fed. Reg. 18,700 (April 19, 1994) oo... 25

59 Fed. Reg. 36,316 (July 15, 1994) ooo... 25

59 Fed. Reg. 40,186 (August 5, 1994) 2.....0....cccsecee 25

59 Fed. Reg. 42,962 (August 19, 1994) ooo... 25

59 Fed. Reg. 51,332 (October 7, 1994) o...........cccceeee 25

59 Fed. Reg. 53,286 (October 21, 1994) o........ccccceeee 26

60 Fed. Reg. 4522 (January 23, 1995) oo... 26

60 Fed. Reg. 17,134-€April 4, 1995) ooo. ccee, 26

60 Fed. Reg. 24,767 (May 10, 1995) oo..ccccccccccccseesreeneee 26

61 Fed. Reg. 25,984 (May 23, 1996) o.oo... 26

61 Fed. Reg. 39,770 (July 30, 1996) ooo... 26

62 Fed. Reg. 1622 (January 10, 1997) oo... 26

62 Fed. Reg. 34,506 (June 26, 1997) ooo... 26

62 Fed. Reg. 51,188 (September 30, 1997) oo... 27

62 Fed. Reg. 67,492 (December 24, 1997) oo....c.cccccccccoscen 27

63 Fed. Reg. 7707 (February 17, 1998) 20.0.0... 27

63 Fed. Reg. 19,190 (April 17, 1998) ooo...cccccccccccssseseonee 27

63 Fed. Reg. 71,754 (December 30, 1998) ..000.......0...... 27

64 Fed. Reg. 26,672 (May 17, 1999) o.oo. 27

64 Fed. Reg. 33,404 (June 23, 1999) ooo ooococcccccceeseone 27

LEGISLATIVE MATERIALS

H.R. Rep. No. 95-1384 (1978) o.oo. cccccccssesssssesssvevssvesvensee 13

H.R. Rep. No. 96-1224 (1980) oo..0.oooocccceecccceceeeteees 13

DRIR. BOG DUR TE CRD ascie sncsscrssivcosnosiryedasonessitdnent 16

The Oil Pollution Act of 1990,

HLR. Rep. No. 103-8 (1993). .....ccccccccssecssovecesovseeessecenveeom 17

Vessel Response Plans,

FLR. Rep. No. 102-93 (1992). .......cccccscesreseereresnersereneenes 17

S. Rep. No. 101-94 (1990) .........cccccesessessessereeeneerseneeneenes 13

S. Rep. No. 104-160 (1996) ........ccccccceeeseseetetetesenerenees 14

1

INTEREST OF THE AMICI CURIAE

In the court below, Petitioners argued that laws and

regulations adopted by the State of Washington with regard to

the design, construction, equipment, operation, and manning

of oil tankers were preempted by comparable federal

legislation and regulations under the Supremacy Clause and

other provisions of the United States Constitution. The Baltic

and International Maritime Council and the Chamber of

Shipping of America as amici are uniquely able to describe the

significant effect on the maritime industry's operations if the

decision of the court below is allowed to stand. The Court has

consistently allowed industry associations, including, e.g. , the

predecessor to the Chamber of Shipping of America, to file

briefs as amicus curiae. See Exxon Shipping v. Ellenwood,

$08 U.S. 981 (1993); Argentine Republic v. Amerada Hess

Shipping Corp., 488 U.S. 810 (1988).'

Founded in 1905, the Baltic and International Maritime

Council (BIMCO) is the world’s oldest and largest

association of ship owners and operators. It represents over

1,000 owners and operators of approximately 12,500 vessels

from over 100 countries, constituting about 60 percent of the

world’s merchant shipping capacity or about 460 million

deadweight tons. BIMCO also represents approximately

1,600 ship brokers and has about 100 other members who

' Letters of consent to the filing of this brief have been lodged with

the Clerk of the Court pursuant to Rule 37.3. Pursuant to Rule 37.6,

counsel for amici states that no-counsel for a party authored the brief in

whole or in part and no person or entity, other than the amici curiae and

their counsel made a monetary contribution to the preparation or

submission of the brief.

2

share the group’s interest in maritime issues. A major goal

of the organization is the development of uniform worldwide

standards with regard to the design, construction, equipment,

operation, and manning of merchant vessels. To this end,

BIMCO works closely with the International Maritime

Organization (IMO) and numerous flag administrations.

BIMCO is also the principal organization responsible for the

development of standard charter parties, bills of lading,

individual clauses, and other shipping forms.

