Petition for Writ of Certiorari — New Orleans Steamship Ass'n v. Plaquemines Port, Harbor & Terminal District

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In the

Supreme Court of the United States

OCTOBER TERM, 1989

NEW ORLEANS STEAMSHIP ASSOCIATION,

Petitioner

versus

PLAQUEMINES PORT, HARBOR & TERMINAL

DISTRICT,

Respondent

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR CERTIORARI

EDWARD S. BAGLEY

3100 Energy Centre

New Orleans, LA 70163-3100

Telephone: 504/523-6451

Counsel of Record

JOHN A. BOLLES

3100 Energy Centre

New Orleans, LA 70163-3100

Telephone: 504/523-6451

Counsel of Record

TERRIBERRY, CARROLL & YANCEY

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

QUESTIONS PRESENTED *OR REVIEW

1) Whether the decision has negated the clearly ex-

pressed intent of Congress in an important peice of legisla-

tion, Section 208 of the Harbor Developmert and Naviga-

tion Improvement Act of 1986, 33 USC 2236, infra, p. 4,

hereafter ‘“‘HDNI’’?

2) Whether the decision is in conflict with Japan Line

v. Los Angeles, 441 U.S. 434, 60 L.Ed.2d 336, 164 S.Ct.

2237 (1979)?

3) Whether the decision is in conflict with the holding

in South Central Timber Development v. Wunnicke, 467

U.S. 82, 81 L.Ed.2d 71, 104 S.Ct. 2237 (1984)?

4) Whether the decision fails to give effect to the Im-

port/Export Clause of the Constitution, Art. 1, §10, cl. 2; in-

fra, p. 2?

5) Whether the decision fails to give effect to 33 USC

10, the act admitting Louisiana to the Union, 33 USC 5,

and the Tonnage Clause of the Constitution, Art. 1, §10, cl.

3; infra. p. 2?

PARTIES TO THE PROCEEDING

The parties to the proceeding are those set forth in

the caption of the case in this Court.

TABLE OF CONTENTS

Page

Questions Presented for Review..................... i

ee ii

i iii

ok ca cece acer eccceevees Vv

Reference to Reports of Opinions Below ............. l

Grounds on Which the Jurisdiction of this Court is

ORS l

Constitutional hel Statutory Provisions ............. 1

Constitution of the United States................. l

lee ae ees eees 2

EE 2

I adie s eee 3

EE tee 4

ec cee ee eee ees 12

Jurisdiction in the Court of the First Instance ....... 14

ee eg eo kuldle des eeeee. 14

I. The Decision Below Negates the Plain

Language of the Harbor Development and

Navigation Improvement Act of 1986 ........ 14

a) The Language of the HDNI Act........ 16

b) The Actual Legislative History ......... 17

c) The ‘Play of the HDNI and Con-

gress's Beliefs About the Power of

Nonfederal Ports to Impose Fees” ...... 19

Ii. The Decision Denies the Nation the ‘Ability

to Speak with One Voice’, Ignoring the

hin ccc nce vec ncccer reves 21

TABLE OF CONTENTS (continued)

III. The Decision Ignores the Wunnicke Decision

and the Commerce Clause...............--.- 22

IV. The Decision Misstates the Washington

Revenue Department and Michelin Tire Case

and Fails to Give Effect to the Import/Ex-

port Clause on Goods “‘In Transit”........... 24

V. The Decision Fails to Give Effect to 33

U.S.C. 10, the Act Admitting Louisiana to

the Union, 33 U.S.C. 5 and the Tonnage

SE ean, one ak bs cosets ween 26

_. Sb Rear aah err? oe fo 28

Ce Sg ks oe vs vee io ee ee ee ee 31

TABLE OF AUTHORITIES

CASES: Page

Clyde Mallory Lines v. State, 229 Ala. 624, 159 So.

53 (Ala., 1935) rev’d Clyde Mallory Lines v.

Alabama, 246 U.S. 261, 80 L.Ed. 215, 56 S.Ct. 194

Seer eee t oh. awd ren oe eo wag ke ons 18,20

Clyde Mallory Lines v. Alabama, 246 U.S. 261, 80

L.Ed. 215, 56 S.Ct. 194 (1935) ........... 27,28,29,30

Glouster Ferry Co. v. Pennsylvania, 114 U.S. 196,

29 L.Ed. 158, 5 S.Ct. 826 (1985) ................. 24

Huse v. Glover, 119 U.S. 543, 30 L.Ed. 487, 7 S.Ct.

Fee Naa ete ee 26-27,29

Indiana Port Commission v. Bethlehem Steel Corp.,

So6 F.3a 1507 (7th Cir., 1967) ................... 27

Japan Line v. Los Angeles, 441 U.S. 434, 60 L.Ed.2d

I 21

Michelin Tire Corp. v. Wages, 423 U.S. 276, 46

L.Ed.2d 495, 96 S.Ct. 435 (1976) ................. 25

Peete v. Morgan, 86 U.S. (19 Wall.) 581, 22 L.Ed.

aero Wine ta A ees buds She a 29

Plaquemines Port, Harbor & Terminal District v.

Federal Maritime Commission, 838 F.2d 536

kag erg ars oe 14,21,27

Port of New Orleans v. Ship Charles Morgan, 14 La.

Ann. 595 (1859) rev’d Southern Steamship Co. v.

The Masters and Wardens of the Port of New

Orleans, 73 U.S. (6 Wall.) 31, 18 L.Ed. 749 (1867) . .29

South Central Timber Development v. Wunnicke,

467 U.S. 82, 81 L.Ed.2d 71, 104 S.Ct. 2237

Se oes cee sa eee eae. 22

TABLE OF AUTHORITIES

CASES: Page

Southern Steamship Co. v. The Masters and

Wardens of the Port of New Orleans, 73 U.S. (6

Wall.) 31, 10 Snmeee SI ee eee e}.....- 29

Washington Revenue Department v. Stevedoring

Association, 435 U.S. 734, 55 L.Ed.2d 682, 98

. §.Ce. 1908 CURE cc ee ee ose 25,26

CONSTITUTIONAL AND STATUTORY PROVISIONS

United States Constitution:

Article 1, Section 8, Clause 2.................. 1

The Commerce Clause

Article 1, Section 10, Clause2 .............. 2,16

The Import/Export Clause

Article 1, Section 10, Clause 3....... me Fy

The Tonnage Clause

Statutes:

$8 U.SS. © .cccc oe ee ee ee 2,27

33 U.S... ccc ce ee ae 3,26 -

Bis Ce ee ne ae ee 4

46 U.S.C. GRR a ee ees sees 21

46 U.S.C. App. 1709(b)(11) and (12) ............. 22

LEGISLATIVE HISTORY

144 Cong. Rec. S$16982 (Daily Ed., Oct. 17,

1900)... .. 25. 0k be ewe ss 18,19

TEXTS

2 Records of Federal Convention, 625 (M. Farrand

od., 1000)... 6's eG eas 28

REFERENCE TO REPORTS OF OPINIONS BELOW

The decision of the District Court is reported as New

Orleans Steamship Association v. Plaquemines Port, Har-

bor & Terminal District, 690 F.Supp. 1515, 24 SRR (Pike &

Fisher) 1326 (E.D. La., 1988), App., p. 24. The decision of

the Court of Appeals is reported under the same title, 874

F.2d 1018, 25 SRR (Pike & Fisher) 205 (5th Cir., 1989),

App., p. 1 ; amended and reh. den., 891 F.2d 1153, 25 SRR

(Pike & Fischer) ____ (5th Cir., 1989), App., p. 22.

GROUNDS ON WHICH THE JURISDICTION

OF THIS COURT IS INVOLVED

i) The judgment below was entered on June 9, 1989,

App., p. 1.

ii) Rehearing was denied on December 29, 1989,

App., p. 22.

iii) The statutory provision conferring jurisdiction

on this Court to review the judgment is 28 U.S.C.

1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS

CONSTITUTION OF THE UNITED STATES

Article 1, Section 8, CLause 2 - The Commerce

Clause

‘The Congress shall have Power ... To regulate

Commerce with foreign Nations, and among the

several States, and with the Indian Tribes;”’

Article 1, Section 10, Clause 2 - The Import/Export Clause

“No State shall, without the Consent of

Congress, lay any Imposts or Duties on Imports

or Exports, except what may be absolutely

necessary for executing its inspection Laws: and

the net Produce of all Duties and Imposts laid by

any State on Imports or Exports, shall be for the

Use of the Treasury of the United States; and all

such Laws shall be subject to the Revision and

Control of the Congress.”’

Article 1, Section 10, Clause 3, - The Tonnage Clause

‘No State shall, without the Consent of

Congress, lay any Duty of Tonnage, keep Troops,

or Ships of War in time of Peace, enter into any

Agreement or Compact with another State, or

with a foreign Power, or engage in War, unles ac-

tually invaded, or in such imminent Danger as

will not admit of delay.”’

STATUTES

33 U.S.C. 5:

§5. Abolition of tolls on Government

canals, canalized rivers, etc.; expense

of operation, repairs to and

reconstruction of canals, _ etc.;

Panama Canal excepted

No tolls or operating charges whatever shall

be levied upon or collected from any vessel,

dredge, or other water craft for passing through

any lock, canal, canalized river, or other work for

the use and benefit of navigation, now belonging

to the United States or that may be hereafter ac-

quired or constructed; and for the purpose of

preserving and continuing the use and navigation

of said canals and other public works without in-

terruption, the Secretary of the Army, upon the

recommendation of the Chief of Engineers,

United States Army, is authorized to draw his

warrant or requisition, from time to time, upon

the Secretary of the Treasury to pay the actual

expenses of operating, maintaining, and keeping

said works in repair, which warrants or requisi-

tions shall be paid by the Secretary of the

Treasury out of any money in the Treasury not

otherwise appropriated: Provided, That

whenever, in the judgment of the Secretary of the

Army, the condition of any of the aforsaid works

is such that its entire reconstruction is absolutely

essential to its efficient and economical

maintenance and operation as herein provided

for, the reconstruction thereof may include such

modifications in plan and location as may be

necessary to provide adequate facilities for ex-

isting navigation: Provided further, That the

modifications are necessary to make the recon-

structed work conform to similar works previous-

ly authorized by Congress and forming a part of

the same improvement, and that such modifica-

tions shall be considered and approved by the

Board of Engineers for Rivers and Harbors and

be recommended by the Chief of Engineers before

the work of reconstruction is commenced: And

provided further, That nothing contained in this

section shall be held to apply to the Panama

Canal.

33 U.S.C. 10:

§ 10. Waters in Louisiana Purchase as

public highways

All the navigable rivers and waters in the

former Territories of Orleans and Louisiana shall

be and forever remain public highways.

33 U.S.C. 2236:

§ 2236. Port or harbor dues

(a) Consent of Congress

Subject to the following conditions, a non-

Federal interest may levy port or harbor dues (in

the form of tonnage duties or fees) on a vessel

engaged in trade entering or departing from a

harbor and on cargo loaded on or unloaded from

that vessel under clauses 2 and 3 of section 10,

and under clause 3 of section 8, of Article 1 of the

Constitution:

(1) Purposes

Port or harbor dues may be levied only in

conjunction with a harbor navigation project

whose construction is complete (including a

usable increment of the project) and for the

following purposes and in amounts not to ex-

ceed those necessary to carry out those

purposes:

(A)(i) to finance the non-Federal share of

construction and operation and

maintenance costs of a navigation project

for a harbor under the requirements of sec-

tion 2211 of this title; or

(ii) to finance the cost of construction

and operation and maintenance of a

navigation project for a harbor under sec-

tion 2232 or 2233 of this title; and

(B) provide emergency response services

in the harbor, including contingency plan-

ning, necessary personnel training, and

the procurement of equipment and

facilities.

33 U.S.C. 2236 (cont.):

(2) Limitation on port or harbor dues for

emergency service

Port or harbor dues may not be levied for the

purposes described in paragraph (1)(B) of this

subsection after the dues cease to be levied for

the purposes described in paragraph (1)(B) of

this subsection after the dues cease to be levied

for the purposes described in paragraph (1){A)

of this subsection.

(3) General limitations

(A) Port or harbor dues may not be levied

under this section in conjunction with a deepen-

ing feature of a navigation improvement pro-

ject on any vessel if that vessel, based on its

design draft, could have utilized the project a

mean low water before construction. In the

case of project features which solely—

(i) widen channels or harbors,

(ii) create or enlarge bend easings, turn-

ing basins or anchorage areas, or provide

protected areas, or

(iii) remove obstructions to navigation,

only vessels at least comparable in size to those

used to justify these features may be charged

under this section.

(B) In developing port or harbor dues that

may be charged under this section on vessels

for project features constructed under this sub-

chapter, the non-Federal interest may consider

such criteria as‘ elapsed time of passage, safety

33 U.S.C. 2236 (cont.):

of passage, vessel economy of scale, under keel

clearance, vessel draft, vessel squat, vessel

speed, sinkage, and trim.

tion shall not be imposed on—

(i) vessels owned and operated by the

United States Government, a foreign

country, a State, or political subdivision of

a country or State, unless engaged in com-

mercial services;

(ii) towing vessels, vessels engaged in

dredging activities, or vessels engaged in

intraport movements; or

(iii) vessels with design drafts of 20 feet

or less when utilizing general cargo and

deep-draft navigation projects.

(4) Formulation of port or harbor dues

Port or harbor dues may be levied only on a

vessel entering or departing from a harbor and

its cargo on a fair and equitable basis. In for-

mulating port and harbor dues, the non-Federal

interest shall consider—

(A) the direct and indirect cost of con-

struction, operations, and maintenance,

and providing the facilities and services

under paragraph (1) of this subsection;

(B) the value of those facilities and ser-

vices to the vessel and cargo;

and

33 U.S.C. 2236 (cont.):

(D) any other pertinent factors.

(5) Notice and hearing

(A) Before the initial levy of or subsequent

modification to port or harbor dues under this

section, a non-Federal interest shall transmit to

the Secretary—

(i) the text of the proposed law, regula-

tion, or ordinance that would establish the

port or harbor dues, including provisions

for their administration, collection, and

enforcement;

(ii) the name, address, and telephone

number of an official to whom comments

on and requests for further information on

the proposal are to be directed:

(iii) the date by which comments on the

proposal are due and a date for a public

hearing on the proposal at which any in-

terested party may present a statement;

however, the non-Federal interest may not

set a hearing date earlier than 45 days

after the date of publication of the notice

in the Federal Register required by sub-

paragraph (B) of this paragraph or set a

deadline for receipt of comments earlier

than 60 days after the date of publication;

and

(iv) a written statement signed by an ap-

propriate official that the non-Federal in-

terest agrees to be governed by the provi-

sions of this section.

