Opposition Brief — New Orleans Steamship Ass'n v. Plaquemines Port, Harbor & Terminal District

FILED

NO. 89-1498 | a 5

| SPANIOL, JRe |

. ss Spiese: CLERK |

In the nn

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

OPPOSITION BRIEF FOR RESPONDENT

LOUIS B. PORTERIE wo

Suite 300, 4000 General De Gaulle Drive a

New Orleans, Louisiana 70114 a

Telephone: (504) 367-0999 ;

Counsel of Record

ROBERT E. FONTENELLE, JR.

Suite 300, 4000 General De Gaulle Drive

New Orleans, Louisiana 70114

Telephone; (504) 367-0999 athe

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

we

i

QUESTIONS PRESENTED FOR REVIEW

1. Whether the fees of the Plaquemines Port, Harbor

and Terminal District are prohibited by 35 U.S.C. 2236,

“Port or harbor dues’’ of the Harbor Development and

Navigation Improvement Act of 1986 (33 U.S.C. 2231-41),

which is Subchapter II of the Water Resources Develop-

ment Act of 1986 (33 U.S.C. 2201-2311).

2. Whether the decision is in conflict with Japan

Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 99 S.Ct.

1813, 60 L. Ed.2d 336 (1979).

3. Whether the decision is in conflict with the holding

in South Central Timber Development v. Wunnicke, 467

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

4. Whether the decision fails to give effect to the

Import-Export Clause of the Constitution, article I, section

10, clause 2.

5. Whether the decision fails to give effect to 33

U.S.C. 10, the Act admitting Louisian to the Union; 33

U.S.C. 5; and the Tonnage Clause of the Constitution, arti-

cle I, section 10, clause 3.

Questions Presented for Review

Table of Contents

il

TABLE OF CONTENTS

Argument:

I.

II.

III.

The Harbor Development and Navigation

Improvement Act of 1986 Does Not Pro-

hibit the Port’s Fees ..................

The Port’s Fees Are Not Barred by the

Foreign Commerce Clause Under the

Fe BE Ts os Se ee eee

The Port’s Fees Are Not Barred by the

Commerce Clause Under the Wunnicke

The Port’s Fees Do Not Violate the

Import-Export Clause.................

The Port’s Fees Are Not Prohibited by 33

U.S.C. 10, by The Act Admitting Louis-

iana to the Union, by 33 U.S.C. 5, or by

ae Fee CHOU . .. 5 ic Oe eee

Conclusion

Statement of the Case

Summary of the Argument

ili.

TABLE OF AUTHORITIES

CASES: Page

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

I St oe ny cece ge eed oe evs 5

Clyde Mallory Lines v. Alabama, 296 U.S. 261, 56

S.Ct. 194, 80 L.Ed. 215 (19385) ............... passim

Cooley v. Board of Wardens, 53 U.S. (12 How.) 299,

EE I 26

Hamilton v. Vicksburg, S & P.R., Co., 119 U.S. 280,

7 S.Ct. 206, 30 L.Ed. 393, (1886)................. 19

Huse v. Glover, 119 U.S. 543, 7 S.Ct. 313, 30 L.Ed.

er a el eee cee cease 19,21

Indiana Port Commisson v. Bethlehem Steel Corp.,

Soe woe baer even Gar. 1OG7)................. 20,24

Japan Line, Ltd. v. County of Los Angeles, 441 U.S.

434, 99 S.Ct. 1813, 60 L.Ed.2d 336 (1979) ..... i,11,12

Louisiana v. Mississippi, 466 U.S. 96, 104 S.Ct.

1645, 80 L.Ed.2d 74 (1984).................. —

Michelin Tire Corp. v. Wages, 423 U.S. 276, 96 S.Ct.

ue, ae Bae ee CEO TG)...............2 22 eee 17

New Orleans Steamship Association v. Pla-

quemines Port, Harbor & Terminal District, 816

| 4

New Orleans Steamship Association v. Pla-

quemines Port, Harbor & Terminal District, 690

EE 2

Plaquemines Port, Harbor & Terminal District v.

Federal Maritime Commission, 838 F.2d 536

NA 3,24

South-Central Timber Development v. Wunnicke,

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

ge oa as en ee wry See eevee eye 1,16

iv.

TABLE OF AUTHORIES (continued)

CASES: Pages

Vincent v. Foss & Crabtree, 118 Fla. 717, 160 So. 49

ee ee, nn kaw Guns ERM ce ahs 26

Washington Revenue Department v. Stevedoring

Association, 435 U.S. 734, 98 S.Ct. 1388, 55

ee ee ree 17

UNITED STATES CONSTITUTIONAL &

STATUTORY PROVISIONS

U.S. Constitution:

Article I, section 8, clause 3...................... 7

The Commerce Clause

Article I, section 10, clause 2.................... i,7

The Import-Export Clause

Aptheae 5, ceneeee 3G, cease S... ce es i,8

The Tonnage Clause

U.S. Statutes:

I oe e's, We enc ee Sos ee aces ae passim

AI Wipe CR on aU DA Beene reset AM ic i,18,19,28

eo a or ra oe ee i,9

ee OE oe ee Shakes eee i,6,9,28

re 0 os koe eee ii eee eee 9

ey ey oe deers eee cee etre be Pees 9

6 USL. Ape. TISPALS) . «ce ee ies 14

A es I EE ok os ees co eee wl i ee. 13

fe ee ek re ree 18

eS ee

PRT

Vv.

LOUISIANA CONSTITUTIONAL, STATUTORY,

& CODAL PROVISIONS:

Louisiana Constitution:

Article 6, Section 43 (1974) .....................

