Petition for Writ of Certiorari — Ira S. Bushey & Sons, Inc. v. United States

Supreme Court brief1974

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

No.

73-1353

Untrep States oF AMERICA,

Respondents,

Ina S. Busey & Sons, Inc., Tanker Hyorape No. 8 Inc.,

SpentonBusH Transport Service, Inc.,

Petitioners,

NorTHERN O1n Company, Inc., and

NortHERN TERMINALS, INc.,

Defendants.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

CurisTtoPpHEeR E. HeckMan

Counsel for Petitioner

80 Pine Street

New York, New York 10005

Martin J. McHucH

Larry M. Cariin

On the brief

—_

oe Tet 2 ————————

TABLE OF CONTENTS

Statutory Provisions Involved ..........-.--+--+++-

The Question Presented .........++++++eeeeeeeeees 3

Statement ..........- cece cece e eee eeeeeeeeeeeees 3

Reasons for Granting the Writ ...........---+--++:

Conclusion ........--cceceeccccccccccccccceeccees 12

TaBLE oF AUTHORITIES

Cases:

Hughes Tool Co. v. Trans World Airlines, 409 U. S.

Iinois v. City of Milwaukee, 406 U.S. 91 ....-.-+.-+-

Kelly v. State of Washington, 302 U. S. 1 (1937) .... 8,9

United States v. Bushey, 363 F. Supp. 110 .........---

Statutes:

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MISCELLANEOUS CITATIONS

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APPENDIX

Opinion of the District Court ..............+..eeees

Final Order of District Court ...........cccccccecee

Order Affirming Order of District Court

Order Denying Petition for Rehearing

Order Denying Petition Suggesting Rehearing In

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Text of 33 U.S.C. 1161(j) (1)

Text of 33 U.S.C. 1321(j) (1)

Text of 46 U.S.C. 391(a)

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

No.

Unrtep States oF AMERICA,

Respondents,

Ina S. BusHey & Sons, Inc., TanKeR Hycrape No. 8 Inc.,

SpentonsusH Transport Service, Inc.,

Petitioners,

NortTHERN Or Company, Inc., and

NorTHERN TERMINALS, INC.,

Defendants.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Ira S. Bushey & Sons, Inc., and the other parties named

as petitioners (subsidiaries of the first petitioner) pray

that a writ of certiorari issue to review the final judgment

of the United States Court of Appeals for the Second

Circuit, entered on December 7, 1973, affirming without

opinion the judgment of the United States District Court

for the District of Vermont in favor of respondent which

enjoins these petitioners-defendants-appellants from oper-

ating their oil-carrying vessels in the Vermont waters of

Lake Champlain unless they comply with eight regulations

imposed by the Court.

dina Aled darabbai ssh dlas KS

The other named defendants, Northern Oil Company

Ine. and Northern Terminals Inc., are no longer parties

to this litigation, having consented to judgment before

trial.

Citation to Opinions Below

The opinion of the United States District Court for the

District of Vermont reproduced as Appendix A herein

(infra pp. la-28a) is reported at 363 F. Supp. 110 (1973).

The Court of Appeals did not write an opinion.

Jurisdiction

The judgment of the United States Court of Appeals

for the Second Circuit is dated December 7, 1973 (Appen-

dix C infra pp. 30a-3la). A timely petition to the Court

of Appeals for rehearing (Appendix D infra pp. 32a-33a)

and suggestion for rehearing in banc (Appendix E infra

p. 34a) were denied by orders entered February 6, 1974.

The jurisdiction of this Court is invoked under 2%

U.S.C., Section 1254 (1).

Statutory Provisions Involved

This petition involves the following statutory provisions

which are reproduced in the appendix,

A. 33 U.S.C. § 407 (Appendix F infra p. 35a);

B. 33 U.S.C. §1161 (j) (1) (Appendix G@ infra p.

36a) ;

C. 33 U.S.C. §1321 (j) (1) (Appendix H infra p.

37a);

D. 46 U.S.C. § 391a (Appendix I infra pp. 38a-46a).

The Question Presented

When Congress, with full knowledge of the risks and

hazards involved in the vessel transportation of oil, au-

thorizes, licenses and regulates that activity, and the latter

is carried on in strict compliance with applicable statutes

and regulations governing design, construction, operation,

manning, equipping, loading and unloading of vessels, may

a federal court declare such activity a nuisance because

it involves the same risks and hazards which Congress

recognized when it delegated regulatory authority to the

Coast Guard?

Statement

Petitioners transport petroleum products in substantial

quantities to Burlington and Shelburne Harbors, Vermont

by tank barges towed by tugboats frequently hired from

independent contractors. Each of the involved vessels is

enrolled as a vessel of the United States and duly licensed

to carry on the coastwise trade. Each of the barges was

inspected by the United States Coast Guard and issued a

certificate attesting compliance with all applicable Coast

Guard requirements.

Between April 30, 1967 and June 1, 1971, petitioners’

vessels were involved in seven sporadic, unconnected and

unintentional oil spills which are alleged to constitute un-

lawful discharges of refuse matter into the navigable wa-

ters of the United States in violation of 33 USC 407.

Briefly stated, these spills were caused by latent defects in

Coast Guard inspected equipment, defects of which peti-

tioners did not have knowledge, the negligence of tugs

(acting as independent contractors) towing petitioners’

vessels, the negligence of parties over whom petitioners

had no control, and in one instance, by a collision result-

ing from neligence of petitioners’ tug captain.

: The District Court held that the Refuse Act (33 USC

; 407) and the federal common law of nuisance constituted

grounds for granting relief.

The Court enjoined these petitioners from operating

oil-carrying vessels in the Vermont waters of Lake Cham.

plain unless (1) prior to discharge of cargo a conference

j be held between the vessel and the shore terminal personnel

4 (2) during discharge of cargo the barge supply adequate

illumination, between sunset and sunrise, of the connection

point between the vessel discharge hose and the shore ter.

minal receiving line (3) before and during discharge, a

licensed tankerman check the surrounding water for evi-

dence of pollution, (4) voice communications be maintained

between vessel and shore terminal, (5) no alcohol be con-

sumed on board any vessel, (6) a contingency plan for oil

spills be prepared for approval by EPA, (7) at least one

‘ man connected with transportation or discharge of oil bea

certificated tankerman and (8) a checklist of items one

: through four be maintained and reported to the Environ-

mental Protection Agency.

| Prior to the District Court’s decision the Coast Guard

had issued regulations applicable to all oil vessels, includ-

ing petitioners’, on each of those subjects (33 CFR Parts

154, 155 and 156). The Court’s regulations conflict with

some of those.

In the preamble to its December 21, 1972 publication of

the involved pollution prevention regulations (37 Fed.

Reg. 246 Part II) the Coast Guard discussed various alter-

natives, commented on government, public and industry

problems or objections involved in the discussed regula-

tions, and gave reasons for their adoption in the face of

those objections. It stated toward the end of Subsection

4(b) that the regulations represent “an attempt to achieve

oil-free waters through a reasonable balance of punitive

deterrants and modification of design, construction, and

operation intended to minimize the opportunity for and

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the effects of human error or negligence.” It also stated

that the regulations are intended to “provide maximum

protection to the environment while remaining within eco-

nomic and practical bounds.”

Petitioners contend that the Congressional delegation

of regulatory authority to the Coast Guard pre-empted

the federal courts of jurisdiction to enjoin operation of

their vessels when they comply with all applicable Coast

é' Guard regulations.

: Reasons for Granting the Writ

" We submit the Court committed fundamental error when

it construed this Court’s decision in [Illinois v. City of Mil-

waukee, 406 US 91 (1972) as authorizing a federal court

injunction against an operation regulated by a federal

agency rather than as authority against such federal court

action. In that case this Court held that under the federal

common law of nuisance a federal court could enjoin opera-

tion of a refuse disposal plant likely to cause harm to citi-

zens of another state. But the basis of that decision was

the absence of any regulatory authority over the opera-

tion of such a plant, thus making invocation of the federal

common law of nuisance the only remedy available to pro-

tect the interests of the citizens. In that opinion this Court

expressly recognized the proposition of pre-emption of

federal common law by Congressional delegation of regu-

latory authority, stating (at 107):

| — en i —

“It may happen that new federal laws and new federal

regulations may in time pre-empt the field of federal

common law of nuisance.”

: The field of federal law of nuisance, insofar as it involves

ve —& oil-carrying vessels, has been completely preempted by

statute, 46 USC 391(a) and others, and by Coast Guard

regulations issued pursuant thereto.

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Congress, expressly recognizing the same hazards from

oil spills described in the District Court opinion in this

case, legislated extensively and comprehensively concern.

ing oil-carrying vessels with a view toward minimizing

those hazards. It left no phase of the design, operation,

manning, loading or unloading of oil-carrying vessels un-

covered, thereby pre-empting federal courts of jurisdiction

to impose on those vessels self-drawn regulations.

In addition to 46 USC 391 (a) (infra pp. 38a-46a), the

following statutes deal with regulation of oil-carrying ves-

sels: 33 USC 1161 (j) (1) (The Federal Water Pollution

Control Act), (infra p. 36a), 33 USC 1321(j)(1) (The

1972 Amendments to the FWPCA), (infra p. 37), 33 USC

1203 (Vessel Bridge-to-Bridge Communication Act), 33

USC 1221 (Ports and Waterways Safety Act), and 46

USC 405 (Towing Vessel Operator’s Licensing Act.).

In the Ports and Waterways Safety Act, supra, Con-

gress stated that the authority thereby given to the Coast

Guard to establish vessel traffic systems was granted

‘<* * * to protect the navigable waters and the resources

therein from environmental harm resulting from vessel or

structure damage.’’

Presently, under statutory authority, the Coast Guard

investigates all marine casualties (46 CFR Part 136). It

has the right to board and inspect any vessels upon the

navigable waters (33 USC 1321 (m)). It may penalize

licensed or certificated individuals for misconduct or inat-

tention to duty (46 CFR Part 137). It has authority to

impose a civil penalty for an oil spill, intentional or

otherwise (33 USC 1321 (b)).

Thus it is clear, we submit, that Congress intended to

leave to the Coast Guard and to it alone, complete juris-

diction to regulate all phases of operation of oil-carrying

vessels throughout the entire United States, to minimize

water pollution and the effects thereof.

a 7

That Congress intended uniformity in the promulga-

tion and application of rules and regulations intended to

secure effective provision for vessel safety and for pro-

tection of the marine environment is manifest from sub-

section 3 of 46 USC 391 (a) (infra pp. 38a-46a). That

subsection provides that the Secretary of the department

in which the Coast Guard is operating shall establish for

all vessels to which the section applies

«* * * such additional rules and regulations as may

be necessary with respect to the design and con-

struction, alteration, repair, and maintenance of such

vessels, including, but not limited to, the superstruc-

tures, hulls, places for stowing and carrying such

eargo, fittings, equipment, appliances, propulsive ma-

chinery, auxiliary machinery, and boilers thereof; and

with respect to all materials used in such construc-

tion, alteration, or repair; and with respect to the

handling and stowage of such cargo, the manner of

such handling or stowage, and the machinery and

appliances used in such handling and stowage; and

with respect to equipment and appliances for life sav-

ing, fire protection, and the prevention and miti-

gation of damage to the marine environment; and

with respect to the operation of such vessels; and

: with respect to the requirements of the manning of

such vessels and the duties and qualifications of the

officers and crew thereof; and with respect to the

inspection of all the foregoing.’’

