Amicus Curiae Brief — United States v. Locke

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Nos. 98-1701 and 98-1706

Inu the Supreme Court of the Hnited States

OCTOBER TERM, 1999

UNITED STATES OF AMERICA,

PETITIONER

GARY LOCKE, OF THE,

STATE OF WASHINGTON, ET AL..,

RESPONDENTS

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF THE PACIFIC MERCHANT SHIPPING

ASSOCIATION IN SUPPORT OF PETITIONERS

SAM D. DELICH

Counsel of Record

James B. Nebel

Flynn, Delich & Wise

One California Street

Suite 350

San Francisco, California 94111

(415) 693-5566

Attorneys for Pacific Merchant

Shipping Association,

as Amicus Curiae

A\«e

TABLE OF CONTENTS

rE SUN os oad ak + 6h o pd ude ts cee eewhn

Brief of the Pacific Merchant Shipping Association as

Amicus Curiae in Support of Petitioners ..............

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1. Overview of Ninth Circuit Holding

2. Overview of Ray v. Atlantic Richfield Co., 435

Re RSI of ak des nde othhies Coan.

The Ninth Circuit Erred In Concluding That the

Washington Regulations Are Not Subject to

Field Preemption Under Ray..................

OPA 90 Does Not Repeal The Authority of the

Secretary And Coast Guard to Promulgate

Regulations That Have Preemptive Effect ......

. The OPA 90 Savings Clauses Apply Only To

The Liability And Compensation Provisions of

BOs cb Sic Ais we hse Favecunsdlacdvdseseceees

The Washington State Regulations Invite Other

States to Issue Regulations With Attendant

Complexities, Confusion And Potential

Increased Risk to Safety and the Marine

IE cn bs .budh io bks chances oe gast sis

“ese ee eee eee

TABLE OF AUTHORITIES

CASES

City of New York v. Federal Communications

Commission, 486 U.S. 57, 108 S.Ct. 1637,

100 L.EG26 GB AERIS 6s coscccnkintesesGuyssives

Immigration and Naturalization Service v. Chadha,

462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983).

Kelly v. Washington,

302 U.S. 1, 58 S.Ct. 87, 82 L.Ed. 3 (1937) .........

Ray v. Atlantic Richfield Co.,

435 U.S. 151, 98 S.Ct. 988, 55 L.Ed.2d 179 (1978)...

United States v. Pink,

315 U.S. 203, 62 S.Ct. 554, 86 L.Ed. 796 (1942) ....

In re Damodar Bulk Carriers, Ltd.,

G03 F.2d 675 F Cle, TODD oon vivicccsvstkccdovecs

The International Association of Independent Tanker

Owners (Intertanko) v. Locke,

148 F.3d 1053 (9 Cir. 1998) ............0.eee eee

The International Association of Independent Tanker

Owners (Intertanko) v. Locke,

159 F.3d 1220 (9"" Cir. 1998)

(denial of petition for rehearing and suggestion for

folowing 60 RENE). . cis ccivecsscdcrunsepivesede

National Shipping Co. of Saudi Arabia

(NSCSA) v. Moran Mid-Atlantic Corp.,

924 F.Supp. 1436 (E.D. Va. 1996) ............04..

Northwest Forest Resource Council v. Glickman,

62 R36 S25. Cle, 190Gb iv vn ceed cccasssowisiew

RULES

Sup Ci. R. SAIMA) co.cc ctenbcssieeeeeeeee

passim

18,19

iii.

FEDERAL STATUTES, LEGISLATIVE HISTORY

AND TREATIES

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Pub.L.No. 98-89, 97 Stat. 522 (1983) ..... 2.6.6.6. 505. 11

Oil Pollution Act of 1990 (OPA 90), ...............- passim

Port and Tanker Safety Act of 1978 (PTSA)......... 6

Port and Waterways Safety Act of 1972 (PWSA)..... passim

H.R. Conf. . No. 643, 101" Cong., 2d Sess,

Gt BR GIG 4 60 choco scopccucetevacdaninderises 13

H.R. Conf. Rep. oN 653, 101" Cong., 2d Sess.,

Gt SABEE GUS 0 obs Koc cndvecaweseesisusuneecces 17

International a a for the Prevention of

Pollution from Ships, 1973, and its 1978 Protocol

International Convention for the — of Life

at Sea, 1974, and its Prutocol of 1978 (“SOLAS”),

We UR, Gls nc co chaweneubnkscddetsaatoddaksdee 15, 16

International Convention on Standards of Training,

Certification and Watch ste). Seafarers, |

and 1995 Amendments ( Ua eR et

U.S. Canada VTS Agreement, 32 U.S.T. 377......... 14

STATE STATUTES

Wash. Rev. Code § 88.46.050

No. 98-1701

No. 98-1706

——————eeSSS

IN THE

Supreme Court of the United States

OCTOBER TERM, 1999

UNITED STATES OF AMERICA,

Petitioner,

GARY LOCKE, GOVERNOR OF THE

STATE OF WASHINGTON, ET AL..

Respondents.

BRIEF OF THE

PACIFIC MERCHANT SHIPPING ASSOCIATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

I. SUMMARY OF ARGUMENT’

The decision of the United States Court of Appeals for the

Ninth Circuit in this case—holding that regulations of the State

of Washington relating to vessel manning, personnel qualifica-

tions and operations are not preempted by federal law—is

squarely in conflict with this Court's decision in Ray v. Atlantic

Richfield Co., 435 U.S. 151, 98 $.Ct. 988, 5S L.Ed.2d 55 (1978).

