# Amicus Curiae Brief — Bouchard Transportation Co. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1075%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1999 - **Citation:** 525 U.S. 1171 ## Text 4 S we v No. 98-682 In The Supreme Court of the United States October Term, 1998 + BOUCHARD TRANSPORTATION COMPANY, INC.; TSACABA SHIPPING COMPANY, INC.; MARITRANS OPERATING PARTNERS L.P., et al., Petitioners, UNITED STATES OF AMERICA, et al., Respondents. ¢ On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit ¢ MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE AND BRIEF AMICUS CURAE OF THE MARITIME LAW ASSOCIATION OF THE UNITED STATES IN SUPPORT OF THE PETITION FOR WRIT OF CERTIORARI ¢ Howarp M. McCorMack Counsel of Record Hearty & Baiture LLP 29 Broadway New York, NY 10006-3293 (212) 943-3980 (212) 425-0131 (Fax) COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 RAY MOTION FOR LEAVé TO FILE BRIEF AMICUS CURIAE IN SUPPORT OF THE PETITION FOR WRIT OF CERTIORARI The ‘aritime Law Association of the United States (MLA) re vectfully moves for leave to file the attached Brief Amicus Curiae in Support of Bouchard Transporta- tion Company, Inc.; Tsacaba Shipping Company, Inc.; Maritrans Operating Partners L.P., Petition for Writ of Certiorari (the “Brief”). The MLA has obtained the consent of counsel for the Petitioners to file its Brief. The MLA has also received the consent of the following parties: The United States, The State of Florida, Marshall Ancar, Evangelisto Anaya, Jr., Robert Hopkins, Michael L. Panagakos, Harry P. Scholer, Continental Insurance Company, Excel Hotels, Inc., Edward P. Rush. Consent has been denied by counsel for Boca Ciega Hotel, et al. and Ramona M. Updegraff, et al. NATURE OF MOVANT’S INTEREST The MLA is a nationwide bar association founded in 1899, with a membership of about 3,600 attorneys, law professors, and others interested in maritime law. Its attorney members, most of whom are specialists in admi- ralty law, represent all maritime interests — shipowners, charterers, cargo interests, port authorities, seamen, long- shoremen, passengers, underwriters, and other maritime claimants and defendants. The MLA has filed amicus briefs in a number of cases in this Court involving ques- tions of maritime law and practice.! The MLA is seeking to file an amicus brief because this case has serious implications for the maritime trans- portation and maritime insurance industries. The deci- sions of the courts below, despite the unequivocal grant of the right to limitation of liability contained in § 2704 of the Oil Pollution Act of 1990, have made it almost impos- sible for shipowners to invoke the right granted by the statute. The MLA has adopted the position that a con- cursus procedure, that is, a marshaling of all claims against a shipowner arising from a single incident, is an essential feature of a limitation of liability regime and that a concursus is indispensable in implementing limita- tion of liability under the Oil Pollution Act of 1990. The long-standing and wide-spread experience of the MLA in matters regarding limitation of liability, a process vir- tually unique to maritime law, should enable it to present important insights in the resolution of the issues raised in the Petition for Certiorari. 1 E.g., Vimar Seguros y Reaseguros, S.4. v. M/V SKY REEFER, 515 U.S.528, 115 S. Ct. 2322 (1995); Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 115 S. Ct. 1043 (1995); McDermott, Inc. v. AmClyde and River Don Castings Ltd., 511 U.S. 202, 114S. Ct. 1461 (1994). For a listing of other cases, see The MLA Report, Doc. No. 671 at 8862-63 (1987). The MLA, therefore, respectfully moves for leave to file its brief herein. November 23, 1998 Howarp M. McCormack Counsel of Record Hearty & Baru LLP 29 Broadway New York, NY 10006-3293 (212) 943-3980 (212) 425-0131 (Fax) Counsel for the Maritime Law Association of the United States as Amicus Curiae TABLE OF CONTENTS Page MOTION FOR LEAVE TO FILE BRIEF AMICUS 822 RS te ence ae a en one e ane Cae mere ee 1 SP AIR PANS REPAIR as Es os ca cenncsdoskvucss ii Sites OOF AMICUS CURIA cia ics vacdet pene 1 SUMMARY OF ARGUMENT... ......0.-..0-.0c00s- 3 PRIA IMERIN TE SEVER cn cas eae eee He ean ne oo Sea baw en 4 I. The issues presented to this Court implicate important national and international interests which require a definitive resolution by this ME an 0 eee EN Fah eC ise Os Und wee eR eeS + II. The decision of the Court of Appeals is directly contrary to the provisions of OPA 90, speci- fically 33 U.S.C. § 2704 whereby Congress con- ferred on shipowners the right to limited liability. The right to limited liability is unenfor- ceable without a concursus procedure.......... 