Article 14, Section 16 (1974) ....................

Article 14, Section 31 (1921) ....................

Louisiana Revised Statutes:

Lam. Has Beene, Mea eee.), O1IGRS ...... 2.6...

ee eee

RS | ee rer

eee

ys Osc gw ve ov 0 0 om eb ee ee

Se Se ree re re:

Louisiana Revised Civil Code:

I tes Ee air ee oe ee eee eee

I 2 ere ee

SN ss hh ies ea es eat a ens On ae

I tor, a! 1 ae oa ere ee ee

I AS ae

(AN ee A SCRE RR IY nytt Zoo. to

1

STATEMENT OF THE CASE

The Plaquemines Port, Harbor and Terminal District

(hereafter ‘‘Port’’ or ‘‘Plaquemines’’) is a political subdivi-

sion of the State of Louisiana.! The Port is geographically

coextensive with Plaquemines Parish (the Louisiana

equivalent of a county). The Port is the 102-mile narrow

stretch of land bordering the Mississippi River from New

Orleans, Louisiana to the Gulf of Mexico. New Orleans

Steamship Association v. Plaquemines Port, Harbor and

Terminal District.?

There are approximately 9200 oceangoing vessels

that annually navigate through the Port on their way to or

from other ports along the Mississippi River, of which 3876

or sO oceangoing vessels dock or anchor in the Port.

Therefore, approximately 5400 [sic; actually 5324] vessels

simply pass through the Port and do not stop, and are not

charged any Port fees whatsover. Unlike most ports, Pla-

quemine neither owns nor operates wharves, docks, or

other facilities. The facilities located within the Port are

privately owned.?

As stated by the Court of Appeals:

‘By virtue of its police power and an agreement

with the United States Coast Guard, the Port has

primary responsibility for responding to fires, ex-

plosions, and other emergencies that occur within

its territory.””’

1. La. R.S. 34:1351-65.

2. 874 F.2d 1018, 1020 (5th Cir. 1989).

3. Id.

2

The Court’s Note 7 Contained the following:

‘‘Memorandum of Understanding Between the

Coast Guard and the Plaquemines Parish Com-

mission Council, approved by the Coast Guard,

September 4, 1979; Letter from John L. Bailey,

Captain, U.S. Coast Guard, to Jim Hoffman, Pla-

quemines Parish Fire Marshal (June 3, 1983)

(“Maintenance of adequate disaster response

capabilities fer fires, explosions, and other similar

incidents is‘ the responsibility of local port

operators, municipalities and public

agencies.”’).’"4

The Port operates two patrol/rescue/firefighting

vessels, with a total of twelve crewmen on duty twenty-

four hours, plus a full-time maintenance person; a ferryboat

with firefighting capability; mobile pumps; and a 24-hour

maritime communications net-work. In addition, the Port’s

governing authority, Plaquemines Parish, maintains fire

and rescue equipment more powerful than it needs for its

own use.” The services are set forth in detail in the District

Court opinion. New Orleans Steamship Association v. Pla-

quemines Port, Harbor and Terminal District.®

The Port finances the services it provides by assess-

ing a ‘‘Harbor Fee’’ for each day a vessel remains in the

Port pursuant to its tariff. The Harbor Fee is waived for

ships that anchor for fewer than 12 hours. The Port also

assesses a ‘‘Supplemental Harbor Fee’ against oceangoing

vessels that load or unload cargo in the Port at the rate of

4. Iq.

9. Id., n. 8.

6. 690 F.Supp. 1515, 1519 (E.D. La. 1988).

3

2-1/2 cents per ton for dry cargo and 1/2 cent per barrel for

liquid cargo.’

Tariff fees are also assessed to the privately-owned

terminal facilities, oceangoing barges, inland barges, tugs,

tows, offshore supply vessels, and crew (passenger) boats.

The ships that navigate through the 102 miles of the Port

on their way to and from other ports upriver (such as the

Ports of New Orleans, South Louisiana, and Baton Rouge)

and do not anchor or exchange cargo in the Port are not

assessed any fees whatsoever. Plaquemines Port, Harbor

and Terminal District v. Federal Maritime Commission®

In the event of any fire, explosion or other emergen-

cy, the Port, under its Agreement with the U.S. Coast

Guard, will respond and render emergency services.

For the purposes of this litigation only, New Orleans

Steamship Association (hereafter ‘‘NOSA’’) and the Port

stipulate that the fees are reasonable.®

There are no factual questions involved in this case.

The facts were stipulated by the parties in the United

States District Court.

The fees now charged by the Port, which are the sub-

ject of this case, were enacted on October 15, 1986, as a

result of the Federal Maritime Commission (hereafter

“FMC’’) finding on September 16, 1986, that certain ex-

emptions in the Port’s tariff were unlawful. The District

7. 874 F.2d 1018, 1020.

8. 938 F.2d 536, 545 n.8, 548 n.11 (D.C. Cir. 1988).

9. 874 F.2d 1018, 1020, as amended & reh. den., 891 F.2d 1153, 1154 (5th

Cir. 1989).

4

of Columbia Circuit affirmed the FMC’s Order in all

respects.!°. The Port submitted its tariff amendments of

October 15, 1986 to the FMC which, on November 5, 1986,

determined that the amendments complied with the FMC

Order of September 16, 1986, directing the elimination of

certain exemptions from the tariff.