While the federal and state governments share control over

some matters relating to pollution prevention, control, and en-

forcement, as well as pilotage in local waters, the federal gov-

ernment has assumed and expressed exclusive control over

vessel design, construction, operation, repair, maintenance,

equipping, personnel qualifications, manning (including the du-

ties and training of personnel) and general navigation. State

' This brief was authored in whole by counsel for Amicus Curiae, and no

party other than Amicus Curiae made a monetary contribution to its prepa-

ration or submission.

(1)

and local governments are not free to conclude that a vessel

and its personnel—approved by the federal government to

navigate in waters of the United States—must meet higher

standards to navigate in waters within state boundaries.

Il. INTEREST OF AMICUS CURIAE

The Pacific Merchant Shipping Association (“PMSA”) is a

trade association that represents foreign and domestic ship-

owners and operators as well as their agents and other mari-

time entities on the West Coast of the United States. Its

predecessor organization was established in 1919. PMSA’s

members own, operate, manage or represent United States and

foreign flag tankers, dry bulk vessels, vehicle carriers, ferry and

passenger vessels, tugs and barges, container ships and general

cargo vessels. PMSA represents 75% to 80% of the total vessel

tonnage calling at San Francisco Bay and Los Angeles area

ports. A substantial portion of that tonnage also transits Wash-

ington waters enroute to or from California ports.

By an overwhelming margin, most of the exports from and

imports into the United States move by water. In significant

part, those goods are moved to and from ports located on the

West Coast. More than 220 million tons of dry cargo, valued in

excess of $660 billion, moved through Ports in Washington,

Oregon and California in 1998, an increase of about 20% since

1993.

In 1998, more than 2,900 ships arrived at and departed

from San Francisco Bay ports. Of these, 660 were tanker ves-

sels. In the same year, more than 3,100 ships called at Los

Angeles area ports. Of these, more than 700 were tanker ves-

sels. Approximately 1,830 ships, at least 290 of which were

tanker vessels, called at ports in Puget Sound in the State of

Washington, and approximately 1,879 ships, at least 138 of

which were tanker vessels, called at Portland, Oregon. The

majority of these vessels called at both foreign and United

States ports during the same voyage. These statistics are rep-

resentative of past years and 1999 to date (except for tanker

calls, which have temporarily increased in 1999 due to Califor-

nia refinery shutdowns and delays).

Frequently ships, both liner and tramp,’ that call at poris

on the West Coast of the United States call at more than one

port during the voyage. Often these ports are in different

States, as is the case with a significant number of liner trade

vessels that call at multiple West Coast states on the same

voyage. For example, as shown on Addendum I, in an approxi-

mate 30 day period around October, 1999, 111 liner container

vessels (of up to 91,560 gross tons with capacity up to 6,000

twenty-foot intermodal containers), scheduled to call at Wash-

ington ports or navigating its waters, were also scheduled to

call at one or more other West Coast states on the same voyage.

This is representative of usual monthly calls. From January to

September 30 of this year, 2,604 tankers arrived at and de-

parted from ports of the San Francisco Bay Area, Long Beach

and Los Angeles. Of those, 600 tankers arrived from ports of

other states and 571 tankers departed those California ports for

ports of other states. 276 of those tankers’ voyages were to or

from Washington waters.*

The West Coast destination port of PMSA member tramp

tanker vessels or tramp cargo vessels is also often changed,

mid-voyage, from a port in one state to a port in another state.

This occurs for a variety of reasons. For example, while a vessel

is enroute, its cargo may be sold to a buyer or buyers who

designate a new discharge port or ports, or delivery time de-

mands may change, or congestion may develop at the original

destination as a result of too many vessels at port or conditions

ashore at the ocean terminals. There are numerous other con-

tingencies in the world of international trade that can result in

a change of ports during a vessel's ocean transit.

* Tramp vessels do not have regular scheduled ports of call (as do liner

vessels) and trade according to cargo demand and availability.

* The liner container calls were published in the September 30, 1999 edition

of the Journal of Commerce Shipcards. The West Coast 1998 dry cargo

other vessel statistics were provided by the Marine Exchange in San Fran-

cisco and Los Angeles.

»®

The twenty-seven PMSA members who operate foreign

flag vessels maintain uniform and fleetwide training, record

keeping, reporting, licensing and certification standards for

their masters, officers, crew and vessels in accordance with each

member's flag state regulations and standards set in applicable

treaties, conventions and international agreements under

which the vessels are issued certificates indicating compliance.

These include ongoing vessel drills, training, and periodic con-

tinuing education on developments in vessel technology, op-

erations and management. These certificates are accepted by

the United States Coast Guard as compliance with United

States regulations, thus allowing the vessels to call at United

States ports. Such standards are, in main, set forth in the trea-

ties, conventions, international agreements and United States

statutes discussed at pages 11 to 17 herein. These standards and

the Coast Guard regulations prescribed under United States

statutes present uniform, although stringent, standards and

rules which are easily understood, thus facilitating ease of ad-

ministration and compliance by the PMSA members.

In addition to comprising the majority of merchant ship-

ping tonnage calling at West Coast ports, a significant number

of PMSA ship operator members operate vessels on the East

and Gulf Coasts of the United States. Approximately 8 of its 35

members own or operate tankers. PMSA submits this amicus

curiae brief with written consent of all parties, submitted here-

with, in accordance with Supreme Court Rule 37(3)(a).

Il. ARGUMENT

A. Introduction

In its decision below, the United States Court of Appeals

for the Ninth Circuit held that Washington State statutes and

regulations relating to the operation of oil tankers are not pre-

empted by federal law under the Supremacy Clause of the

United States Constitution and do not otherwise violate the

Constitution. In so holding, the court decided an important

question of federal law in a way that conflicts with decisions of

this Court, most notably, Ray v. Atlantic Richfield Co., 435 U.S.