The Chamber of Shipping of America (CSA) is a non-

profit incorporated association. It represents sixteen U.S.-

based companies which own, operate, or charter oceangoing

tankers, container ships, and other merchant vessels engaged

in both the domestic and international trades. The Chamber

also represents other entities which maintain a commercial

interest in the operation of such oceangoing vessels. CSA’s

principal function is to represent the interests of the U.S.

merchant marine industry before the United States Congress,

federal agencies, state legislatures, and before federal and state

courts. CSA works closely with federal agencies concerned

with maritime safety and marine environmental protection and

provides a forum in which marine carriers can discuss and

encourage maritime safety and marine environmental

protection initiatives through industry working groups. The

American Institute of Merchant Shipping, the predecessor

group to the Chamber of Shipping of America, has filed

numerous amicus briefs in federal and state court proceedings

concerning a wide variety of issues of interest to its members.

3

STATEMENT OF THE CASE

The vast majority (approximately 95% by weight) of

United States imports and exports travel via commercial

vessels. The same is true of much of the rest of the world.

The safety of the mariners operating commercial vessels in

international commerce, the vess/:ls and their cargoes, and the

marine environment depend heavily on international

uniformity with regard to the design, construction, equipment,

operation, and manning of those vessels. The United States

Government has become party to a number of international

agreements designed to increase that uniformity. Further, the

federal government has enacted numerous laws and

promulgated numerous regulations and standards in this

regard. State and local governments are preempted from

disturbing uniform national standards in this area due to the

pervasive impact of the federal system. The decision of the

court below ignored the criteria set forth in this Court's

decision in Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978).

SUMMARY OF THE ARGUMENT

The Court should reverse the judgment below because

Congress has preempted the field by providing for a unified

system of federal laws and regulations concerning the design,

construction, equipment, operation, and manning of

merchant vessels operating on the navigable waters of the

United States and the general superintendence of the

merchant marine by the U.S. Coast Guard. Congress,

intentionally, has left no room for state and local

governments to supplement this field.

4

ARGUMENT

I. CONGRESS HAS PLENARY AUTHORITY

TO PREEMPT STATE AND LOCAL

LAWS AFFECTING FOREIGN OR

INTERSTATE COMMERCE

Congress has plenary authority to preempt state and

local law in any field in which Congress is empowered to act.

United States Constitution, article VI, clause 2. Federal

authority is particularly pervasive with regard to foreign and

interstate commerce. United States Constitution, article I,

section 8, clause 2. Nevertheless, the historic police powers

of the states are not to be deemed to be superseded by federal

law unless that is the clear and manifest purpose of Congress.

Congressional intent is the ultimate touchstone of preemption

analysis. Cipollone v. Liggett Group, Inc., 505 U.S. 504

(1992).

Such Congressional intent to preempt state and local

law may be evidenced in several ways. The scheme of

federal law and regulation may be so persuasive as to make

reasonable the inference that Congress left no room for states

and local governments to supplement it. Alternatively the

federal laws and regulations may touch a field in which the

federal interest is so dominant that the federal system will be

assumed to preclude enforcement of state or local laws on the

same subject. Likewise, the object sought to be obtained by

the federal law and regulations and the character of

obligations imposed by them may reveal the same purpose.

Finally, the state or local policy may produce a result

inconsistent with the objective of the federal statute. “It is

often a perplexing question whether Congress has precluded

5

state action or by the choice of selective regulatory measures

has left the police power of the States undisturbed except as

the state and federal regulations collide.” Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 231 (1947).

With respect to the power of the federal government

as regards foreign and interstate commerce, this Court has

stated: “Our basic responsibility in interpreting the

Commerce Clause is to make certain that the power to

govern intercourse among the states remains where the

Constitution placed it.” United States v. South-Eastern

Underwriters Ass'n, 322 U.S. 533, 552 (1944). The federal

preeminence with regard to commerce in general and

maritime navigation in particular dates from the founding of

our country and was eloquently summarized by Chief Justice

Marshall in 1824:

If commerce does not include navigation, the

government of the Union has no direct power over

that subject, and can make no law prescribing what

shall constitute American vessels, or requiring that

they shall be navigated by American seamen. Yet

this power has been exercised from the

commencement of the government, has been

exercised with the consent of all, and has been

understood by all to be a commercial regulation. All

America understands, and has uniformly understood,

the word ‘commerce’ to comprehend navigation. It

was so understood, and must have been so

understood, when the constitution was framed. The

power over commerce, including navigation, was one

of the primary objects for which the people of

6

America adopted their government, and must have

been contemplated in forming it.

Gibbons v. Ogden, 22 U.S. 1, 190 (1824)

Justice Johnson, concurring in Gibbons, stated:

[FJor, although one grant of power over commerce

should not be deemed a total relinquishment of power

over the subject, but amounting only to a power to

assume, still the power of the states must be at an

end, so far as the United States have, by their

legislative act, taken the subject under their

immediate superintendence.