By subsection 4 of the same section, Congress directed

that before any rules or regulations are approved by the

Secretary (except in an emergency) he shall consult with

other appropriate federal departments and agencies, pub-

lish the proposed rules and permit interested persons an

opportunity for hearing. The Secretary is directed in

prescribing the rules to consider, among other things, the

practicability of compliance therewith, ‘‘including cost

and technical feasibility.’’ Certainly the Congressional

intent will be completely frustrated if each federal court,

without consulting other appropriate federal departments

and agencies, and without considering the practicability of

compliance, including cost and technical feasibility, may

impose self-made regulations by invoking the federal com.

mon law of nuisance in respect of an operation which Con-

gress specifically recognizes as involving some hazards.

Kelly v. The State of Washington, 302 US 1 (1937), in

volved the question whether a state had authority to pro.

mulgate regulations for the inspection of motor-driven ves.

sels smaller than those subject to Coast Guard regulation

by United States statutes. This Court concluded that Con-

gressional omission to provide for inspection of such ves.

sels left states free to enact requirements for them. Hovw-

| ever, in the course of its opinion, the Court said (at 14):

‘*For example, Congress may establish standards and

designs for the structure and equipment of vessels

and may prescribe rules for their operation which

could not properly be left to the diverse action of

the States. The State of Washington might prescribe

standards, designs, equipment, and rules of one sort,

Oregon another, and California another, and so on.”

After noting the adverse effect that would result from con-

flicting state laws, the Court held that the Washington law

did not conflict with then existing federal laws, but stated

(15):

‘‘If, however, the state goes further and attempts to

impose particular standards as to structure, design,

equipment and operation which, in the judgment of

its authorities, may be desirable but pass beyond

what is plainly essential to safety and seaworthiness,

the State will encounter the principle that such re

quirements, if imposed at all, must be through the

actions of Congress, which can establish a uniform

rule.’’

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ae ESE eh ie eS,

This Court’s reference to the devastating effect of dif-

ferent states prescribing different standards, designs,

equipment and rules stated in Kelly (supra), applies

equally to federal district courts. Cf. Hughes Tool Co. v.

Trans World Airlines, 409 US 363 (1973).

Our research does not disclose any other decision on the

subject of federal court jurisdiction to impose self-drawn

regulations on oil-carrying vessels since passage of 46 USC

391a. But the importance of this question to operators of

oil-earrying vessels throughout the United States and in-

deed to all regulated carriers, airlines, buses and railroads

as well, is at once apparent.

If a federal court, by resort to the federal common law

of nuisance, may impose its own regulations on Coast

Guard regulated oil vessels, it may do so on railroads mov-

ing oil tank cars, airlines using oil for fuel, and on inter-

state bus lines. The elaborate schemes for uniform regula-

tion of those classes of operations, so carefully worked out

by Congress and so long deemed necessary by this Court

(cf. Kelly v. State of Washington, supra), will be worth-

less if, after one or more oil spills, any federal court may

impose its self drawn regulations on the involved operator.

The important question of federal court jurisdiction to

impose its own regulations on an operation regulated by a

federal agency deserves to be settled now, once and for all,

by an authoritative decision of this Court.

We submit that if the decision of the District Court be

the law, oil vessel owners will hesitate to build new vessels

in fear that the Coast Guard approval of design, equip-

ment, operation, loading and manning may not meet the

approval of a District Court. The latter could accept the

opinion evidence of an expert witness whose views the

Coast Guard previously heard but, in its Congressionally

recognized expertise, rejected.

As the record in this case shows, many oil-loading ter-

minals are located on the New Jersey shore of New York

ES PRS eee POE I RE eS TES OTE PPE REE

j 10

Harbor. A vessel loading there for discharge in Vermont

must transit the territorial jurisdiction of five District

Courts: New Jersey; Southern, Eastern and Northern

Districts of New York; and Vermont. If each of those

District Courts may make its own rules and regulations

concerning an individual vessel, countless operational,

structural, equipment, and manning problems will result

to all vessel operators.*

Pe Se ee ee ee

Re AS?

Perhaps a more important consideration for granting

the writ is the exposure of the already overburdened fed-

eral courts to countless suits by private parties and en.

vironmental associations. By such suits each party will

seek to invoke the federal common law remedy of public

nuisance to enforce its own ideas of appropriate standards

of environmentalism by circumventing congressional con-

clusions on that subject. As previously demonstrated

Congress has concluded that the economy of this country

requires water transportation of oil despite its hazards.

Congress decided that the best interests of the country

would be served by having the Coast Guard devise appro-

priate safety regulations after consultation with other

involved agencies and after public hearings. If every dis-

contented individual or environmental association may

apply to its local federal court for an injunction against

operation of oil vessels in its jurisdiction unless in com-

pliance with special local regulations beyond those of the

Coast Guard, the courts will be flooded with suits and the

industry will be stymied.

That the Court’s regulations in this case may be claimed

to be only mildly inconsistent with the Coast Guard regula-

tions does not detract from the general importance of the

legal question involved. If a federal court has the juris

diction to consider imposing its own regulations on an

POG Pe ee ae

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1 American Waterways Operators Inc., a non-profit trade asso

ciation representing the national interests of operators of vessels

ineluding oil transporting craft, intervened in the Circuit Court

and filed a brief seeking reversal of the District Court’s decision.

It has over 250 members.

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operation already completely regulated by a federal

agency, it has the power to impose them, whether or not

in conflict. If a federal court be held to have such jurisdic-

tion provided the regulations are consistent with those of

the appropriate federal agency, that jurisdiction is re-

dundant and futile. Moreover, question immediately arises

as to whether the court or the agency determines the con-

flict question and which may have the last word.

That question is involved in this case. In its regula-

tions concerning the illumination of the vessel discharge

hose connection with the shore terminal connection the

Coast Guard, for reasons it seemingly deemed obvious, re-

quired a self-propelled tanker to furnish such illumination

33 CFR 155.790 but imposed upon the shore terminal the

obligation to illuminate a similar connection between the

terminal and a non-self-propelled barge 33 CF'R 154.570 (a)

(3), (4). The Court disregarded the Coast Guard’s dis-

tinction and required the barge to furnish the illumination,

stating that it could ‘‘see no earthly distinction in the

necessity of deck lighting between a self-propelled and a

non-self-propelled vessel, other than a limited item of ex-

pense, perhaps’’ (infra p. 24a). Thereby considerations

which led the Congressionally recognized experts, the

Coast Guard, to make the distinction were completely disre-

garded and the Congressional intention that feasibility be

considered (cf. 46 USCA 391la (4) (infra pp. 38a-46a))

was defeated.*

The decision cannot be justified on the ground that some

of petitioners’ acts constituted violations of the Refuse

Act, 33 USC 407 (infra 35a).

?One obvious distinction is that barges are designed to pass

under low clearance fixed bridges and other structures which pre-

vent the installation of lighting fixtures high enough to illuminate

the hose connection point. Self-propelled vessels carry such fix-

tures but cannot pass under low fixed bridges, and cannot reach

Lake Champlain since they must transit the Champlain canal,

where an overhead clearance of only 15 feet is available. (Cf.)

United States Coast Pilot II, 6th Edition, p. 182.

Fs PER IT LL OES ETO LEER EN ES LEELA IOI LN LE BLS ELIE TTA

The legistive history of PL 92-340 which contains the

; 1972 amendments to 46 USCA 391 (a) shows Congress ree.

ognized that the problem of marine pollution resulting

from water transportation of oil is ‘‘a continuing one

which will not be solved immediately.’’ 1972 Cong. é

: Adm. News, 2909.

Thus it cannot be denied that Congress was fully aware

of the likelihood of the recurrence of Refuse Act violations

resulting from various types of casualties including each

type described in the Court’s findings. Nevertheless, Con-

F gress concluded that the solution was strict regulation by

the Coast Guard, not prohibition of the activity. We sub.

2 mit that if a federal court has authority to declare such ae.

F tivity a nuisance, because a violation of the Refuse

Act, 33 US 407 (infra pp. 38a-46a) may result, it has an.

‘ thority to ban the activity, thereby overriding the Con-

4 gress of the United States.

For the reasons discussed above, there cannot be, we

submit, any jurisdiction in a District Court of the United

States to issue its own regulations for operation of

licensed and Coast Guard approved oil-carrying vessels.

Pe Ree inn

CONCLUSION

It is respectfully submitted that the foregoing con-

siderations warrant allowance of the writ sought by

petitioners.

Respectfully submitted,

CurIsTopHER E. Heckman

Counsel for Petitioners

Office and Post Office Address

80 Pine Street

New York, New York 10005

Martin J. McHueH

Larry M. Carin

On the Brief

ia a i el ae ee

PREPS RLS 08 SEN ea RIS EE FRONT NTE

APPENDIX A

g Opinion of the District Court.

} UNITED STATES DISTRICT COURT

FOR THE

District oF VERMONT

Civil Action File No. 6380

Unirep States oF AMERICA,

Vv.

Ina S. Busney & Sons, Inc., Tanker Hyorapve No. 8 Inc.,

SpenToNBUSH TRANSPORT Service, Inc., NoRTHERN OL

Company, Inc., and NorTHERN TERMINALS, INc.

sé

George W. F. Cook, United States Attorney,

Rutland, Vermont, for plaintiff.

Ryan, Smith & Carbine, Rutland, Vermont,

and Christopher E. Heckman, McHugh, Heck-

man, Smith & Leonard, New York, New York,

for defendants Ira S. Bushey & Sons, Inc.,

Spentonbush Transport Service, Inc., and

Tanker Hygrade No. 8 Ine.; Donald E.

O’Brien, Burlington, Vermont, for defend-

ants. Northern Oil Co., Inc., and Northern

Terminals, Ince.

Frixpincs, OPINION AND ORDER

1. Defendant Ira S. Bushey & Sons, Inc. (hereinafter

“Bushey’’), is a New York corporation having offices at

764 Court Street, Brooklyn, New York.

EI ar Lo tor TERS TR GRPRBACIEE =

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OF Pei” itis tal OF ERG RELEASES EAL BION

Appendix A—Opinion of the District Court.

2. Spentonbush Transport Service, Inc. (hereinafter

‘‘Spentonbush’’), is a wholly-owned subsidiary of Bushey

and a New York corporation having offices at 500 Fifth

Avenue, New York, New York.

3. The directors of Bushey and the directors of Spenton-

bush are the same persons, Francis B. Bushey, Ira §.

Bushey and Raymond J. Bushey. The officers of Bushey

and Spentonbush are substantially the same.