NOSA had already filed a complaint on September

26, 1986 in the United States District Court for the

Eastern Distsrict of Louisiana (No. 86-4238), seeking an in-

junction barring the Port from collecting fees. The com-

plaint was dismissed as moot because of the tariff amend-

ments of October 15, 1986. The decision was affirmed in

New Orleans Steamship Association v. Plaquemines Port,

Harbor and Terminal District!?.

In the meantime, in December 1986, NOSA filed

another complaint to the FMC (Docket No. 86-31) which is

stayed pending a final decision in this case, which was filed

by NOSA on June 1, 1987.

The District Court dismissed NOSA’s claims.!2: The

District Court decision was affirmed by the Court of

Appeals. !?

10. 938 F.2d 536(D.C. Cir. 1988).

11. 916 F.2d 1074 (5th Cir. 1987).

12. 690 F.Supp. 1515(E.D. La. 1988).

13. 974 F.2d 1018: as amended & reh. den., 891 F.2d 1153.

5

SUMMARY OF THE ARGUMENT

After five years of litigation before the Federal

Maritime Commission, NOSA has now undertaken a broad

based statutory and constitutional attack in the Federal

Courts, alleging that the Port’s tariff fees violate federal

statutes and are unconstitutional.

The Port assesses reasonable fees to finance

necessary and essential Port services such as fire protec-

tion, rescue operations, overall Port safety, and a marine

communications system.

The legal authority for the tariff fees is set forth in

Clyde Mallory Lines v. Alabama.\4 That court stated that

a state port may impose a reasonable charge to provide ser-

vices to users of the port without violating the United

States Constitution.!®

The fees are simply a means of reimbursing the Port

for its costs of providing essential services. The Port has

the primary responsibility for furnishing fire and rescue

protection within its territory because of its firefighting

Agreement executed with the United States Coast

Guard.!6

The Port is unique geographically. It is a 102-mile

stretch of the Mississippi River; a large number of ocean

going vessels (approximately 9200) pass through the Port

annually, both inbound and outbound. A great number of

14. 996 U.S. 261, 56 S.Ct. 194, 80 L.Ed. 215 (1935). (In its Petition for

Certiorari NOSA incorrectly noted that the Alabama Supreme Court

decision, Clyde Mallory Lines v. State, 229 Ala.624, 159 So. 53 (Ala.

1935), was reversed by the Supreme Court. That decision was affirmed.)

15. 996 U.S. 261, 267, 56 S.Ct. 194, 196-97, 80 L.Ed. 215, 219.

16. 974 F.2d 1018, 1020.

6

these oceangoing vesels (approximately 3876) anchor

and/or dock at private terminal facilities within the Port,

along with inland tows, tugs, inland barges, offshore supp-

ly vessels, and crew (passenger) boats, all of which pay the

Port’s reasonable fees for services rendered. The 5324

oceangoing vessels that simply pass through the Port and

do not stop are not charged any Port fees whatsover.

Private terminal facilities located within the Port also pay

tariff fees to finance emergency response services.

The Port’s uniqueness was recognized by the United

States Court of Appeals, District of Columbia Circuit. That

Court stated that the Port is geographically unique; that

the Port does not own or operate wharves, docks or other

waterside facilities; and that the Port operates without

either tax support or revenues from wharf and dock

facilities. !”

NOSA contends that, since the Port has not been

authorized by the Harbor Development and Navigation

Improvement Act of 198618 (‘‘HDNI”’) to impose tariff

fees for emergency support services, its fees are in violation

of HDNI.

HDNI applies to port or harbor dues imposed only in

conjunction with a harbor navigation project. Nothing in

HDNI indicates an intent by Congress to forbid fees that

are authorized under Clyde Mallory and to restrict the

manner in which states may impose harbor fees.

If NOSA’s contentions regarding HDNI are found to

17. 938 F.2d 536, 539-40, 543-44 (D.C. Cir. 1988).

18.33 U.S.C. 2231-2241.

7

be correct then every harbor fee of every port in the nation

would, theoretically, be in violation of HDNI, because near-

ly every port assesses a harbor fee to finance its fire boats.

In Louisiana, the Port of New Orleans, the South Louisiana

Port Commission, and the Greater Baton Rouge Port Com-

mission, all located on the Mississippi River, have harbor

fee provisions in their tariffs as reimbursement for the ex-

penses of their fire boats.

NOSA’s contentions that the tariff viclates the com-

merce clause of the Constitution!9 ignore the clear princi-

ple of that clause - that only unreasonable burdens by a

state on commerce will be struck down. The Port’s fees,

which assess a reasonable charge for services rendered to

Port users, do not violate the commerce clause.

The Port’s fees do not violate the import-export

clause2° and do not conflict with the policies behind that

clause. The fees do not interfere with the federal govern-

ment’s regulation of foreign commerce; the fees fall on

foreign and domestic vessels alike and do not single out

foreign vessels for unfavorable treatment.

The nature of the Port’s fees is nothing more than a

means by which the Port apportions the cost of services

(such as fire protection) among the beneficiaries of the

services.

Fees charged by the Port are constitutional because

the vessels paying the fees receive a service. NOSA’s legal

attacks based on the dormant and foreign commerce

19. Art. I, sec. 8, cl. 3.

20. Art. I, sec. 10, cl. 2.

8

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

clause, on 33 U.S.C. 5, on 33 U.S.C. 10, and on the statute

admitting Louisiana to the Union fail on that principle.?2

ARGUMENT

5.

The Harbor Development and Navigation Improvement

Act of 1986 Does Not Prohibit the Port’s Fees

The Port contends that HDNI is not applicable to

this case.