22 US. at 234.

The difficulty in parsing between where the federal

government had sole authority to regulate with regard to

commerce and navigation and where authority was shared

with state and local governments was recognized by this

Court as early as 1851. At that time, the issue was state

authority to require certain vessels to utilize (or at least pay

for) local pilots. The Court, recognizing that, in accordance

with a federal law, local pilotage was largely a local as

opposed to a national issue, stated:

Now, the power to regulate commerce embraces a

vast field, containing not only many, but exceedingly

various subjects, quite unlike in their nature, some

imperatively demanding a single uniform rule,

operating equally on the commerce of the United

States in every port; and some, like the subject now in

oS eT ns

oan areas

7

question [pilotage], as imperatively demanding that

diversity, which alone can meet the local necessities

of navigation. .. . Whatever subjects of this power are

in their nature national, or admit only of one uniform

system, or plan of regulation, may justly be said to be

of such a nature as to require exclusive legislation by

Congress.

Cooley v. Board of Wardens of the Port of Philadelphia, 53

U.S. 299, 319 (1851).

In 1937, this Court noted that the federal acts and

regulations with respect to federally inspected vessels on the

navigable waters of the United States are elaborate. Kelly v.

State of Washington, 302 U.S. 1, 4 (1937). In that case, the

issue before the Court was whether a state was preempted

from regulating a limited group of commercial vessels that

were not subject to the usual federal inspection laws. This

Court sustained the state regulatory scheme, but with strong

caveats, stating:

A vessel which is actually unsafe and unseaworthy in

the primary and commonly understood sense is not

within the protection of that principle [uniformity of

regulation]. The state may treat it as it may treat a

diseased animal or unwholesome food. In such a

matter, the state may protect its people without

waiting for federal action providing the state action

does not come into conflict with federal rules. If,

however, the state goes further and attempts to

impose particular standards as to structure, design,

equipment, and operation, which in the judgment of

its authorities may be desirable, but pass beyond what

8

is plainly essential to safety and seaworthiness, the

state will encounter the principle that such

requirements, if imposed at all, must be through the

action of Congress which can establish a uniform

rule. Whether a state in a particular matter goes too

far must be left to be determined when the precise

question arises.

302 US. at 15.

Il. THIS COURT’S HOLDING IN RAY V.

ATLANTIC RICHFIELD CO. IS FULLY

DISPOSITIVE OF THIS CASE

This Court has drawn a clear distinction between

regulation of maritime pollution, where the authority of state

and local governments to take action is not per se preempted

by the federal government, Askew v. American Waterways

Operators, Inc., 411 U.S. 325 (1973), Huron Portland

Cement Co. v. City of Detroit, 362 U.S. 440 (1960), and

regulation of the design and construction of inspected

commercial vessels operating on the navigable waters of the

United States, where the pervasive federal regulatory scheme

does not admit of state or local government participation.

Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978).

In the Ray case, this Court drew a distinction between

the mandatory provisions of Title II of the Ports and

Waterways Act of 1972, which directed the Secretary of

Transportation to promulgate certain marine safety

regulations, and Title I of the Act, which authorized (but did

not mandate) the Secretary to promulgate additional marine

safety regulations. Basically, this Court held that the State of

9

Washington was preempted from regulating vessel design

and construction standards because those standards came

under Title Il, the mandatory portion of the Act. 435 US. at

165. The State of Washington was not preempted from

regulating in areas covered by Title I of the Act when the

federal government had not prescribed regulations or

standards under that authority. 435 U.S. at 171.

As this Court stated in another Commerce Clause

case: “The fact that there is no express provision of pre-

emption in the... Act. . . is not decisive. .. . It is the

pervasive nature of the scheme of federal regulation . . . that

leads us to conclude that there is pre-emption.” City of

Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 633

(1973).

In its ruling on the Ray case, this Court limited its

preemption discussion to design and construction because

those were the issues before the Court. Title II of the Ports

and Waterways Safety Act of 1972 (which amended the

Tank Vessel Act of 1936) though, was broader in its reach.

Since the issue in the instant litigation involves the authority

to regulate the operation and manning of vessels on the

navigable waters of the United States, it is enlightening to

review other pertinent provisions of the 1972 Act. There,

Congress directed the Secretary,

2 In that case, the municipality's attempt to regulate aircraft noise at

the local airport was held to be incompatible with the federal scheme

even though the federal statute, at the ume of the liugation, contained no

10

[1)n order to secure effective provision (A) for vessel

safety and (B) for protection of the marine

environment, [to] establish .. . such additional rules

and regulations as may be necessary with respect to

... the maintenance of such vessels, . . . the handling

and stowage of cargo, equipment and appliances for

_.. prevention and mitigation of damage to the

marine environment, . . . the operation of the vessel,

... the requirements for manning, . . . the duties and

qualifications of the officers and crew thereof, and

_. the inspection of all of the foregoing.