33 U.S.C. 2236 (cont.):

(B) On receiving from a non-Federal interest

the information required by subparagraph (A)

of this paragraph, the Secretary shall transmit

the material required by clauses (i) through (iii)

of subparagraph (A) of this paragraph to the

Federal Register for publication.

non-Federal interest only after meeting the con-

ditions of this paragraph.

(6) Requirements on non-Federal interest

A non-Federal interest shall—

(A) file a schedule of any port or harbor

dues levied under this subsection with the

Secretary and the Federal Maritime Com-

mission, which the Commission shall make

available for public inspection;

(B) provide to the Comptroller General

of the United States on request of the

Comptroller General any records or other

evidence that the Comptroller General

considers to be necessary and appropriate

to enable the Comptroller General to carry

out the audit required under subsection (b)

of this section;

representative, including the Secretary of

the Treasury acting on a_ cost-

reimbursable basis, to receive tonnage cer-

tificates and cargo manifests from vessels

which may be subject to the levy of port or

harbor dues, export declarations from

33 U.S.C. 2236 (cont.):

shippers, consignors, and terminal operators,

and such other documents as the non-Fede-al

interest may by law, regulation, or ordinance

require for the impesition, computation, and

collection of port or harbor dues; and

(D) consent expressly to the exclusive exer-

cise of Federal jurisdicitin under subsection (c)

of this section.

(b) Audits.—The Comptroller General of the

United States shall—

(1) carry out periodic audits of the operations

of non-Federal interests that elect to levy port

or harbor dues under this section to determine

if the conditions of subsection (a) of this section

are being complied with;

(2) submit to each House of the Congress a

written report containing the findings

resulting from each audit; and

(3) make any recommendations that the

Comptroller General considers appropriate

regarding the compliance of those non-Federal

interests with the requirements of this section.

(1) The district court of the United States for the district

in which is located a non-federal interest that levies port or

harbor dues under this section has original and exclusive

jurisdiction over any matter arising out of or concerning,

the imposition, computation, collection, and enforcement

of port or harbor dues by a non-Federal interest under this

section.

33 U.S.C. 2236 (cont.):

(2) Any person who suffers legal wrong or is

adversely affected or aggrieved by the imposition

by a non-Federal interest of a proposed scheme or

schedule of port or harbor dues under this section

may, not later than 180 days after the date of

hearing under subsection (a)(5)(A)(iii) of this sec-

tion, commence an action to seek judicial review

of that proposed scheme or schedule in the ap-

propriate district court under paragraph (1)

(3) On petition of the Attorney General or any

other party, that district court may—

(A) grant appropriate injunctive relief to

restrain an action by that non-Federal interest

violating the conditions of consent in subsec-

tion (a) of this section;

(B) order the refund of any port or harbor

dues not lawfully collected, and

(d) Collection of duties

(1) Delivery of certificate and manifest

(A) Upon arrival of vessel

Upon the arrival of a vessel in a harbor in

which the vessel may be subject to the levy of

port or harbor dues under this section, the

master of that vessel shall, within forty-eight

hours after arrival and before any cargo is

unloaded from that vessel, deliver to the ap-

propriate authorized representative appointed

under subsection (a)(6)(C) of this section a ton-

33 U.S.C. 2236 (cont.):

nage certificate for the vessel and a manifest of

the cargo aboard that vessel or, if the vessel is

in ballast, a declaration to that effect.

(B) Before departure of vessel

The shipper, consignor, or terminal operator

having custody of any cargo to be loaded on

board a vessel while the vessel is in a harbor in

which the vessel may be subject to the levy of

port or harbor dues under this section shall,

within forty-eight hours before departure of

that vessel, deliver to the appropriate authoriz-

ed representative appointed under subsection

(a)(6((C) of this section an export declaration

specifying the cargo to be loaded on board that

vessel.

(e) Enforcement

At the request of an authorized representative

referred to in subsection (a)(6)(C) of this section,

the Secretary of the Treasury may:

(1) withhold the clearance required by section

91 of Title 46 for a vessel if the master, owner,

or operatior of a vessel subject to port or har-

bor dues under this section fails to comply with

the provisions of this section including any

non-Federal law, regulation or ordinance issued

hereunder; and

(2) assess a penalty or initiate a forfeiture of

the cargo in the same manner and under the

same procedures as are applicable for failure to

pay customs duties under the Tariff Act of

33 U.S.C. 2236 (cont.):

1930 (19 App.U.S.C. 1202 et seq.) if the ship-

per, consignor, consignee, or terminal operatior

having title to or custody of cargo subject to

port or harbor dues under this section fails to

comply with the provisions of this section in-

cluding any non-Federal law, regulation, or or-

dinance issued hereunder.

(f) Maritime lien

Port or harbor dues levied under this section against a

vessel constitute a maritime lien against the vessel and

port or harbor dues levied against cargo constitute a lien

against the cargo that may be recovered in an action in the

district court of the United States for the district in which

the vessel or cargo is found.

(Pub.L. 99-!662, Title II, § 208, Nov. 17, 1986, 100 Stat.

4102.)

STATEMENT OF THE CASE

The Plaquemines Port, Harbor & Terminal District

(hereinafter ‘‘Plaquemines’’) is a creation of the Louisiana

legislature whose territorial jurisdiction on the Mississippi

River is concurrent with that of Plaquemines Parish. The

parish (the Louisiana equivalent of a county) lies at the

mouth of the Mississippi River and encompasses more

than 100 miles of the river length. It provides anchorages

for ships awaiting berths at the Port of New Orleans and

at the ports and facilities located above New Orleans. All

oceangoing ships proceeding to or from Mississippi River

ports must pass through Plaquemines.

Plaquemines does not own or operate any docks,

wharves or other facilities for the use of oceangoing

vessels. It does own and operate two fifty-foot crewboat

type vessels referred to as patrol/rescue/fire vessels.

Ships anchoring (or mooring at private facilities) in

Plaquemines are charged a ‘‘Harbor Fee’’ on a per diem

basis graduated according to length. Ships loading or

unloading cargo at the privately owned and operated

wharves and facilities within the parish are charged a

‘Supplemental Harbor Fee’’ based on the number of tons

of cargo loaded and/or unloaded.

The charges are levied for the availability of the

emergency response services provided by Plaquemines and

the parish through its police, fire and other departments, as

well as the two crewboats. The charges are not based on

any direct or actual services provided to the ships by Pla-

quemines or the parish.

The plaintiff below/petitioner here, the New Orleans

Steamship Association, is an incorporated, non-profit,

association whose membership includes the owners,

operators and agents of oceangoing ships in foreign com-

merce calling at the ports and facilities on the Mississippi

River.

The Plaquemines litigation has had a lengthy

history. Initially the charges were levied primarily against

cargo and solely to support general governmental services

‘‘allocated’”’ by the parish. This was found unlawful, Louis

Dreyfus Corp. v. Plaquemines Port, Harbor & Terminal

Disstrict, 21 SRR (Pike & Fischer) 1072 (FMC, 1982).

Plaquemines thereafter acquired the twe_par-

tol/rescue/fire vessels to support its charges which then

were directed primarily against oceangoing vessels. Its

tariff was found to be unlawfully discriminatory, New

Orleans Steamship Association v. Plaquemines Port,

Harbor & Terminal District, 23 SRR (Pike & Fischer) 1363

(FMC, 1986). Continued operation by Plaqueminens under

that tariff was held unlawful, New Orleans Steamship

Association v. Plaquemines Port, Harbor & Terminal

District, 816 F.2d 1074, 24 SRR (Pike & Fischer) 202 (5th

Cir., 1987).

Appeal was taken from the decision of the Federal

Maritime Commission, which was affirmed, Plaquemines

Port, Harbor & Terminal District v. Federal Maritime Com-

mission, 838 F.2d 536, 1988 AMC 2774, 24 SRR (Pike &

Fischer 813 (D.C. Cir., 1988).

The present case involves the third Plaquemines

tariff the one formulated after the 1986 decision of the

Federal Maritime Commission. Again it focuses pzimarily

on oceangoing vessels and its discriminatory features are

the subject of a complaint filed with the Federal Maritime

Commission, held in abeyance during the pendency of this

litigation.

JURISDICTION IN THE COURT

OF FIRST INSTANCE

Jurisdiction in the district court was based on the

federal questions involved, 28 U.S.C. 1331, and the provi-

sions of the Harbor Development and Navigation Improve-

ment Act of 1986, 33 U.S.C. 2236(c) (3) (A), supra, p. 10.

ARGUMENT

The Decision Below Negates the

Plain Language of the

Harbor Development and Navigation

Improvement Act of 1986

The decision acknowledges that ‘‘the language of the

HDNI appears to forbid all port fees except those to which

Congress has expressly consented.’’! This is the clearly

stated intent of the statute but the decision relies instead

on a “‘legislative history’’ consisting of a statement (taken

out of context”) before a committee by a senator testifying

in a prior Congress, on a bill which was not enacted.® In so

doing the decision holds that “‘his comments deserve great

weight” and adds “problems with legislative history

‘disappear’ when sponsor speaks. ‘‘4

1. 874 F.2d at 1025; App., p 16.

This should have ended the inquiry.

‘We begin with the familiar canon of statutory construction

that the starting point for interpreting a statute is the

language of the statute itself. Absent a clearly expressed

legislative intent to the contrary, that language must be

regarded as conclusive.’’ Consumer Products Safety Com-

mission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 64 L.Ed.2d

766, 772, 100 S.Ct. 2051, 2056 (1980).

The language of the act is entirely plain and straightforward. Both it

and its legislative history confirm the clearly expressed intent of Con-

gress to restrict the imposition of port or harbor dues solely to

nonfederal interests undertaking harbor development and navigation

improvement projects.

2. The remarks were before the Subcommittee on Taxation and Debt

Management of the Senate Finance Committee. The Subcommittee, by

its very role, was concerned with the extent to which the bill invaded the

Federal fisc and imposed charges on waterway users. Senator Abdnor,

in turn, assured it that the biil about which he was testifying would not

permit the imposition of charges unless imposed in connection with a

project under the proposed, but not enacted, bill.

3.The testimony by Senator Abdnor was on Senate Bill 1739 of the 98th

Congress, 2nd Session, and was presented by him on June 15, 1984. The

HDNI Act was derived from House Bill HR6 of the 99th Congress, 2nd

Session, which became Public Law 99-662, November 17, 1986, 100 Stat.

4082.

4. 874 F.2d at 1025 and Fn. 57; App., p. 16.

a) The Language of the HDNI Act

Congress could not have been more specific in its

terms; the HDNI Act permits the imposition of ‘‘Port or

harbor dues’’> by giving the ‘“‘Consent of Congress’’.®

The condition of the consent is thereafter set forth by

stating that ‘‘subiect to the following conditions, a non-

Federal interest may levy port or harbor dues (in the form

of tonnage duties or fees) on a vessel engaged in trade

entering or departing from a harbor and on cargo loaded or

unloaded from that vessel under Clauses 2 and 3 of Section

10, and under Clause 3 of Section 8 of Article 1 of the

Constitution.’’"? Such permitted ‘“‘port or harbor dues may

be levied only in conjunction with a harbor navigation pro-

ject whose construction is complete (including a usable in-

crement of the project) and for the following purposes and

in amounts not to exceed those necessary to carry out

those purposes.’’® The purposes for which the dues are con-

sented to include the ability of the non-Federal interests to

‘provide emergency response services in the harbor, in-

cluding contingency planning, necessary personnel train-

ing, and the procurement of equipment and facilities.’

The harbor fee and supplemental harbor fee of Pla-

quemines are just such “port or harbor dues’’ which are

levied for the purpose of providing standby ‘“‘emergency

response services.’’ The Plaquemines charges, accordingly,

plainly fall within the precise definition of the HDNI Act;

5. This is the title of 33 U.S.C. 2236, supra, p. 4.

6. This, in turn, is the title of 33 U.S.C. 2236(a), supra, p. 4.

1. Id

8. 33 U.S.C. 2236(a) (1). supra, p. 4.

9. 33 U.S.C. 2236(a) (1) (B), supra, p. 4.

they are prohibited by its specific terms, absent a project

undertaken pursuant to the Act.

Congress did not stop here, however, in delineating

and limiting the conditions under which charges for such

‘emergency response services” could be assessed. Thus,

they may not be charged ‘‘after the dues cease to be levied

for the purposes described in paragraph (1) (A) of this

subsection;!9, i.e., after the financing of the cost of con-

struction, operation and maintenance of the project has

been completed. Further, the fees can only be assessed

against “‘vessels at least comparable in size to those used

to justify these features.”’!! Further, ‘“‘port or harbor dues

may be imposed by a non-Federal interest only after

meeting the conditions of this paragraph’’!? dealing with

the provision of notice and hearing before undertaking the

imposition of port or harbor dues.

It is submitted that clearer language prohibiting the

assessment of charges for emergency response services,

other than in compliance with the provisions of the HDNI

Act, could not be suggested. The intent, of Congress has

been expressed in plain and unambiguous language.

b) The Actual Legislative History

As pointed out!8, the “legislative history’’ of the

decision was based on 1984 testimony before a Committee

on a Senate bill in the 98th Congress, which was not pass-

ed, rather than the House bill in the 99th Congress, which

was passed in 1986, more than two years later. As the deci-

10. 33 U.S.C. 2236(a)(2), supra, p. 5.

11. 33 U.S.C. 2236(a) (3) (A), supra, p. 5.

12. 33 U.S.C. 2236 (a) (5) (C)k, supra, p. 8.

13. Supra, p. 15.

sion states: “‘Congress believed nonfederal ports could

charge only ships that benefited from port services.’’!4

This was based on a specific statement in the House

Report on the bill which became the law, quoted by the

decision.!5 The quotation is as follows:

“In the case of Clyde Mallory Lines v.

United States [Alabamaj, 296 U.S. 261 [56 S.Ct.

194, 80 L.Ed. 215] (1935), the Supreme Court reaf-

firmed the limitation on the authority of local

ports to levy [sic] fees to direct services, including

wharfage, dockage, pilotage, stevedoring, and

demurrage... .”