6 Ill. The decisions of the courts below undermine the goal of uniformity in maritime law and dilute or eviscerate the right of shipowners to limit their Siarety SUC SIP eens a en ce ee hs 16 CRE A 5 ob le PES Cad Ee wk ek 18 ii TABLE OF AUTHORITIES Page Cases Bouchard Transp. Co., Inc. v. Updegraff, 147 F.3d 1344 (11th Cir. 1998), petition for cert. filed, __ US.L.W. _ CUS. IO. SEGRE, TOPS) ciccs vescses 9, 10 In re Metlife Capital Corp., 132 F.3d 818, 1998 A.M.C. 635 (1st Cir. 1997) (The Emily S), cert. denied by Bunker Group, Inc. v. U.S., 118 S.Ct. 2367, 141 LB Fae CSG a cake sewer nedas i eeuss 14 Miles v. Apex Marine Corp., 498 U.S. 19 (1990)....... 16 Norwich & N.Y. Transp. Co. v. Wright, 80 U.S. 104 (TSF 1) Sonos cangcavnduen cacieenneeveres wees oeeean 9 The Scotland, 105 US. 26 (EGGS) 0000/65 ves stnadeesnns 10 Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1996) .... 16 STATUTES SS US.C. SB SPB a aie once ecanvens passim 33 USS. © SFSU iis ivvhc eas ts Vi eee 16 46 USC. Ape. § TGD a asiies inascccevvancuapsebacenuen 3 46 US... App. § BGG osc densecisivancenvacinesasesaas 9 Rule F of the Supplemental Rules for Certain Admiralty and Maritime Claims of Rules of Civil. Preemie. cs 6a. es Pio bk tee 9, 12, 14, 15, 18 OTHER AUTHORITIES ENERGY INFORMATION ADMINISTRATION, DEPARTMENT OF ENERGY, ANNUAL ENERGY OUTLOOK (IO0G) « oo ici iccnvesucsessssae 5 Pinna ame iii TABLE OF AUTHORITIES —- Continued R. Force & J. Gutoff, Limitation of Liability in Oil Pollution Cases: In Search of Concursus or Pro- cedural Alternatives to Concursus, 22 Tut. Mar. ede eds. SE. We GP REDE hsanbaey ev edeserersens FOREIGN TRADE DIVISION, BUREAU OF THE CENSUS, REPORT FT 900 (97) (CB-98-104), (1997) ................... Matter of U.S. Coast Guard - Oil Spill Liability Trust Fund, 1995 WL 632510 (C.G.) (Oct. 30, SDA Mn cuwnddn basedh phn eke back eh E.g., Water Pollution Control Act Amendments of 1972, 33 U.S.C. §§ 1251-1376; Convention on the International Regulations for Prevent Collisions at Sea, 28 U.S.T. 3459, as amended, T.I.A.S. 10672, Oct. 20, 1972, reprinted in 6 BENEDICT ON ApmirALty, Doc. No. 3-4 (Frank L. Wiswall, Jr. Ed., 7th ed. rev. 1998); see 33 C.F.R Ch. 1, Subch. D. Special Note, at 176 (1995); United States Inland Navigation Rules, 33 U.S.C: §§ 2001-2073. | K implementing limitation of liability under the Oil Pollu- tion Act of 1990. SUMMARY OF ARGUMENT The holding of the lower courts has seriously under- mined, if not defeated, the right of shipowners to limit their liability under the Oil Pollution Act of 1990 (OPA 90). The lower courts held that shipowners have no right to compel a concursus of claims when invoking their right to limited liability under OPA 90. Concursus of claims; that is, the marshalling of all claims against a shipowner who has petitioned for limitation, is at the very heart of the right to limitation of liability. In effect, the lower courts have held that there is no procedure for invoking the right to limited liability, notwithstanding that OPA (33 U.S.C. § 2704) specifically confers on shipowners the right to limit their liability. The decisions of the courts below will have far reach- ing implications on the oil, maritime shipping and marine insurance industries, because, in the absence of pro- cedures for invoking the right to limit, including the indispensable concursus procedure, shipowners face the prospect of unlimited liability. The current situation is similar to that which existed after the enactment of the general Limitation of Liability Act of 1851 (now codified in 46 U.S.C. App. § 183) which gave shipowners the right to limited liability but provided no procedures for imple- menting the right. This Court, rather than see congres- sional policy frustrated, formulated procedures, including the right to concursus, which made limitation of liability possible. To effectuate the right to limited lia- bility which Congress conferred in OPA 90, Amicus urges the Court to establish uniform rules of procedure which include a concursus proceeding. The absence of uniform procedures will result in the negation of the right to limit, unfairness to shipowners and, in some cases unfairness to claimants, and procedural chaos in the aftermath of oil spills. ARGUMENT I. The issues presented to this Court implicate impor- tant national and international interests which require a definitive resolution by this Court. The issues presented in the Petition have far reaching national and international ramifications that implicate the interests of the oil industry, the oil transportation indus- try, the maritime shipping industry and the marine insur- ance industry. The foregoing statement is not rhetoric. Petroleum is this country’s largest import.