Pub. L. No. 92-340, § 201, 86 Stat. 427 (July 10, 1972).°

Thus, the statutory references to “design,”

“construction,” and “equipment” found to be preemptive in

Ray are separated by only a few words in the same sentence

from the very subject matter of “operation” and “manning” at

issue here. In light of this, the following excerpts from the

Ray decision, which are logically applicable to the other

subjects addressed in Title II of the Ports and Waterways

Safety Act of 1972 in addition to design, construction, and

equipment, ought to be fully dispositive of this case:

Title II [of the Ports and Waterways Safety Act of

1972, now codified at 46 U S. Code, Chapter 37]

aims at insuring vessel safety and protecting the

marine environment, and the Secretary must issue all

3 This provision was originally codified at 46 U.S.C. § 39la. It has

been amended at vanious umes subsequently, and is now located at 46

U.S.C. § 3703.

11

_. . regulations that he deems necessary for these

ends, after considering the specified statutory

standards. The federal scheme thus aims precisely at

the same ends as does [the Washington State Tanker

Law]. Furthermore, under the PWSA, after

considering the statutory standards and issuing all _ .

requirements that in his judgment are necessary, the

Secretary inspects and certifies each vessel as

sufficiently safe to protect the marine environment

and issues a permit or its equivalent to carry tank-

vessel cargoes. Refusing to accept the federal

judgment, however, the State now seeks to exclude

from Puget Sound vessels certified as having

acceptable . . . characteristics, unless they satisfy the

different and higher . . . requirements imposed by

state law. The Supremacy Clause dictates that the

federal judgment that a vessel is safe to navigate

United States waters prevail over the contrary state

judgment.

Ray v. Atlantic Richfield Co., 435 U.S. 151, 165 (1978).

12

Ill. LEGISLATIVE AND REGULATORY

ACTIVITY SINCE THE RAY DECISION

PROVIDE ADDITIONAL EVIDENCE

THAT THE FEDERAL GOVERNMENT

HAS PREEMPTED THE FIELD WITH

RESPECT TO THE “OPERATION,

EQUIPPING, PERSONNEL QUALIFICA-

TION, AND MANNING” OF VESSELS

Even though the above analysis should be dispositive

in this case, there is additional evidence of Congressional

preemption to be considered, based on federal legislative and

regulatory developments in the intervening years since Ray.

While this Court acknowledged the elaborate level of federal

regulation of inspected vessels in 1937 and again in 1978,

numerous federal statutes and a plethora of U.S. Coast Guard

regulations have been promulgated since the Ray decision

resulting in even more intense federal oversight of the marine

industry. The more significant post-Ray statutes and

regulations are summarized below.

Even before the ink was dry on the Ray decision,

Congress enacted the Port and Tanker Safety Act of 1978,

Pub. L. No. 95-474, 92 Stat. 1471 (October 17, 1978),

codified at 33 U.S.C. § 1221, ef seg. As stated in the

legislative history: “[This bill] expands the provisions now

found in title I of the Ports and Waterways Safety Act of

1972. In addition, it amends the Tank Vessel Act of 1936

[Title II of the PWSA] to include additional authority over

the construction, operation, and manning of tank vessels.

Finally, it includes provisions for addressing the problem of

vessels operating near our coastlines and provides for the

13

supervision of lightering operations in offshore waters.”

H.R. Rep. No. 95-1384 — Part 1, pages 2-3 (as contained at

1978 U.S. Code Cong. & Admin. News 3271).

Two years later, Congress enacted the Act to Prevent

Pollution from Ships, Pub. L. No. 96-478, 94 Stat. 2297

(October 21, 1980); codified at 33 U.S.C. § 1901, ef seg.

The legislative history of this enactment notes: “The purpose

of this legislation is to implement the Protocol of 1978

Relating to the International Convention for the Prevention

of Pollution from Ships, 1973 [MARPOL 73/78].” H.R.

Rep. No. 96-1224, page 2 (as contained at 1980 U.S. Code

Cong. & Admin. News 4849). MARPOL 73/78 established

international standards for the design and operation of

tankships and other vessels. It also established detailed

controls on the discharge of oil from ships. The federal law

not only made MARPOL 73/78 applicable in United States

waters, it created criminal and civil penalties for failure to

comply with those provisions while in U.S. waters and

authorized the U.S. Coast Guard to enforce the requirements.

Following the oil spill from the EXXON VALDEZ,

Congress enacted the Oil Pollution Act of 1990, Pub. L. No.

101-380, 104 Stat. 484 (August 18, 1990) (“OPA 90”). Title

I of OPA 90 is codified at 33 U.S.C. § 2701, et seg. The

remainder of OPA 90 consisted mostly of amendments to

existing federal laws, primarily in Title 46, U.S. Code,

Shipping, and Title 33, U.S. Code, Navigation and Navigable

Waters. The legislative history of OPA 90 is extensively

reported in S. Rpt. No. 101-94, as found at 1990 U.S. Code

Cong. & Admin. News 722.