The decision continues by noting that ‘“‘Section 2236

is built around this belief’’!®, as indeed it is. This is the on-

ly thing to which Congress consented. Mindful that fees for

indirect or standby services were not lawful, at least in its

view, Congress determined that it would permit local ports

to assess such fees only in connection with the harbor im-

provement projects contemplated by the Act.

Senator Stafford, the floor manager for the bill in the

Senate, noted that it was the restrictive House bill which

was before that body and which was enacted into law. He

said:!7

‘. . . The conference report allows non-Federal

authorities to charge port use fees under certain

controlled conditions. The Senate-passed bill of-

fered the ports broad authority on user fees... .

14. 994 F.2d at 1025, App., P. 16.

15. Jd, P. 1026, App., p. 16.

16. 7d, p. 1026, App., p. 17.

17. 144 cong. Rec. $16982 (Daily Ed., Oct. 17, 1986).

TER

The language we have agreed upon in this con-

ference report is somewhat more restrictive. .. .’’

This is the legislative history of the Act, not the

remarks by Senator Abdnor on the Senate bill in the prior

Congress. If legislative history were relevant, which we

submit that it is not in view of the clarity of the language

used by Congress, the legislative history demonstrates

that it was the conclusion of Congress that fees for indirect

or standby service were precluded absent its consent. It

then gave its consent to such fees only in conjunction with

harbor improvement projects under the Act. By so limiting

its consent, it precluded such fees under any other

circumstances.

c) The ‘Play of the HDNI and Congress’s Beliefs

About the Power of Nonfederal Ports to Impose

Fees”’

This section of the decision, we submit, is the

equivalent of reading Tarot cards to determine the already

clearly expressed language of the statute and intent of Con-

gress. The Court raises questions but offers no answers

other than the predetermined conclusion that the statute

does not mean what it says and that the actual legislative

history equally is meaningless.

It asks questions but avoids answers. Thus it

‘We do not necessarily agree that Clyde

Mallory distinguishes fees from direct ser-

vices from those for indirect services... .”’

16. Jd, p. 1026, App., p. 17.

17. 144 Cong. Rec. $16982 (Daily Ed., Oct. 17, 1986).

18. 974 F.2d at 1026, Fn. 58, App., p. 17.

We submit that with this question unanswered, the

decision has no meaning. If Congress determined correctly,

as we believe that it did, that Clyde Mallory required the

provision of direct services for the imposition of such fees,

the Plaquemines fees plainly are unlawful, with or without

the provisions of the HDNI Act. If it was incorrect in this

conclusion, the fees are unlawful because they have been

made so by the terms of the HDNI Act which specifically

restricts the conditions under which they may be charged,

following its passage.

The remaining questions which the decision seeks to

pose are simply strawmen, of no consequence whatever. It

is totally incorrect to say that the ‘‘framework leaves fees

to finance emergency response services in an odd

position.”!9 They are not in an odd position at all; they

simply are forbidden to be charged when not charged in

conformance with the Act. This was the determination of

Congress. The fact that ‘“‘Section 2240 authorizes only $5

million for these grants [for the provision of emergency

response services] for fiscal years 1987-1991’2° is not

meaningful. Congress obviously can appropriate funds as

necessary during any period - if it considers such appropria-

tion wise.

The reference to the fact that ‘fees for other services,

such as wharfage and pilotage, attach to individual ships;

they are not ‘port or harbor dues’’’?! only reinforces the

conclusion reached by Congress. These are direct services;

there is no question that they can be charged.

We can only reiterate that this section of the decision

19. 7q., p. 1026, App., p. 17.

20. Jd, p. 1026, and Fn. 63, App., p. 19.

21. 7d, p. 1027, App., pp. 19-20.

Saints <<< ante

? 4 é Pe es

simply ignores the very plain meaning of the statute and

the equally well articulated intent reflected in the

legislative history to indulge in something equivalent to

consulting Tarot cards to fathom the meaning of the Act.

II.

The Decision Denies the Nation the “Ability

to Speak with One Voice”, Ignoring the

Japan Line Case

The services made available by the respondent

below, Plaquemines, are identical to those provided by the

county in Japan Line v. Los Angeles, 441 U.S. 434, 60

L.Ed.2d 336, 104 S.Ct. 2237 (1979). By allowing such

charges to be imposed against foreign flag vessels which

are instrumentalities of foreign commerce by this local

governmental subdivision, the holding of the Japan Line

case is totally ignored. While it is true that port fees for ser-

vices may be “‘routinely employed by most port nations’’,

Plaquemines simply is not a nation. The HDNI Act forbids

such non-federal ports to impose fees without compliance

with the terms of that Act and the provision of a project

thereunder.

The Federal Maritime Commission has not been ap-

pointed to regulate the reasonableness of fees imposed by

local ports, contrary to the statement of the decision. Pla-

quemines is regulated by the FMC as a “‘marine terminal

operator’’ under the Shipping Act of 1984, Plaquemines

Port, Harbor & Terminal District v. Federal Maritime Com-

mission, 838 F.2d 536 (D.C. Cir., 1988).22

The FMC, under the Shipping Act of 1984, does not

22. The decision refers, Fn. 13, App., p. 5, to the Shipping Act, 1916, 46

U.S.C. 801, erroneously. The Shipping Act, 1916 was superseded as to

the foreign commerce involved here by the Shipping Act of 1984.

regulate the reasonableness per se of marine terminal

operators. Its jurisdiction is limited to correcting ‘‘any un-

due or unreasonable preference or advantage to any par-

ticular person, locality, or description of traffic’, 46 U.S.C.

App. 1709 (b) (11), or ‘“‘any undue or unreasonable prejudice

or disadvantage’’, 46 U.S.C. App. 1709 (b) (12), i.e., to pre-

vent discrimination between interests, not to determine a

reasonable rate level. Thus, if the HDNI Act does not app-

ly to Plaquemines, the nation has lost its ability to speak

with one voice with respect to its foreign commerce.??

III.

The Decision Ignores the Wuznicke Decision

and the Commerce Clause

The decision states that South Central Timber

Development v. Wunnicke, 467 U.S. 82, 81 L.Ed.2d 71, 104

S.Ct. 2237 (1984), requires the consent of Congress to state

or local actions only when they ‘impose substantial

burdens” on interstate or foreign commerce.*4 This was

the pre-Wunnicke law which had “‘long been recognized’’2°

rather than the extended doctrine expressed in Wunnicke.

Far beyond the ‘‘dormant Commerce Clause’”’ rule announc-

ed in Wunnicke, the present case involves an active expres-

sion by Congress denying the ability of local authorities to

levy the charges imposesd here except in conformance with

the provisions of the HDNI Act. As pointed out in

Wunnicke:

23. The decision states that “Japan and California had already clashed

over the taxation of the containers. 41 U.S. at 451, 99 S.Ct at 1823, 60

L.Ed.2d at 349."’ 874 F.2d at 1022, fn. 26, App., p. 9. We find no such

reference in the decision.

24.374 F.2d at 1022; App., p. 8.

25.467 U.S. at 87, 81 L.Ed. at 76, 104 S.Ct. at 2240.

‘‘. .. Unrepresented interests will often bear the

brunt of regulations imposed by one State having

a significant effect on persons or operations in

other States. Thus ‘when the regulation is of such

a character that its burden falls principally upon

those without the state, legislative action is not

likely to be subjected to those political restraints

which are normally exerted on legislation where it

affects adversely some interests within the state’.

... Arule requiring a clear expression of approval

by Congress ensures that there is, in fact, such a

collective decision and reduces significantly the

risk that unrepresented interests will be adverse-

ly affected by restraints on commerce.”’ 467 US at

92, 81 L.E.2d at 79, 104 S.Ct. at 2242-3.

It was further noted, Wunnicke, Fn. 7, that:

“The need for affirmative approval is

heightened by the fact that Alaska’s policy has

substantial ramifications beyond the Nation’s

borders. The need for a consistent and coherent

foreign policy, which is the exclusive responsibili-

ty of the Federal Government, enhances the

necessity that congressional authorization not be

lightly implied.”’

The effect .of the Plaquemines charges, of course,

does not fall on the residents of the parish but on the

foreign commerce against which they are directed. A

charge of $1.5 Million per annum is a ‘‘significant effect’’

(as well as a ‘‘substantial burden’’).

The decision states that to find a violation of the

HDNI ‘‘we must find evidence that Congress intended its

express consent to fees for emergency response services in

conjunction with harbor improvement projects to imply

disapproval of those fees imposed absent projects.’’26 As

previously noted, the decision also found that “the

language of the HDNI appears to forbid all port fees except

those to which Congress has expressly consented.’’2’ This

simply cannot be reconciled with Wunnicke, which held:

“There is no talismanic significance to the phrase

‘expressly stated,’ however; it merely states one

way of meeting the requirement that for a state

regulation to be removed from the reach of the

dormant Commerce Clause, congressional intent

must be unmistakably clear. The requirement

that Congress affirmatively contemplate other-

wise invalid state legislation is mandated by the

policies underlying dormant Commerce Clause

doctrine. It is not, as Alaska asserts, merely a

wooden formalism. . . .’”’ 467 US 82, 91, 81 L.Ed.

2d 71, 79, 104 S.Ct. 2237, 2242.

In contrast with Wunnicke,28 Congress, indeed, has

“expressly stated’’ in the HDNI Act that the charges can-

not be imposed by Plaquemines.

The Decision Misstates the Washington Revenue

Department and Michelin Tire Cases and Fails to Give

Effect to the Import/Export Clause on Goods “In Transit‘

26. 874 F.2d at 1024, App., p. 14.

27. Id., p. 1025, App., p. 16.

28The decision appears to base its view of the relationship between Con-

gress and the states and the effect of the Commerce Clause on its quota-

tion, 874 F.2d at 1023, Fn. 33, App., p. 10, from Glouster Ferry Co. v.

Pennsylvania, 114 U.S. 196, 29 L.Ed. 158, 5 S.Ct. 826 (1885), to the ef-

fect that ‘“‘courts need not fear state action as long as ‘the power to ar-

rest collision’ with federal policies “resides in the National Congress’’’.

This, it is submitted, is not law post-Wunnicke.

The opinions in Washington Revenue Department v.

Stevedoring Association, 435 U.S. 734, 55 L.Ed.2d 682, 98

S.Ct. 1388 (1978), and Michelin Tire Corp. v. Wages, 423

U.S. 276, 46 L.Ed.2d 495, 96 S.Ct. 435 (1976), both dealt

with goods which were no longer “‘in transit’’ and did not,

therefore, pose any real conflict with the Import/Export

Clause.2? In the present case, the charges are levied

against the vessels and cargoes at the very moment of their

import or export transit, in violation of the clause, a fact ig-

nored by the decision below.

Michelin Tire stands for the proposition that an ad

valorem tax imposed, equally, on imported and domestic

goods lying in distribution warehouses ((not in transit) does

not invoke any prohibition of the Import/Export Clause.

As states:

‘‘Petitioner’s tires in this case were no longer in

transit. They were stored in a distribution

warehouse from which petitioner conducted a

wholesale operation, taking orders from franchis-

ed dealers and filling them from a constantly

replenished inventory. The warehouse was

operated no differently than would be a distribu-

tion warehouse utilized by a wholesaler dealing

solely in domestic goods, and we therefore hold

that the nondiscriminatory property tax levied on

petitioner’s inventory of imported tires was not

interdicted by the Import-Export Clause of the

Constitution....’’ 423 US at 302, 46 L.Ed.2d at

512, 96 S.Ct. at 548.

The subsequent Washington Revenue decision af-

firmed this fact stating that ‘‘. . . because the goods were

no longer in transit, however, the [Michelin Court] did not

have to face the question whether a tax relating to goods

29. U.S. Const., Art. 1, §8, cl. 3; supra, p. 2.

in transit would be an Impost or Duty even if it offended

none of the policies behind the Clause.‘‘*°

In turn, Washington Revenue Department, equally,

did not reach the point, specifically stating this:*!

‘‘We do not reach the question of the applicability

of the Michelin approach where a state directly

taxes imports or exports in transit.”

_ The present case does implicate the Import/Export

Clause as to goods in transit and does impose a tax on

those goods, directly, in contravention of the policies

behind the clause by imposing duties on shippers and

receivers in inland states.

The Decision Fails to Give Effect to

33 U.S.C. 10, the Act Admitting Louisiana to the Union,

33 U.S.C. 5 and the Tonnage Clause

The decision in its rejection of 33 U.S.C. 1032 simply

misstates the holding in Huse v. Glover, 119 U.S. 543, 30

30. 435 U.S. 734, 735, 55 L.Ed.2d 682, 700, 98 S.Ct. 1388, 1402 (1978).

31. 435 U.S. 734, 758, 55 L.Ed.2d 682, 702, 98 S.Ct. 1388, 1403 (1978).

32. Supra, p. 3.

The statute, derived from the act admitting Louisiana to the Union is

set forth in the decision, 874 F.2d at 1024, App., p. 12, and provides that

‘tall the navigable rivers and water of the former Territories of Orleans

and Louisiana shall be and forever remain public highways.”’

The act admitting Louisiana to the Union, 2 Stat. at Large 703 (1812),

also set forth in pertinent part in the decision, 874 F.2d at 1024, App.,

p. 12, provides that the ‘‘River Mississippi and the navigable rivers and

waters leading into the same and into the Gulf of Mexico, shall be com-

mon highways... without any tax, duty, impost or toll therefore, impos-

ed by said State.”

tat

1833

shes yar et es

vi ure.

L.Ed. 487, 7 S.Ct. 313 (1886). That case pointed out that

the language in question (incorporated in the act admitting

Louisiana to the Union) had been deleted from the act

which admitted Illinois to the Union and, accordingly, had

no bearing on that case. The provisions of 33 U.S.C. 533, in

turn, were simply ignored by the decision below. By

misconstruing Clyde Mallory Lines v. Alabama, 246 U.S.