4. Defendant Bushey wholly owns approximately 4)

corporations, each of which owns vessels used in the trans.

portation of liquid cargoes; of these approximately 25 tugs

and barges are capable of operating in the Vermont waters

of Lake Champlain, a navigable water of the United States,

and most of these vessels do in fact operate in Vermont

waters. Among such vessels are Tanker Hygrade No. 8

owned by defendant Tanker Hygrade No. 8 Inc., and the

tug Carmelite owned by defendant Tug Carmelite Corpora-

tion.

5. Spentonbush is and has been for a number of years

engaged in the business of the solicitation of orders for

transportation of liquid cargoes by water, and of arranging

for performance of such transportation by vessels, and it

gives preference to vessels of Bushey subsidiaries in ar-

ranging water transportation contracts.

6. Spentonbush collects transportation charges for such

water transportation, deducts a commission and remits the

balance to the owners of the particular tank barge and tug

boat involved.

7. Since December, 1970, crews used by vessels owned

by Bushey subsidiaries have been hired and employed

Appendix A—Opinion of the District Court.

either by Spentonbush or by Hygrade Operators, Inc., a

wholly-owned subsidiary of Bushey.

8. None of the wholly-owned, vessel-owning, corporate

subsidiaries of Bushey operating in Lake Champlain em-

ploys its own crews, its own accounting personnel, or any

other employees except for its officers. The officers and

directors of each subsidiary corporation, except Spenton-

bush, are identical to the officers and directors of defendant

Bushey.

9. The net profit or surplus from the operations of

Spentonbush and other wholly-owned Bushey subsidiaries

are remitted to Bushey by way of corporate dividends.

10. Navigation on Lake Champlain is governed by the

Navigation Rules for Inland Waters, 33 U.S.C. §§ 151-295,

and by such other Navigation Rules as the United States

Coast Guard has promulgated pursuant to the authority

given it by 33 U.S.C. § 157.

ll. Each of the vessels operated by the defendants on

the waters of Lake Champlain, particularly in the Burling-

ton and Shelburne area, is an enrolled vessel of the United

States and is duly licensed to carry on the coastwise trade;

each of the barges operated by the defendants on the

waters of Lake Champlain, particularly the Burlington and

Shelburne area, has been inspected by the United States

Coast Guard and issued a Certificate of Inspection. The

Federal Maritime Commission has issued to the operators

of each of the barges of the defendants using the waters

of Lake Champlain, particularly the Burlington and Shel-

burne area, a Certificate of Financial Responsibility (Oil

Pollution), attesting that the operator has evidenced finan-

cial responsibility to meet the liability to the United States

ST VAs eben sess

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Appendix A—Opinion of the District Court.

of America which may result from the discharge of oil into

or upon the navigable waters of the United States, adjoin.

ing shore lines, or into or upon the waters of a contiguous

zone. Much damage may occur, however, from oil spills in

Lake Champlain that is not reimbursable in money.

12. During the period from May 1 to December 1 each

year, or thereabouts, petroleum products are transported

by tank barges and tugboats from the Hudson River locks

to the Burlington and Shelburne harbors. In 1970, 1971

and 1972 over 500,000 tons of diesel fuel, fuel oil, gasoline,

jet fuel and kerosene was thus transported.

13. In 1970 Bushey subsidiaries transported into lake

Champlain and delivered about 45 million gallons of

petroleum products to unloading points on Vermont shores,

ten of which are in Burlington Harbor.

14. In 1971 alone, approximately ten barges of wholly.

owned Bushey subsidiaries and one barge of a partly owned

corporation, the barge Erie, plus a number of tugs owned

by other Bushey subsidiaries, transported 175 barge-loads

of petroleum products into Lake Champlain, 53 of which.

delivered approximately 125,000 tons, or about 36 —

gallons of petroleum to Vermont shores.

15. In 1972, Bushey subsidiaries transported into am

Champlain and delivered about 43 million gallons of

petroleum preduets to Vermont shores.

16. In each of the years 1970, 1971 and 1972, Bushey

subsidiaries transported into Lake Champlain and de

livered to Vermont shores approximately 25 per cent of the

total amount of petroleum delivered to Vermont shores

during each of’said years. All of this was shipped from

PORES “CATH ar ee PRP

Appendix A—Opinion of the District Court.

points or places outside Vermont and thus this was

entirely interstate transportation.

17. From April, 1967, through December, 1970, the

Army Corps of Engineers investigated a total of ten oil

spills in the Burlington-Shelburne harbors. Vessels of

Bushey subsidiaries were involved in five of these oil spills.

18. During 1971 and 1972, vessels of Bushey subsidiaries

have been involved in four additional oil spills affecting

Vermont waters of Lake Champlain, or a total of nine such

spills during the period April 1967-December 1972.

19. The effect of an oil spill on water varies with the

kind of spill—jet fuel evaporates quickly while heavy

heating oil does not—and environmental conditions; with

certain kinds of oil under certain conditions, as those of

turbulence, shear forces at the oil-water interface may

prevail causing an influx of oil into the water column

rather than mere confinement of it to the surface where it

may be more easily contained.

20. The basic steps for reducing the environmental

effects of an oil spill include surrounding the spill with

an oil containment boom, that is, a floating barrier with

skirt and sail, and then removing the oil by oil-skimming

machines and ‘‘sorbents” (either ab- or ad-) or both. The

art of oil spill clean-up is not very advanced and is less

effective in certain areas, as for example those of marsh-

grass which sustain life for many creatures and orga-

nisms, than in others.

21. On April 30, 1967, tank barge Hygrade No. 30, owned

by Tanker Hygrade No. 30, Inc., a wholly-owned sub-

sidiary of Bushey, pumped approximately 14,500 gallons

of jet fuel into the waters of Lake Champlain while dis-

VRP ML Mo MoM eater eet peur STANTON TANNA PTE RES ERR I CU ERNIE NAY LeU SONAR

an oR Oe Oe a ee ee ne

Appendix A—Opinion of the District Court.

charging its cargo at the Northern Oil Terminal or dolphin

in Burlington harbor.

(A) The Tanker Hygrade No. 30, Inc., started pumping

around midnight.

(B) The pumping took six or seven hours but the strong

odor of gasoline remained on the lake front for about 12

hours. A sticky petroleum product was present on the

shore line and had entered several small bays. The

petroleum product from the spill remained visible on the

shore for several days.

coming from the dolphin to the shore.

(D) But it may be inferred that the Tanker Hygrade

No. 30 continued to pump jet fuel into Vermont waters of

Lake Champlain for some time after the tankerman had

reason to know of the leak, since the smell of vapor was

strong enough to awaken a nearby resident.

22. On August 27, 1967, tank barge Hygrade No. 28,

owned by Tanker Hygrade No. 28, Inc., a wholly-owned

subsidiary of Bushey, ran aground at Proctor Shoal while

approaching Shelburne Harbor, Vermont, causing a spill of

an estimated 1,600 gallons of gasoline into Vermont waters

of Lake Champlain.

(A) The tank barge Hygrade No. 28 was being pushed

by tug Colleen Kehoe at the time of the grounding. The

Colleen Kehoe was under the hire of Spentonbush which

had selected the tug, and Spentonbush received a commis-

sion for this service, which commission was a financial

benefit to Bushey. The negligence of the Colleen Kehoe

caused the spill.

(B) A gas spill of this type presents a risk of damage

by fire to lake front property.

Appendiza A—Opinion of the District Court.

poard bow of the Tanker Hygrade No. 28, Inc., from which

came a steady flow of gasoline. It was necessary for the

Coast Guard to lay out foam over a large area covered by

the spill. The Coast Guard, as a safety measure, sealed

off the area of the spill from Lake traffic.

23. On June 26, 1969, tank barge Hygrade No. 30,

owned by Tanker Hygrade No. 30, Inc., delivered a cargo

of jet fuel at Northern Oil Terminal dolphin in Burlington

harbor; caps or flanges were not placed on the ends of

the pipe lines at the dolphin by the crew of the Tanker

Hygrade No. 30, causing an oil or jet fuel spill into

Vermont waters of Lake Champlain. The Northern Oil

personnel were also negligent in not discovering that the

caps or flanges were missing.

24. On October 5, 1969, tank barge Hygrade No. 26,

owned by Tanker Hygrade No. 26, Inc., a wholly-owned

subsidiary of Bushey, while under tow by the tug Cham-

plain, owned by New York Scow Corporation, a wholly-

owned subsidiary of Bushey, ran aground at Proctor Shoal

as it was approaching Shelburne Harbor, Vermont, caus-

ing at least 10,000 gallons of gasoline to spill into Vermont

waters of Lake Champlain.

(A) The gasoline spill caused a fire hazard, requiring

the Coast Guard to close Shelburne Harbor for about 24

hours.

(B) The spill covered an area on Lake Champlain at

least 400 feet by one-half mile, and the spill was at least

one-half inch thick, and possibly as thick as 11% inches.

Shoal. Chief Schwencke of the United States Coast Guard

personally checked the location of the buoy after the

22. te AIO

Appendiz A—Opinion of the District Court.

grounding and found the buoy to be “somewhat” but not

very far off station, that is, that the buoy was 25 to 3%

feet off station.

(D) While, accordingly, the spill may not be said to

have occurred as a result solely of the negligence of the

defendants, the episode demonstrates nevertheless the

dangerousness of defendants’ activities and the necessity

for high standards of care on their part.

25. On August 15, 1970, tank barge Blue Line No. 108

owned by Tanker Hygrade No. 4, Inc., a wholly-owned

subsidiary of Bushey, during unloading operations at the

Gulf Oil Terminal in Burlington harbor, sustained a broken

hose at the flange on the barge, resulting in the spillage

of about 1,000 gallons of No. 2 fuel oil into the Vermont

waters of Lake Champlain.

(A) The cause of the spill was the rupturing of the

hose at the thimble. The hose belonged to the Blue Line

No. 108, not the Gulf Terminal.

(B) The oil spill was extensive enough to require the

United States Coast Guard to place 250 feet of boom in

the immediate area of the spill in an attempt to contain

the oil slick. Later, oil was discovered in a cove north

of the spill area, and an additional 750 feet of boom was

floated in an effort to contain the oil.

formed a clean-up operation on August 16 and 17. Bushey

paid for this clean-up.

(D) The oil spread to North Beach, a public bathing

beach, with camping facilities, operated by the Park De

partment of the City of Burlington, Vermont. Daniel Dion,

a Park Department employee, arrived at North Beach

just before noon on August 15, 1970, to assist in cleaning

Appendiz A—Opinion of the District Court.

the beach of oil. Dion observed that oil covered the 100-

foot wide beach to a depth of about three feet from the

water, and extended along the entire one-quarter mile

length of North Beach.

(E) While Dion was waiting for clean-up equipment to

arrive, he noticed several gulls that came in and landed in

the water. The gulls could not fly, after alighting on the

oily water. The gulls then struggled to the shore and then

toward the underbrush on the shore. The gulls still could

not fly because of their oil-soaked condition. Dion at-

tempted to care for two of the gulls, but they died. The

others struggled into the underbrush.