14

Most recently, Congress authorized the Coast Guard

for the first time to regulate the shoreside activities of ship

owners and operators by enacting the Coast Guard

Regulatory Reform Act of 1996, Pub. L. No. 104-324, Title

VI, 110 Stat. 3927 (October 19, 1996); codified at 46 U.S.C.,

Chapter 32. The purpose of this new authority was:

to authorize the Secretary to prescribe regulations

regarding shipboard and shore-based management of

vessels and personnel. This authority would include

conducting examinations and requiring the

maintenance of records. The purpose of this section

is to implement the International Safety Management

[ISM] Code. This agreement, which the U.S.

Government has signed, requires owners of vessels

engaged in foreign commerce to manage their vessels

in a safe manner. This initiative recognizes that many

of the decisions directly affecting the safety and

environmental conditions on vessels are made on

shore. The Secretary currently lacks legal authority

to require adoption and use of the ISM Code by

owners and operators of U_S.-flag vessels. Neither

the International Convention for the Safety of Life at

Sea [SOLAS] in general, nor the ISM Code in

particular, derogate any of the pollution prevention

measures contained in current U.S. law. SOLAS,

including the ISM Code, augments safety and

pollution prevention measures already enacted in the

United States.

S. Report No. 104-169, page 27 (as contained at 1996 U.S.

Code Cong. & Admin. News 4267).

_—

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a

15

It is also of significance that Congress, in 1983, saw

fit to partially recodify Title 46, United States Code. In

enacting that recodification, Congress stated:

The maritime laws of the United States have long

been in need of major revision and recodification.

They are a confusing collection of individual statutes

enacted over a period of nearly two centuries — each

enacted to solve some particular problem of the day.

Viewed now, as a whole, they are poorly organized,

duplicative, often obsolete, and difficult to understand

and apply.

Some of the old<st and most frequently amended of

our maritime laws are those administered by the

Coast Guard. These laws, which are referred to in

this Report as maritime laws, are related primarily to

the safety of merchant vessels. They also cover,

however, the safety [of] recreational vessels, the

protection of the merchant seamen, and the protection

of the environment. 3

Many of the maritime safety laws that are related to

the safety of merchant vessels and the protection of

seamen were codified in 1874 in Titles 52 and 53 of

the Revised Statutes. They, along with the maritime

laws related to recreational vessels and protection of

the environment, are now found primarily in title 46

of the United States Code. A few are also found in

title 33.

The purpose of [this legislation] is to revise,

consolidate, and enact into positive law as a subtitle

16

to title 46 of the United States Code (Shipping) the

maritime safety laws administered by the United

States Coast Guard. The ultimate aim of this

legislation is three-fold: to make maritime safety and

seamen protection law easier for the Coast Guard to

administer, to make it less cumbersome for the

maritime community to use, and to make it more

understandable for everyone involved.

H.R. Rep. No. 98-338, page 113 (as contained at 1983 U.S.

Code Cong. & Admin. News 925).*

Among other provisions in the recodified Subtitle II

of Title 46, United States Code is section 2103, which

provides:

The Secretary [of Transportation] has general

superintendence over the merchant marine of the

United States and of merchant marine personnel

insofar as the enforcement of this subtitle is

concerned and insofar as those vessels and personnel

are not subject, under other law, to the supervision of

another official of the United States Government. In

the interests of marine safety and seamen’s welfare,

the Secretary shall enforce this subtitle and shall carry

out correctly and uniformly administer this subtitle.

* While this measure was largely a recodification of prior laws,

substantive changes from that pnor law are to be considered intentional.

See H.R. Rep. No. 98-338, pages 117-120 (as contained at 1983 U.S.

Code Cong. & Admin. News 929-932).

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17

The Secretary may prescribe regulations to carry out

this subtitle.

Pub. L. No. 98-89, 97 Stat. 506 (August 26, 1983); codified

at 46 U.S.C. § 2103. See Transportation Institute v. U.S.

Coast Guard, 727 F. Supp. 648 (D.D.C. 1989). With limited

exceptions not pertinent here, the Secretary has delegated

this authority to the Commandant of the Coast Guard. See 49

C.F.R. § 1.46.

Utilizing this virtually plenary authority over

commercial vessel operations on the navigable waters of the

United States, the U.S. Coast Guard has promulgated a large

number of regulations imposing new and more stringent

restrictions and requirements on the marine industry in the

years subsequent to the Ray decision.® A significant portion

of those regulations were for the purpose of implementing

the Oil Pollution Act of 1990 (OPA 90). As Rear Admiral

Henn, USCG, stated to Congress in 1993: “OPA 90 is

without doubt the single largest tasking which Congress has

given [the U.S. Coast Guard]. There are numerous sections

most of which are highly interrelated.” H.R. Rep. No. 103-8,

The Oil Pollution Act of 1990, page 5 (1993). See also H.R.