151 (1978).

Prior to the passage of the Oil Pollution Act of 1990

(“OPA 90”), the federal, state and local governments shared

control over some matters relating to pollution control as well

as to liability and compensation for pollution in state waters.

They also shared control over pilotage where knowledge of

local waters is important. As shown below, however, the federal

government has consistently asserted exclusive control over

matters relating to vessel design, construction, alteration, re-

pair, maintenance, operation, personnel qualification, equip-

ping and manning (including the training, duties and watch

keeping of personnel and marine casualty reporting).

Statutes enacted by Congress and treaties adopted by the

United States after Ray have expanded the scope of mandatory

federal regulation, thus broadening the field preempted under

the principles of Ray. Nothing in OPA 90 repeals the existing

Congressional directives that require the Secretary of Trans-

portation (“Secretary”) and Coast Guard to promulgate regu-

lations with preemptive effect with respect to vessel design,

construction, manning, personnel qualifications, on-board op-

erations and navigation. Nor do the OPA 90 § 1018 preemption

clauses purport to apply to these already preempted fields of

regulation. The Washington regulations, if not invalidated, will

lead other coastal states throughout the nation to adopt similar

regulations and will result in extreme confusion, complexity

and expense for shipowners in areas of concern where Con-

gress has made clear that it intended to adopt one uniform set

of rules to govern all vessels calling at any port in the United

States. For all of these reasons, the Ninth Circuit holding

should be reversed.

1. Overview of Ninth Circuit Holding

Following the Exxon Valdez oil spill in Alaskan waters in

1989, Congress passed OPA 90. The legislation resulted from a

combination of several bills into one comprehensive act with

nine titles. Title I of the Act, which addresses liability and

compensation for oil spills, contains two provisions that ad-

dress federal preemption of state law. One provides that

“[njothing in this Act...shall... affect, or be construed or

interpreted as preempting, the authority of any State... from

imposing any additional liability or requirements with respect

to... the discharge of oil or other pollution by oil within such

State...” See, § 1018(a) of OPA 90, codified at 33 U.S.C. §

2718(a). The other provides that “[nJothing in this Act. . . shall

in any way affect, or be construed to affect, the authority

of ... any State ...to impose additional liability or additional

requirements . . . relating to the discharge, or substantial threat

of a discharge, of oil.” See, § 1018(c) of OPA 90, codified as 33

U.S.C. § 2718(c).

When Congress passed OPA 90, vessel design, construc-

tion, manning, personnel qualification, operation and naviga-

tion were already the subject of federal law relating to tanker

safety and operation. Existing law included the Ports and Wa-

terways Safety Act of 1972 (“PWSA”), codified as amended at

46 U.S.C. § 3701, et seq., and the Port and Tanker Safety Act of

1978 (“PTSA”), codified at 33 U.S.C. § 1221, et seq. The PWSA

concerned control of tanker traffic and tanker design, construc-

tion and operation. The PTSA concerned tanker management,

personnel matters, casualty reporting and pilotage.

The State of Washington also enacted legislation relating

to oil tankers and other vessels following the Exxon Valdez

incident. The State established an Office of Marine Safety,

which was empowered to promulgate regulations to protect

state waters from oil pollution. The state regulations obligate

owners and operators to: 1) Report events such as collisions,

allisions and near misses of tankers; 2) employ specific watch

and lookout practices and manning; 3) record positions every

fifteen minutes, prepare comprehensive voyage plans and

make frequent compass readings; 4) adhere to specified engi-

neering and monitoring practices; 5) test and inspect engineer-

ing, navigation and propulsion systems before entering or

getting underway in state waters; 6) post written crew assign-

ments and procedures relating to shipboard emergencies; 7)

retain certain plotting records and the voyage plan in an event

in state waters such as a collision, allision or near miss; 8)

establish a comprehensive training program for personnel; 9)

test and report regarding alcohol and drug use; 10) monitor

personnel for fitness for duty; 11) limit hours personnel are

allowed to work; 12) require proficiency of officers in English

and other languages; 13) maintain training records for crew

members of vessels; 14) implement management practices that

demonstrate active monitoring of vessel operations and related

matters; 15) equip vessels with global positioning, radar sys-

tems and emergency towing systems; and 16) provide notifica-

tion of proposed entry of a vessel into state waters and of

hazardous conditions. These regulations apply not only to ves-

sels calling at Washington ports but also to vessels transiting

Washington waters enroute to and from Canada or elsewhere.

The Washington State regulations can be generally de-

scribed as concerning vessel operations, personnel qualifica-

tions and manning, including the duties and training of

personnel. This is the same subject matter for which the Coast

Guard has adopted a comprehensive regulatory scheme as di-

rected by federal statutes. See, Appendix K to Intertanko’s

Petition for Writ of Certiorari, No. 98-1706, pages 349a to 353a.

Thus, the Washington regulations present an obstacle to the

accomplishment and execution of the full purposes and objec-

tives of Congress under existing federal law and regulations,

when analyzed under Ray.

The Ninth Circuit, however, concluded that the OPA 90

“reflects the ‘full purposes and objectives of Congress’ . . .” bet-

ter than preexisting legislation on the subject of oil pollution.

The International Association of Independent Tanker Owners

(Intertanko) v. Locke, 148 F.3d 1053, 1062 (9'" Cir. 1998). The

court held that the Washington regulations are not preempted

by federal law because of the two preemption provisions in

Title I of OPA 90. The court found that these provisions con-

firm the absence of Congressional intent in OPA 90 to preempt

the authority of any state to impose additional preventative

requirements concerning vessels with respect to the pollution

of the environment or the substantial threat of pollution by oil.