26. On May 21, 1971, tank barge Hygrade No. 26, owned

by Tanker Hygrade No. 26, Inc., was delivering oil to the

Shell Oil Terminal in Burlington harbor. While doing so,

due to a crack in the hull of the barge, about 20 gallons of

oil leaked into the Vermont waters of Lake Champlain.

Witness Sitler of the United States Coast Guard observed

the oil bubbling from the barge, and it disappeared in about

an hour.

27. On June 1, 1971, the Hygrade No. 8, a tank barge

owned by Tanker Hygrade No. 8, Inc., a wholly-owned sub-

sidiary of Bushey, while moored in Burlington harbor at

the dolphin owned by Northern Oil Company, Inc., was

rammed by the tugboat Carmelite II, owned by the Tug

Carmelite Corporation, a wholly-owned subsidiary of

Bushey, which resulted in damage to the hull of the

Hygrade No. 8, causing a spillage of about 5,000 gallons of

gasoline into the Vermont waters of Lake Champlain.

(A) At the time of the accident, the officer in charge of

the Carmelite II was Thomas Bradley. Bradley did not

hold a pilot’s license issued by the United States Coast

10a

Appendix A—Opinion of the District Court.

Guard. Bushey does not require such licenses, nor are such

licenses required by the Coast Guard.

(B) Bradley consumed at least five or six beers between

12:00 noon and 6:00 p.m. just prior to the accident at 9:15

p.m. on June 1, 1971, and was under the influence of alcohol

at the time of the accident. The accident was, however,

negligently, not intentionally, caused.

any orders to its tug or barge employees prohibiting con.

sumption of alcoholic beverages prior to reporting to work

(D) The gasoline spill from the Hygrade No. 8 came

from a six-inch crack above the waterline of the barge.

(E) The slick caused by the spill was extensive enough

to require the Burlington Fire Department to stand by ao

the beach. The Burlington Light Station and the Burling-

ton Fire Department monitored the spill throughout the

night of June 1 and 2, 1971.

28. On September 30, 1972, while under way between

Locks 9 and 11 of Lake Champlain Canal, barge Hygrade

No. 18, owned by the Tanker Hygrade No. 18, Inc., a wholly-

owned Bushey subsidiary, was struck by the tank barge

Blue Line No. 107 being pushed by the tug Seneca, both

owned by corporations which are wholly-owned by Bushey

subsidiaries. The resulting collision caused the Hygrade

No. 18 to strike rocks on the bottom of the canal which

caused No. 6 fuel oil to leak from Hygrade No. 18 into the

canal. The canal flows north into Vermont waters of Lake

Champlain, but there is no evidence that the oil spilled m

the canal did so flow. But Hygrade No. 18 proceeded into

Lake Champlain and toward Ticonderoga after the ram

ming and oil was seen to bubble out of it into the lake.

(A) Before the collision, the captain of the tug Kehoe,

which was pushing tank barge Hygrade No. 18, was 2

lla

Appendix A—Opinion of the District Court.

radio communication with the captain of the tug Seneca,

which was pushing the tank barge Blue Line No. 107. The

captain of the tug Seneca agreed to hold back at Bray Ter-

minal, which was an area wide enough for the vessels to

pass. After agreeing to do this, the captain of the tug

Seneca disregarded the agreement, and proceeded about

three-quarters of a mile southerly. As the tug and barge

approached each other, the captain of the Kehoe brought

his tug and barge to a halt and he attempted by radio to

warn the Seneca and Blue Line No. 107 not to pass. The

captain of the Seneca did not answer the radio warning,

and the barge Blue Line No. 107 hit the Hygrade No. 18

while attempting to pass, resulting in the damage to the

Hygrade No. 18 and a subsequent oil spill.

(B) The Hygrade No. 18 spilled between 200 and 1,145

gallons of No. 6 oil along some six miles of the canal and

also in the Vermont waters of Lake Champlain.

defendant Bushey to expend the sum of $150,000 in clean-

ing the Champlain Canal of No. 6 oil.

29. On November 6, 1972, while unloading kerosene at

Metropolitan Oil Company, in Plattsburgh, New York,

from tank barge Hygrade No. 8, owned by a corporation

which is a wholly-owned Bushey subsidiary, a tankerman

(who did hold a Tankerman’s Certificate) aboard the Hy-

grade No. 8 failed to close a valve resulting in kerosene

being pumped into Lake Champlain, from whence it may

have flowed into Vermont waters of Lake Champlain.

(A) Following the spill, defendant’s agent Laba went

to the scene, and fired the entire crew of the Hygrade

No. 8 for intoxication.

(B) The spill of kerosene was clearly visible on the

waters of Lake Champlain. The wind and currents car-

LEGS EOD ACY OPE LE ITLL LO. RG See FETs

12a

Appendix A—Opinion of the District Court.

ried the spill across Lake Champlain toward Vermont

waters.

30. Lake Champlain is a part of the Atlantic flyway,

so-called, which is one of the five or six major arteries or

flyways used by migratory birds in their flights from

Canada to the United States, and points southerly, and

return.

31. The migratory bird population in the Lake Cham.

plain area commences to build up as early as August and

reaches a peak in late October or November, with migra-

tory birds being present as late as mid-December. The

peak populations include waterfowl numbering around 30,

000 “dabblers” and 35,000 “divers” in mid-November.

32. Migrations of waterfowl also occur in the spring

months, but to a lesser amount. Lake Champlain also

sustains a permanent summer population of certain types

of birds.

33. Oil spills in Lake Champlain, partly because the

calming effect of oil on water attracts birds, can cause

serious damage and often death to waterfowl. This has

happened in the past. Fortunately, despite the fact that

ducks (and geese) tend to congregate in clusters, there

has as yet been no major bird disaster as in Santa Bar-

bara or San Francisco, California, or Martha’s Vineyard,

Massachusetts, where, the court takes judicial notice, there

have been large oil spills resulting in the death of hu-

dreds and even thousands of birds.

34. On December 13, 1964, a slick of No. 2 oil in Bur-

lington harbor killed 14 birds in the area of North Beach

owned by the City of Burlington. Similarly, at least six

ae al tad oo

eo we ee

13a

Appendix A—Opinion of the District Court.

birds were injured by the oil spill occurring in Burlington

harbor on August 15, 1970, two of which were definitely

killed by the oil.

35. Oil spills are a well known hazard to waterfowl. Oil

attaches to the feathers of a waterfowl causing a “leak”

in the plumage. This leak affects the waterfowl in several

ways. If the waterfowl is on water when it comes in con-

tact with the oil, it can cause the bird to lose its buoyancy,

and sink, and drown. In cold weather the oil on the plu-

mage can cause freezing and death from exposure. If

the waterfowl gets to land, the oil can prevent the bird

from flying, which in turn affects its ability to obtain

food. Additives to the petroleum product can also poison

the bird.

36. The chances of rehabilitating a waterfowl which

has been exposed to an oil slick are usually very small.

This is due to the fact that there are few people skilled

in such rehabilitation and also because the damage is often

irreparable.

37. Oil spills in Lake Champlain are particularly hazard-

ous to the canvasback duck, a diving duck which goes one

to 20 feet deep in the water and which is now on the Gov-

ernment’s protected list of waterfowl, due to its decreas-

ing population. Between 2 and 3 per cent of the world’s

population of canvasbacks pass through Lake Champlain.

38. Lake Champlain is also an area widely used by

sport fishermen. Of the 55 species of fish that are found

in Lake Champlain, some eight species are listed as game

or sporting fish, which attract anglers.

39. Oil spills on Lake Champlain can have an adverse

effect on fish life. Oil can damage or destroy spawning

l4a

Appendix A—Opinion of the District Court.

areas, thereby decreasing the fish population. Oil also

has an indirect effect on fishing, since fish exposed to oi]

have an oily taste. Further, fishermen tend to stay away

from lake areas which have been exposed to oil.

40. Lake Champlain provides a recreation area for

boating enthusiasts, bathers and campers.

41. The City of Burlington Parks Department maintains

a large municipal beach and camping facilities at the

north end of Burlington harbor, known as North Beach.

The beach has about 2,000 feet of shore line, and the sandy

area of the beach extends from 50 to 100 feet back from

the shore line. The city also plans to extend its beach

area in Burlington harbor.

42. For the past several years, North Beach has about

100,000 users during the course of the summer season.

Users on peak days number as high as 8,000 people.

43. North Beach in the City of Burlington has been

adversely affected by three oil spills during the last three

years. The major spill affecting North Beach occurred on

August 15, 1970, as a result of a hose rupturing while the

Blue Line No. 108 was discharging a cargo of No. 2 oil.

44. Any oil spill at North Beach, following the oil spill

and clean-up operations, also produces a loss of attendance

by users of the beach and camping facilities, because users

do not return immediately after the beach is re-opened.

All of this produces a non-recoupable financial loss to the

Burlington Park Department.

45. The City of Burlington, Vermont, uses Lake Cham-

plain as its exclusive source for water. It is the water

- NE ERE ODD OL RAT NE:

15a

Appendix A—Opinion of the District Court.

supply for about 70,000 domestic, commercial and indus-

trial users in the Burlington area.

46. The water is brought to the City of Burlington treat-

ment plant by means of two large pipes extending 6,600

feet in length. The pipes lie below the surface of the water

approximately 30 to 40 feet.

47. An extensive oil spill can adversely affect the water

system of the City of Burlington. In December, 1964, an

oil spill in Burlington harbor, in the area of the Northern

Oil Terminal, damaged the water system to the extent that

numerous complaints by water users were made to the

effect that the water ‘‘tasted like kerosene.’’ The Burling-

ton City Health Officer was concerned about the possible

toxic effect of oil additives. One of the two inlet pipes was

turned off for a period of time to prevent further con-

tamination of the Burlington reservoirs by the oil.

ee — i Me i

48. During the past five years, the nine oil spills in

Vermont waters of Lake Champlain, involving Bushey con-

trolled vessels, have either damaged, or presented a sub-

stantial risk of damage, to Vermont beaches, a major

municipal water supply, and to waterfowl and fish, par-

ticularly in the Burlington-Shelburne harbor areas.

49. The booming of tank barges in Burlington-Shelburne

harbors, prior to the discharges of petroleum products, is

a desirable and feasible procedure to lessen the risk of,

and damage from oil spills.

oma ce =

50. Eight hundred feet of boom, costing between $5 and

$20 per foot, is sufficient boom for a normal booming of a

tank barge of the size used by defendants in transporting

petroleum products into Burlington-Shelburne harbor facil-

ities. Booming requires the use of a power boat, however,

POLI INS ELD ABIES IE PNB LI OO ELE LOLI AG ING

—

16a

Appendix A—Opinion of the District Court.

and it is much more feasible, as well as less expensive, to

require terminal operators to retain booming equipment

and a boat than to require each barge to carry such equip.

ment.

51. A conference between shore based facility personnel

and the crew of a tanker, prior to and during discharge of

petroleum products, is a desirable aid to the prevention of

oil spills. This conference, as the new Coast Guard Regn.

lations taking effect generally on July 1, 1974, provide,

should cover the following specific items:

(1) The identity of the product to be transferred.

