# Amicus Curiae Brief — United States v. Locke

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0275%3A18

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999
- **Citation:** 527 U.S. 1063

## Text

. | FILED
) 19 (3) ;
Nos. 98-1701 & 98-1 OCT 31 99

THE INTERNATIONAL ASSOCIATION OF INDEPENDENT
TANKER OWNERS (INTERTANKO), et ai.,

Petitioners,
Vv.

GARY LOCKE, GOVERNOR OF THE
STATE OF WASHINGTON, et ai.,

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, IIT
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

STATEMENT OF THE CASE
SUMMARY OF THE ARGUMENT

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I.

I.

CONCLUSION

i

TABLE OF CONTENTS

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 ..................:::c008.

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 QUALIFICATION,

AND MANNING” OF VESSELS .........0...............

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TABLE OF AUTHORITIES
CASES
Page

Argentine Republic v. Amerada Hess Shipping Corp.,

488 U.S. 810 (1988) ..000...... scnceisncephiktenuieeaeaebeise l
Askew v. American Waterways Operators, Inc.,

411 U.S. 32S (UOTE) i nieiccdccccscaiectieeeeean 8
Cipollone v. Liggett Group, Inc.,

SOS U.S, SOG CUGIAD vviisoscsssscnnacssostehesonsbinstobanninann 4
City of Burbank v. Lockheed Air Terminal Inc.,

U2 U.S. CBG CIO T SD ivccicdnssstsecuiasctacttpttaacustesttanaeen 9
Cooley v. Board of Wardens of the Port of Philadelphia,

S3 U.S, TOD CRAG)... ssscocicstsisteesasieseenananasel 6,7
Exxon Shipping v. Ellenwood,

$08 U.S. 963 (CISSGF: ... osccicicicnucnioneeameee l

Fidelity Federal Sav. & Loan Ass'n v. de la Cuesta,
456 U.S. 141 (1908) oo cssacsccccties ctgiianaeieaes 17

Gibbons v. Ogden,
22. U.S. 3 CBD) oo siciicces icccinemtibleecieaen 5, 6

Huron Portland Cement Co. v. City of Detroit,
362 U.S, 460 (IGG) ooscascinssecicssiscsestetnvimebn olan 8

Keily v. State of Washington,
902 U.S. 1 CIGBTD vvvsciciscesscscstcdiosctneiataaee 7,8

Land and Lake Tours, Inc. v. Lewis,
738 F.2d 961 (8" Cir. 1984). 17
Northwest Airlines v. State of Minnesota,
i ee iE Ts, ee eee 18
Ray v. Atlantic Richfield Co..,
EET al ire me a passim
Rice v. Santa Fe Elevator Corp.,
EE Eo A oe 4
Transportation Institute v. U.S. Coast Guard,
727 F.Supp. 648 (D.D.C. 1989) ooo. 17
United States v. South-Eastern Underwriters Ass'n,
a seponesi 5
U.S. CONSTITUTION
Art. VI, Clause 2 (Supremacy Clause) .......0.00000o0..n.. 4
Art. I, Section 8, Clause 2 (Commerce Clause) .......... passim
STATUTES
Act to Prevent Pollution from Ships,
Pub. L. No. 96-478, 94 Stat. 2297 000k... 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 ......... mea! 13,17
Partial Recodification of Title 46,
United States Code, Pub. L. No. 98-89, 97 Stat. 500 ..... 15,16

lV

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. 1471 000s 12
Tank Vessel Act of 1936,

ih hs ok osincnscs Soscpsenitusplainieiplinens 9,12
BS USK. BTSEE ETI CIID esses ccs ccestvnsecssonchcceneentens 12
pit Fk FRR EEE 13
BS WL, Bre GERI Bee tiscrticscssinsccinecessiccsinmensanes 13
GB UK, BF ebaeh nasctatninenguctntettborsensetigcemininigninns 10
46 U.S.C.,, Sabbtitle TE (IGGS) ............0ccsceecereserecvescesseses 16, 17
SP Eee ITED eintsncensstnshiiaictesladiondincasedecaiiens 16, 17
46 U.S.C., Cormptar 32 (1G96) nn. .eecccscccccccsessessseccenceseees 14
FO aac NE OE OID Secs codvninccdnvestncliventsinistanbnbainn 10
OD Tao. Oe a Fe I lilacs clenirssncintpsentcntedlenincanndninittah 10

REGULATIONS

a OI welttintciteeitisatihhctathgis restdidglnsoaitt ey
43 Fed. Reg. 12,257 (March 23, 1978) 22.0.......ccccceeee. 19
43 Fed. Reg. 16,946 (April 20, 1978) oo..oooocees. 19
43 Fed. Reg. 32,112 (July 24, 1978) 2o0o.ooooooccseees 20