® In 1997 alone, 3.8 billion barrels of energy related petroleum products were imported, at a value of 69.2 billion dollars.” Net oil imports are projected to increase to 11.4 million barrels 6 Michael S. Leylveld, America Ignores Oil Dependency as Reliance on Imports Grows, JouRNAL OF Commerce, Aug. 14, 1998, . per day by the year 2005.8 In addition, more than 3,300 tankers, each with a capacity of greater than 10,000 dead- weight tons, now serve the world maritime oil trade. Approximately 40 percent of these vessels call each year at U.S. ports.? The Oil Pollution Act of 1990 (hereinafter “OPA 90”) applies not only to tankers but also to non-tank vessels that carry oil as fuel. Therefore, virtually every commer- cial vessel entering U.S. ports or plying U.S. waters is subject to OPA 90, including the OPA 90 liability provi- sions. OPA 90 requires all vessels with oil on board, either as cargo or fuel, to guarantee that they have the financial wherewithal to pay for removal costs and damages in case of a discharge. Many shipping companies satisfy this requirement by purchasing insurance. Shipping companies and their insurers have expressed legitimate concern about limitation of liability under OPA 90 and the procedures whereby limitation is to be effected.!° For them the issue is a simple one: Is there limitation of liability under OPA 90 or not? In reality, this is the issue presented to this Court by the Petition for Certiorari. Amicus agrees with Petitioners’ 8 ENERGY INFORMATION ADMINISTRATION, DEPARTMENT OF ENERGY, ANNUAL ENERGY OUTLOOK (1996). 9 REPORT OF THE NATIONAL RESEARCH COUNCIL, DOUBLE-HULL TANKER LEGISLATION: AN ASSESSMENT OF THE OIL POLLUTION ACT OF 1990, at v (1997). 10 R. Force & J. Gutoff, Limitation of Liability in Oil Pollution Cases: In Search of Concursus or Procedural Alternatives to Concursus, 22 Tur. Mar. L.J. 331, 344 n. 36 (1998). contention that concurs.'s lies at the heart of the right to limited liavility and tk t without concursus the right to limit may be i:'usory. The resolution of this issue will have ramifications that extend far beyond this spill. Because the United States imports such gargantuan quan- tities of oil, the extent of liability of the vessels that bring oil to this country may have a significant impact on the international industries that supply oil to the United States. The issues clearly are not only capable of repeti- tion, they are bound to reoccur. The holding of the courts below establish a rule that applies to all discharges of oil from the smallest to the largest, including incidents such as the Exxon Valdez spill (a pre-OPA 90 spill), which involved expenditures by Exxon said to exceed three billion dollars. II. The decision of the Court of Appeals is directly contrary to the provisions of OPA 90, specifically 33 U.S.C. § 2704, whereby Congress conferred on ship- owners the right to limited liability. The right to limited liability is unenforceable without a con- cursus procedure. Unless this Court reverses the decision of the Court of Appeals that there is no right to concursus in limitation proceedings under OPA 90, the decision by Congress to give vessel owners the right to limit their liability will be thwarted. Section 2704 of OPA 90 (33 U.S.C. § 2704) unequivocally provides for the right to limited liability.!! However, OPA 90 is silent with regard to the procedural 11 § 2704. Limits on liability (a) General rule Except as otherwise provided in this section, the total of the liability of a responsible party under section 2702 of this title and any removal costs incurred by, or on behalf of, the responsible party, with respect to each incident shall not exceed - (1) for a tank vessel, the greater of — (A) $1,200 per gross ton; or (B)(i) in the case of a vessel greater than 3,000 gross tons, $10,000,000; or (ii) in the case of a vessel of 3,000 gross tons or less, $2,000,000; (2) for any other vessel, $600 per gross ton or $500,010, whichever is greater; (3) for an offshore facility except a deepwater port, the total of all removal costs plus $75,000,000; and (4) for any onshore facility and a deepwater port, $350,000,000. * * * ‘c) Exceptions (1) Acts of responsible party Subsection (a) of this section does not apply if the incident was proximately caused by - (A) gross negligence or willful misconduct of, or (B) the violation of an applicable Federal safety, construction, or operating regulation by, the responsible party, an agent or employee of the responsible party, or a person acting pursuant to a contractual relationship with the responsible party implementation of