Id. In doing so, the Court held that Coast Guard regulations

did not preempt the Washington regulations. 148 F.3d at 1067-

68.

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

The Ninth Circuit’s holding conflicts with the decision of

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

There this Court considered whether federal law preempted

then-existing Washington State regulations applicable to tank-

ers. The Court considered the Washington regulations prima-

rily against the PWSA. The PWSA contains two titles that

overlap somewhat and are designed both to insure vessel safety

and to protect navigable waters, water resources and shore

areas from tanker cargo spillage. The focus of Title I is traffic

control at local ports. See, Ray, 435 U.S. at 161, n. 9. The focus

of Title II is tanker design and construction. /d.

Ray noted that Title II declares that the protection of life,

property, and the marine environment from harm requires the

promulgation of “comprehensive minimum standards of de-

sign, construction, alteration, repair, maintenance, and opera-

tion.” 435 U.S. at 161. The Court also noted that Title II directs

that “the Secretary shall establish such rules and regulations as

necessary with respect to the design, construction, and opera-

tion of vessels as well as to a variety of related matters”. /d.

(quoting 46 U.S.C. § 391a(3) (emphasis added)).

The Court concluded that insofar as the design character-

istics were at issue, and considering the statutes allowing the

Secretary to approve foreign vessels with certificates issued

under international standards as compliant with the Secretary’s

regulations, Congress had entrusted the Secretary of Transpor-

tation and the Coast Guard with the duty of determining which

oil tankers are sufficiently safe to be allowed to transit the

navigable waters of the United States. The Court also con-

cluded that Congress intended “uniform national standards

that would foreclose the imposition of different or more strin-

gent state requirements”, 435 U.S. at 161-163, and that “state

law in this area would frustrate the congressional desire of

achieving uniform international standards”. 435 U.S. at 167-68.

The Court reached a different conclusion as to Title I of

the PWSA. The Court noted that “Title I... merely authorizes

and does not require the Secretary to issue regulations to

implement the provisions of the Title”. 435 U.S. at 171. The

Court observed that the Secretary had neither promulgated

regulations relating to vessel traffic control issues nor deter-

mined that such regulations were unnecessary. As a result, the

Court upheld the Washington State regulations that related to

the subject of vessel traffic control in local waters. The Court

further noted, however, that the Secretary may indeed issue

regulations that would preempt the authority of the states even

in the area of traffic control, but until that occurs, state regu-

lations need not give way under the Supremacy Clause. 435

U.S. at 172.

The import of the decision in Ray is that, to determine

whether a state law is preempted by federal law, a federal court

must examine each provision of the state regulation as well as

the applicable federal law to determine whether the state law

stands as an obstacle to the accomplishment and execution of

the full purposes and objectives of Congress or conflicts with a

valid federal statute.

B. The Ninth Circuit Erred In Concluding That The

Washington Regulations Are Not Subject to Field

Preemption Under Ray

The Ninth Circuit's conclusion that “[b]ecause the Wash-

ington State regulations did not qualify as design and construc-

tion requirements, they are not automatically subject to field

preemption under Ray”, 148 F.3d at 1066, is inconsistent with

the Ray analysis. Ray found that 46 U.S.C. § 391a(3) mandated

that the Secretary “shall establish” such rules and regulations

as may be necessary with respect to the design, construction

and operation of the covered vessels, including the inspection

of vessels and issuance of certificates of inspection evidencing

compliance with the Secretary's safety regulations. 46 U.S.C.

§ 391a(5). In lieu of inspection, the Secretary is to accept for-

eign vessels’ valid certificates of inspection “recognized under

law or treaty by the United States”. The Court also noted that

§ 391a(6) directed the Secretary to inspect tank vessels for

compliance with regulations which the Secretary is required to

issue for the protection of the marine environment.

“Compliance ... and the consequent privilege of having on

board the relevant cargo are evidenced by certificates of com-

pliance issued by the Secretary or by appropriate endorsements

on the vessels’ certificates of inspection. . . . In lieu of a certifi-

cate of compliance .. . the Secretary may accept a foreign ves-

sel’s valid certificate evidencing compliance with rules and

regulations issued under treaty, convention, or agreement pro-

viding for reciprocity of recognition of certificates or similar

documents. § 391a(7)(D).” 435 U.S. at 161-163. Given this

statutory pattern and directive, the Ray Court concluded that:

Congress expressed a preference for international ac-

tion and expressly anticipated that foreign vessels would or

could be considered sufficiently safe for certification by the

Secretary if they satisfied the requirements arrived at by

treaty or convention; it is therefore clear that Title II leaves

no room for the States to impose different or stricter de-

sign requirements. .. .

435 US. at 167-68.

In contrast, in addressing Title I, PWSA, Ray found no

field preemption because “Title I, however, merely authorizes

and does not require the Secretary to issue regulations to

implement the provisions of the Title;....435 U.S. at 171.

Thus, Ray found that the Congressional directive—that the

Secretary shall prescribe regulations under Title Il, coupled

with the grant to the Secretary of the power to accept qualify-

ing certificates from foreign vessels as satisfying such

regulations—preempted the State’s power to issue regulations

on the same subject matter because the Washington regulations

obstructed the full purposes and objectives of Congress.