(2) The sequence of transfer operations.

(3) The transfer rate.

(4) The name or title and location of each person

participating in the transfer operation.

(5) Particulars of the transferring and receiving

systems.

(6) Critical stages of the transfer operation.

(7) Watch or shift arrangement.

(8) Transfer shutdown procedures.

In addition the following should be known by personnel

through written orders and regulations or covered in the

conference:

(9) Federal, state and local rules that apply to the

transfer of oil.

(10) Emergency procedures.

(11) Discharge containment procedures.

(12) Discharge reporting procedures.

: : PR TRE SERIO AEA SIT Bate SANT EP Oe RRtRS Nae ARES HRY —

[

Re EE TAR ee od Cah te itt, Ce ee

17a

Appendix A—Opinion of the District Court.

52. To prevent or lessen the danger of oil spills, it is

desirable that the connection point between the barge cable

and the off-shore facilities, during the discharging of petro-

leum products, be illuminated with an average minimum

lighting intensity of five foot candle power.

53. In order to prevent or lessen spills, during the dis-

charge of petroleum products, a certified crewman aboard

a tanker should be on watch at all times to check on the

pumping operation, and to watch for the possibility of

spills, and to detect actual spills.

54. A tank vessel should not be off-loaded of any petro-

leum product unless there is in operation a direct posi-

tive communications system between the shore facility

personnel and the tankerman on duty and in charge of

unloading. A two-way “walkie-talkie” radio is a desirable

type of communication.

55. The use of alcoholic beverages by crewmen aboard

tugs and barges involved in the transportation of petroleum

products can be extremely hazardous.

56. A way to combat insobriety of crewmen aboard tugs

and barges is to (1) make the officer in charge of the

vessel responsible for his crew; (2) make certain that

the officer in charge is backed up by his operators through

the use of enforced personnel regulations; (3) make on

duty inspections with regard to sobriety. It is impractica-

ble, however, to try to regulate the off-duty drinking habits

of tug-, barge- and tankermen.

57. The wake of a vessel operating in Burlington-

Shelburne harbor can be of sufficient magnitude to cause

the discharge hose of a tank barge discharging petroleum

products to snap, thereby causing a spill. This hazard

18a

Appendix A—Opinion of the District Court.

can be substantially lessened by prohibiting vessels ip

Burlington-Shelburne harbors from traveling at such a

rate of speed as causes a damaging wake. It is imprac.

tical for a court to enforce such an order, however, and

the making and enforcement thereof lie within the United

States Coast Guard’s prerogatives.

58. The use of a “contingency plan” can be an important

tool in preventing oil spills from barges, and in lessening

; the damage from such oil spills already in progress.

59. A “contingency plan” should contain the following

four elements as minimum requirements: (A) Definitions

of the parties in authority to be notified if a spill occurs;

(B) a listing of the names, addresses and telephone nun-

bers of people who should respond to an oil spill; (C)

an inventory of resources and materials that are available

either locally or regionally to deal with an oil spill, in.

cluding a commitment to bring in outside resources where

the oil pollution problem exceeds local resources; (D) the

designation of one person to coordinate clean-up efforts,

and who can direct the utilization of equipment and co-

ordinate with proper federal and state authorities.

60. The duties required by a crewman aboard a tank

barge, in discharging petroleum products, involve sub-

stantial skills and responsibilities. Only tankermen i:-

censed by the United States Coast Guard are sufficiently

qualified to provide such skills and handle such responsibili-

ties.

61. Due to the numerous oil spills involving defendants

Bushey and Spentonbush, and due to the violations of the

Refuse Act by Bushey and Spentonbush, as appears from

the records in the United States District Court for the

IONE LON TICOE A Hn Pos ae Nene, es —

AEE POLLO SIRE PNR EE SRI TERE Ht TAINS HER LEIS

19a

Appendix A—Opinion of the District Court.

District of Vermont, the court finds that the Government is

entitled to equitable relief against defendants Bushey and

Spentonbush.

62. The court finds that the numerous oil spills that

have occurred together with the continuation of slack

operations by defendants as above described poses a con-

tinuing nuisance threatening the general public, wildlife,

lakefront property owners and the environment of Lake

Champlain and its shore lines.

63. The court finds that the numerous past oil spills

that have occurred, the continuation of slack operations by

defendants and the damaging effects of oil spills cause a

continuing threat of irreparable harm to the navigable

waters of the United States and hence to the plaintiff.

OPINION

As previously held, this court has jurisdiction of the

parties and venue in the District of Vermont is proper.

Public policy dictates that the veil of Bushey’s and

Spentonbush’s separate corporate entities be pierced, since

these corporations wholly own, control, manage, operate

and in all ways supervise the operations of the many sub-

sidiaries of Bushey. See United States v. Ira: S. Bushey

é Sons, Inc., No. 6380 (D. Vt., Oct. 11, 1972) (unpublished

opinion on motions to sever and transfer). The sub-

sidiaries are mere corporate shells established for purposes

of avoiding tort liability to the parent for the acts of the

subsidiaries which are the alter egos of Bushey and

Spentonbush. Cf. United States v. Parfait Powder Puff

Co., 163 F.2d 1008, 1010 (7th Cir. 1947), cert. denied, 332

U.S. 851 (1948). Injunctive relief against only one or a

few of the subsidiaries could easily be circumvented by the

parent, with the assistance of the similarly wholly owned

Spentonbush, simply by using other subsidiary corpora-

tions to make petroleum deliveries to Vermont. The public

i le li

DE CRESS aT oer aE “pete wr AMD leat, EAE LMAM CE RIMEM Cig AEG RETA

—

20a

Appendix A—Opinion of the District Court.

interest in preserving the environmental integrity of Lake

Champlain, the sixth largest lake in the country anda

jewel of nature, is sufficiently paramount that the parent

corporation, Bushey, which profits from the operations of

its alter-ego subsidiaries, should be accountable for any

violation or continuing threat of violations to that integrity,

Equitable relief is not precluded by the Federal Water

Pollution, Prevention and Control Act of 1972, 33 U.S.C.

$1251 et seg. (FWPCA). Section 1371(a)(1) of the

FWPCA specifically provides that the Act ‘‘shall not be

construed as . . . limiting the authority or functions of

any officer or agency of the United States under any other

law or regulation not inconsistent with this chapter.”

This provision was designed to ‘‘preserv[e] the authority

of other Federal laws which are consistent with [the 1972

FWPCA].’’ S-H.R. Conference Rep. No. 92-1236, 92nd

Cong., 2d Sess., 1972 U.S. Code Cong. & Ad. News 3825.

See also id. at 3826 (noting the saving provision of the

bill was found in both House and Senate versions and is

adopted by Congress). Equitable relief has long been

available under the Rivers and Harbors Act of 1899 or

more specifically that section, 33 U.S.C. § 407, known as

the Refuse Act, and there is no indication in the 1972

FWPCA that Congress intended to limit the equitable

powers of courts under the Refuse Act. When Congress

in enacting the 1972 FWPCA wanted to limit the scope of

regulation under other acts dealing with pollution in

navigable waters—specifically the Rivers and Harbors

Act of 1910 and the Supervisory Harbors Act of 1888—it

spoke clearly in doing so. See 33 U.S.C. §1371(b).* It has

1The Federal Water Pollution and Control Act of 1972 does

specify an alternate route for the Government to seek equitable re

lief, see 33 U.S.C. § 1321(e) and (1) in conjunction with Executive

Order No. 11548 (July 20, 1970), reprinted in 33 U.S.C.A. note

following § 1151. It specifically authorizes broad equitable relief

when the Department of Interior requests the United States Attor-

ney to act against the threat of oil pollution. The Department of

Interior, however, did not request the United States Attorney to

act here.

ES OIE RS PSI te OE oy Cyne oe et: .

Marans Cee ENN ak arte pe pT

EERO ITE HONOR CSS Ee RRR IEA pi: a or he aa ae

2la

Appendix A—Opinion of the District Court.

not done so in the case of the Act of March 3, 1899. More-

over, Illinois v. City of Milwaukee, 406 U.S. 91 (1972), and

Texas v. Pankey, 441 F.2d 236 (10th Cir. 1971), hold

that there is a federal common law of nuisance and that

the federal pollution control legislation is not the ex-

clusive means by which federal policy concerning, and in-

terest in, the quality of waters under federal jurisdiction

may be protected. See also Askew v. The American Water-

ways Operators, Inc., 41 U.S.L.W. 4507 (U.S., Apr. 18,

1973) (FWPCA held not to preempt state regulation).

The grounds for granting equitable relief here are two:

1. The Rivers and Harbors Act of 1899, 33 U.S.C. §§ 403,

407. See generally Wyandotte Transportation Co. v.

United States, 389 U.S. 191 (1967); United States v.

Republic Steel Corp., 362 U.S. 482, 491-92 (1960). See

also United States v. Pennsylvania Industrial Chemical

Corp., 41 U.S.L.W. 4614 (U.S., May 14, 1973). Plainly

oil is a pollutant under that act. United States v. Standard

Oil Co., 384 U.S. 224 (1966). See also 33 U.S.C. §1161(b)

(1). In dictum the Second Circuit has said that injunctive

relief may be sought by the federal government for § 407

violations. Connecticut Action Now, Inc. v. Royal Plating

Co., 457 F.2d 81, 88-90 (2d Cir. 1972). See also United

States v. Armco Steel Corp., 333 F. Supp. 1073, 1076-78

(S.D. Tex. 1971) ; United States v. Florida Power & Light

Co., 311 F. Supp. 1391 (S.D. Fla. 1970) ; Note, The Refuse

Act: Its Role Withm the Scheme of Federal Water

Quality Legislation, 46 N.Y.U. L. Rev. 304, 312-13 (1971).

2. The federal common law of nuisance. Illinois v. City

of Milwaukee, supra, 406 U.S. at 103, 107-08; Texas v.

Pankey, supra, 441 F.2d at 241-42. As the undersigned

pointed out in an article, Developments in Environmental

Law, 3 ELR 50001, 50009 (1973), the old law of public

nuisance is being reshaped by the courts to fit the ‘‘realities

22a

Appendiz A—Opinion of the District Court.

of morden technology.’’ That is to say, under Restatement

(Second) of Torts (Tent. Draft No. 17, 1971), there is no

criminal requirement for public nuisance, that is, there

need be no intent. See generally Bryson & Macbeth, Public

Nuisance, the Restatement (Second) of Torts, and En

vironmental Law, 2 Ecology L.Q. 241 (1972). Rather, a

public nuisance is ‘‘an unreasonable interference with a

right common to the general public,” in the words of

Tentative Draft No. 17 §821B(1). In this case one im.

portant factor conducing toward a determination that the

defendants’ interference with the right of the public in

the waters of Lake Champlain to have those waters

preserved from oil-spill pollution is ‘‘unreasonable,”’ is

the circumstance that-such pollution is proscribed by the

Refuse Act. §821B(2)(b). In addition the pollution here

has been of a recurring nature, although not continuous,

producing long-lasting effects and substantial detriment

upon the public right, with the actor—in this case, the

defendants—knowing or having reason to know of that

effect. §821B(2)(c). See the discussion in the earlier

phase of this case, 346 F. Supp. at 150. Here in fashioning

the relief to be afforded to the public for the defendants’

unreasonable interference with the public’s rights in the

waters of Lake Champlain the court has weighed the costs

to the oil transportation industry, as will appear below.