44 Fed. Reg. 25,986 (May 3, 1979) oo. ooo ccccssccsnsseenee 20

v

44 Fed. Reg, 31,592 (May 31, 1979) o.oo... 20
44 Fed. Reg. 66,500 (November 19, 1979) 0... 20
44 Fed. Reg. 66,528 (November 19, 1979) oo... 20
44 Fed. Reg, 69,299 (December 3, 1979) ...-....-----coee 20
45 Fed. Reg. 48,822 (July 21, 1980) o.......-.-ccccceceeeeeenen 20
45 Fed. Reg. 57,392 (August 28, 1980) oo... 20
45 Fed. Reg. 77,439 (November 24, 1980) 20... 20
46 Fed. Reg. 61,456 (December 17, 1981) 0.0... 20
47 Fed. Reg. 10,533 (March 11, 1982) oo... 21
47 Fed. Reg. 15,210 (April 8, 1982) .o....-..ccccccccceeeeeeenee 21
47 Fed. Reg, 17,968 (April 26, 1982) o....-...cccecceeeeenen 21
47 Fed. Reg. 34,388 (August 9, 1982) o....-....ceeccscoeee 21
47 Fed. Reg. 50,494 (December 30, 1982) 2... 21
48 Fed. Reg. 35,402 (August 4, 1983) oo... cece 21
48 Fed. Reg. 38,646 (August 25, 1983) 0... ol
48 Fed. Reg. 44,534 (September 29, 1983)... 21
48 Fed. Reg. 45,718 (October 6, 1983) oo... 21
48 Fed. Reg. 50,996 (November 4, 1983)... 21
49 Fed. Reg. 11,170 (March 26, 1984) oo. oosecceee 21

49 Fed. Reg. 16,794 (April 20, 1984) 200... 22

vi

49 Fed. Reg. 32,178 (August 13, 1984) ooo... ccccccccsseeeon 22
49 Fed. Reg. 43,463 (October 29, 1984) o.oo... ccccccsesssee 22
50 Fed. Reg. 87,30 (March 5, 1985) ooo... ccccccccosseeeseeee 22
50 Fed. Reg. 11,622 (March 22, 1985) oo......ccccccccscesooseeee 22
50 Fed. Reg. 21,166 (May 22, 1985) o.oo... occccecccsseeosseeon 22
51 Fed. Reg. 17,962 (May 16, 1986) oo.......ccccccsccessssessooee 22
51 Fed. Reg. 19,338 (May 29, 1986) o.oo... ccccccccsssesssseene 22
52 Fed. Reg: 7744 (March 12, 1987) o.....c.cccccccscccsssseeesoee 22
52 Fed. Reg. 7765 (March 12, 1987) oo....ccccccccccscosseessoeeee 22
52 Fed. Reg. 47,526 (December 14, 1987) .o........ccccc000ex 23
53 Fed. Reg. 7745 (March 10, 1988) oo...o...cccccscscosseeooee 23
53 Fed. Reg. 17,820 (May 18, 1988) ooo... oocccceseecseseee 23
53 Fed. Reg. 47,064 (November 21, 1988) o2......-..ccco.. 23
54 Fed. Reg. 15,173 (April 17, 1989) o.oo cooccccocccceeee 23
54 Fed. Reg. 18,384 (April 28, 1989) ooo ccceeee 23
54 Fed. Reg. 40,590 (October 2, 1989) o.oo. o-cocccosceeoeee 23
55 Fed. Reg. 634 (January 8, 1990) ooo. oooccccceeseesceneeee 23
55 Fed. Reg. 21,548 (May 25, 1990) ooo. ccoseeesseeee 23
55 Fed. Reg. 25,396 (June 21, 1990) ooo. oocccccccccsesessseeeon 23

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

vii

55 Fed. Reg. 32,244 (August 8, 1990) .........--scsssssssee 24
55 Fed. Reg. 36,248 (September 4, 1990)... .ee-ceccoe 24
56 Fed. Reg. 31,030 (July 8, 1991) oo... ccecccsseeseeceeeeee 24
56 Fed. Reg. 37,475 (August 7, 1991) ...........000--ssssessseee 24
57 Fed. Reg. 14,483 (April 21, 1992) ........--ccsssseeeeseeenee 24
57 Fed. Reg. 36,222 (August 12, 1992) .....--.-.-sc0000ss0000 24
57 Fed. Reg. 41,812 (September 11, 1992) ......--.....00000000 24
58 Fed. Reg. 7376 (February 5, 1993) 22.........ccccscsssesseen 24
58 Fed. Reg. 17,316 (February 5, 1993) 0... eesecesen 24
58 Fed. Reg. 27,628 (May 10, 1993) .oo......---cssssesssssseeeee 25
58 Fed. Reg. 48,434 (September 15, 1993) oo... 25
58 Fed. Reg. 52,598 (October 8, 1993) o.......-.--ccceeeeceseeee 25
58 Fed. Reg. 67,988 (December 22, 1993) oo... 25
58 Fed. Reg. 68,274 (December 23, 1993) .....--....0--e00-000 25
59 Fed. Reg. 18,700 (April 19, 1994) ............ fe RONEN 25
59 Fed. Reg. 36,316 (July 15, 1994) oo... .eecoceccceessssseee 25
59 Fed. Reg. 40,186 (August 5, 1994) ooo... 25
59 Fed. Reg. 42,962 (August 19, 1994) oo......-cscesssesee 25
59 Fed. Reg. 51,332 (October 7, 1994) .o.....--ccccccccseseeseee 25