Since Ray, Congress has expanded the purview of federal

statutes and regulations concerning vessels. The contents of the

pertinent section of Title II, § 391a have been expanded and

re-codified at 46 U.S.C. § 3703. Pub.L.No. 98-89, 97 Stat. 522

(1983). Section 3703 provides that:

(a) The Secretary shall prescribe regulations for the

design, construction, alteration, repair, maintenance, op-

eration, eouipping, personnel qualification, and manning of

vessels to which this chapter applies, that may be necessary

for increased protection against hazards to life and prop-

erty for navigation of vessel safety and for enhanced pro-

tection of the marine environment . . . [which] shall include

requirements about—...(4) the manning of vessels and

the duties, qualifications and training of the officers and

crew. (Emphasis added.)*

The Secretary may still approve a foreign vessel to operate

in United States waters and transfer oil or hazardous material

at United States ports after the vessel is examined and found in

compliance with United States law. 46 U.S.C. § 3711. The Sec-

retary may still accept a valid certificate issued by a foreign

country under treaty, convention or other international agree-

ment as a basis for issuing a Certificate of Compliance to that

vessel. Jd.

The Secretary is also still required to provide for the in-

spection of vessels for compliance with applicable marine

safety laws and regulations (among other things), and to re-

quire that a vessel display a valid certificate of inspection (46

U.S.C. §§ 3301, 3305, 3306, 3311), with discretionary reciprocity

for a foreign vessels’ certificate of inspection issued by a coun-

try with similar inspection laws and standards as the United

States and that provides the same reciprocity privileges to

United States vessels. A foreign country is considered to have

similar inspection laws and standards when it is a party to

* In prescribing regulations under subsection 3703(a), “the Secretary shall

establish procedures for consulting with and receiving and considering the

views of . . . officials of State and local governments. . . .” 46 U.S.C. § 3703(c).

an International Convention for Safety of Life at Sea to which

the United States is a party. 46 U.S.C. § 3303.

Thus, by the 1983 amendments to the PWSA, Congress

expanded the field of mandatory subjects of regulation to add

personnel qualification and manning of vessels including the

duties and training of officers and crews to the subjects of

vessel design, construction, alteration, repair, maintenance and

operation. In doing so, and while leaving in place the foreign

vessels provisions discussed in Ray, Congress expanded the

field of preemption accordingly.

When other statutes enacted since Ray are considered, the

expanded field of preemption is even more focused under the

Ray analysis. Since Ray,’ Congress has required, inter alia, the

Secretary of Transportation to: evaluate manning, training,

qualification and watch keeping standards of foreign nations

and ban from United States waters the vessels of countries with

standards below those of the United States®; prescribe regula-

* More generally, the Washington Statutes also interfere with the Secre-

tary’s mandatory administration of the general superintendence over the

merchant marine of the United States and its personnel, 46 U.S.C. § 2103,

which includes, for example, certificating vessels of the United States carrying

oil or bulk hazardous material as cargo, as a condition to operating, 46 U.S.C.

§ 3710; licensing and testing (including drug testing) of masters, mates, en-

gineers, operators, and radio officers, 46 U.S.C. §§ 1701, 7701-7705, and

merchant mariners, 46 U.S.C. §§ 7302, 7315, 7701-7705; certificating or en-

dorsing tankermen, 46 U.S.C. § 3717; determining the complement of li-

censed individuals and crews considered to be necessary for the safe

operation of a vessel, 46 U.S.C. §§ 8101, 8301, 8304; watches on vessels, 46

U.S.C. § 8104; and the manning and language capability of the crew of a

vessel, 46 U.S.C. §§ 8701(b), 8702(b). The Secretary hasissued extensive regu-

lations under these statutes.

® The Secretary shall periodically evaluate the manning, training, qualifi-

cation and watch keeping standards of a foreign country that issues docu-

mentation for any vessel subject to 46 U.S.C. §§ 3701-3719, to determine if

that country’s standard for licensing and certification of seamen are at least

equivalent to United States law or international standards acceptable by the

United States, 46 U.S.C. § 9101(a). The legislative history notes that such

standards “may be considered to include the Convention on Standards for

tions for reporting of marine casualties’ and a uniform state

marine casualty reporting system for vessels*; establish and

implement a safety management system to ensure accident re-

porting procedures consistent with international standards’;

enforce minimum professional qualifications for vessel masters

and officers consistent with treaty'®; bar from U.S. waters ves-

sels which, under U.S. or foreign law or treaty, may threaten

the marine environment or safety''; approve regulated vessel

equipment and material, with discretion to rely on approval by

the Training, Certification and Watch Keeping for Seafarers” (H.R. Conf.

Rep. No. 643, 101st Cong., 2nd Sess., at 132 (1990). The vessels of any country

failing such evaluation are prohibited from entering the United States, 46

U.S.C. § 9101(a)(3). Foreign tank vessels must have the Secretary's pre-

scribed number of certified tankermen, where the crewmember in charge

must understand English in order to transfer oi! or hazardous material in

United States ports. 46 U.S.C. § 9101(b).

” The Secretary shall prescribe regulations for “marine casualties to be

reported and the manner of reporting.” 46 U.S.C. §§ 6101, 6101(b).

* 46 U.S.C. § 6102; 46 U.S.C. § 6103 prescribes penalties for vessel failure

to company with 46 U.S.C. §§ 6101 and 6102.

* The Secretary shall establish an uniform state marine casualty reporting

system for vessels and implement a safety management system for vessels to

insure safe and accident reporting procedures consistent with the Interna-

tional Safety Management Code, 46 U.S.C. §§ 3203, 3204, with provisions to

deny clearance under 46 U.S.C. § 91 of any non-complying vessel. 46 U.S.C.