261, 80 L.Ed. 215, 56 S.Ct. 194 (1935), the decision fails to

give effect to the Tonnage Clause of the Constitution.34

33. Supra, p. 2.

The statute provides that ‘‘no tolls or operating charges whatever shall

be levied upon or collected from any vessel . . . for passing through any

... canalized river, or other work for the use and benefit of navigation,

now belonging to the United States. . . ."’ The Mississippi River by

reason of its locks, dams levees, revetments, dredged channels and jet-

ties plaintly is a canalized river. As such the decision is at variance, if

not in conflict with Indiana Port Commission v. Bethlehem Steel Corp.,

835 F.2d 1207 (7th Cir., 1987).

34. Art. 1, §10, cl. 3; supra, p. 2.

The opinion of the District of Columbia Circuit, Plaquemines Port, Har-

bor & Terminal District v. FMC, 838 F.2d 536 (D.C. Cir., 1988), con-

sidered the Clyde Mallory case in a vacuum. Even as to the effect of that

case with respect to the tonnage clause, we do not believe it can survive

analysis here. Apart from the growth of the law in the Commerce Clause

areas (as well as the statutes applicable here), we would point out the

following:

1. The clause was passed in response to the suggestion of the Maryland

delegates that the states should be allowed to lay tonnage taxes to sup-

port the building of lighthouses and clearing of harbors. As stated by

the Court, footnote 1, 96 U.S. at 265, 80 L.Ed. at 218; 56 S.Ct. at 195:

‘‘. . .Despite the assertion that such works were peculiarly

necessary in the Chesapeake, the convention proved hostile

to state tonnage levies. There was uncertainty whether the

commerce clause would forbid such duties: Gouverneur Mor-

ris said that it would not, Madison thought that it should,

Sherman argued for a concurrent power over commerce with

power in the United States to control state regulations.

Whereupon the clause was added in its present form.”

(Citing Madison’s Notes).

VI.

CONCLUSION

The decision below cannot be reconciled with either

the Constitutional or statutory provisions involved or the

prior decisions of this Honorable Court. It distorts both

beyond their plain meaning and cries out for correction. It

does involve important and basic questions which should

not be ignored; indeed, it is submitted that a per curiam

re:

Pert as.

Footnote 34 continued.

The concluding remarks, immediately preceding the vote, noted:

‘“‘Mr. Langdon insisted that the regulation of tonnage was an

essential part of the regulation of trade, and that the States

ought to have nothing to do with it. On motion ‘that no State

shall lay any duty on tonnage without the Consent of Con-

gress.’’’ 2 Records of Federal convention, 625 (M. Farrand

ed., 1966).

See a a ee ee

The fact, pointed out by District of Columbis opinion, that the Maryland

delegates voted in favor of the motion can give rise only to an inference

that they were persuaded t» reverse their position by Mr. Langdon and

their fellow delegates. Certainly the clause as passed did not accede to

their earlier request.

2. The emergency response services offered by Plaquemines must be

contrasted with the all-pervasive ‘‘direct’’ services outlined in Clyde

Mallory set forth in the decision of the Alabama Supreme Court, Clyde

Mallory Lines v. State, 229 Ala. 624, 159 So. 53 (Ala., 1935), in that era

before the regulation of our waterways had been taken over by the

federal government. The total regulation of the harbor, actually inured

to the benefit of all vessels calling at the port; it was a “direct service”’

as found by the House Report on the HDNI Act, quoted in the decision,

874 F.2d at 1026, App., pp. 16-17.

3. The stand-by services of Plaquemines do not equate with the “‘ser-

vices rendered to and enjoyed by the vessel such as pilotage, or wharf-

age or charges for the use of locks on a navigable river or fees for medical

inspection.’’ 296 U.S. at 266, 80 L.Ed. at 218, 56 S.Ct. at 195, relied upon

to support the charges in Clyde Mallory.

reversal on the granting of certiorari would be the

Footnote 34 continued.

4. On the contrary, the stand-by services of Plaquemines are identical to

the stand-by availability of the services of the masters and wardens of

the port in Southern Steamship Co. v. The Masters and Wardeus of the

Port of New Orleans, 73 U.S. (6 Wall.) 31, 18 L.Ed. 749 (1867) or the

stand-by availability of the services of the quarantine officers in Peete

v. Morgan, 86 U.S. (19 Wall.) 581, 22 L.Ed. 201 (1874). In both instances,

the charges imposed were unconstitutional tonnage taxes; they were not

for “direct services.”’

5. The stand-by services of the Master and Wardens were explained by

the Louisiana Supreme Court as follows:

‘The maintenance of these officers (who also regulate the

conduct of the pilots) is a benefit to the entire shipping in-

terest, and each ship receives an equivalent in the conve-

nience of obtaining the services and immediate presence of

these officers, although they may not have been called upon

to perform any special duty for the particular ship in ques-

tion.”’ Port of New Orleans v. Ship Charles Morgan, 14 La.

Ann. 595 (1859) rev’d Southern Steamship Co. v. The

Masters and Wardens of the Port of New Orleans, 73 U.S. (6

Wall.) 31, 18 L.Ed. 749 (1867).

The stand-by Plaquemines services are on an identical footing., i.e. each

ship receives an equivalent in the convenience of obtaining the service

and immediate presence of the service, although Plaquemines may not

have been called upon to perform any special duty for the particular ship

in question.

6. Prior to the HDNI Act, states had authority to impose fees for harbor

or waterway improvements, viz. The locks of Huse v. Glover, 319 U.S.

543, 30 L.Ed. 487, 7 S.Ct. 313 (1886); they also could impose fees when

they provided ‘‘direct services,’’ Clyde Mallory Lines v. Alabama. On

the other hand, where only stand-by (as distinguished from ‘‘direct’’) ser-

vices were involved no fees could be charged, Southern Steamship Co.

v. The Masters and Wardens of the Port of New Orleans, 73 U.S. (6

Wall.) 581, 22 L.Ed. 701 (1874).

7. As stated by Judge Bork of the DC Circuit, 838 F.2d at 545, ‘. . .all

vessels, whether or not they catch fire or need rescue services benefit

from their availability. .. ."’ It is just this ‘benefit from their availabili-

ty’’ which makes the standby services of Plaquemines “‘‘indirect.’’ As

appropriate remedy where the errors are so manifest and

the applicable law is so clear.

Respectfully submitted,

EDWARD S. BAGLEY

JOHN A. BOLLES

TERRIBERRY, CARROLL

& YANCEY

3100 Energy Centre

New Orleans, LA 70163-3100

Telephone: 504/523-6451

Attorneys for Petitioner

ELEN ENE IF SELB LITO FIO LEN NE PGR

Footnote 34 continued.

he also analyzed Clyde Mallory *’. . the services rendered by the Port of i

Mobile inured to all who entered the port. .. .”” These, in turn, were

“direct services,” in fact; where Plaquemines charges are for the f

availability of its stand-by services, they can only be classified as ‘‘in-

direct, ’’ as concluded by the House Report on the HDNI Act. ;

8. The “Consent of Congress,” accordingly, was not needed fer the |

“direct services’’ of harbor improvements but only for “emergency

response services,’’ which are not such ‘‘direct services.” |

9. Congress, having spoken under the Commerce Clause, now has man-

dated that, before fees can be charged either for harbor or waterway im-

provements (as distinguished from charges for the use of facilities such

as docks and wharves, which the vessels elect to use) or for emergency

response services, i.e. whether the services are ‘’direct”’ or not, there

must be compliance with the HDNI Act.

CERTIFICATE OF SERVICE

I hereby certify that three copies of the above and

foregoing Petition for Writ of Certiorari and the Appendix

have been served on Louis B. Porterie, Esq. and Robert E.

Fontenelle, Jr., Esq. by depositing the same in the United

States Mail, postage prepaid, addressed to them at their

office, 4000 General de Gaulle Drive - Suite 300, New

Orleans, LA 70114, this day of March, 1990.

EDWARD S. BAGLEY

A-1

APPENDIX A

NEW ORLEANS STEAMSHIP ASSOCIATION,

Plaintiff-Appellant,

PLAQUEMINES POST, HARBOR AND

TERMINAL DISTRICT.

Defendant-Appellee.

No. 88-3467.

United States Court of Appeals,

Fifth Circuit.

June 9, 1989.

Nonprofit organization of owners, stevedores and

vessel agents brought action challenging port and harbor

dues imposed by port district. The United States District

Court for the Eastern District of Louisiana, Morey L. Sear,

J., 690 F.Supp. 1515, dismissed claim. Appeal was taken.

The Court of Appeals, Wisdom, Circuit Judge, held that: (1)

port district’s imposing a fee for emergency support ser-

vices did not violate commerce clause, and (2) Harbor

Development and Navigation Improvement Act of 1986

did not prevent port district from charging of fee to

oceangoing vessels to pay for emergency support services.

Affirmed.

Appeal from the United States District Court for the

Eastern District Court for the Eastern District of

Louisiana.

A-2

Before WISDOM, GARWOOD, and JOLLY, Circuit

Judges.

WISDOM, Circuit Judge:

The question this case presents is whether the Port

of Plaquemines Parish may impose charges on ships to

finance emergency response services. The New Orleans

Steamship Association (NOSA) argues that the Port’s

charges violate the commerce clause of Article 1 of the

United States Constitution,! the foreign commerce

clause,2 the tonnage clause,? the import-export clause,‘ the

statute admitting Louisiana to the Unions, and the Harbor

Development and Navigation Improvement Act of 1986

(HDNI).®§ The district court granted the Port’s motion to

dismiss NOSA’s claims. We hold that ships in the

Mississippi River are subject to paying reasonable port

fees for services rendered. We affirm.

The Port of Plaquemines Parish is the 102-mile nar-

IThe commerce clause gives Congress the power “To regulate Com-

merce with foreign Nations, and among the several States, and with the

Indian Tribes.” U.S.Const. art. I, § 8, cl. 3.

2. Id.

3. Id. at § 10, cl. 3:

No State shall, without the Consent of Congress,

lay any Duty of Tonnage. ...

4. Td. at cl. 2:

5. 33 U.S.C. § 10 (1982).

6. 33 U.S.C. §§ 2231-2241 (Supp.1988)

re MEE Sere eee

A-3

row stretch of land bordering the Mississippi River from

New Orleans to the Gulf of Mexico. Approximately 5,4000

oceangoing vessels pass through the Port each year on

their way to or from other ports along the River; another

3,876 or so oceangoing vessels dock or anchor in the Port.

Unlike most ports, Plaquemines neither owns nor operates

wharves, docks, or other facilities; all facilities are private-

ly owned.

No state shall, without the Consent of the Con-

gress, lay any Imposts or Duties on Imports or

Exports, except what may be absolutely

necessary for executing its inspection Laws. .. .

By virtue of its police power and an agreement with

the United States Coast Guard, the Port has primary

responsibility for responding to fires, explosions, and other

emergencies that occur within its territory.’ The Port

operates several ships with firefighting and rescue

capabilities, a helicopter, land-based pumping units, and a

staff to maintain these facilities.® It finances these

emergency response services with two fees. It assesses a

“Harbor Fee” for each day a vessel remains in the Port,

moored or at anchor. The fee is determined by the length

7Memorandum of Understanding Between the Coast Guard and the Pla-

quemines Parish Commission Council, approved by the Coast Guard,

September 4, 1979; Letter from John L. Bailey, Captain, U.S. Coast

Guard, to Jim Hoffman, Plaquemines Parish Fire Marshal (June 3, 1983)

(“Maintenance of adequate disaster response capabilities for fires, ex-

plosions, and other similar incidents is the responsibility of local port

operators, municipalities and public agencies.’’) Record at 457. '

8. The Port operates two patrol rescue/firefighting vessels, with a total

of twelve crewmen on duty twenty-four hours, plus a fulltime

maintenance person; a ferryboat with firefighting capability; mobile

pumps; and a 24-hour maritime communications network. In addition,

the Parish maintains fire and rescue equipment more powerful than it

needs for its own use.

A-4

of the vessel. It is waived for ships detained in the harbor

by fog for fewer than 12 hours.? The Port also assesses a

“Supplemental Harbor Fee’’ against oceangoing vessels

that load or unload cargo in the Port. The fee is 2% cents

per ton for cargo and % cent per barrel for liquid cargo.

The parties stipulate that the fees are reasonable.!9

The fees bring the Port approximately $1.5 million each

year.!! In 1984, two years before the current fees were an-

nounced, the services cost the Port $1,394,369.!2

The Port announced the fees it now charges in

9. The port contends that it does not charge ships remaining less than

one day or those vessels delayed by weather. Because this is before us

on the Port’s motion to dismiss, we accept NOSA’s allegations to the

contrary as true.

10. This agreement was reached after years of wrangling. See Louis

Dreyfus Corp. v. Plaquemines Port, Harbor and Terminal Dist., No.

78-860 (E.D.La. filed March 15, 1978) (challenging fee announced in

1977), stayed pending decision by Federal Maritime Commission, 1980

dismissed as moot, 1983; Louis Dreyfus Corp. v. Plaquemines Port, Har-

bor and Terminal Dist., 21 S.R.R. 219 (I.D.1981), adopted 21 S.R.R. 1072

(F.M.C.1982) (invalidating fee announced in 1977). The Port appealed,

but the parties settled before the appeal was decided. The Port returned

80% of the fees collected and allowed public comment on a new fee.

Record at 620.

In 1982, the Port announced tha. fee. It was invalidated. New Orleans

Steamship Ass’n. v. Plaquemines Port, Harbor, and Terminal Dist.

Docket No. 83-2 (F.M.C.Sept. 16, 1986), aff'd sub nom. Plaqumines Port

Harbor, and Terminal Dist. v. Federal Maritime Comm'n, 838 F.2d 536

(D.D.Cir.1988) (Bork,J.) The fees at issue in this case were announced in

October 1986. See infra note 14.

11. Affidavit of H.R. Benvenutti, Port Manager (September 9, 1987). At

oral argument, NOSA said that the Port may collect between $1.2

million and $1.8 million each year.

12. Record at 452.

A-5

October 1986. NOSA challenged them before the Federal

Maritime Commission (FMC), which has authority to en-

sure that fees charged by nonfederal port authorities are

reasonable.!3 The FMC approved the fees but did not ad-

dress the constitutional or statutory issues NOSA presses

before this Court.!4 NOSA filed this suit in federal district

court for the Eastern District of Louisiana on June 1, 1987.

On June 15, 1988, the district court granted the Port’s mo-

tion to dismiss.!5 NOSA appeals.

II.

[1,2] NOSA argues that the Port has no power to

charge harbor fees without Congress’s consent. We

disagree. State and local fees require congressional consent

only if they impede interstate commerce or encroach upon

subjects on which Congress has spoken.!® The Port’s fees

do neither.