Rep. No. 102-93, Vessel Response Plans (1992).

5 “[V]essel safety specifications and periodic safety inspection

requirements represent an exercise of Congressional power under the

commerce clause, which has been delegated to the Coast Guard.” Land

and Lake Tours, Inc. v. Lewis, 738 F.2d 961 (8th Cir. 1984).

° Federal regulations have no less preemptive effect than federal

statues. Fidelity Federal Sav. & Loan Ass'n v. de la Cuesta, 458 U.S.

141 (1982).

SS AE ITN TT

18

Some of the more significant post-Ray rulemakings

relating to design, construction, operation, and manning of

merchant vessels promulgated by the U.S. Coast Guard are

listed in the next section of this Brief.’ A quick perusal,

though, of the substantive portions of Titles 33 and 46 of the

Code of Federal Regulations will reveal that almost every

one of the Coast Guard provisions in those two titles has

been totally superseded, or at least amended, since 1978.

While not every federal statute or regulation, standing alone,

demonstrates that the federal government pervasively

regulates a particular field, the sheer number of federal

regulations with regard to the marine industry, combined

with their broad scope and fine detail, evidence that the

federal government is of the view that there is little occurring

on merchant vessels that it has not already regulated in one

manner or another.*

In conclusion, while this Court did not have the

occasion to rule in 1937 or in 1978 that the marine industry

was pervasively regulated by the United States Government

to the exclusion of regulation by state and local governments

with regard not only to design, construction, and equipment,

but also with regard to operation and manning, the occasion

” Omitted from this listing are the numerous Coast Guard

regulations relating to documentation of vessels, licensing of merchant

mariners, inspection of vessels, investigation of marine casualties, etc.

* For a discussion of the similarities between the federal regulation

of the maritime and aviation industries, see, Justice Jackson’s concurring

opinion in the case of Northwest Airlines v. State of Minnesota, 322 U.S.

292, 302-303 (1944).

ee ee See

19

has now arrived. The system of federal laws and regulations

concerning these aspects of the marine industry and its

operations on the navigable waters of the United States and

the general superintendence of the merchant marine by the

U.S. Coast Guard is now so pervasive as to make inescapable

the inference that Congress has left no room for state and

local governments to supplement this field.

List of Significant U.S. Coast Guard

Rulemakings Promulgated Subsequent to

Ray v. Atlantic Richfield Co.

The following is a chronological list of significant

rulemakings promulgatec by the U.S. Coast Guard

subsequent to the decision of the U.S. Supreme Court in Ray

v. Atlantic Richfield Co., 435 U.S. 151 (March 6, 1978).

Significance was based primarily on the general application

of the rule to merchant vessels operating on the navigable

waters of the United States. Rulemakings focusing on waters

that are the subject of the instant litigation also are included.

Except as noted, all the rulemakings are either final rules or

interim rules. Amendments to rulemakings promulgated

subsequent to the first rulemaking on a particular topic

following the Ray decision are generally omitted from this

list.

Vessel Traffic Management; Puget Sound, 43 Fed. Reg.

12,257 (March 23, 1978).

Safety Approval of Cargo Containers, 43 Fed. Reg. 16,946

(April 20, 1978).

20

Additional Equipment for Vessels of 10,000 Gross Tons or

More, 43 Fed. Reg. 32,112 (July 24, 1978).

Safety Standards for Self-Propelled Vessels Carrying Bulk

Liquefied Gases, 44 Fed. Reg. 25,986 (May 3, 1979).

Navigation Safety Regulations; Electronic Navigation

Equipment, 44 Fed. Reg. 31,592 (May 31, 1979).

Inert Gas and Deck Foam Systems, 44 Fed. Reg. 66,500

(November 19, 1979).

Tank Vessels of 10,000 Gross Tons or More; Improved

Steering Gear Requirements, 44 Fed. Reg. 66,528

(November 19, 1979).

Benzene Carriage Requirements, 44 Fed. Reg. 69,299

(December 3, 1979).

Puget Sound Vessel Traffic Service Area, 45 Fed. Reg.

48,822 (July 21, 1980).

Notification of Arrivals, Departures, Hazardous Conditions,

and Dangerous Cargoes, 45 Fed. Reg. 57,392 (August 28,

1980).

Casualty Reporting Requirements, 45 Fed. Reg. 77,439

(Novetnber 24, 1980).

Disestablishing of COLREGS Demarcation Lines for Puget

Sound and Adjacent Waters of Northwest Washington, 46

Fed. Reg. 61,456 (December 17, 1981).