But that some relief is required, and permissible, there is

no doubt.

The fact that there are now outstanding navigation

rules regulating the navigation of defendants’ vessels,

Navigation Rules for Harbors, Rivers and Inland Waters

Generally, 33 U.S.C. §§ 151 et seq., and that pursuant to the

delegation of special rule-making authority therein (3

U.S.C. §157), the United States Coast Guard may

promulgate Special Rules in respect to that regulation

does not preclude the court from imposing additional

23a

Appendix A—Opinion of the District Court.

requirements or conditions of operation which do not con-

flict with regulations now in effect. Similarly the Coast

Guard rules regarding pollution prevention issued in 37

Fed. Reg. 28250 et seg. (1972) by the authority of § 311(j)

of the Federal Water Pollution Control Act, which will be-

come effective on July 1, 1974, do not preclude judicial

action now. Cf. Illinois v. City of Milwaukee, supra. In

the interests of uniformity, the court has of course taken

those rules into account. In certain instances by merely

advancing the date for compliance with certain of them

from July 1, 1974, to the start of the 1974 shipping season

on Lake Champlain (which will probably be in April of

1974) the court does not see any conflict therewith.

In connection with the grant of relief and the Govern-

ment’s requests therefor, the court believes that the fol-

lowing must be ordered:

1. To require the maintenance of oil containment booms

around tank vessels offloading petroleum products (other

than gasoline or jet fuel) would not be overly expensive in

and of itself, but it seems more practically to be the

province of the terminal operator since he can better train

and maintain a crew to put out the boom and can better

supply the boat necessary to put it out. It is within the

power of the Captain of the Port to order booms and in the

court’s view he should do so for the 1974 shipping season.

See 37 Fed. Reg. at 28252. If this is not done the court will

entertain a further application in this respect.

2. Pre-offloading conferences will be required on July 1,

1974, under § 156.120(q) of the new Coast Guard regula-

tions, 46 Fed. Reg. at 28260, in any event so that there is

no harm in requiring that they be held at the commence-

ment of the shipping season. If the terminal operator

refuses to comply the court will meet that contingency

when it arises. The court believes, however, that Items

PP ROS

24a

Appendiz A—Opinion of the District Court.

(9)-(12) inclusive, as set forth in Finding No. 51, may be

better handled by written regulation and training than by

a ‘‘conference.”

3. Deck lighting on self-propelled vessels with five foot-

candle intensity is required under the proposed Regula-

tions, § 155.790, 37 Fed. Reg. at 28259, after July 1, 1974,

and the court can see no earthly distinction in the neces.

sity of deck lighting between a self-propelled and a non.

self-propelled vessel, other than a limited item of expense,

perhaps.

4. The court is modifying the Government’s request to

require inspection by a tank-vessel crewman of the ir

tegrity only of the tank vessel’s equipment, the terminal

operator being responsible for his own equipment. The

‘‘water surrounding the vessel’’ is not too vague and is

subject to reasonable interpretation by court and tanker-

man alike.

5. A voice communications system will be required of

both terminal operator and tank vessel on July 1, 1974,

under the proposed Regulations, § 154.560, 37 Fed. Reg. at

28255, and § 156.120(m), 37 Fed. Reg. at 28260, respectively.

If the terminal operators which Bushey serves do not see

fit to use such equipment until July 1 the court will deal

with that situation when it arises and in connection with

any non-use will determine whether Bushey has used good

faith efforts to get the terminal operators to install and

utilize their end of the communications system required.

Entire flexibility as to the kind of system is left up to the

defendants.

6. The court agrees with the Government that drinking

while on duty, though perhaps making the bargeman’s lot

a —

25a

Appendiz A—Opinion of the District Court.

easier, is dangerous and that the company must take steps

to prevent it. The defendants cannot, however, be expected

to monitor their employees in off-duty hours, though they

can and must institute inspection procedures to see that

bargemen do not begin work while intoxicated.

4, 7. The ‘“‘damaging wake’’ request seems to the court

$- better to lie within the Coast Guard’s province both to

n- regulate and to enforce.

8. A contingency plan to be submitted to EPA seems

perfectly proper in view of defendants’ past pollution

proclivities.

9. To require all employees to be certified is unneces-

sary. The court will, however, order that at least one crew

member of each tank vessel be certified.

10. The check list relating to Paragraphs 1, 2, 3 and 4

of the Order plus the EPA reports may make defendants

and their employees more conscious of the necessity of

pollution prevention and will, therefore, be ordered.

It is the intention of the court to submit the proposed

Findings, Opinion and Order to the parties for further

comment by the parties within 20 days. Absent modifica-

tion of same they will take effect 30 days from the date

hereof.

* Sekrse

ORDER

Wuererore, this court permanently enjoins defendants

Ira S. Bushey & Sons, Inc., and Spentonbush Transport

Service, Inc., and each of them, their officers, agents, ser-

vants, employees and attorneys, and those persons or cor-

porations in active concert or participation with them who

receive notice of this order, to operate and supervise all

omen hr = & Se I

oo 3

26a

Appendix A—Opinion of the District Court.

vessels and personnel employed by, belonging to, owned,

operated, or used by them, or either of them, and by all

persons and corporations owned, or controlled by, or

under contract with them, or either of them, in the Ver.

mont waters of Lake Champlain, so as to comply with the

following requirements:

1. That commencing with the 1974 shipping season no

tank vessel be off-loaded of any petroleum product except

following a conference between the person in charge of the

vessel and the person in charge of petroleum transfer op

erations at the receiving facility, at which conference the

matters are discussed and agreed upon as referred to in

Finding No. 51, which is hereby incorporated herein by

reference.

2. That commencing with the 1974 shipping season no

tank vessel be off-loaded of any petroleum product be

tween sunset and sunrise unless the connection point

between the vessel and the receiving facility is illuminated

with an average minimum lighting intensity of five foot-

candle power, subject to United States Coast Guard ap

proval of same.

3. That commencing with the 1974 shipping season dar-

ing the off-loading of any petroleum product from a tank

vessel, a crewman holding a valid tankerman’s certificate

from the United States Coast Guard, endorsed for the

grade of product being off-loaded, make periodic checks

(A) on the integrity of all equipment of the tank vessel

used during the off-loading; and (B) of the water sur

rounding the vessel for evidences of oil pollution.

4. That commencing with the 1974 shipping season no

tank vessel be off-loaded of any petroleum product with

out maintaining a direct positive voice communication sys

a ee

Ss a wo Tr oe FF

TF ae wr FT ~

27a

Appendix A—Opinion of the District Court.

tem between the person in charge of the vessel and the

rson in charge of petroleum transfer operations at the

receiving facility.

5. That no crew member of any vessel consume any

alcoholic beverages while aboard or while on duty whether

or not aboard; that no crew member bring any alcoholic

beverages aboard any vessel or cause the same to be

brought aboard; and that the defendants forthwith devise

and implement a plan for ensuring compliance by its em-

ployees with this requirement, which plan shall include

without limitation provisions for (i) frequent unannounced

on-site inspection of vessels by shore-based personnel,

(ii) referrals to the United States Coast Guard of sus-

pected instances of crewmen being on duty in an unfit con-

dition by reason of consumption of alcoholic beverages,

(iii) bi-monthly reports during the shipping season to the

Environmental Protection Agency of the specific steps

taken during the reporting period to implement this order.

6. That the defendants prepare, subject to the approval

of the Regional Administrator of the Environmental Pro-

tection Agency in Boston, a contingency plan outlining

specific steps to be taken by its on-scene employees in the

event of an oil spill from a vessel into Lake Champlain,

so as to limit the adverse environmental consequences of

such a spill.

7. That at least one employee of defendants or their

wholly-owned subsidiaries performing any task aboard a

tank vessel relating to the actual transportation or off-

loading of petroleum products hold a valid tankerman’s

certificate issued by the United States Coast Guard and

endorsed for the grade of product being transported or

off-loaded.

28a

Appendix A—Opinion of the District Court.

8. That defendants require the person in charge of any

tank vessel being off-loaded of any petroleum product to

complete, as close in time to the actual off-loading as js

practicable, a written check list certifying compliance with

the applicable provisions of Paragraphs 1, 2, 3 and 4 of

this order; that defendants inspect all such completed

check lists periodically; and that bi-monthly during th

shipping season defendants report in writing to the En.

vironmental Protection Agency their compliance with these

paragraphs, and if not in compliance the reason[s] which

might justify such noncompliance.

Done at Brattleboro in the District of Vermont, this

21st day of August, 1973.

JaMEs L. Oakes

U. S. Circuit Judge, sitting

by designation as

U. S. District Judge

Endorsed: Filed August 22, 1973

Leonarp W. LaFAYETTE

Deputy Clerk

ELIS NG, ELE LOS LSE IE RTE I EAI IIE EN EES

29a

APPENDIX B

Final Order of District Court.

UNITED STATES DISTRICT COURT

FOR THE

District oF VERMONT

Civil Action File No. 6380

ds.

Untrep States oF AMERICA,

eere Baa eas

Vv.

Ira S. Buspey & Sons, Inc., Tanker Hyorape No. 8 Inc.,

SpentonsusH TRansporT Service, Inc., NorTHERN OIL

Company, Inc., and NorTHERN TeRmrnaxs, Inc.

SuPPLEMENTAL ORDER

The Findings, Opinion and Order dated August 21, 1973,

having been submitted to the parties for comment prior to

taking effect, plaintiff having made no comment and de-

fendants Ira S. Bushey & Sons, Inc., Tanker Hygrade No. 8

Ine. and Spentonbush Transport Service, Inc., having pro-

posed additional Findings and objecting to Sections 2 and 4

of the proposed Order as per the affidavit of Francis B.

Bushey dated September 20, 1973, and the Court having

considered same, the Court hereby Orpers and Dmects that

the Findings, Opinion and Order dated August 21, 1973, be

and they hereby are made the judgment of the Court, effec-

tive forthwith and without modification.

Done at Brattleboro in the District of Vermont this 24th

day of September, 1973.

James L. Oakes

U. S. Cireuit Judge

sitting by designation as

U. S. District Judge

Endorsed: Filed September 25, 1973

Leonarp W. LaFaYETTE

Deputy Clerk

PSE eens esceenerecceneeremeRneeEEme sepmeusreen

ey Pe, De a

ee a et eT

30a

APPENDIX C

Order Affirming Order of District Court.

UNTED STATES COURT OF APPEALS

At a stated term of the United States Court of Appeals,

FOR THE

Seconp Circuit

At a Stated Term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Courthouse in the City of New York, on the seventh day of

December, one thousand nine hundred and seventy-three.