[3,4] NOSA misapprehends the relationship between

the commerce clause and the Port’s fees. The commerce

clause prevents state and local regulations that promote

parochial interests by discriminating against interstate

13. 46 U.S.C. App: $§ 801, 816 (Supp.1988).

14. See New Orleans Steamship Assn. v. Plaquemines Port, Harbor, and

Terminal Dist. Dist. No. 86-4328 (E.D.La. filed September 29, 1986)

(seeking injunction barring Port from collecting fees), dismissed after

FMC approval of new fees, Jan. 15, 1987, dismissal aff'd.aff'd. 816 F.2d

1074 (5th Cir.1987).

15. 690 F.Supp. 1515.

16. Clyde Mallory Lines v. Alabama, 296 U.S. 261, 267, 56 S.Ct. 194,

196, 80 L.Ed. 215, 219 (1935).

A-6

commerce.!? When a state or municipality participates in

the marketplace, rather than regulating commerce, the

commerce clause does not control its actions.!® Pla-

quemines’s fees wear the colors of both market regulation

and market participation. The Port offers a service and

receives payments tied to the costs of providing the ser-

vice, just as would a private business. This fee-for-service

approach is not a regulation, as, for example, would be a

rule requiring every ship to provide its own fire fighting

and rescue equipment. Neither, however, is the Port acting

wholly as a market participant. The emergency response

services embody the Port’s governmental responsibilities

for safety and health; they are not merely a business ven-

ture. Further, the Port uses its governmental authority to

require payment, and some of the equipment belongs to the

Parish’s government.

The Supreme Court’s decision in Clyde Mallory Lines

v. Alabama,!9 equips us to evaluate hybrid activities such

as the fees. That decision validates a fee levied by the Port

of Mobile for police and health sevices. It holds that: (1) the

service funded by the fee must enhance the safety and effi-

ciency of interstate and foreign commerce, ensuring that

the fee will not interfere with the purposes of the commerce

clause; (2) the fee must be used to pay for the service, rein-

forcing the assumption of the market participant excep-

tion, that the Port will charge what the market would

17. See The Federalist No. 42, at 267 (J. Madison) (C. Rossiter ed.1961);

L. Tribe, American Constitutional Law §§ 6.1, 6.3 (2d ed. 1988) (describ-

ing early interpretations of commerce clause).

18. White v. Massachusetts Council of Construction Employers, 460

U.S. 204, 208, 103 S.Ct. 1042, 1044, 75 L.Ed.2d 1, 6 (1983).

19. 296 U.S. 261, 56 S.Ct. 194, 80 L.Ed. 215 (1935).

A-7

allow; (3) the fee can place at most a small burden on in-

terstate and foreign commerce.2? Applying this test,

courts have consistently held that ships may be made to

pay for services they get.?!

Plaquemines’s fees easily meet the Clyde Mallory

test. Emergency response services save lives, reduce

damage to property, prevent fires from spreading to ships

that would not otherwise need the services, and return the

Port to full efficiency after an emergency. Second, the par-

ties have stipulated that the fees are reasonable. Finally,

the district court found a ‘‘dearth of evidence”’ that Pla-

quemines’s fees burden interstate commerce. The Port has

the power to impose the fees.

Although we have concluded that congressional con-

sent is not necessary for approval of the fees, we note that

Congress has acquiesced in them. It has created the FMC

to regulate port or harbor fees; obviously, it approves of

such fees. Most ports levy port or harbor fees, and Con-

gress does not forbid them. Admittedly, congressional

silence is an unstable foundation on which to base a finding

of acquiescence.22 Fees charged by local ports in this coun-

try, however, have been upheld by the courts since the 19th

Century; it is hard to impute ignorance against that

background. Indeed, Congress has shown that it knows

20. 2996 U.S. at 267-68, 56 S.Ct. at 196-97, 80 L.Ed.2d at 219.

21. See id, 296 U.S. at 268, 56 S.Ct. at 197, 80 L.Ed.2d at 219 (listing

cases); Cooley v. Board of Wardens, 53 U.S. (12 How.) 299 319-20, 13

L.Ed. 996 (1851) (local ports may charge for pilotage); Indiana Port

Comm'n v. Bethlehem Steel Corp. 534 F.Supp. 858 (N.D. Ind.1981); Vin-

cent v. Foss & Crabtree, 118 Fla. 717, 160 So. 49, 52 (S.Ct. Div. B 1935).

22. See W. Eskridge & P. Frickey, Legislation: Statutes and the Creation

of Public Policy 772-74 (1988) (congressional inaction ambiguous).

A-8

how to regulate port fees. The tonnage clause requires that

states obtain the consent of Congress before financing har-

bor improvements by means of port or harbor fees; the Har-

bor Develpment and Navigation Improvement Act of 1986

(HDNI) allows fees for that purpose.23

III

A. The Dormant Commerce Clause

[5] NOSA argues that, even if Congress has acquiesc-

ed, it has not consented clearly enough to satisfy the so-

called ‘‘dormant commerce clause’. In South Central

Timber Development v. Wunnicke, the Supreme Court an-

nounced that Congress must consent expressly and affir-

matively to state or local actions that “‘impos[e] substan-

tial burdens” on interstate or foreign commerce.24 We

need not decide whether Congress has expressly consented,

because the prerequisite for applying dormant commerce

clause doctrines does not hold here. The Port’s fees have

not been proved to impose ‘‘substantial’’ burdens on in-

terstate and foreign commerce.

23. See 36 U.S.C. § 2236(a)(1) (Supp. 1988) (consenting to fees for harbor

improvements). The tonnage clause, supra note 3, was passed in its pre-

sent form after the Constitutional Convention rejected an amendment

proposed by Maryland. That amendment provided that ‘‘no state shall

be restrained from laying duties of tonnage for the purpose of clearing

harbors and erecting light-houses.”’ 2 Records of the Federal Convention

of 1787, at 625 (M. Farrand ed.1966) (emphasis added). The Convention

rejected the amendment on Madison’s recommendation that duties of

tonnage for those purposes should be left to Congress. Jd. In other

words, the legislative history suggests strongly that congressional con-

sent to port fees “‘for the purpose of’’ harbor improvements is required;

that requirment is not apparent in the history of fees for services

rendered.

24. South Central Timber Development v. Wunnicke, 467 U.S. 82, 91-2,

104 S.Ct. 2237, 2242, 81 L.Ed.2d 71, 79 (1984).

A-9

B. The Foreign Commerce Clause

[6] In Japan Line v. Los Angeles, the Supreme Court

announced that state and local policies affecting foreign

commerce are invalid if they (1) create a substantial risk of

conflicts with foreign governments; or (2) undermine the

ability of the federal government to ‘‘speak with one voice”’

in regulating commercial affairs with foreign states.°

NOSA does not argue that the fees cause conflicts

with foreign sovereigns.26 Port fees for services are

“routinely employed by most port nations’’.27 This sug-

gests that nations do not foresee conflicts arising from

reasonable fees, a fact which removes them from our

purview.28

Second, local fees do not fragment the federal

government’s voice. In the Harbor Development and

Navigation Act of 1986, Congress explicitly authorizes

local ports to impose port or harbor fees.29 ‘‘Most port na-

tions’’ allow local fees.2° Further, Congress has insured

25. 441 U.S. 434, 446, 99 S.Ct. 1813, 1820, 60 L.Ed.2d 336, 346 (1979).

26. This is in direct contrast to the facts of Japan Line. Japan and

Caiifornia had already clashed over the taxation of the containers. 441

U.S. at 451, 99 S.Ct. at 1823, 60 L.Ed.2d at 349.

27. H.Rep. No. 99-251 pt. 4, 99th Cong., 2nd Sess. 21 (1985). Record at

547.

28. See Japan Line, 441 U.S. at 455 n. 20, 99 S.Ct. at 1825 n. 20, 60

L.Ed.2d at 352 n. 20 (speculative conflicts do not implicate foreigh com-

merce clause); Container Corp. of America v. Franchise Tax Board, 463

U.S. 159, 103 S.Ct. 2933, 77 L.Ed.2d 545 (1983) (same).

29. 36 U.S.C. § 2236-(a\1)(B) (Supp.1988).

30. See H.Rep. No. 99-251 pt. 4, supra note 26, at 21.

A-10

that the voice of the United States will be as unified as

necessary. It has appointed the FMC to regulate fees im-

posed by local ports.*! Admittedly, the power to invalidate

a fee on constitutional or foreign policy grounds is not in

the FMC’s statutory mandate.®? It can, however, require

that fees imposed by nonfederal authorities are reasonable.

Because port fees are common in international trade, they

are part of the backdrop against which foreign affairs is

played; reasonable ones are not likely to hamper the federal

government’s power to conduct foreign relations. If one

ever does, Congress may ban it.33

C. The Tonnage Clause

[7,8] The tonnage clause prohibits any state or local

duty imposed on tonnage ‘“‘without the Consent of Con-

gress’’. Because we have held that Congress has consented

to fees for the services rendered, we do not apply the ton-

nage clause. Nevertheless, we note that the Port’s fees do

not fall within the clause’s prohibition. The clause prohibits

reliance on tonnage duties to raise general revenues, to

regulate trade, or to charge for the privilege of entering, ly-

ing in, or trading in a port.°4 Ships entering Plaquemines

Port pay a fee to insure that emergency services will be

available; this is a transaction, not a revenue device, a

regulation or a payment simply to use the Port. Clyde

31. 46 U.S.C. §§ 801, 816 (Supp.1988).

32. See id.

33. See Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 215, 5 S.Ct.

826, 834, 29 L.Ed. 158, 166 (1885) (courts need not fear state action as

long as ‘‘the power to arrest collision” with federal policies “resides in

the National Congress”’).

34. Clyde Mallory, 296 U.S. at 265-66, 56 S.Ct. at 195, 80 L.Ed. at 218.

A-11

Mallory holds that fees for ‘‘services rendered to and en-

joyed by the vessel’? pass muster under the tonnage

clause.2> Here, as there, not every ship paying the fee

needs the service; they have paid for the assurance of its

availability. In an appeal from an FMC decision on a fee

earlier proposed by the Port, the Court of Appeals for the

District of Columbia followed Clyde Mallory and held that

the Port’s fee did not violate the tonnage clause.*6 For the

reasons just stated, we agree.

D. The Import-Export Clause

[9] The Supreme Court has concluded twice in

recent years that a fee for “‘services, such as fire or police

protection, supplied by the local government”’ is not an

“impost or duty’ proscribed by the import-export

clause.?’ The Port charges for protection from emergen-

cies. Its fees, therefore, do not violate the import-export

clause.

E. 33 U.S.C. § 10

[10] NOSA argues that the Port’s fees violate the

statute admitting Louisiana to the United States. The

statute reads:

35. Td. at 227, 56 S.Ct. at 196, 80 L.Ed. at 219.

36. Plaquemines, 838k F.2d at 546.

37. Washington Revenue Dept. v. Stevedoring Ass'n. 435 U.S. 734, 753,

98 S.Ct. 1388, 1401, 55 L.Ed.2d 682, 699 (1978); Michelin Tire Corp. v.

Wages, 423 U.S. 276, 287, 96 S.Ct. 535, 46 L.Ed.2d 495, 504 (1976).

Washington Revenue Department and Michelin concerned state taxes

on items in international commerce. The Court had to decide whether

the amount of tax refiected actual costs incurred by the state. This dif-

ficult calculation is not necessary in the case before us, because the par-

ties agree that the fee is reasonable.

A-12

All the navigable rivers and waters of the former

Territories of Orleans and Louisiana shall be and

forever remain public highways.*®

Congress declared at the time Louisiana was admitted to

the Union that the “river Mississippi and the navigable

rivers and waters leading into the same and into the Gulf

of Mexico, shall be common highways... without any tax,

duty, impost or toll therefore, imposed by said State’’.°9

These declarations proscribe fees for the mere privilege cf

navigating through waters, or imposts that create

preferences for certain private parties over others.4° The

Port charges for services, not for privileges. Its fees create

no privileges. Courts have consistently distinguished fees

for services from the tolls or imposts prohibited by

statutes similar to 33 U.S.C. § 10.4!

F. The Harbor Development & Navigation

_ Improvement Act

Cutting through all the chaff, we come finally to

what we consider is NOSA’s primary argument: its inter-

pretation of Section 2236 of the Harbor Development and

38. 33 U.S.C. § 10.

39. 2 Stat. at Large 703 (1812).

40. Hamilton v. Vicksburg, S. & P.R. Co., 119 U.S. 280, 285, 7 S.Ct. 206,

208, 30 L.Ed. 393, 395 (1885) (interpreting 33 U.S.C. § 10).

41. See Huse v. Glover, 119 U.S. 543, 7 S.Ct. 313, 30 L.Ed. 487 (1886)

(upholding fees charged for use of locks built on navigable waters under

similar statute); Indiana Port Commission, 534 F.Supp. at 864-65.

A-13

Navigation Improvement Act of 1986 (HDNI).42 Section

2236(a)(2) of the HDNI expressly allows a port to levy

charges to finance emergency response services,4? when

the port is financing a harbor improvement project.44 Pla-

quemines is not financing a harbor improvement.

42. Section 2236 provides, in relevant part:

(a) Consent of Congress

Subject to the following conditions, a non-Federal interest

may levy port or harbor dues (in the form of tonnage duties

or fees) on a vessel engaged in trade entering or departing

from a harbor and on cargo loaded on or unloaded from that

vessel under clauses 2 and 3 of section 10, and under clause

3 of section 8, of Article 1 of the Constitution:

(1) Purposes

Port or harbor dues may be levied only in conjunction with

a harbor navigation project whose construction is complete

(including a usable increment of the project) and for the

following purposes aud in amounts not to exceed those

necessary to carry out those purposes:

(A)(i) to finance the non-Federal share of construction and

operation and maintenance costs of a navigation project for

a harbor under the requirements of section 2211 of this title;

(ii) to finance the cost of construction and operation and

maintenance of a navigation project for a harbor under sec-

tion 2232 or 2233[sic] of this title; and

(B) provide emergency response services in the harbor, in-

cluding contingency planning, necessary personnel training,

and the procurement of equipment and facilities.

(2) Limitations on port or harbor dues for emergency service

Port or harbor dues may not be levied for the purposes ;

described in paragraph (1)(B) of this subsection after the

dues cease to be levied for the purposes described in

paragraph (1)(A) of this subsection.