21

Lifesaving Equipment, 47 Fed. Reg. 10,533 (March 11,

1982).

Electrical Engineering Regulations, 47 Fed. Reg. 15,210

(April 8, 1982).

Tank Vessel Operation; Puget Sound, 47 Fed. Reg. 17,968

(April 26, 1982).

Navigation Safety Regulations, Radar Requirement for

Certain Tankers of 10,000 Gross Tons or More, 47 Fed. Reg.

34,388 (August 9, 1982).

Electronic Position Fixing Devices, 47 Fed. Reg. 50,494

(December 30, 1982).

Ports and Waterways Safety, Control of Vessel Operations

and Cargo Transfers, 48 Fed. Reg. 35,402 (August 4, 1983).

Freeboards, Load Line Regulations, 48 Fed. Reg. 38,646

(August 25, 1983).

Chart and Publication Requirements, 48 Fed. Reg. 44,534

(September 29, 1983).

Tank Vessels Carrying Oil in Bulk; Cargo Monitors, 48 Fed.

Reg. 45,718 (October 6, 1983).

Subdivision and Stability Regulations, 48 Fed. Reg. 50,996

(November 4, 1983).

Special Requirements for Cargo Lightering Operations, 49

Fed. Reg. 11,170 (March 26, 1984).

22

Dangerous Cargoes, Carriage of Solid Hazardous Materials

in Bulk, 49 Fed. Reg. 16,794 (April 20, 1984).

Regulated Navigation Area, Puget Sound, WA, 49 Fed. Reg.

32,178 (August 13, 1984).

Navigation Safety Regulations, 49 Fed. Reg. 43,463

(October 29, 1984).

Compliance Procedures for Self-Propelled Foreign Flag

Vessels Carrying Hazardous Liquids and Bulk Liquefied

Gases, 50 Fed. Reg. 8730 (March 5, 1985).

Segregated Ballast, Dedicated Clean Ballast and Crude Oil

Washing on Tankships of 20,000 DWT or More But Less

Than 40,000 DWT Carrying Oil in Bulk, 50 Fed. Reg.

11,622 (March 22, 1985).

Safety Rules for Self-Propelled Vessels Carrying Hazardous

Liquids, 50 Fed. Reg. 21,166 (May 22, 1985).

Oil and Hazardous Substance Discharge Reporting

Requirements, 51 Fed. Reg. 17,962 (May 16, 1986).

Vessel Reporting Requirements, 51 Fed. Reg. 19,338 (May

29, 1986).

Control of Residues and Mixtures Containing Oil or Noxious

Liquid Substances, 52 Fed. Reg. 7744 (March 12, 1987).

Pollution Rules for Ships Carrying Hazardous Liquids, 52

Fed. Reg. 7765 (March 12, 1987).

23

Operating a Vessel While Intoxicated, 52 Fed. Reg. 47,526

(December 14, 1987).

Hazardous Materials Used as Ship’s Stores on Board

Vessels, 53 Fed. Reg. 7745 (March 10, 1988).

Vital System Automation, 53 Fed. Reg. 17,820 (May 18,

1988).

Programs for Chemical Drug and Alcoho! Testing of

Commercial Vessel Personnel, 53 Fed. Reg. 47,064

(November 21, 1988).

U.S /Canadian Cooperative Vessel Traffic Management

System, 54 Fed. Reg. 15,173 (April 17, 1989).

Regulations Implementing the Pollution Prevention

Requirements of Annex V of WARPOL 73/78, 54 Fed. Reg.

18,384 (April 28, 1989).

Vessel Piping Systems, 54 Fed. Reg. 40,590 (October 2,

1989).

Programs for Chemical Drug and Alcohol Testing of

Commercial Vessel Personnel, Pre-Employment Testing, 55

Fed. Reg. 634 (January 8, 1990).

Cargo Gear Inspection and Testing Requirements, 55 Fed.

Reg. 21,548 (May 25, 1990).

Marine Vapor Control Systems, 55 Fed. Reg. 25,396 (June

21, 1990).

|

24

Replacement of References to SOLAS 60 with SOLAS 74,

55 Fed. Reg. 30,658 (July 26, 1990).

Navigation Bridge Visibility, Ports and Waterways Safety,

55 Fed. Reg. 32,244 (August 8, 1990).

Hazardous Materials Pollution Prevention, 55 Fed. Reg.

36,248 (September 4, 1990).

Chemical Drug Testing Programs for Commercial Vessel

Personnel, 56 Fed. Reg. 31,030 (July 8, 1991).

Puget Sound Vessel Traffic Service, 56 Fed. Reg. 37,475

(August 7, 1991).

Vessel Communications Equipment: Requirement for

Vessels Subject to Bndge-to-Bndge Radiotelephone Act to

Carry VHF FM Channels 22A and 67, 57 Fed. Reg. 14,483

(April 21, 1992).