§ 3205.

capacity for masters and officers on board merchant vessels operating on the

high seas, under the Officers Competency Certificates Convention, 1936, with

authority to detain both a United States vessel and a foreign vessel for

non-compliance until cured. 46 U.S.C. § 8304.

"' The Secretary shall bar any vessel that has a history of accidents, pol-

lution or repairs from the United States waters which, in the Secretary's

determination may be unsafe or threaten the marine environment, fails to

comply with United States or foreign law or treaty, or is manned by an officer

licensed by a state whose standards are below the United Statesor interna-

tional standards. 33 U.S.C. § 1228.

foreign governments per treaty standards’; and, transmit regu-

lations promulgated undez 33 U.S.C. §§ 1221, et seq., to appro-

priate foreign bodies for consideration as international

standards.'*

International agreements and treaties to which the United

States is a party—which are the “law of the land”'*— illustrate

this point even further. These agreements ir--iu le the follow-

ing: the U.S.-Canada VTS agreement, 32 U.S.7. 377"°; the In-

ternational Convention for the Safety of Life at Sea, 1974 and

'? The Secretary must approve regulated equipment and material before

used on any vessel and may treat an approval of equipment or materials by

a foreign government as approval by the Secretary if the design standards and

testing procedures used by that government meet the requirements of Inter-

national Convention for the Safety of Life at Sea, 1974 if such approval will

secure the safety of individuals and property on board vessels subject to

inspection and if the foreign government grants reciprocity. 46 U.S.C.

§ 3306(b)(1 (2A) (B) AC).

'* The Secretary shall transmit to appropriate international bodies or fo-

rums, any regulations issued under 33 U.S.C. § 1221, et seq. for consideration

as international standards. 33 U.S.C. § 1230.

'* See, e.g, United States v. Pink, 315 U.S. 203, 230-31, 62 S.Ct. 554, 565-66,

86 L.Ed. 796 (1942) (treaties and international agreements are “law of the

land” under Supremacy Clause); /n re Damodar Bulk Carriers, Lid., 903 F.2d

675, 687 (9'" Cir. 1990) (recognizing SOLAS as “law of the land”).

'S This agreement was entered into with Canada under 33 U.S.C. § 1230,

which “authorize[s] and encourage|s]” the President to arrive at agreements

with neighboring nations to establish vessel standards and vessel traffic ser-

vice and authorized the Secretary to waive the application of any United

States law or regulation concerning the design, construction, operation,

equipment, personne! qualifications and manning standards for vessels oper-

ating in waters of the United States if the vessel is not enroute to or from a

United States port or place and if the neighboring nation accords equivalent

waivers for vessels enroute to or from a United States port. 33 U.S.C. §

1230(c)(2).

ee”

its Protocol of 1978 ("SOLAS"), 32 U.S.T. 47"®; the Interna-

tional Convention for the Prevention of Pollution from Ships,

1973, and its 1978 Protocol ("MARPOL”); and the Interna-

tional Convention on Standards of Training, Certification and

Watch Keeping for Seafarers, 1978, and the 1995 Amendments

thereto (“STCW”)"”.

‘© The purpose of SOLAS is to establish uniform international standards

for the safety of life and property at sea and the protection of the marine

environment. SOLAS governs, among other things, safety of navigation, car-

nage of dangerous goods, management for the safe operation of ships and

special matters to enhance maritime safety. (Chs. IV, V, VII, IX, and XL)

SOLAS requires the Government of the State “whose flag the ship is entitled

to fly” to conduct a system of inspections and surveys, and the issuance of

SOLAS (SOLAS Annex, Ch. I, Rg. 2, and Regs. 6-18).

The extent to which the authorities of one Government can control the

ship of another Government under SOLAS is specified in Regulation 1%a)

of Chapter I of the Annex:

Every ship when in a port of another Contracting Government is subject

to control by officers duly authorized by such Government insofar as this

control is directed towards verifying that the ...[SOLAS certificates]

The SOLAS certificate of a foreign flag vessel “shall be accepted” unless

there are “clear grounds” for “believing that the condition of the ship or its

equipment does not correspond substantially with the particulars of any of

the [SOLAS] certificates”, or the SOLAS certificate has expired or is no

longer valid. Under such circumstances, the vessel may be detained and the

next port of call and the flag State must be notified. Regulation 1%c), (d), and

(e).

The Secretary passed Federal Regulations codified at Volumes 33 and 46 of

the Code of Federal Regulations pursuant to 46 U.S.C. § 2103, to authorize

the United States Coast Guard to enforce SOLAS.

'’ The purpose of STCW, like SOLAS, is to establish uniform international

standards for the safety of life and property at sea and the protection of the

training matters, and also provides for the issuance of certificates by the flag

State with respect to the standards for fitness, training. and qualifications of

vessel personnel.

As in SOLAS, the STCW provides for authorities of one Government to

control the ship of another Government: Ships, except those excluded . . .

SOLAS and the STWC are of significant import in that

they provide the rules and regulations under which foreign

vessels certificates are issued. These are the same certificates

that the Secretary may accept as a basis for issuing a certificate

of compliance to allow a vessel to enter United States waters

and transfer oil or other hazardous materials at a United States

port and also in lieu of the inspection of the vessel for marine

safety and environmental compliance under United States

regulations.

The Congressional mandate to the Secretary to regulate

vessel operations, personnel qualifications and manning of ves-

sels, including the duties, qualifications and training of the of-

ficers and crew, coupled with the statutes concerning foreign

vessels and treaties, indicates “a class of regulations which

Congress alone can provide” due to the need for uniformity,

Kelly v. Washington, 302 U.S. 1, 14-15, 58 S.Ct. 87, 82 L.Ed. 3,

(1937). This class of regulations could “not properly be left to

the diverse action of the States. The State of Washington might

prescribe standards and rules of one sort, Oregon another,

California another and so on... .” /d.