43. Td. at § 2236(a)(1)(B).

44. Td. at § 2236(a)(2).

A-14

To infer that the Port’s fees violate the HDNI, we

must find evidence that Congress intended its express con-

sent to fees for emergency response services in conjunction

with harbor improvement projects to imply disapproval of

those fees imposed absent projects.45 We do not find that

evidence. Instead we conclude that the HDNI applies when

a port has undertaken a harbor improvement project and

not otherwise.

1. The HDNI’s Legislative History and Language.

By the mid-1980’s, many American ports and har-

bors could not accomodate new, large and efficient ships.

Improvements in harbors and ports relied on federal in-

itiative and funding. Every project underwent nineteen in-

dependent reviews,*6 with an average of twenty-six years

passing between the first study of a project and the pro-

ject’s completion.47 No new project was authorized bet-

ween 1970 until shortly before passage of the HDNI.4®

Federal spending on harbor construction declined 78%

after the 1960’s; mounting pressures on the federal budget

made increased appropriations for projects unlikely.49

The HDNI authorizes nonfederal ports to help plan

projects initiated by the federal government,°° to initiate

45. 24 Sutherland Stat.J Constr. § 47.25, at 209 (1984).

46. H.Rep. No. 99-251 pt. 4, supra note 26, at 17. Record at 543.

47. S Rep. No. 99-126, 99th Cong. 2d Sess. 3, reprinted in 1986 U.S. Code

Cong. & Admin. News 6639, 6640.

48. H.Rep. No. 99-251 pt. 4, supra note 26, at 17.

49. S.Rep. No. 99-126, supra note 46, at 3; H. Rep. No. 99-251 pt. 4, supra

note 26, at 16.

50. 33 U.S.C. §§ 2215, 2233 (Supp.1988).

Dew wht Oe BEES

A-15

projects to be built by the federal government,°! and to

build projects themselves.52 Congress intends local in-

volvement in planning and building to speed harbor im-

provements. The HDNI also requires nonfederal ports to

pay part of the costs of improving harbors and ports.5%

Congress wants nonfederal port authorities to share port

costs improving harbors. Port fees levied for purposes

other than harbor improvements do not threaten ac-

complishment of these aims. There is therefore no conflict

between the fees and the Act invalidating certain fees.°4

[11,12] Section 2236 sits in a subchapter entitled

‘Harbor Development’’. Every section in that subchapter

discusses harbor improvements.®> The organization of the

51. Td. at § 2231.

52. Td. at § 2232.

53. Id. at $8 2211(a), 2218, See S.Rep. No. 99-126, supra note 46, at 51

(cost-sharing is ‘‘heart’’ of HDN]).

54. See Jones v. Rath Packing, 430 U.S. 519, 525-26, 97 S.Ct. 1305,

1309-10, 51 L.Ed.2d 604, 614 (1977) (statute should be interpreted as not

forbidding acts that do not conflict with its purpose).

55. Section 2231 regulates planning. Sections 2232 and 2233 coordinate

state and federal involvement. Section 2234 exempts projects on the

Saint Lawrence Seaway. Section 2235 authorizes construction in in-

crements. Section 2238 authorizes appropriations for improvements.

Section 2239 regulates sites for dumping material dredged during im-

provements. Section 2240 authorizes grants for emergency response ser-

vices to nonfederal ports ‘‘operating a harbor improvement project’”’. It

is discussed in note 61, infra. Section 2241 defines terms necessary for

governing harbor improvements.

The lone, partial exception is Section 2237. It requires nonfederal

ports to provide information necessary for national security. Although

it does not mention harbor improvement, it is in no way inconsistent

with our concludion that the entire subchapter applies only when harbor

improvements are under construction.

A-16

statute is not dispositive, of course. Nonetheless, it sug-

gests strongly that Congress intended to limit its discus-

sion of nonfederal fees to those financing harbor im-

provements. Senator Abdnor said that the first Senate bill

to authorize local port fees ‘‘applies only to those ports

where a new channel improvement would be put in

place.’’>® Senator Abdnor was the sponsor and a principal

advocate for the HDNI; his comments deserve great

weight.°” We conclude that the HDNI is designed to im-

prove the planning and financing of harbor improvements;

it does not address ports’ long-standing authority to levy

fees for emergency response services.

2. The Play of the HDNI and Congress’s Beliefs

About the Power of Nonfederal Ports to Impose

Fees

The language of the HDNI appears to forbid all port

fees except those to which Congress has expressly con-

sented. Nevertheless, we conclude that Section 2236(a)(2) is

the solution to a puzzle Congress set for itself—and

understood.

The puzzle starts with the idea that Congress believ-

ed nonfederal ports could charge only ships that benefitted

directly from port services. The House Report noted:

In the case of Clyde Mallory Lines v. United

States [Alabama], 296 U.S. 261 [56 S.Ct. 194, 80

56. Water Resources Development Act: Hearings on S. 1567 Before the

Subcomm. on Taxation and Debt Management of the Senate Comm. on

Finance, 98th Cong. 2d Sess. 222 (1984) (sttement of Senator Abdnor).

57. See Eskridge and Frickey, Legislation, supra note 21, at 735 (pro-

blems with legislative history “‘disappear’’ when sponsor speaks).

ini neatteeateaneniineiarmmieiiainaiel

A-17

L.Ed. 215] (1935), the Supreme Court reaffirmed

the limitation on the authority of dock ports to

levey[sic] fees to direct services, including whar-

fage, dockage, pilotage, stevedoring, and demur-

rage... .58

Section 2236 is built around this belief. Section 2236(a)(1)

forbids fees to finance harbor improvements until after the

project is complete. Obviously, this prevents non-federal

ports from fraudulently charging for projects that are mere

speculation. More to the point, it ensures that the fees will

be paid by ships that benefit directly from improvements,

as the Senate Report noted:

[The HDN]] permits non-Federal public interests

to collect user fees to reimburse themselves for a

newly required non-Federal share of the costs.

The taxes and fees in this legislation are not for

the purpose of raising revenue. Rather, they are

to repay costs related directly to the servicing of

commerce. These fees and taxes offset services

rendered to vessels. The provision of a new,

deeper channel is as much a service rendered to

the shipper as pilotage, dockage, or wharfage.®9

This framework leaves fees to finance emergency response

services in an odd position, however. Nonfederal

58. H.Rep. No. 99-251, pt. 4, supra note 26, at 21. Record at 547. We do

not necessarily agree that Clyde Mallory distinguishes fees from direct

services from those for indirect services. Our purpose here, however, is

to attempt to understand what Congress believed.

59.5 Rep. No. 99-126, supra note 46, at 7, 1986 U.S.Code Cong. & Ad-

min.News 6644.

A-18

ports must continue to provide emergency response ser-

vices while a project is under constrution. Yet Section

2236(a) prohibits ports from charging for those services ‘‘in

conjunction with” a project that is under construction; at

the least, the section prohibits ports from charging ships

for any additional response services made necessary by

construction.©° Ports therefore suffer some financial hard-

ship during construction. Unfortunately, they could not

make up the shortfall by charging after construction’s com-

plete; the ships paying the fee after construction is com-

plete will not have benefitted directly from the services,

because the service is offered during construction. Ports

need the consent of Congress to charge for the shortfall.

Congress consented to these retroactive fees but limited

them to the time the ships are also paying for the improve-

ment itself. In this way the ships that directly benefit from

the completed project pay not only for the cost of building

the project but also for the ancillary costs of emergency

services while it is under construction.

Section 2240 supports our reading. It allows

nonfederal ports ‘‘operating a [harbor improvement] pro-

ject’”’ to receive a grant “for the provision of emergency

response services‘‘.61 The inclusion of this section in-

60. In this case we need not decide whether ports may continue to

charge their usual fees for emergency response services while a harbor

improvement project is underway. Nor do we decide whether fees for

such new or additional post-completion emergency response services as

may have been made needful by reason of the covered project's comple-

tion are subject to the limitation of section 2236(a)(2).

61. Section 2240(a) reads:

The Secretary is authorized to make grants to any non-

Federal interest operation a project for a harbor for provi-

sion of emergency response services in such harbor (in-

cluding contingency planning, necessary personnel training,

A-19

dicates that Congress was aware that Section 2236 limited

funding for emergency response services. Section 2240

authorizes only $5,000,000 for these grants from fiscal

years 1987-1991.62 Emergency response services cost

much more; for example, the Port of Plaquemines spends

nearly $1.5 million annually. The discrepancy suggests

that Congress saw the HDNI as affecting only a portion of

the funding for emergency response services. That portion

is the funding for services offered ‘‘in conjunction with” a

harbor project.®

. Our interpretation receives further support from the

kinds of fees not mentioned in Section 2236. Fees for other

Footnote 61 continued.

and the procurement of equipment and facilities either by the non-

Federal interest, by a local agency or municipality, or by a combination

of local agencies or municipalities on a cost-reimbursable basis, either by

a cooperative agreement, mutual aid plan, or mutual assisstance plan

entered into between one or more non-Federal interests, public agencies,

or local municipalities).

le he eds bk De eS i ae ar es

62.74. at 2240(b).

63. We recognize that the phrase ‘‘grants to any non-Federal interest

operationg a project for a harbor for provision of emergency response

services” is not entirely clear. See supra note 60. We interpret it as

authorizing “grants . . . for the provision of emergency response services

to ‘‘any non-Federal interest operation a [harbor improvement] project’.

It might mean to authorize grants to finance ‘‘a project . . . for provision

of emergency response services”. On this reading, Section 2240 permits

grants to any non-federal port providing emergency response services.

The second reading does not distinguish between ports with projects

and those withou; the rest of the legislation makes such a distinction.

Every other time the HDNI mentions ‘‘operating a project” it means a

harbor improvement project, not a project already operated by

nonfederal ports (as emergency services are). See e.g. Section 2241(2)(A)

(defining ‘“‘operations’’). Most importantly, Section 2240(b) appropriates

$5,000,000 for these grants over six fiscal years. the cost to operate

emergency response services in Plaquemines Parish alone is $1.5 million.

Pe Se SEINE EA NO

——————————

A-20

services, such as wharfage and pilotage, attach to in-

dividual ships; they are not “port or harbor dues’’ governed

by Section 2236.64 Section 2211, which outlines cost-

sharing obligations for projects built by the federal govern-

ment, requires nonfederal ports to provide lands,

easements, rights-of-way, relocations, and dredged

material disposal sites;®5 the federal government credits

these expenses toward other cost-sharing obligations,®6

thereby subsidizing them. As we concluded, Section

2236(a)(1})(B) allows the marketplace to pay the only fees

not discussed in Section 2211; Section 2240 provides a

governmenta! subsidy for any shortfalls.

If ships receive a service they pay for, fees charged

by a nonfederal port authority are constitutional. NOSA’s

attacks based on the dormant and foreign commerce

clauses, on the tonnage clause, on the import-export clause,

and on the statute admitting Louisiana to the Union fail on

this principle.

The HDNI forbids ports from charging for emergen-

cy response services “‘in conjunction with” harbor improve-

ment projects until after the projects are completed. The

Act explicitly authorizes non-federal ports to recoup those

64. See supra note 57.

65.33 U.S.C. § 2211(a)(3).

66.7. at 2211(a)(2). Section 221 1(a)(1) requires that nonfederal ports pay

10% of the construction costs of the portion of the project which has a

depth not in excess of 20 feet; plus 25% of costs between 20 and 45 feet;

plus 50% of costs in excess of 45 feet.Section 2211(a)(2) requires pay-

ment of an additional over 30 years. It credits expenses incurred under

paragraph (a)(3) to that 10% obligation.

—

A-21

costs by charging after the harbor improvement is finished.

This explicit permission does not establish that Congress

intended to deny nonfederal ports the authority to impose

fees for services performed when no covered harbor im-

provement project has been undertaken. The decision of

the district court is AFFIRMED.

A-22

APPENDIX B

NEW ORLEANS STEAMSHIP ASSOCIATION,

Plaintiff-Appellant,

Vv.

PLAQUEMINES PORT, HARBOR AND

TERMINAL DISTRICT. |

Defendant-Appellee.

No. 88-3467.

United States Court of Appeals,

Fifth Circuit.

December 29, 1989.

Appeal from the United States District Court for the |

Eastern District of Louisiana.

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING

EN BANC

(Opinion June 9, 1989, 5th Cir. 1989,

874 F.2d 1018)

Before WISDOM, GARWOOD, and JOLLY, Circuit

Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing fil-

ed in the above entitled and numbered cause is hereby

tg ese ON Oe ee a eee Sn

—EEE ii iinet

See ae et ‘ i

2 ah iebcditach <n shall Sasa tl bec aS ‘idiads

A-23

DENIED; and no member of this panel nor Judge in

regular active service on the Court having requested that

the Court be polled on rehearing en banc, (Federal Rules of

Appellate Procedure and Local Rule 35) the Suggestion for

Rehearing En Banc is DENIED.

The opinion issued June 9, 1989, 874 F.2d 1018 (5th

Cir. 1989), in this case is amended as follows:

1) References to Indiana Port Commission are

deleted.

2) The following language is added to the paragraph

beginning at the bottom of the right hand column of the

text on p. 4099 of the slip opinion [874 F.2d 1018 at 1020,

bottom of col. 2, 2nd par.]: ‘‘For the purposes of this litiga-

tion only, the.. .”’.

3) At the end of note 10 [874 F.2d 1018 at 1020 fn. 10]

the following language is added: ‘‘NOSA is currently

challenging these fees before the FMC. These proceedings

are stayed pending the outcome of this case.”’

4) At the end of note 14 [874 F.2d 1018 at 1021 fn.

14], the following language is added: ‘““NOSA’s challange to

the October 1986 fees is pending before the FMC. See note

10 [874 F.2d 1018 at 1020 fn. 10].

A-24

APENDIX C

MINUTE ENTRY

SEAR, J.

JUNE 15, 1988 FILED

JUN 14 1988

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

NEW ORLEANS STEAMSHIP

ASSOCIATION CIVIL ACTION

VERSUS NO. 87-2548

PLAQUEMINES PORT, HARBOR

& TERMINAL SECTION G

DISTRICT

This action by the New Orleans Steamship Associa-

tion (NOSA), a non-profit organization of owners,

stevedores, and vessel agents, challenges the port and har-

bor dues imposed by the Plaquemines Port, Harbor and

Terminal District (the Port) on the grounds that they

violate the Harbor Development and Navigation Improve-

ment Act of 1986, 33 U.S.C. 2231-2241; the statute admit-

ting Louisiana into the Union, 33 U.S.C. sec. 20; the U.S.