Double Hull Standards for Vessels Carrying Oil in Bulk, 57

Fed. Reg. 36,222 (August 12, 1992).

Stability Design and Operational Requirements, 57 Fed. Reg.

41,812 (September 11, 1992).

Vessel Response Plans, 58 Fed. Reg. 7376 (February 5,

1993).

Subdivision and Damage Stability of Dry Cargo Vessels, 58

Fed. Reg. 17,316 (April 1, 1993).

25

Navigation Underway, Tankers, 58 Fed. Reg. 27,628 (May

10, 1993).

Requirements for Cargo Lightering Operations, 58 Fed. Reg.

48,434 (September 15, 1993).

Requirements for Longitudinal Strength, Plating Thickness,

and Periodic Gauging of Certain Tank Vessels, 58 Fed. Reg.

52,598 (October 8, 1993).

Discharge Removal Equipment for Vessels Carrying Oil, 58

Fed. Reg. 67,988 (December 22, 1993).

Chemical Drug and Alcohol Testing of Commercial Vessel

Personnel; Collection of Drug and Alcohol Testing

Information, 58 Fed. Reg. 68,274 (December 23, 1993).

Recordkeeping of Refuse Discharges from Ships, 59 Fed.

Reg. 18,700 (April 19, 1994).

National Vessel Traffic Services Regulations, 59 Fed. Reg.

36,316 (July 15, 1994).

Emergency Lightering Equipment and Advanced Notice of

Arrival Requirements for Existing Tank Vessels Without

Double Hulls, 59 Fed. Reg. 40,186 (August 5, 1994).

Escort Vessels for Certain Tankers, 59 Fed. Reg. 42,962

(August 19, 1994).

Shipboard Oil Pollution Emergency Plans, 59 Fed. Reg.

51,332 (October 7, 1994).

26

Overfill Devices, 59 Fed. Reg. 53,286 (October 21, 1994).

Chemical Testing for Dangerous Drugs of Applicants for

Issuance or Renewal of Licenses, Certificates of Registry, or

Merchant Mariner’s Documents, 60 Fed. Reg. 4522 (January

23, 1995).

Qualifications for Tankermen, and for Persons in Charge of

Transfers of Dangerous Liquids and Liquefied Gases, 60

Fed. Reg. 17,134 (April 4, 1995).

Incorporation of Amendments to the International

Convention for the Safety of Life at Sea, 1974, 60 Fed. Reg.

24,767 (May 10, 1995).

Federal Pilotage Requirements for Federal Trade Vessels, 60

Fed. Reg. 24,793 (May 10, 1995).

Adoption of Industry Standards, 61 Fed. Reg. 25,984 (May

23, 1996).

Operational Measures to Reduce Oil Spills from Existing

Tank Vessels Without Double Hulls, 61 Fed. Reg. 39,770

(July 30, 1996).

Structural Measures to Reduce Oil Spills from Existing Tank

Vessels Without Double Hulls, 62 Fed. Reg. 1622 (January

10, 1997).

Implementation of the 1995 Amendments to the International

Convention on Standards of Training, Certification and

Watchkeeping for Seafarers, 1978 (STCW), 62 Fed. Reg.

34,506 (June 26, 1997).

27

Harmonization with International Standards, 62 Fed. Reg.

51,188 (September 30, 1997).

International Management Code for the Safe Operation of

Ships and for Pollution Prevention (International Safety

Management (ISM) Code), 62 Fed. Reg. 67,492 (December

24, 1997).

Clarification and Rearrangement of Puget Sound Vessel

Traffic Service Regulated Navigation Area (RNA)

Regulations, 63 Fed. Reg. 7707 (February 17, 1998).

Notice of Hazardous Conditions/Immediate Reporting of

Casualties, 63 Fed. Reg. 19,190 (April 17, 1998).

Emergency Control Measures for Tank Barges, 63 Fed. Reg.

71,754 (December 30, 1998).

Implementation of the National Invasive Species Act of 1996

(NISA), 64 Fed. Reg. 26,672 (May 17, 1999).

Year 2000 (Y2K) Reporting Requirements for Vessels and

Marine Facilities, 64 Fed. Reg. 33,404 (June 23, 1999).

28

CONCLUSION

The judgment of the Court of Appeals should be

reversed.

Respectfully submitted,

Dennis L. Bryant

Counsel of Record

Charles L. Coleman, III

Matthew P. Vafidis

Brian D. Starer

Jovi Tenev

Haight Gardner Holland & Knight

A Law Office of HOLLAND & KNIGHT LLP

2100 Pennsylvania Avenue, NW, Suite 400

Washington, DC 20037-3202

(202) 828-1865

Counsel for Amici Curiae