Under Ray's rationale, the federal statutory pattern set

forth above on subject matter embraced by the Washington

regulations indicates that Congress expressed preference for

international action on those subjects. Congress anticipated

that foreign vessels and their personnel could be sufficiently

safe to call at United States ports and waters if they satisfied

the requirements established by treaty or convention. In doing

so, Congress left no room for States to impose different or

stricter requirements. Simply put, “[a] state law in this area. . .

[from the application of STCW]. . . . are subject, while in the ports of a Party

to control by officers duly authorized by the Party to verify that all seafarers

serving on board or required to be certificated by the Convention are so

certificated or hold an appropriate dispensation. Such Certificate shall be

been fraudulently obtained or that the holder of a Certificate is not the

person to whom that Certificate was originallyissued. (STCW Conference,

Article X)

would frustrate the congressional desire of achieving uniform,

international standards and thus is at odds with “the object

sought to be obtained [by Congress]...and the character

of obligations imposed [by Congress]....” Ray, 435 U.S. at

167-68.

C. OPA 90 Does Not Repeal The Authority Of The Secretary

And Coast Guard To Promulgate Regulations That Have

Preemptive Effect

In enacting OPA 90, Congress did not explicitly repeal the

authority that had been conferred upon the Secretary of Trans-

portation and the Coast Guard under the PWSA and other

federal statutes. That is significant for, having once given a

federal agency the authority to promulgate regulations in a

field, Congress must abide by that delegation of authority until

it is altered or revoked. Cf Immigration and Naturalization

Service v. Chadha, 462 U.S. 919, 955, 103 $.Ct. 2764, 77 L.Ed.2d

317 (1983). The House Conference Committee confirmed in its

analysis of the pending legislation that was to become OPA 90

that § 1018 “does not disturb the Supreme Court's decision in

Ray v. Atlantic Richfield Company, 435 U.S. 151 (1978).” See,

H.R. Conf. Rep. No. 653, 101st Cong., 2d Sess., at 121-22

(1990). Accordingly, nothing in OPA 90 can be construed to

demonstrate that Congress intended to repeal Coast Guard

regulations that were in effect at the time Congress passed

OPA 90, or to prevent the Coast Guard from adopting regula-

tions post-OPA that preempt state law.

In empowering a federal agency to act, Congress need not

specifically authorize the agency to pass regulations that pre-

empt state law for that agency to have the power to do so. See,

City of New York v. Federal Communications Commission, 486

U.S. 57, 64, 108 $.Ct. 1637, 100 L.Ed.2d 48 (1988). The Coast

Guard regulations that have been promulgated pursuant to the

mandatory Congressional direction of the PWSA and later en-

actments were intended to preempt state regulation relating to

the on board operation of vessels. See Appendix H to

Intertanko’s Petition for a Writ of Certiorari, No. 98-1706,

pages 269a-289a and Appendix K, pages 349a-353a.

D. The OPA 90 § 1018 Preemption Clauses Apply Only To

The Liability And Compensation Provisions Of Title 1

The requirements of § 1018(a) and (c) of OPA 90 require

no different conclusion. As explained in the dissent of Judge

Graber from the Ninth Circuit denial of petition for rehearing

and suggestion for rehearing en banc, 159 F.3d 1220 (9th Cir.

1998), § 1018(a) and (c) are limited to Title I of OPA 90 and

its liability and compensation provisions. The Section 1018 pre-

emption clauses can be read broadly to include prevention

measures in Title IV or read narrowly to apply only to the

liability and compensation provisions of Title I. Standing alone,

the wording of the provisions is ambiguous. Judge Graber

noted that contextual clues in OPA 90 suggest that the narrow

reading was actually intended. That is because § 1018 is placed

in Title I, which addresses only liability and compensation for

oil spills that actually occur, whereas Title IV, Title V, and Title

VIII have their own preemption clauses. If the clauses in Title

I were comprehensive, the preemption clauses of the other

Titles would be superfluous. Courts generally avoid construing

Statutes in a way that would make substantial provisions super-

fluous. See Northwest Forest Resource Council v. Glickman, 82

F.3d 825, 834 (9"" Cir. 1996).

Having found the language of the statute to be ambiguous,

Judge Graber analyzed the legislative history of OPA 90 at 159

F.3d at 1221-1223. She concluded that the history suggests

that Congress intended for the preemption clauses of § 1018

to apply only to Title I and its liability and compensation pro-

visions and not to apply to OPA 90's oil spill prevention

provisions (Title IV).'* 159 F.3d at 1221-1223. Judge Graber’s

dissentis well-reasonedand in keeping with the statutory pat-

tern strongly supporting preemption of the Washington regu-

lations. Judge Graber relied on National Shipping Co. of Saudi

Arabia (NSCSA) v. Moran Mid-Atlantic Corp., 924 F.Supp.

1436, 1448 (E.D. Va. 1996), aff'd, 122 F.3d 1062 (4" Cir. 1997)

(Table) cert. denied, 140 L.Ed. 2" 467, 118 S.Ct. 1301 (1998),

inter alia, in her analysis. The plaintiff in NSCSA argued that

OPA'’s “saving clause” preserved its right to seek contribution

from a co-defendant under both OPA and state law. In reject-

ing that argument, the district court, after analyzing the legis-

lative history, held, “[t]he purpose behind the savings clause is

to allow the states to impose liability upon oil polluters above

the liability imposed through OPA. Congress wanted to give

the states the power to force polluters to clean up oil spills

completely and to compensate the victim of oil spills, even if

their liability for these remediation expenses is limited under

OPA”.'” As advanced by Judge Graber and NSCSA, the pre-

emption clauses of § 1018 of OPA 90 should be narrowly read

to apply only to the compensation and liability provisions of

Title I, a result consistent with the federal statutory pattern and

directives requiring preemption of the Washington regulations.