Constitution, Art. I, sec. 10, cl. 2 (prohibiting imposts or

duties on imports or exports); the U.S. Constitution, Art.

i, sec. 10, cl. 3 (prohibiting duty of tonnage); and the U.S.

Constitution, Art. I, sec. 8 (commerce clause).

The plaintiff seeks injunctive and declaratory relief.

DATE OF ENTRY JUN 14 1988

6 Qn hk id 6 See et

——T —

a a a ti i i Bi i eh oe al

A-25

The constitutionality of the Port’s tariffs was first

challenged in 1978 but not determined.! Instead, in 1980

the case was stayed to allow the Federal Maritime Commis-

sion to determine a complaint filed by NOSA challenging

the same tariff, pursuant to 46 U.S.C. App. sec. 821.2 The

Federal Maritime Commission (the FMC) has jurisdiction

to regulate the imposition of rates or charges by persons

“carrying on the business of forwarding or furnishing

wharfage, dock, warehouse, or other terminal facilities in

connection with a common carrier by water in interstate

1 Louis Dreyfus Corporation v. Plaquemines Port, Harbor and Terminal

District, et al, No. 78-860 and consolidated cases (E.D. La. filed March

15, 1978). The parties agreed to dismiss this case in 1983, after the FMC

rendered its opinion in the parallel proceedings.

2 This section provides that:

(a) Any person may file with the Federal Maritime

Commission a sworn complaint setting forth any violation of

this chapter by a common cartier by water in interstate com-

merce, or other person subject to this chapter, and asking

reparation for the injury, if any, caused thereby. The Com-

mission shall furnish a copy of the complaint to such carrier

or other person, who shall, within a reasonable time specified

by the Commission, satisfy the complaint or answer it in

writing. If the complaint is not satisfied the Commission

shall, except as otherwise provided in this chapter, in-

vestigate it in such manner and by such means, and make

such order as it deems proper. The Commission, if the com-

plaint is filed within two years after the cause of action ac-

crued, may direct the payment, on or before a day named, of

full reparation to the complainant for the injury caused by

such violation.

(b) The Commission, upon its own motion, may in like

manner and, with the same powers, investigate any violation

of this chapter.

46 U.S.C.A. App. sec. 821 (West Supp. 1988).

ee .

A-26

commerce.”’ 46 U.S.C.A. App. secs. 801 and 816 (West

Supp. 1988).°

The Commission found the tariff to be in violation of

the Shipping Act of 1916, 46 U.S.C. secs. 801-842.4 The

Port appealed the FMC’s order to the Court of Appeals for

the District of Columbia Circuit, but the parties settled the

matter before a decision was rendered. Under the terms of

the settlement, the Port refunded 80% of the fees assessed

and held hearings on the redrafting of the contested tariff

provisions.

The Port published a new tariff in 1982. Again,

NOSA challenged this tariff before the FMC.5 NOSA con-

tended that the tariff violated the Shipping Acts of 1916

and 1984, 46 U.S.C. secs. 801 et seg. and 46 U.S.C. secs.

1701 et seg. Respectively, because it gave preferential

treatment to non-oceangoing vessels. NOSA also challeng-

ed the tariff as violative of the tonnage clause of the U.S.

Constitution. The FMC ruled that the imposition of the

tariff was consistent with the 1916 and 1984 Shipping

Acts, but

3 816. Just and reasonable regulations and practices; supervi-

sion by Commission

Every other person subject to this chapter shall

establish, observe, and enforce just and reasonabale regula-

tions and practices relating to or connected with the receiv-

ing, handling, storing, or delivering of property. Whenever

the Commission finds that any such regulation or practice is

unjust or unreasonable it may determine, prescribe, and

order enforced a just and reasonable regulation or practice.

46 U.S.C.A. App. sec. 816 (West 1988).

4 Louis Dreyfus Corp. v. Plaquemines Port, Harbor and Terminal

District, 21 S.R.R. 219 (1.D. 1981), adopted 21 S.R.R. 1072 (F.M.C.

1982).

5 New Orleans Steamship Association v. Plaquemines Port. Harbor and

Terminal District, Docket No. 83-2 (F.M.C. Sept. 16, 1986).

A-27

but that the allocation of fees among users was

discriminatory. The FMC declined to reach the tonnage

clause issue. NOSA then filed an action in the Eastern

District of Louisiana to enforce the FMC’s ruling and to en-

join the Port from collecting any more fees under the 1982

tariff. Concurrently, the Port appealed the FMC’s order

to the Court of Appeals for the District of Columbia

Circuit.

In October 1986 the Port filed a revised tariff

eliminating the provisions found discriminatory by the

FMC. The FMC shortly thereafter formally approved the

tariff. Since the revised tariff complied with the FMC’s

order, the Port moved to dismiss the action filed by NOSA

in the district court to enforce the FMC’s ruling. The

district court found that the filing and approval of the Oc-

tober 1986 tariff rendered NOSA’s claim for injunctive

relief moot.’ NOSA appealed on the grounds that viable

issues remained in the action. The Fifth Circuit agreed that

if the Port sought to collect tariffs assessed during the time

between the FMC’s September 16, 1986 order and the

adoption of the new tariff on October 15, 1986, NOSA

would be entitled to injunctive relief. New Orleans S.S.

Ass’n v. Plaquemines Port Harbor, 816 F. 2d 1075, 1077

(5th Cir. 1987). However, the court affirmed the district

court’s dismissal of NOSA’s action finding that:

No current, justiciable violation of a Commission

order is alleged. Although assessments may have

been made during the lapse period, there is

6 New Orleans Steamship Association v. Plaquemines Port, Harbor and

Terminal District, Civ. No. 86-4238 (E.D. La. filed September 29, 1986.

7 New Orleans Steamship Assoc. v. Plaquemines Port, Harbor and Ter-

minal District, Civ. No. 86-4238 (E.D. La. Jan. 15, 1987).

A-28

nothing in the record before us to suggest that

the District is presently undertaking, or is likely

to undertake steps to collect any illegally assess-

ed charges. Such conduct must be established

before injunctive relief may be considered. We

agree with the district court that the heavy hand

of injunctive relief would not be ‘‘proper”’ in this

case.

Id. at 1078.

Subsequently, NOSA filed this action for declaratory

and injunctive relief challenging the constitutionality of

the revised tariff. NOSA urged new grounds for relief in

this suit, that the tariff violated the Harbor Development

& Navigation Improvement Act of 1986 and the statute ad-

mitting Louisiana into the Union, 33 U.S.C. sec. 10, and

raised constitutional challenges based on the commerce,

tonnage and import/export clauses of the U-S.

Constitution.

The plaintiff and defendant agreed that the merits of

the action could be disposed of on the record before the

Court in summary motions. The plaintiff moved for sum-

mary judgment and the defendant moved to dismiss.

Concurrently, however, the parties raised the

lawfulness of the previous tariff under the Harbor Deveiop-

ment and Navigation Improvement Act, the statute admit-

ting Louisiana into the Union, the commerce clause and

tonnage clause, in the appeal of the FMC September 16,

1986 order before the Court of Appeals for the District of

Columbia Circuit. The District of Columbia Circuit affirm-

ed the FMC’s order in all respects. See Plaquemines Port.

Harbor and Terminal District v. Federal Maritime Commis-

sion and United States of America, Nos. 86-1517 &

iio iirc Nad Adee

A-29

86-1622, slip op., (D.C. Cir. February 2, 1988). the court

reached the tonnage clause issue and determined that the

tariff did not violate that clause of the Constitution.

However, the court declined to decide the lawfulness of the

tariff under the Harbor Development and Navigation Im-

provement Act. The commerce clause, the import/export

clause and the statute admitting Louisiana to the Union,

33 U.S.C. sec. 10, because they were improperly raised in

NOSA’s supplemental brief. Id. at 27. The court also stated

that it could not decide the constitutional claims even if it

wanted to, since it had no factual record before it. The court

suggested that those claims were better brought in this

forum. Accordingly, NOSA has filed for leave to amend the

complaint challenging the constitutionality of the previous

tariff under the commerce clause, the import/export clause,

the statute admitting Louisiana into the union, 33 U.S.C.

sec. 10, and the Harbor Development and Navigation Act.

The Port opposed the motion.

At issue in the motions presently before the Court is

whether:

1. the new tariff violates the tonnage clause;

2. the new tariff violates the commerce clause;

3. the new tariff violates the Harbor Development

and Navigation Improvement Act;

4. the new tariff violates the import/export clause;

5. the new tariff violates the statute admitting Loui-

siana into the Union, 33 U.S.C. sec. 10.

The plaintiff is not challenging ‘‘the reasonableness

of the charges of the District from the standpoint of their

A-30

apportionment between oceangoing vessels and other in-

terests, their overall relationship to the expenditures by

Plaquemines, or on any other basis.’’®

THE TARIFF:

The tariff at issue is a ‘‘Harbor Fee’? and ‘“‘Sup-

8 Stipulation of Facts at 4, Attachment to Doc. 12 at 225, Record.

9 The “‘harbor fee” is defined in the tariff as:

All commercial cargo vessels which dock, moor, or anchor

within the District shall be assessed a Harbor Fee per each

arrival within the geographical limits of the District, to

assist in defraying the expenses of the administration and

maintenance of the port and harbor, including the supervi-

sion of the shipping of the port, with the view of preventing

collisions and fires, policing the river and riverfront, pro-

viding services of all kinds as required for an orderly and

safe port operation, including response to vessels in distress

with the means available, and to aid in extinguising fires on

vessels and equipment and in the cargo aboard such vessels

or upon the public wharves, public banks and battures of the

waterways of the district, and in the harbor, and upon the

private wharves, docks, and immediately adjacent facilities

connected thereto without any additional charge (except for

the cost of supplies, material and equipment expended by

the District in the performance of such services).

Section I, Tariff at 3, Appendix C to NOSA’s Reply.

EDM EAR SM Nat le

A-31

plemental Harbor Fee’’!° charged by the Port.!! The Port

assesses the Supplemental Harbor Fee against oceangoing

vessels loading or discharging cargo in the Plaquemines

District}? (the District) at the rate of 2-1/2 cents per ton

for dry cargo and 1/2 cent per barrel for liquid cargo. The

Harbor Fee is assessed for each day a vessel remains in the

District, moored or at anchor, on a graduated scale based

on the vessel’s length. The Fee is waived for vessels that

are detained in the District by fog for a period not ex-

ceeding 24 hours. The Fee is assessed at all anchorage sites

established by the United States Coast Guard within the

District and at private mooring facilities. Every oceango-

ing vessel serving any port on the Mississippi River must

pass through the District both inbound and cutbound.

The Port does not own, operate or provide any

physical facilities in the form of docks, wharves or aids to

10 The Tariff defines the ‘‘supplemental harbor fee’ as:

A fee charged to supplement revenue necessary for the pur-

poses herein set forth under “Harbor Fee” based on the

weight of non-liquid cargo and on barrels of liquid cargo

handled or transferred in midstream or when anchored at or

moored to any dock, wharf, or mooring facility, or at a public

wharf if, in the future, the District has any public wharves,

which it does not now have.

Section 1, Tariff at 3, Appendix C to NOSA’s Reply.

11 The Plaquemines Port, Harbor & Terminal District is an entity

created by the Louisiana Legislature. La. R.S. 34:1351, et seq.

12 The Plaquemines Parish Port, Harbor and Terminal District is coter-

minous with Plaquemines Parish, Louisiana and encompasses approx-

imately 120 miles of the Mississippi River between New Orleans and the

Gulf of Mexico.

A-32

navigation. All the terminal facilities alongside the river in

the District are privately owned. The parties have

stipulated that the fees are collected to provide emergency

support services.!3 Those services are described as follows:

Port District services in place and functioning are

the operation of two patrol/rescue/early fire

response vessels; a ferryboat that has built into it

fire fighting pumping capacity and which can be

enhanced by the placing of additional firefighting

pumping equipment with special emphasis on

snorkel nozzles for marine fire fighting; high

speed, mobile pumps that can be towed at high

speed along the highways adjacent to the river to

points of loading the same on the ferryboats or

other, prelocated barges, supply vessels or other

vessels under a fire plan in place in conjunction

with the voluntary fire departments of the

District so as to be available for marine, vessel,

wharves, and facilities fire fighting. The Port

District also provides a 24-hour a day marine

communications network oriented to marine

emergencies and current locations of Port

District personnel and departmental persons (in-

cluding commissioners who perform executive

functions), the marine communications network

facilities, fire and police protection services, and

the alerting, dispatching and implementing of the

protective efforts of local fire units and volunteer

fire units who have in place a marine response

plan, including fire protection and emergency

response plan through an agreement of the Port

District with the U.S. Coast Guard and an agree-

ment for a reciprocal fire plan involving the Port

of New Orleans fire vessels for providing them to

13 Stipulation of Facts at 3, Attachment to Doc. 12 at 225,

Record.

A-33

the District’s vessel, wharves, and facilities as

early as possible in port emergencies.!4 There are

reciprocal fire aid plans with adjacent fire

districts in emergency situations.

Preamble Part B, Tariff No. 1 at B-2, Appendix C to Reply

of New Orleans Steamship Association to Memorandum in

Support of Motion to Dismiss (NOSA’s Reply).

The tariff collected by the Port, then, is a fee for

emergency support services provided by the Port for the

benefit of the vessels travelling through the District.

The plaintiff contends that the Port lacks the

authority to impose the tariff because such a tariff could

only be imposed pursuant to the Harbor Development &

Navigation Improvement Act of 1986, 33 U.S.C.

2231-2241.

The Harbor Development & Navigation Improve-

ment Act of 1986 (the Act) authorizes navigational im-

provements in harbors or inland harbors of the United

States, 33 U.S.C. sec. 2232(a), and provides federal financ-

ing for harbor development projects implemented by non-

federal interests if the projects meet the requirements of

the Act, 33 U.S.C. sec. 2232(e).

It is uncontroverted that the Port has not under-

taken any works pursuant to the provisions of the Act. The

plaintiff nevertheless maintains that since the Port has not

been authorized by the Act to impose the tariff, it is in

14 See Memorandum of Understanding Between the Coast Guard, and

the Plaquemines Parish Commission Council, approved by the Coast

Guard September 4, 1979, providing for coordination of resources to

fight fires on board vessels and at waterfront facilities, Appendix D to

NOSA’s Reply.