It is uncontroverted that the Port has not under-

taken any harbor improvement projects and that the Port

is not financing a harbor improvement.2

The fees now being collected by the Port are for

emergency response services now being provided by the

Port for the benefit of vessels in the Port.

The decision correctly concluded that HDNI applies

when a port has undertaken a harbor improvement project

and not otherwise.24

NOSA’S speculative interpretation of HDNI is in-

21. Art. I, sec. 10, cl. 3

22. 974 F.2d 1018, 1027.

23. 874 F.2d 1018, 1024.

24. Id.

9

correct. HDNI specifically, at 33 U.S.C. 2236 (a)(2), ex-

pressly allows a port to levy charges to finance a harbor im-

provement project.2° From this Section of HDNI, NOSA

infers that the Port’s fees violate HDNI because Congress

implied disapproval of fees for emergency response ser-

vices absent a project.

This interpretation by NOSA arises from its isola-

tion of a special section of the statute without reference to

any other section of of the Water Resources Development

Act of 1986, of which HDNI forms a part.7®

HDNI, at 33 U.S.C. 2236(a)(1), forbids ports from

charging for emergency response services until after the

projects are completed.27 The Court of Appeals (Judge

Wisdom) concluded that obviously this prevents ports

from fraudulently charging for projects that are mere

speculation.2® It ensures that the fees will be paid by ships

that benefit directly from improvements made under

HDNI. 29 Again, there is no HDNI improvement present

in this case.

The explicit permission under HDNI to recoup costs

of a harbor improvement project does not establish that

Congress intended to deny nonfederal ports the authority

25. Id.

26.The Harbor Development and Navaigation Improvement Act of

1986, 33 U.S.C. 2231-41, is Subchapter II of the Water Resources

Development Act of 1986, 33 U.S.C. 2201-2311.

27. 874 F.2d 1018, 1026.

28. Iq

29. Id.

10

to impose fees for services performed when no project has

been undertaken.°?

The Court of Appeals, at 874 F.2d 1025, correctly

stated the purposes of HDNI:

‘The HDNI authorizes nonfederal ports to help

plan projects initiated by the federal government,

to initiate projects to be built by the federal

government, and to build projects themselves.

The HDNI also requires nonfederal ports to pay

part of the costs of improving harbors and ports.

Congress intends local involvment in planning

and building to speed harbor improvements. Port

fees levied for purposes other than harbor im-

provements do not threaten accomplishment of

this aim. There is therefore no conflict between

the fees and the Act invalidating certain fees.’’

(Footnotes omitted.)

The court properly concluded that HDNI is designed

to improve the planning and financing of harbor im-

provements and it does not address ports’ long-standing

authority to levy fees for emergency response services.®!

ARGUMENT

Il.

The Port’s Fees Are Not Barred by the Foreign Commerce

Clause Under the Japan Line Case

NOSA contends that the Port’s fees are prohibited

30. Id at 1027.

31. Td at 1025.

11

under Japan Line, Ltd. v. County of Los Angeles.32 That

case involves assessments on shipping containers for ad

valorem taxation purposes wherein the County of Los

Angeles sought to value cargo containers in Los Angeles as

part of its assessment for ad valorem millage taxation. The

tax revenues thus received, based on these assessments,

were to be used for general purposes of the county govern-

ment and not for port or harbor purposes as is the case

here. The fees \ssessed vessels by the Plaquemines Port are

used to finance the Port’s primary responsibility for

responding to fires, explosions, and other emergencies pur-

suant to the Port’s Agreement with the U.S. Coast Guard.

The Port does not purport to have derived the power

of its tariff enactment from any ad valorem tax assessment

statutes of the State of Louisiana.

The Port’s authority to charge tariff fees is derived

from La. R.S. 34:1351-1365, specifically La. R.S. 34:1356

A., B. (amended by Act 93 of the 1986 Louisiana

Legislature effective June 23, 1986) and La. R.S. 34:1360.

The tariff under attack by NOSA here was effective on Oc-

tober 15, 1986. The power of the Louisiana Legislature to

enact the statute is derived from Art. 14, Section 31 of the

1921 Louisiana Constitution which was continued as a

statute by the 1974 Louisiana Constitution in Article 14,

Section 16 (La. R.S. 34:340.1 et seqg.), and Art. 6, Section 43

of the 1974 Louisiana Constitution.

The Port’s enabling legislation contains authoriza-

tion (La.R.S. 34:1354-1364) for ad valorem tax assessment

revenue measures, and is intended to fund bonds issued for

wharf and dock facilities. This measure has not been im-

32. 441 U.S. 434, 99 S.Ct. 1813, 60 L.Ed. 2d 336 (1979).

12

plemented and is not now the basis for the expenditure of

the fees collected. The fees of the Port are used for services

to Port users. None of the fees collected are used to fund

Port bonds, either directly or indirectly.

Thus, NOSA’s reliance on Japan Line is incorrect.

An assessment by the County of Los Angeles on Japanese

cargo containers for ad valorem tax purposes, which

revenues are for general parish government, is completely

different from the specifically authorized (by Louisiana

state law) and constitutionally-court santioned Port tariff,

the revenues from which are specifically used to provide

port and harbor services (including emergency response

services) to port users (as sanctioned by Clyde Mallory

Lines v. Alabama.**), and those fees are not used to pro-

vide for general parish government unless the parish

government has provided specific services to the Port that

are solely and directly Port-related.

NOSA’s argument, raised in its Petition for Cer-

tiorari, that if HDNI does not apply to the Port then Japan

Line is ignored because the nation has lost its ability to

speak with one voice with respect to its foreign commerce,

is incorrect.