E. The Washington State Regulations Invite Other States To

Issue Regulations With Attendant Complexities, Confusion

And Potential Increased Risk To Safety And The Marine

Environment

'® Judge Graber’s summary of the history of the pending Senate and House

bills and the blending of those bills into the final OPA 90 legislation by the

Congress Conference Committee points out that the committee's “deletion of

the only preemption clause that applied specifically to oil spill prevention and

its reliance instead on two provisions that never applied to prevention pro-

visions, together suggest that Congress did not intend its final version of

Section 1018 to apply to OPA 90's oil spill prevention provisions (Title IV).”

159 F.3d at 1225.

'? Judge Graber’s disagreement with the Ninth Circuit's holding on the

preemptive effect of Coast Guard regulations as inconsistent with Ninth

Circuit and Supreme Court precedent is also well-stated.

As shown above, the Ninth Circuit’s decision in this case is

clearly inconsistent with the conclusion of the Ray Court that

the federal judgment of whether a vessel is safe to navigate in

waters of the United States prevails over a contrary state judg-

ment. See, 435 U.S. at 165. The issue is one of extreme impor-

tance to the members represented by PMSA. Under the Ninth

Circuit's ruling, other coastal states of the circuit, notably Cali-

fornia, Oregon, Hawaii and Alaska, are free to adopt their

own, different requirements relating to any aspect of OPA 90.

Moreover, in addition to regulating tanker vessels, the State of

Washington is now empowered to enforce its regulations that

relate to the screening of dry cargo and passenger vessels that

transit its waters to determine whether they present a substan-

tial risk of harm to public health and safety of the environment.

See, Wash. Rev. Code § 88.46.050. Other states could well fol-

low suit.

Vessel operators otherwise complying with Coast Guard

standards and International Treaties and Agreements will incur

extraordinary additional expense and time to comply with the

more stringent Washington standards—if compliance is even

possible. Compliance would require vessel operators to, among

other things, transport to their vessels additional multi-lingual

officers and crews trained to Washington standards for transit

through Washington waters, or to maintain such vessel staffing

at all times; to constantly prepare, maintain and submit the

Washington-required records—different in format and content

from the Coast Guard requirements, thus imposing duplicate

record keeping and reporting burdens on operators—for vessel

worldwide operations; and to perform worldwide random al-

cohol and drug testing of all personnel on all vessels operated

by concerned carriers and to report the results to Washington

State. These rules are far more burdensome than, and conflict

with, Coast Guard and international standards.

The problem would certainly be compounded should other

states—such as Oregon, California, Hawaii, and Alaska—enact

their own detailed regulations on the same subject matter.

Other port states of the United States and their political sub-

divisions could well follow suit. Operators of vessels transiting

the waters of these states on the same voyage would be faced

with an overwhelming managerial burden, in addition to heavy

expense, if forced to keep track of, reconcile and comply with

multiple and conflicting state and federal/international stan-

dards for crew training, multilingual capability, watch keeping,

recording and reporting, navigation, engineering and other ves-

sel operations. This potential burden is highlighted when one

considers that there are currently about 10,000 vessel calls a

year, collectively, at the major West Coast ports, 70% to 80% of

which are foreign flag vessels. This means that about 27 vessels

arrive and 27 vessels depart those ports each day, 20% to 30%

of which are transiting to or from other ports in the Ninth

Circuit.

Moreover, state regulation of this subject matter will frus-

trate the expertise of the Secretary of Transportation and the

Coast Guard to prescribe national and uniform regulations

for the concerned subject matter as directed by 46 U.S.C.

§ 3703(a). To impair the Secretary's ability to act is particularly

unnecessary in this instance because Congress has directed the

Secretary to consult with and consider the views of interested

State governments and other parties described in 46 U.S.C. §

3703(c) and 33 U.S.C. § 1231. Thus, the interests of the various

states and their political subdivisions will not be ignored and,

indeed, can be incorporated into uniform national standards

consistent with international standards.

State regulation of the same subject matter clearly inter-

feres with the Congressional objective of uniform federal and

international standards upon which the international maritime

community can rely. Moreover, the Ninth Circuit's ruling leaves

open the door for a conflicting multi-state and federal/

international regulatory quagmire affecting not only tank ves-

sels, but dry cargo and passenger vessels as well, all of which

are within the ambit of Washington regulation.

The PMSA members, who are particularly at risk because

of their operations in the waters of the states comprising the

Ninth Circuit, submit that uniform national and international

maritime standards are necessary for safe and efficient vessel

operations for the international maritime community, a public

policy well entrenched in federal statutes and regulations and

this Court’s precedent.

IV. CONCLUSION

The Pacific Merchant Shipping Association respectfully

urges the Court to grant the relief requested by petitioners to

establish a national, uniform rule of maritime law that is con-

sistent with federal statutes, regulations, international stan-

dards and the precedent of this Court.

Respectfully submitted,

SAM D. DELICH

Counsel of Record

JAMES B. NEBEL

FLYNN, DELICH & WISE

One California Street, Suite 350

San Francisco, California 94111

Counsel for the Pacific

Merchant Shipping Association

as Amicus Curiae

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