A-34

violation of the Act’s strictures. The plaintiff relies on sec-

tion 2236 of the Act which provides:

(a) Consent of Congress

Subject to the following conditions, a non-

Federal interest may levy port or harbor dues (in

the form of tonnage duties or fees) on a vessel

engaged in trade entering or departing from a

harbor and on cargo loaded on or unloaded from

that vessel under clauses 2 and 3 of section 10,

and under clause 3 of section 8, of Article 1 of the

Constitution:

(1) Purposes

Port or harbor dues may be levied only in con-

junction with a harbor navigation project whose

construction is complete (including a usable incre-

ment of the project) and for the following pur-

poses and in amounts not to exceed those

necessary to carry out those purposes:

(A) (i) to finance the non-Federal share of

construction and operation and maintenance

costs of a navigation project for a harbor under

the requirements of section 2211 of this title; or

(ii) to finance the cost of construction and

operation and maintenance of a navigation pro-

ject for a harbor under section 2232 or 2233 of

this title; and

(b) provide emergency response services in

the harbor, including contingency planning,

necessary personnel training, and the procure

ment of equipment and facilities.

(2) Limitation on port or harbor dues for

emergency service

Port or harbor dues may not be levied for the

purposes described in paragraph (1) (b) of this

subsection after the dues cease to be levied for the

purposes described in paragraph (a) (A) of this

subsection.

A-35

33 U.S.C.A. sec. 2236 (West Supp. 1988).

However, the plain language of the provision makes

it clear that it applies only to port or harbor dues that are

imposed “‘only in conjunction with a harbor navigation pro-

ject whose construction is complete . . . to finance the non-

Federeal share of construction and operation and

maintenance costs of a navigation project ... and... to

provide emergency response services in the harbor’’ on

navigation projects implemented pursuant to the provi-

sions of the Act. Since the Port has not undertaken the con-

struction or implementation of any project under the Act,

the Act does not apply to the harbor fees assessed by the

Port to provide emergency support services for the

District. Nothing in the Act, therefore, prevents the Port

from charging a fee to ocean-going vessels to pay for

emergency support vessels.

Contrary to the plaintiff’s contention, moreover, the

Act does not constitute the sole authority for imposition of

port and harbor dues. In Clyde Mallory Lines v. state of

Alabama, 296 U.S. 261 (1935), the Supreme Court recogniz-

ed that states had the authority to assess reasonable fees

on vessels to defray the costs of providing services to in-

sure the safety and facilitate the movement of vessels us-

ing its harbors. Id. at 265-67. The Court upheld a fee impos-

ed by the Port of Mobile, Alabama to defray the expenses

of supervising the harbor to insure the safety and facility

of the movement of vessels. Jd. at 265-66. In assessing the

Harbor Fee and Supplemental Harbor Fee, the Port is exer-

cising an authority recognized in a long line of Supreme

Court cases that has not been eradicated by the passage of

the Harbor Development and Navigation Improvement

Act of 1986.

The thrust of that Act is to facilitate harbor develop-

A-36

ment by providing for ‘‘the study, design, and construction

of harbor projects by non-Federal interest/s] (sic) and,

under certain circumstances, allowing Federal participa-

tion in the funding of such projects.’’ H.R. Conf. Rep. No.

99-1013, 99th Cong., 2d Sess. 209, reprinted in 1986 U.S.

Code Cong. & Admin. News 6723, 6730. Nothing in the Act

indicates an intent by Congress to overrule Clyde Mallory

and to restrict the manner in which states may impose har-

bor fees, unless the fees are imposed to finance a new con-

struction project developed pursuant to the Act.

Having found that the Port’s tariff does not come

within the scope of the Act and that the state has the

authority to impose the tariff to defray the costs of pro-

viding emergency support services in the District, I turn to

the plaintiff’s contention that the tariff violated the statute

which admitted Louisiana to the Union, 33 U.S.C. sec. 10.

That statute provides simply that “[aJll the navigable

rivers and waters in the former Territories of Orleans and

Louisiana shall be and forever remain public highways.”

The Supreme Court interpreted this statute in

Hamilton v. Vicksburg, S. & P.R. Co., 119 U.S. 280 (1886)

and held that it did not impair the power which the state

could exercise over its rivers. The court affirmed the doc-

trine it had established in Escanaba Co. v. Chicago, 107

U.S. 678 (1883), that:

[I]f we treat the clause as divisible into two provi-

sions, they must be construed together as having

but one object, namely, to insure a highway

equally open to all, without preference to any, and

unobstructed by duties or tolls, and thus prevent

the use of the navigable streams by private par-

ties to the exclusion of the public, and the exac-

tion of any toll for their navigation; and that the

Taran,

2 Sei ai

So ae ee

A-37

clause contemplated no other restriction upon the

power of the state in authorizing the construction

of bridges over them, whenever such construction

would promote the convenience of the public.

Hamilton v. Vicksburg, 119 U.S. at 285. In Escanaba, the

Court held that the commerce clause was not violated by I]-

linois’ exercise of power over bridges across its navigable

streams. Id.

The Supreme Court clarified the extent of the state’s

powers when it interpreted a similar statute to refer to

rivers and waters in their natural state:

The exaction of tolls for passage through the

locks is as compensation for the use of artificial

facilities constructed, not as an impost upon the

navigation of the stream. The provision of the

clause that the navigable streams should be

highways without any tax, impost, or duty, has

reference to their navigation in their natural

state. It did not contemplate that such naviga-

tion might not be improved by artificial means,

by the removal of obstructions, or by the making

of dams for deepening the waters, or by turning

into the rivers waters from other streams to in-

crease their depth. For outlays caused by such

works the State may exact reasonable tolls. They

are like charges for the use of wharves and docks

constructed to facilitate the landing of persons

and freight, and the taking them on board, or for

the repair of vessels.

By the terms tax, impost, and duty, mentioned in

the ordinance, is meant a charge for the use of the

government, not compensation for

improvements.

A-38

Huse v. Glover, 119 U.S. 543, 548-49 (1886). In Huse, the

Court upheld the imposition of tolls according to the ton-

nage of a vessel to defray the cost of constructing a lock

and dam on the Illinois river under attack as violative of

the tonnage clause and the Ordinance of 1787, a statute

almost identical to the statute admitting Louisiana into

the Union.!5 The Court distinguished emphatically be-

tween tolls imposed merely for navigation and charges that

constituted compensation for improvements and found

that the statute’s requirement that rivers be kept as public

highways prohibited only the former and not the latter. See

also Cardwell v. American River Bridge Co., 113 U.S. 205

(1885) (act of September 9, 1850 admitting California as a

state into the Union !® construed only ‘‘to insure a

highway equally open to all without preference to any, and

unobstructed by duties or tolls, and thus prevent the use of

the navigable streams by private parties to the exclusion of

the public, and the exaction of any toll for their navigation;

and that the clause contemplated no other restriction upon

the power of the state in authorizing the construction of

bridges over them whenever such construction would pro-

mote the convenience of the public, ’’ id. at 213 (emphasis

added)). The statute’s intent is to preserve passage over the

state’s waterways to all, phohibiting the imposition of a

15 The fourth article of the ordinance of 1787 stated that ‘‘the navigable

waters leading into the Mississippi and St. Lawrence, and the carrying

places between the same, shall be common highways, and forever free,

as well to the inhabitants of the said territory. as to the citizens of the

United States, and those of any other states that may be admitted into

the confederacy, without any tax, impost, or duty therefor.’’ Northwest

Ordinance, 1 Stat. 50, 52 (1787).

16 The act provided ‘‘that all the navigable waters within the said state

shall be common highways and forever free, as well to the inhabitants

of said state as to the citizens of the United States, without any tax, im-

post, or duty therefor.’’ Act of September 9, 1850, 9 Stat. 454.

A-39

charge for the mere privilege of passage; the Port’s tariff

meets this requirement and does not deter free passage on

the river. Instead, it exacts a reasonable fee from those who

dock in the District to ensure the safe passage of all.

Nothing in the statute admitting Louisiana into the Union,

therefore, prohibits the Port from imposing a reasonable

fee upon vessels travelling in the District to defray the

costs of providing emergency support services.

The plaintiff contends that the tariff violates the

commerce clause, the tonnage clause and the import/export

clause to the U.S. Constitution. However, charges levied to

defray the cost of services that do not hamper, but indeed,

aid interstate commerce, have consistently been upheld by

the Supreme Court. Clyde Mallory Linews v. Alabama, 296

U.S. 261 (1935); Huse v. Glover, 119 U.S. 543 (1886);

Hamilton v. Vicksburg, 119 U.S. 280 (1886); Cardwell v.

American River Bridge Co., 113 U.S. 205 (1885); Escanaba

Co. v. Chicago, 107 U.S. 678 (1883); Indiana Port Commis-

sion v. Bethlehem Steel Corp., 534 F. Supp. 858 (N.D. Ind.

1981). Further, the plaintiff’s challenge ignores the clear

principle of the commerce clause that only unreasonable

burdens on interstate commerce by a state will be struck

down. See Pike v. Bruce Church, Inc., 397 U.S. 137, 142

(1970) (‘‘Where the statute regulates evenhandedly to effec-

tuate a legitimate local public interest, and its effects on in-

terstate commerce are only incidental, it will be upheld

unless the burden imposed on such commerce is clearly ex-

cessive in relation to the putative local benefits.’’ Jd.). As

the Court in Clyde Marrory noted:

The present fee to defray the cost of a purely local

regulation of harbor traffic is not an objectionable

burden on commerce. State regulations of harbor

traffic, although they incidentally affect com-

merce, interstate or foreign are of local con-

A-40

cern. So long as they do not impede the free flow

of commerce and are not made the subject of

regulation by Congress they are not forbidden. .

.. And charges levied by state authority to defray

the cost of regulation or of facilities afforded in

aid of interstate or foreign commerce have con-

sistently been held to be permissible.

Clyde Mailory, 296 U.S. at 267.

There is a dearth of evidence in the record to support

a finding that the tariff imposes an excessive burden on in-

terstate or foreign commerce. The Port’s tariff is no more

than an incidental burden on interstate commerce; the

benefits to the vessels in providing emergency support ser-

vices far outweigh any slight burden that may result. The

Port’s practice of assessing a fee for emergency support

services does not violate the commerce clause.

As previously noted, the plaintiff's contention that

the Harbor Development & Navigation Improvement Act

declared Congress’ intent to take away the plenary authori-

ty of a state over its rivers is simply not supported by the

language and structure of the Act and its declared purpose

- to address the method of financing new harbor projects.

See comments by Senator Stafford of Vermont, 144 Cong.

Rec. S 16982 (daily ed. Oct. 17, 1986). On the contrary, the

Act plainly restricts itself to navigation projects under-

taken pursuant to the Act. Moreover, strongly indicative of

Congress’ desire to preserve the recognized powers of the

states to impose reasonable charges on vessels to defray

the costs of services to those vessels, is the Act’s retention

of the regulatory powers of the FMC over general port, har-

bor and terminal charges assessed to provide services like

cargo handling, anchorage, etc. The Act requires that the

tariffs imposed pursuant to the Act must likewise be filed

with the FMC. 33 U.S.C.A. sec. 2336(a)(S)(A) (West Supp.

A-41

1988). There is no indication that Congress intended to do

more than provide a new means of financing new harbor

development projects. The Act does not constitute Con-

gressional prohibition of state action in the area; nor does

the Port’s imposition of the tariff in any way conflict with

the provisions or purposes of the Act. See Jones v. Rath

Packing Co., 430 U.S. 519, 525-26 (1977). On the contrary,

the Port collects the tariff to provide emergency services in

collaboration with Coast Guard authorities, in effect reliev-

ing the burden that federal authorities charged with

regulating and supervising national maritime activities

carry. The Port’s tariff is consistent with the existing

federal scheme.

Further, imposition of the tariff does not violate the

import-export clause.!17 The Court has identified the

policies behind the clause as:

[a] concern than an impost or duty might interfere

with the Federal Government's regulation of com-

mercial relations with foreign govenments; fear

that on account of such state taxation the Federal

Government would lose an important source of

revenue; and a desire to maintain harmoney

among the States, which would be disturbed if

seaboard States could tax goods “‘merely flowing

through their ports’ to other States not so

favorably situated.

R.J. Reynolds Tobacco Co. v. Durham County, N. ee

U.S. ___, 107 S.Ct. 499, 514 (1986) (quoting Michelin Tire

Corp. v. Wages, 423 U. S. 276, 285-86 (1976)).

17 ‘No State shall, without the Consent of the Congress, lay any Im-

posts or Duties on Imports or Exports, except ... .’’ U.S.Const., Art.

I, sec. 10, cl. 2.

A-42

The Port’s tariff does not interfere with the federal

government’s regulation of foreign commerce; it falls on

foreign and domestic vessels alike and does not single out

foreign vessels for unfavorable treatment. See id. Similar

to the property tax upheld in Reynolds, the nature of the

tariff in this case is ‘“‘nothing more than a means ‘by which

a State apportions the cost of such services as police and

fire protection among the beneficiaries. . . .’’’ of the ser-

vices. Id.

Although this Court recognizes the need for the

federal government te speak with one voice when

regulating commercial relations with foreign governments,

see Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434

(1979), the Port’s tariff is subject to review and regulation

by the Federal Maritime Commission. This suffices to en-

sure that the Port’s assessment of harbor fees does not im-

pose an unreasonable burden on foreign commerce.

Clyde Mallory Lines v. Alabama, 296 U.S. 261 (1935)

also sets forth the analysis for the tonnage clause

challenge. Simply, the Supreme Court held that the ton-

nage clause does not prohibit charges made by a state for

services rendered such as pilotage, wharfage, or charges for

the use of locks. Jd. at 265-66. It is uncontroverted that the

Port’s tariff is a charge assessed on vessels that dock in the

District to defray the costs of providing emergency sup-

port services to all vessels passing through the District.

The Port’s tariff, therefore, is not prohibited by the ton-

nage clause. Judge Bork’s opinion in the appellate pro-

ceedings of the FMC’s order discusses in depth the tonnage

clause issue and I perceive there is little to add.

A-43

I find, therefore, that there are no statutory or con-

stitutional bars to the Port’s imposition of the Harbor Fee

and Supplemental Harbor Fee. Accordingly, the plaintiff's

claim is dismissed.

/s/ Morey L. Sear-

MOREY L. SEAR

UNITED STATES DISTRICT JUDGE

ee Sa te

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