The decision correctly stated that Congress has in-

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

as necessary because Congress has appointed the FMC to

regulate fees imposed by local ports.%4

In fact, NOSA has already successfully challenged

previous fees of the Port (that are no longer in effect) before

33. 296 U.S. 261, 56 S.Ct. 194, 80 L.Ed. 215 (1935).

34. 874 F.2d 1018, 1023.

13

the FMC under The Shipping Act, 1984.°°

The Port is regulated by the FMC as a “‘marine ter-

minal operator’ under The Shipping Act, 1984.°6

The

The

The Court of Appeals, D.C. Circuit, found that The

Shipping Act, 1984 does create a reasonableness standard.

Court stated at 838 F.2d 546:

‘Section 10(d)(1) of the 1984 Act is, with reference

to ‘marine terminal operators,’ a recodification of

section 17 of the 1916 Act. Section 10(d)(1) re-

quires that marine terminal operators ‘establish,

observe, and enforce just and reasonable regula-

tions and practices.’ 46 U.S.C. 1709(d)(1) (Supp.

III 1985).9 Section 10(d)(1) thus creates a

reasonableness standard.”’

Court’s Note 9 stated:

“Section 10(d(1) of the 1984 Act, 46 U.S.C. 1709

(d)(1) (Supp. III 1985) provides:

No common carrier, ocean freight forwarder,

or marine terminal operator may fail to establish,

observe, and enforce just and reasonable regula-

tions and practices relating to or connected with

receiving, handling, storing, or delivering

property.

‘Section 17 of the 1916 Act (formerly 46 U.S.C.

816 (1982)) required in_ pertinent part:

35. 838 F.2d 536 (D.C. Cir. 1988).

36. Id at 542-43.

14

Every such carrier and every other person

subject to this chapter shall establish, observe,

and enforce just and reasonable regulations and

practices relating to or connected with the receiv-

ing, handling, storing, or delivery 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.”

Additionally, as correctly noted by NOSA, The Ship-

ping Act, 1984, creates an anti-discrimination standard.*’

This was held by the D.C. Circuit.8

Thus, the Port is subject to FMC jurisdiction for

violations of both the reasonableness and the anti-

discrimination standards of The Shipping Act, 1984.

NOSA’s allegations, which are both explicit and im-

plied in its petition for certiorari, that the Port’s fees are

not reasonable, or that ships are assessed fees that are not

related to the amount of services rendered, or that the

Port’s fees are discriminatory, are properly before the FMC

under the provisions of The Shipping Act, 1984. In fact,

NOSA has filed a complaint before the FMC (Docket No.

86-31) which is stayed pending a final decision in this pre-

sent case.

37. 46 U.S.C. App. 1709(b)(11),(12).

38. 938 F.2d 536, 547.

15

ARGUMENT

ITI.

The Port’s Fees Are Not Barred by the Commerce Clause

Under the Wunnicke Case

NOSA’s commerce clause challenge ignores the clear

principle of the commerce clause: that only unreasonable

burdens on interstate commerce by a state will be struck

down.

As the Supreme Court, in Clyde Mallory Lines v.

Alabama stated:

“The present fee to defray the cost of a purely

local regulation of harbor traffic is not an objec-

tionable burden on commerce. State regulations

of harbor traffic, although they incidentally affect

commerce, interstate or foreign, are of local con-

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 afford-

ed in aid of interstate or foreign commerce have

consistently been held to be permissible.’’?9

The District Court in this case held that the Port’s

tariff is no more than an incidental burden on interstate

commerce; the benefits to the vessels by the Port’s provi-

sion of emergency support services far outweigh any slight

burden that may result.4°

39. 996 U.S. 261,267, 56 S.Ct. 194, 197, 80 L.Ed. 215,219 (1935).

40. 690 F.Supp. 1515, 1523 (E.D. La., 1988).

16

South-Central Timber Development v. Wunnicke*!

involved Alaska’s requirement that timber taken from

state lands be processed within the state prior to export.

Alaska claimed that since there was a similar congressional

policy the state had congressional approval.

The issues in Wunnicke and the issues in this case

are completely diffenent. There was not at issue in Wun-

nicke a fee imposed on a reasonable basis for actual ser-

vices rendered and received.

The Port’s fees approximate $1.5 million per year.

The fees are not only collected from ships but from

privately-owned terminals, inland barges, tugs, tows, off-

shore supply vessels servicing oil platforms both within

state waters and the Gulf of Mexico, and crew (passenger)

vessels. NOSA simply does not want to pay its fair share

of the services provided by the Port.

The Wunnicke decision does not prohibit the Port's

fees. The prerequisite for applying dormant commerce

clause doctrines does not exist here because the Port’s fees

have not been proved to impose ‘‘substantial’’ burdens on

interstate and foreign commerce.*”

41. 467 U.S. 82, 104 S.Ct. 2237, 81 L.Ed 2d 71(1984).

42. 974 F.2d 1018, 1022.

17

ARGUMENT

IV.

The Port’s Fees Do Not Violate the Import-Export Clause

The case before this Court is about reasonable fees

charged by the Port for services such as fire protection for

vessels. There is no charge by the port against cargo. One

of the fees (the Supplemental Harbor Fee) is a vessel charge

based upon the amount of cargo loaded or unloaded.4°

The opinions in Washington Revenue Department v.

Stevedoring Association*’, and Michelin Tire Corp. v.