59 Fed. Reg. 53,286 (October 21, 1994) o......e-ce-cceecceee 26

60 Fed. Reg. 4522 (January 23, 1995) ooo... 26
60 Fed. Reg. 17,134 (April 4, 1995) ooo. cee. 26
60 Fed. Reg. 24,767 (May 10, 1995) oooo..oooeeceees 26
61 Fed. Reg. 25,984 (May 23, 1996) oo... 26
61 Fed. Reg. 39,770 (July 30, 1996) ooo 26
62 Fed. Reg. 1622 (January 10, 1997) ooo.ooocccceeee. 26
62 Fed. Reg. 34,506 (June 26, 1997) oooo.oooocccccceeeeeees 26
62 Fed. Reg. 51,188 (September 30, 1997) 0.0.0.0... 27
62 Fed. Reg. 67,492 (December 24, 1997) .0..00..0....c00., 27
63 Fed. Reg. 7707 (February 17, 1998) 200... 27
63 Fed. Reg. 19,190 (April 17, 1998) ooo. 27
63 Fed. Reg. 71,754 (December 30, 1998) 2.000.000.0000... 27
64 Fed. Reg. 26,672 (May 17, 1999) ooo... 27
64 Fed. Reg. 33,404 (June 23, 1999) ooo 27
LEGISLATIVE MATERIALS
H.R. Rep. No. 95-1384 (1978) o0.00.....cccccccccceeeceeeeeeeeeees 13
H.R. Rep. No. 96-1224 (1980) ooo... ccececcecccceceeeeeeeneees 13
ks ENE SU, ID EIU ccd consesicibciveininabislnchonsieamionss 16
The Oil Pollution Act of 1990,

H.R. Rep. No. 103-8 (1993). oo....cc.ccccsccssssevecscssveegeevesseceon 17

Vessel Response Plans,
HLR. Rep. No. 102-93 (1992). oo.oooocccccccccecetteteeereeneteeens 17
Bh Ba, Be TPP IPOD basses cersssccsirpracesssshestsenvepsccdcesore 13

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

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"Mel LM eS OPE NE

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,
508 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 vessels 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

IL 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 powe
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 stat
authority to require certain vessels to utilize (or at let pay
for) local pilots. The Court, recognizing that, in-cordance
with a federal law, local pilotage was largely ocal as
opposed to a national issue, stated:

Now, the power to regulate camerce embraces a
vast field, containing not oy many, but exceedingly
various subjects, quite »tke in their nature, some
imperatively demandg a single uniform rule,

States in everytt, and some, like the subject now in

ES SS

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 U.S. at 15.

fl. THIS COURT’S HOLDING IN RAY V
ATLANTIC RICHFIELD CO. 1S 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), Huren 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 scher 2

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

EO ME ee

Washington was preempted from regulating vessel design
and construction standards because those standards came
under Title Il, the mandatory portion of the Act. 435 U.S. 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 isthe
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 Im that case, the mumocupalsty s attempe to regulate aurcraft noise at
the local airport was held tose incompatible wath the federal scheme
even though the federal statwre at the tume of the lrugawen. comtained no
preemption provision

10

[i)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 I 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

’ This provision was originally codified at 46 U.S.C. § 39la. It has
been amended at vanous times subsequently, and is now located at 46
U.S.C. § 3703.

Pes ee aes ees eee > —

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

Il. 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,
Cengress 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, et 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 Il 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 seq.

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. 104-160, page 27 (as contained at 1996 U.S.
Code Cong. & Admin. News 4267).

———E eC ”—™”™

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 oldest 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.

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 prior 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).

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).

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 « 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).

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 promulgated 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
(November 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 Tozs 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 Alcohol 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 MARPOL 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: Requirem=nt for
Vessels Subject to Bridge-to-Bridge 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 Regisiry, 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).

FeJeral 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 (Soptember 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).

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0275%3A18. Public record. Not legal advice.