Present: Hon. Irvine R. KaurMan

Chief Judge

Hon. Sterry R. WatTeRMAN

Hon. WILFRED FEINBERG

Circuit Judges

73-2544

73-2564

Unrtep States or AMERICA,

Plaintiff-Appellee,

Ira S. BusHey & Sons, Inc., Tanker Hyorape No. 8 Inc.

SpentonsusH Transport Service, Inc., NortTHern On

Company, Inc., and NortHERN TERMINALS, Inc.,

Defendants,

Ira S. Busney & Sons, Inc., Tanker Hyorapve No. 8, Inc.,

and SpentonspusH Transport Service, Inc.,

Defendants-A ppellants.

31a

Appendix C—Order Affirming Order of District Court.

Appeal from the United States District Court for the

District of Vermont.

This cause came on to be heard on the transcript of

record from the United States District Court for the Dis-

trict of Vermont, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby ordered,

adjudged, and decreed that the orders of said District

Court be and they hereby are affirmed with costs to be

| taxed against the appellants.

A. DanieL Fvusaro

Clerk

by: Vincent A. CaRLIn

Chief Deputy Clerk

A true copy.

A. Dante, Fvusaro

Clerk

a by Vincent A. CaRLIn

2 Chief Deputy Clerk

Filed: February 11, 9:33 AM ’74

Clerk By RER

Deputy Clerk

OER PAR SEE IAP RI 5A AE ea PRAT AEE tere RM 2 gy

32a

APPENDIX D

Order Denying Petition for Rehearing.

UNITED STATES COURT OF APPEALS

Seconp Circuir

ae andi gens

At a stated term of the United States Court of appeals,

in and for the Second Circuit, held at the United States

Court House, in the City of New York, on the sixth day

of February, one thousand nine hundred and seventy-four.

Present:

eT RIO eT E A Ee TE Je ie

Hon. Irvine R. Kaurman,

Chief Judge,

Hon. Sterry R. WaTeRMAN

Hon. WirreD FEINBERG,

Circuit Judges.

E Docket Nos. 73-2544

73-2564

Unrtep States or AMERICA,

Plaintiff-Appellee,

Vv.

Tra S. Busuey & Sons, Inc., Tanker Hyarape No. 8 Inc.

SpentonsusH Transport Service, Inc., NortHern On

Company, Inc., and NorTHERN TERMINALS, INc.,

Defendants,

Ina S. BusHuey & Sons, Inc., Tanker Hyorape No. 8, Inc,

and SPENTONBUSH TRANSPORT SERVICE, INC.,

Defendants-Appellants.

33a

Appendix D—Order Denying Petition for Rehearing.

A petition for a rehearing having been filed herein by

counsel for the appellants,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is denied.

A. Dante, Fusaro

A. Danret Fusaro

Clerk

by Vincent A. CarLin

Chief Deputy Clerk

Bite...

PD pacar ———

NN See et eI mere acorneren a

RNAI AEN I TO EE A a AR

34a

APPENDIX E

’ Order Denying Petition Suggesting Rehearing

E In

UNITED STATES COURT OF APPEALS

Seconp Circuit

At a stated term of the United States Court of Appeals,

F in and for the Second Circuit, held at the United States

Court House, in the City of New York, on the sixth day

of February, one thousand nine hundred and seventy-four,

Docket Nos. 73-2544

73-2564

Unttep States oF AMERICA,

Plaintiff-Appellee,

Ina S. Busuey & Sons, Inc., Tanker Hycrape No. 8 Inc,

SpentonsusH Transport Service, Inc., NortHern On

Company, Inc., and NorTtHERN TERMINALS, INC.,

Defendants,

Tra S. BusHey & Sons, Inc., Tanker Hyarave No. 8, Inc.,

and SpentonsusH Transport Service, Inc.,

Defendants-Appellants.

A petition for rehearing containing a suggestion that

the action be reheard in banc having been filed herein by

counsel for the appellants, and no active judge or judge

who was a member of the panel having requested that a

vote be taken on said suggestion,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is denied.

Judge Oakes took no part in consideration of the ques-

tion whether to grant rehearing en bance.

WILFRED FEINBERG

Acting Chief Judge

SR ee a ieee ;

- RR hr ae lene cm rena arene rte eee ete eee rene nse enna

{ rr pS ae HFRS Pete Ser Ohi aS bE CR

35a

APPENDIX F

Text of 33 U.S.C. 407.

§ 407. Deposit of refuse in navigable waters generally

It shall not be lawful to throw, discharge, or deposit, or

eause, suffer, or procure to be thrown, discharged, or de-

posited either from or out of any ship, barge, or other

floating craft of any kind, or from the shore, wharf, manu-

facturing establishment, or mill of any kind, any refuse

matter of any kind or description whatever other than that

flowing from streets and sewers and passing therefrom in

a liquid state, inte any navigable water of the United

States, or into any tributary of any navigable water from

which the same shall float or be washed into such navigable

water; and it shall not be lawful to deposit, or cause,

suffer, or procure to be deposited material of any kind in

any place on the bank of any navigable water, or on the

bank of any tributary of any navigable water, where the

same shall be liable to be washed into such navigable water,

either by ordinary or high tides, or by storms or floods, or

otherwise, whereby navigation shall or may be impeded or

obstructed: Provided, That nothing herein contained shall

extend to, apply to, or prohibit the operations in connec-

tion with the improvement of navigable waters or con-

struction of public works, considered necessary and proper

by the United States officers supervising such improve-

ment or public work: And provided further, That the

Secretary of the Army, whenever in the judgment of the

Chief of Engineers anchorage and navigation will not be

injured thereby, may permit the deposit of any material

above mentioned in navigable waters, within limits to be

defined and under conditions to be prescribed by him, pro-

vided application is made to him prior to depositing such

material; and whenever any permit is so granted the con-

ditions thereof shall be strictly complied with, and any

violation thereof shall be unlawful.

36a

APPENDIX G

Text of 33 U.S.C. 1161(j) (1)

33 § 1161

Issuance of rules and regulations consistent with the Ns

tional Contingency Plan; compliance; imposition of

civil penalties for violations; amount

(j) (1) Consistent with the National Contingency Pla

required by subsection (c) (2) of this section, as soon as

practicable after April 3, 1970, and from time to tim

thereafter, the President shall issue regulations consistent

with maritime safety and with marine and navigation laws

(A) establishing methods and procedures for removal of

discharged oil, (B) establishing criteria for the develop

ment and implementation of local and regional oil removal

contingency plans, (C) establishing procedures, methods,

and requirements for equipment to prevent discharges of

oil from vessels and from onshore facilities and offshore

facilities, and (D) governing the inspection of vessels

carrying cargoes of oil and the inspection of such cargoes

in order to reduce the likelihood of discharges of oil from

such vessels in violation of this section.

37a

APPENDIX H

Text of 33 U.S.C. 1321(j) (1).

Regulations; penalty

(j) (1) Consistent with the National Contingency Plan

required by subsection (c) (2) of this section, as soon as

sear after October 18, 1972, and from time to time

a the President shall issue regulations consistent

with maritime safety and with marine and navigation laws

(A) establishing methods and procedures for removal of

discharged oil and hazardous substances, (B) establishing

criteria for the development and implementation of local

and regional oil and hazardous substance removal contin-

gency plans, (C) establishing procedures, methods, and

equipment and other requirements for equipment to pre-

vent discharges of oil and hazardous substances from

vessels and from onshore facilities and offshore facilities,

and to contain such discharges, and (D) governing the in-

spection of vessels carrying cargoes of oil and hazardous

substances and the inspection of such cargoes in order to

reduce the likelihood of discharges of oil from vessels in

violation of this section.

(2) Any owner or operator of a vessel or an onshore

facility or an offshore facility and any other person subject

to any regulation issued under paragraph (1) of this sub-

section who fails or refuses to comply with the provisions

of any such regulations, shall be liable to a civil penalty of

not more than $5,000 for each such violation. Each viola-

tion shall be a separate offense. The President may assess

and compromise such penalty. No penalty shall be assessed

until the owner, operator, or other person charged shall

have been given notice and an opportunity for a hearing on

such charge. In determining the amount of the penalty,

or the amount agreed upon in compromise, the gravity of

the violation, and the demonstrated good faith of the owner,

operator, or other person charged in attempting to achieve

rapid compliance, after notification of a violation, shall be

considered by the President.

33 § 1321

OO ll ree Or lCUCOrlCl VTClC rll TThlUCUrShh!lhlUrhLhClhUCrlCé‘éSS

38a

APPENDIX I

Text of 46 U.S.C. 391(a).

Move, Manner, anv Extent or Inspection ; CERTIFicatss;

Recorps

§391a. Vessels carrying certain cargoes in bulk

(1) Statement of Policy —The Congress hereby finds and

declares—

That the carriage by vessels of certain cargoes in

bulk creates substantial hazards to life, property, the

navigable waters of the United States (including the

quality thereof) and the resources contained therein

and of the adjoining land, including but not limited to

fish, shellfish, and wildlife, marine and coastal ecosys-

tems and recreational and scenic values, which waters

and resources are hereafter in this section referred to

as the ‘‘marine environment”.

That existing standards for the design, construction,

alteration, repair, maintenance and operation of such

vessels must be improved for the adequate protection

of the marine environment.

That it is necessary that there be established for all

such vessels documented under the laws of the United

States or entering the navigable waters of the United

States comprehensive minimum standards of design,

construction, alteration, repair, maintenance, and

operation to prevent or mitigate the hazards to life,

property, and the marine environment.

(2) Vessels Included.—All vessels, regardless of ton

nage size, or manner of propulsion, and whether self-

propelled or not, and whether carrying freight or pas

sengers for hire or not, which are documented under the

laws of the United States or enter the navigable waters of

the United States, except public vessels other than those

PNT eY Pee Thm, weweaee EEE

aa a i al ee a

i ee ee! ee, |

39a

Appendiz I—Tezt of 46 U.S.C. 391(a).

engaged in commercial service, that shall have on board

liquid cargo in bulk which is—

(A) inflammable or combustible, or

(B) oil, of any kind or in any form, including but

not limited to, petroleum fuel oil, sludge, oil refuse,

and oil mixed with wastes other than dredged spoil, or

under section 1162(a) of Title 33;

shall be considered steam vessels for the purposes of title

52 of the Revised Statutes of the United States and shall

be subject to the provisions thereof: Provided, That this

section shall not apply to vessels having on board the sub-

stances set forth in (A), (B), or (C) above only for use as

fuel or stores or to vessels carrying such cargo only in

drums, barrels, or other packages: And provided further,

That nothing contained herein shall be deemed to amend or

modify the provisions of section 4 of Public Law 90-397

with respect to certain vessels of not more than five

hundred gross tons: A”d provided further, That this sec-

tion shall not apply to vessels of not more than five

hundred gross tons documented in the service of oil ex-

ploitation which are not tank vessels and which would be

subject to this section only because of the transfer of fuel

from the vessels’ own fuel supply tanks to offshore drilling

or production facilities.