Wages*® state the policies behind the import-export

clause. Summarizing, those policies are 1) a concern that an

impost or duty might interfere with the Federal Govern-

ment’s regulation of commercial relations with foreign

governments; 2) fear that on account of such state taxation

the Federal Government would lose an important source of

revenue; and 3) a desire to maintain harmony 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.

The Port’s fees simply do not offend the policies

behind the import-export clause. A fee for services such as

fire protection is not an impost or duty proscribed by the

import-export clause.4®

43. Td at 1020.

44. 435 U.S. 734, 752-53, 98 S.Ct. 1388, 1400-01, 55 L.Ed.2d 682,698-99

(1978).

45. 423 U.S. 276, 285-86, 96 S.Ct. 535, 540, 46 L.Ed.2d 495, 503 (1976).

46. 974 F.2d 1018, 1023.

18

ARGUMENT

_s

The Port’s Fees Are Not Prohibited by 33 U.S.C. 10, by The

Act Admitting Louisiana to the Union, by 33 U.S.C. 5, or

by the Tonnage Clause

a) 33 U.S.C. 10 and

The Act Admitting Louisiana to the Union.

NOSA contends that the Port’s fees violate the

statute admitting Louisiana into the Union, and 33 U.S.C.

10. The statute codified states:

‘All the navigable rivers and waters of the former

Territories of Orleans and Louisiana shall be and

forever remain public highways.”’

The District Court opinion stated that the statute’s

intent is to preserve passage over the Mississippi River to

all, prohibiting the imposition of a charge for the mere

privilege of passage. The Port’s fees meet this requirement

and do not deter free passage on the River. Instead, the

Port exacts a reasonable fee from those who dock in the

Port to ensure the safe passage of all.47

The Court of Appeals correctly interpreted the

statute which stated that the Mississippi River and the

navigable waters leading into it and into the Gulf of Mexico

shall be common highways without any tax, duty, imposts

or toll imposed by said State. 2 Stat. at Large 703 (1812).

The Court of Appeals stated:

47. 690 F.Supp. 1515, 1521 (E.D.La., 1988).

19

“These declarations proscribe fees for the mere

privilege of navigating through waters, or im-

posts that create preferences for certain private

parties over others. 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.’ (Footnotes

omitted).48

The Supreme Court interpreted 33 U.S.C. 10 in

Hamilton v. Vicksburg, S. & P.R., Co.,49 and held that it

did not impair the power which a state could exercise over

its rivers.

In Huse v. Glover ©° the Supreme Court upheld the

imposition of tolls charged for the use of locks built upon

navigable waters under a similar statute.

b) 33 U.S.C. 5.9}

This new argument of NOSA was not raised in the

District Court. It was not raised in NOSA’s opening brief

to the Court of Appeals. The first time the argument ap-

peared was in NOSA’s reply brief in the Court of Appeals,

and NOSA then again raised it in its petition for rehearing

of the decision.

48. 974 F.2d 1018, 1024.

49. 119 U.S. 280,285, 7 S.Ct. 206,208, 30 L.Ed. 393,395(1885).

50. 119 U.S. 543,548-49, 7 S.Ct. 313, 315-16, 30 L.Ed. 487,490 (1886).

51. 33 U.S.C. 5 is set forth in its entirety in NOSA’s Petition for Cer-

tiorari at pages 2 and 3.

20

The Port has not had the opportunity to respond to

this new argument until now. The Court of Appeals correct-

ly did not decide this issue because it was not raised in

NOSA’s opening brief.

The Port objects to this new issue being raised by

NOSA in its Petition for Certiorari, but now responds with

a full reservation of that objection.

NOSA contends the Port’s fees are prohibited by 33

U.S.C. 5 and as a result of that statute the decision is at

variance, if not in conflict with Indiana Port Commission v.

Bethlehem Steel Corp.®?

The Port contends that 33 U.S.C. 5:

“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. .. .”’ (Emphasis added.)

applies to the Mississippi River only in regard to charges

by the United States within a state or port if that charge

is for ‘‘passing through’”’ a facility now belonging or that

may be hereafter acquired or constructed by the United

States.

Did the United States construct and does it now own

the Mississippi River? Certainly not. God and/or nature

had a lot to do with the creation of the Mississippi River.

The statute, 33 U.S.C. 5, by its own terms, does not apply.

52. 935 F.2d 1207 (7th Cir. 1987).

21

On the nebulous question of ‘‘now belonging to’’ the

United States, this belatedly-raised issue to which we con-

tinue to object being considered, has been addressed by the

courts through the years®? to the effect, and summarized

in the Clyde Mallory doctrine and other portions of this

brief, and simply stated: that reasonable port charges can

be imposed on port users commensurate with actual ser-

vices available and rendered to them by the collecting

entity.

53. The tariff fees at issue are not collected from vessels passing through

the Port, and the Mississippi River does not belong to the United States.

This precept was again recently reiterated in Louisiana v. Mississippi,

446 U.S. 96, 98-99, 104 S.Ct. 1645,1647, 80 L.Ed.2d 74, 77-78 (1984), to

the effect that the lands under the Mississippi River belong to the state.

The issue is more complex and far-reaching than that, but it is as simple

as the United States does not own the River and the River does not

“now belong to the United States’’. Current Louisiana law on the sub-

ject is set forth to the same effect as the law in Louisiana v. Mississippi,

supra, as to ownership of the Mississippi River beds. Should this Court

deem it at all relevant, and cited subject to the reservation of our objec-

tion, the relevent provisions of the Louisiana Revised Civil Code are Ar-

ticles 450, 452, 455, 456, 460, 665; the relevent Louisiana Statutes are

La. R.S. 9:1101, 9:1102.1, 9:1102.2. This long-standing body of Loui-

siana law is all to the effect that title to lands beneath the Mississippi

River are state-owned, the waters above are not subject to anyone's

ownership; but the paramount powers of control of navigable streams

rests with the United States. That control is subject to that general

principle as set forth in 65 CJS Navigable Waters, Sections 10-12, 15,

16 and 15 CJS Commerce, Sections 79, 136, and more specifically, Huse

v. Glover, 119 U.S. 543, 7 S.Ct. 313, 30 L.Ed. 487(1886), and the other

cases cited in this opposition brief to the effect that reasonable port

charges collected from port users for actual services rendered to them,

have long been recognized as lawful. Absent a specific, clear provision

of Congress to the contrary, not present here in any of NOSA’s points,

collection of those cost-cf-service-fees is legal. Those fees are subject to

review by the FMC as to reasonableness. Two U.S. District Courts

(Judge Collins, Judge Sear), and two U.S. Courts of Appeals (Judge

Bork, Judge Wisdom) have so held, and thus NOSA’s petition for cer-

tiorari should be denied.

22

But, assuming for purposes of this opposition brief

only that 33 U.S.C. 5 does apply to the Port, on the

Mississippi River, the Port’s fees are not collected from

vessels for merely passing through the River or through

the Port (which is the River between New Orleans, Loui-

siana and the Gulf of Mexico). The Port collects a

reasonable fee from those vessels that dock or anchor in the

Port over 12 hours to finance services such as fire protec-

tion. No fees are collected from vessels passing through the

Port on their way to or from upriver ports.

The Port’s 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 reponse to vessels in distress

with the means available, and to aid in extinguishing fires

on vessels and equipment and in the cargo aboard such

vessels or upon the public wharves, public banks and bat-

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

and upon the private wharves, docks, and immediately ad-

jacient facilities connected thereto without any additional

charge (except for the cost of supplies, material and equip-

ment expended by the District in the performance of such

services).”’ Tariff, Section I, Definitions.°4

The Port’s supplemental harbor fee is defined in the

tariff as “‘A fee charged to supplement revenue necessary

for the purposes herein set forth under ‘‘Harbor Fee’’ based

54. 874 F.2d 1018, 1020.

23

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

cargo handled or transferred in midstream or when an-

chored 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.” Tariff, Sec-

tion I, Definitions.®°

con one! seten st eenenaipaeapaaalaalll

The harbor fee is assessed for each day a vessel re-

mains in the Port District, moored or at anchor, on a

graduated scale based on the vessel’s length. Tariff Item

135A.5§ The harbor fee is waived for vessels that are de-

tained for any reason in the Port that anchor in the General

Anchorage not exceeding 12 hours. Tariff Item 136B. That

Tariff Item states:

“Item 136 Vessels Exempted From Harbor Fees:

B. Vessels stopped within the District for the sole

purpose of changing pilots, or because of incle-

ment weather, or anchoring in the General An-

chorage (see Item 50), remaining less than twelve

hours within the limits of the District.”’

The supplemental harbor fee is assessed against

oceangoing vessels loading or discharging cargo in the port

at the rate of 2-1/2 cents per ton for dry cargo and 1/2 cent

per barrel for liquid cargo. Tariff Item 135B(1).5’ This is

premised on the logic of cargo transferred being a more

reliable measure of port activity requiring port services,

such as this Port renders, than the registered tonnage of a

vessel sometimes used in other port tariffs. An example is

a vessel with 50,000 registered tons loaded only to 30,000

tons. The Plaquemines Port tariff imposes the fees based

on the 30,000 tons of cargo actually transferred.

55. Id.

56. Id.

57. Id.

24

The approximately 5400 oceangoing vessels (58% of

the total number of 9200 vessels that annually navigate the

Port) that simply navigate through the 102 miles of the

Port twice, and do not anchor or exchange any cargo in the

port, are not assessed any tariff fees whatsoever. (Em-

phasis ours.)°® Yet in the event of any emergencies the

Port, under its Agreement with the U. S. Coast Guard, will

respond and render necessary and essential emergency ser-

vices, including fire protection.

The Indiana Port Commission case involved charges

to vessels to defray the costs of constructing and maintain-

ing a harbor that had been acquired by the United States.

That court held that the charges violated the Federal

Statute 33 U.S.C. 5.°9

But, the facts here bear no relationship whatsoever

to Indiana Port Commission. The Port’s fees are not col-

lected to defray costs of constructing a harbor. It is uncon-

troverted that the Port is not financing a harbor improve-

ment. Therefore, the decision cannot be at variance or in

conflict with the Indiana Port Commission case.

c) Tonnage Clause.

The decision did not misconstrue Clyde Mallory

Lines v. Alabama, which held that a reasonable charge for

general services is not a prohibited duty.®°

The District of Columbia Court of Appeals, address-

ing NOSA’s tonnage clause challenge in Plaquemines uv.

FMC ®! stated:

58. 838 F.2d 536, 539, 545 n.8, 548 n.11.

59. 835 F.2d 1207, 1209-10.

60. 296 U.S. 261, 263, 56 S.Ct. 194, 196, 80 L.Ed. 215, 219 (1935).