(3) Rules and Regulations.—In order to secure effective

provision (A) for vessel safety, and (B) for protection of

the marine environment, the Secretary of the department

in which the Coast Guard is operating (hereafter referred

to in this section as the ‘‘Secretary’’) shall establish for

the vessels to which this section applies such additional

rules and regulations as may be necessary with respect to

the design and construction, alteration, repair, and main-

40a

Appendiz I—Text of 46 U.S.C. 391(a).

tenance of such vessels, including, but not limited to, the

superstructures, hulls, places for stowing and carrying

such cargo, fittings, equipment, appliances, propulsive ma.

chinery, auxiliary machinery, and boilers thereof; and with

respect to all materials used in such construction, altera.

tion, or repair; and with respect to the handling and stow.

age of such cargo, the manner of such handling or stowage,

and the machinery and appliances used in such handling

and stowage; and with respect to equipment and appliances

for life saving, fire protection, and the prevention and miti-

gation of damage to the marine environment; and with

respect to the operation of such vessels; and with respect

to the requirements of the manning of such vessels and the

duties and qualifications of the officers and crew thereof;

| and with respect to the inspection of all the foregoing. In

| establishing such rules and regulations the Secretary may,

after hearimg as provided in subsection (4), adopt rules of

the American Bureau of Shipping or similar American

classifieation society for classed vessels insofar as such

rules pertain to the efficiency of hulls and the reliability of

machinery of vessels to which this section applies. h

establishing sueh rules and regulations, the Secretary shall

give due consideration to the kinds and grades of such

eargo permitted to be on board such vessel. In establishing

such rules and regulations the Secretary shall, after con-

sultation with the Seeretary of Commerce and the Admir

istrator of the Environmental Protection Agency, identify

those established for protection of the marine environment

and those established for vessel safety.

(4) Adoption of Rules and Regulations.—Before any

rules or regulations, or any alteration, amendment, or re

peal thereof, are approved by the Secretary under the pro

visions of this section, except in an emergency, the Secre-

tary shall (A) consult with other appropriate Federal

OER OPER a Ne enn gree -

FEELS WE DR CER Ah ts em — 7

es oy rs en ee gene Ee A

4la

Appendiz I—Tezt of 46 U.S.C. 391(a).

departments and agencies, and particularly with the Ad-

ministrator of the Environmental Protection Agency and

the Secretary of Commerce, with regard to all rules and

regulations for the protection of the marine environment,

(B) publish proposed rules and regulations, and (C) per-

mit interested persons an opportunity for hearing. In

prescribing rules or regulations, the Secretary shall con-

sider, among other things, (i) the need for such rules or

regulations, (ii) the extent to which such rules or regula-

tions will contribute to safety or protection of the marine

environment, and (iii) the practicability of compliance

therewith, including cost and technical feasibility.

(5) Rules and Regulations for Safety; Inspection; Per-

mits; Foreign Vessels.—No vessel subject to the provisions

of this section shall, after the effective date of the rules

and regulations for vessel safety established hereunder,

have on board such cargo, until a certificate of inspection

has been issued to such vessel in accordance with the pro-

visions of title 52 of the Revised Statutes of the United

States and until a permit has been endorsed on such cer-

tificate of inspection by the Secretary, indicating that such

vessel is in compliance with the provisions of this section

and the rules and regulations for vessel safety established

hereunder, and showing the kinds and grades of such cargo

that such vessel may have on board or transport. Such

permit shall not be endorsed by the Secretary on such cer-

tificate of inspection until such vessel has been inspected

by the Secretary and found to be in compliance with the

provisions of this section and the rules and regulations for

vessel safety established hereunder. For the purpose of

such inspection, approved plans and certificates of class of

the American Bureau of Shipping or other recognized

classification society for classed vessels may be accepted as

evidence of the structural efficiency of the hull and reli-

oa ed ee — ee ee ee a. ee,

—_r Fr Fr

ie ee eet MONE MIRE ESR SS A ao:

42a

Appendix I—Tezxt of 46 U.S.C. 391(a).

ability of the machinery of such classed vessels except as

far as existing law places definite responsibility on the

Coast Guard. A certificate issued under the provisions of

this section shall be valid for a period of time not to exceed

the duration of the certificate of inspection on which such

permit is endorsed, and shall be subject to revocation by

the Secretary whenever he shall find that the vessel con.

cerned does not comply with the conditions upon which

such permit was issued: Provided, That rules and regv

lations for vessel safety established hereunder and the

provisions of this subsection shall not apply to vessels of

a foreign nation having on board a valid certificate of in

spection recognized under law or treaty by the United

States: And provided further, That no permit shall bk

issued under the provisions of this section authorizing the

presence on board any vessel of any of the materials ex-

pressly prohibited from being thereon by subsection (3)

of section 170 of this title.

(6) Rules and Regulations for Protection of the Marine

Environment; Inspection; Certification—No vessel sub-

ject to the provisions of this section shall, after the

effective date of rules and regulations for protection of

the marine environment, have on board such cargo, until

a certificate of compliance, or an endorsement on the

certificate of inspection for domestic vessels, has been

issued by the Secretary indicating that such vessel is i

compliance with such rules and regulations. Such cer-

tificeate of compliance or endorsement shall not be issued

by the Secretary until such vessel has been inspected by

the Secretary and found to be in compliance with the

rules and regulations for protection of the marine e&

vironment established hereunder. A certificate of com

pliance or an endorsement issued under this subsection

shall be valid for a period specified therein by the See

—"T" 6&6 eo 7F eS Pe Pe Ee Aas EB

en i ee

43a

Appendix I—Tezxt of 46 U.S.C. 391(a).

retary and shall be subject to revocation whenever the

Secretary finds that the vessel concerned does not comply

with the conditions upon which such certificate or endorse-

ment was issued.

(7) Rules and Regulations for Protection of the Marine

Environment Relating to Vessel Design and Construction,

Alteration, and Repair; International Agreement.—(A)

The Secretary shall begin publication as soon as prac-

ticeable of proposed rules and regulations setting forth

minimum standards of design, construction, alteration,

and repair of the vessels to which this section applies for

the purpose of protecting the marine environment. Such

rules and regulations shall, to the extent possible, include

but not be limited to standards to improve vessel maneu-

vering and stopping ability and otherwise reduce the pos-

sibility of collision, grounding, or other accident, to reduce

cargo loss following collision, grounding, or other acci-

dent, and to reduce damage to the marine environment

by normal vessel operations such as ballasting and de-

ballasting, cargo handling, and other activities.

(B) The Secretary shall cause proposed rules and regu-

lations published by him pursuant to subsection (7) (A)

to be transmitted to appropriate international forums for

consideration as international standards.

section (7) (A) shall be effective not earlier than Janu-

ary 1, 1974, unless the Secretary shall earlier establish

rules and regulations consonant with international treaty,

convention, or agreement, which generally address the

regulation of similar topics for the protection of the

marine environment. In the absence of the promulgation

of such rules and regulations consonant with international

treaty, convention, or agreement, the Secretary shall

44a

Appendix I—Text of 46 U.S.C. 391%(a).

establish an effective date not later than January 1, 1976,

for rules and regulations previously published pursuant

to this subsection (7) which he then deems appropriate.

(D) Any rule or regulation for protection of the marine

environment promulgated pursuant to this subsection (7)

shall be equally applicable to foreign vessels and United

States-flag vessels operating in the foreign trade. Ifa

treaty, convention, or agreement provides for reciprocity

of recognition of certificates or other documents to be

issued to vessels by countries party thereto, which evi-

dence compliance with rules and regulations issued pur.

suant to such treaty, convention, or agreement, the See.

retary, in his discretion, may accept such certificates or

documents as evidence of compliance with such rules and

regulations in lieu of the certificate of compliance other.

wise required by subsection (6) of this section.

(8) Shipping Documents.—Vessels subject to the provi-

sions of this section shall have on board such shipping

documents as may be prescribed by the Secretary ind-

eating the kinds, grades, and approximate quantities of

such cargo on board such vessel, the shippers and con-

signees thereof, and the location of the shipping and des-

tination points.

(9) Officers; Tankermen; Certification.—(A) In all cases

where the certificate of inspection does not require at

least two licensed officers, the Secretary shall enter in the

permit issued to any vessel under the provisions of this

section the number of the crew required to be certified as

tankermen.

(B) The Secretary shall issue to applicants certificates

as tankermen, stating the kinds of cargo the holder of

such certificate is, in the judgment of the Secretary, quali-

45a

Appendix I—Text of 46 U.S.C. 391(a).

fied to handle aboard vessels with safety, upon satisfactory

proof and examination, in form and manner prescribed

by the Secretary, that the applicant is in good physical

condition, that such applicant is trained in and capable

efficiently to perform the necessary operations aboard ves-

sels having such cargo on board, and that the applicant

fulfills the qualifications of tankerman as prescribed by

the Secretary under the provisions of this section. Such

certificates shall be subject to suspension or revocation on

the same grounds and in the same manner and with like

procedure as is provided in the case of suspension or

revocation of licenses of officers under the provisions of

section 239 of this title.

(10) Effective Date of Rules and Regulations.—Except

as otherwise provided herein, the rules and regulations

to be establshed pursuant to this section shall become

effective ninety days after their promulgation unless the

Secretary shall for good cause fix a different time. If the

Secretary shall fix an effective date later than ninety days

after such promulgation, his determination to fix such a

later date shall be accompanied by an explanation of such

determination which he shall publish and transmit to the

Congress.

(11) Penalties—(A) The owner, master, or person in

charge of any vessel subject to the provisions of this sec-

tion, or any or all of them, who shall violate the provi-

sions of this section, or the rules and regulations established

hereunder, shall be liable to a civil penalty of not more

than $10,000.

(B) The owner, master, or person in charge of any

vessel subject to the provisions of this section, or any or

all of them, who shall knowingly and willfully violate the

provisions of this section or the rules and regulations es-

46a

Appendix I—Text of 46 U.S.C. 391(a).

tablished hereunder, shall be subject to a fine of not less

than $5,000 or more than $50,000, or imprisonment for not

more than five years, or both.

tion, which shall be in violation of this section or the rules

and regulations established hereunder, shall be liable in

rem and may be proceeded against in the United States

district court for any district in which the vessel may be

found.

(12) Injunctive Proceedings——The United States dis-

trict courts shall have jurisdiction for cause shown to re-

strain violations of this section or the rules and regulations

promulgated hereunder.

(13) Denial of Entry.—The Secretary may, subject to

recognized principles of international !aw, deny entry into

the navigable waters of the United States to any vessel

not in compliance with the provisions of this section or the

regulations promulgated thereunder.

As amended July 11, 1968, Pub.L. 90-397, § 4, 82 Stat. 341;

July 10, 1972, Pub.L. 92-340, Title II, § 201, 86 Stat. 427.

COST ISON EN bt ea ape 4 a

* BEI LITTON BIEN EL Ti TOES EE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.