61.838 F.2d 536, 545.

fn 0 Nate bi Bil

25

“Our analysis of the tonnage clause is a direct ap-

plication of the Supreme Court’s decision in Clyde

Mallory Lines v. Alabama. The Port of Mobile,

Alabama policed the harbor to insure the safety

and facility of the movement of vessels. It charg-

ed a fee for the purpose of meeting the expenses

associated with the supervision of the port and

the execution of its regulations. The Court noted

that the tonnage clause prohibits ‘all taxes and

duties reguardless of their name or form, and

even though not measured by the tonnage of the

vessel, which operate to impose a charge for the

privilege of entering, trading in, or lying in a

port.’ The clause does not, however, prohibit

charges made by a state authority for services

rendered such as pilotage, wharfage, charges for

the use of locks, or fees for medical inspections.

The Court therefore upheld Mobile’s fee.

“The Clyde Mallory Court distinguished the

general services rendered by the Port of Mobile

from earlier cases which involved a tax, levied in

the guise of wharfage or medical inspections. ...

The latter were condemned because they were im-

posed on all vessels entering a port whether or not

they received the benefit of the services. In con-

trast, the services rendered by the Port of Mobile

inured to all who entered the port. A reasonable

charge for general services is not a prohibited ton-

nage duty. The services rendered by the Port also

inure to all who use the Port of Plaquemines. All

vessels, whether or not they catch fire or need

rescue services, benefit from their availablility.

Given the seriousness of explosions, fires or other

accidents, particularly in view of the crowded con-

dition of this stretch of the Mississippi River, it

is especially important that rescue operations be

swift and that fires be promptly extinguished.”

(Citations omitted.)

26

It is uncontroverted that the Port’s fees are to defray

the costs of providing emergency response services to all

vessels passing through the Port.

Courts have consistently held that ships may be

made to pay for services they receive. See Clyde Mallory v.

Alabama (listing cases)®?; Cooley v. Board of Wardens

(local ports may charge for pilotage)®°; Vincent v. Foss &

Crabtree.®4

The Port’s fees easily meet the requirements of Clyde

Mallory. As stated in the Court of Appeals’ decision:

‘Emergency response services save lives, reduce

damage to property, prevent fires from spreading

to ships that would not otherwise need the ser-

vices, and return the Port to full efficiency after

an emergency. Second, the parties have

stipulated that the fees are reasonable. Finally,

the district court found a ‘dearth of evidence’ that

Plaquemines’s fees burden interstate commerce.

The Port has the power to impose the fees.’’®°

Clyde Mallory holds that port fees for services

rendered to and enjoyed by vessels pass muster under the

tonnage clause.®®

CONCLUSION

There are no special and important reasons why

62. 296 U.S. 261, 268, 56 S.Ct. 194, 197, 80 L.Ed. 215, 219.

63. 53 U.S. (12 How.) 299, 319-20, 13 L.Ed. 996 (1851).

64. 118 Fla. 717, 160 So. 49, 52 (S.Ct. Div. B. 1935).

65. 974 F.2d 1018, 1022.

66. Id. at 1023.

27

NOSA’s petition for certiorari should be granted.

The decision of the United States Court of Appeals

for the Fifth Circuit is not in conflict with the decision of

another United States Court of Appeals.

The decision is not in conflict with either the Con-

stitutional or statutory provisions involved.

Finally, the decision is not in conflict with any ap-

plicable decisions of the Supreme Court.

New Orleans Steamship Association, as is typical of

a payer of any fees or taxes, in the all-American way, takes

the services but does not want to pay for those services.

NOSA has a long history before various courts and

the Federal Maritime Commission seeking essentially the

same relief - not having to pay its fair share of reasonable

tariff fees assessed by the Port to provide reasonable and

necessary services of (primarily) emergency and fire

response services.

NOSA reaches out to the enactment of the Harbor

Development and Navigation Improvement Act of 1986. It

is uncontroverted that there are no harbor improvements

at issue in this proceeding; the Port is not engaged in any

harbor improvement projects.

NOSA speculates that Congress, in enacting HDNI,

has by inference prohibited port fees authorized under

Clyde Mallory (now 55 years old), and the cases cited

therein, and an entire body of law dating back more than

100 years, all to the effect that ports may levy reasonable

charges to port users for providing fire, safety, police and

other services actually rendered to and received by the

users of the port.

28

HNDI, 33 U.S.C. 2231-41, is not at issue in this case.

It is factually inapplicable to the Port’s fees.

NOSA has urged through inferential hypotheses

that by the enactment of HDNI there is clearly-stated con-

gressional intent that forbids port fees being collected for

services received by port users, but NOSA is wrong. HDNI

only limits those fees as to specific harbor improvement

projects pursuant to HDNI. In this case, no such improve-

ment is at issue and NOSA cannot show clear congres-

sional intent to overrule the well-founded logic that holds

that a fee for services rendered is not a deprivation of con-

stitutional rights but is clearly authorized pursuant to the

long-held legal doctrine of Clyde Mallory.

If vessels receive port services commensurate fees

charged by a nonfederal port are constitutional. NOSA’s

attacks upon the Port’s fees based on the dormant and

foreign commerce clauses, on the tonnage clause, on the

import-export clause, on 33 U.S.C. 5, on 33 U.S.C. 10, and

on the statute admitting Louisiana to the Union fail on this

same principle, i.e., reasonable port fees may be collected

for reasonable port services provided.

The Plaquemines Port, Harbor and Terminal District

submits that New Orleans Steamship Association’s peti-

tion for certiorari should be denied.

Respectfully submitted,

LOUIS B. PORTERIE

ROBERT E. FONTENELLE, JR.

Suite 300, 4000 General De Gaulle Drive

New Orleans, Louisiana 70114

Telephone (504) 367-0999

Attorneys for Respondent Plaquemines

Port, Harbor and Terminal District

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