this right. It is the position of Amicus that tne right of limitation provided for in OPA 90 is illusory without a concursus procedure that allows for the assertion and enforcement of the right of limitation. (except where the sole contractual arrangement arises in connection with carriage by a common carrier by rail). (2) Failure or refusal of responsible party Subsection (a) of this section does not apply if the responsible party fails or refuses — (A) to report the incident as required by law and the responsible party knows or has reason to know of the incident; (B) to provide all reasonable cooperation and assistance requested by a responsible official in connection with removal activities; or (C) without sufficient cause, to comply with an order issued under subsection (c) or (e) of section 1321 of this title, as amended by this Act, or the Intervention on the High Seas Act (33 U.S.C. 1471 et seq.). (3) OCS facility or vessel Notwithstanding the limitations established under subsection (a) of this section and the defenses of section 2703 of this title, all removal costs incurred by the United States Government or any State or local official or agency in connection with a discharge or substantial threat of a discharge of oil from any Outer Continental Shelf facility or a vessel carrying oil as cargo from such a facility shall be borne by the owner or operator of such facility or vessel. + * * In Norwich Co. v. Wright,!? this Court created pro- cedures to implement the Limitation of Liability Act of 1851! rather than have the Congressional policy underly- ing that Act frustrated by a lack of procedures. That Act conferred on vessel owners the right to seek “limited liability” in maritime cases. This Court should follow that precedent either by applying Rule F of the Supplemental Rules for Certain Admiralty and Maritime Claims of Rules of Civil Procedure (hereinafter “Supplemental Rules”) or by creating analogous procedures compatible with 33 U.S.C. § 2704, the limitation section of OPA 90. The courts below'* were unwilling to recognize that legislation providing for limitation of shipowners’ lia- bility, both in the Limitation of Liability Act of 1851 and in § 2704 of OPA 90, was intended to benefit shipowners and not those who have claims against shipowners. As this Court stated in The Scotland: But it is objected that the appellants [Ship- owners] did not properly, and in due time, claim the benefit of the law. Under this head it is strenuously contended that the appellants did not comply with the rules of this court adopted in December Term, 1871. Without adverting to the fact that these rules were not in existence until long after this litigation had been pending, we may say, once for all, that they were not intended to restrict parties claiming the benefit 12 Norwich & N.Y. Transp. Co. v. Wright, 80 U.S. 104 (1871). 13 Now codified at 46 U.S.C. App. § 185. 14 Bouchard Transp. Co., Inc. v. Updegraff, 147 F.3d 1344, 1350 (11th Cir. 1998), petition for cert. filed, __ U.S.L.W. __ (U.S. No. 98-682, 1998). 10 of the law, but to aid them. Some form of proceed- ing was necessary to enable ship-owners to bring into concourse the various parties claiming damages against them for injuries sustained by mishaps to the ship or cargo, where they were entitled, or conceived themselves entitled, to the law of limited respon- sibility, and where they were subjected or liable to actions for damages at the suit of the parties thus injured. The rules referred to were adopted for the purpose of formulating a proceeding that would give full protection to the ship-owners in such a case.}5 [emphasis added] Although a concursus procedure may afford claimants a more equitable opportunity to share in a limitation fund that is inadequate to satisfy all claims, the concursus pro- cedure is intended primarily to assure that a shipowner’s liability does not exceed the legislatively mandated limit. In other words, concursus prevent: limited liability from being defeated through multiple law suits, which might be brought in a number of different courts. The courts below further undermined § 2704 of OPA 90 by concluding that limitation of liability in OPA 90 was not really a limitation of liability provision because all claimants could recover their full damages from the Oil Spill Liability Trust Fund.!© However, it can also be said that limited liability under the Limitation Act of 1851 does not truly provide for limited liability because claim- ants may recover their full damages from third parties 15 The Scotland, 105 U.S. 24, 33 (1881). 16 Bouchard, 147 F.3d at 1350. ET ee eT eM Per ene ey eer eae 11 who are not protected by the limitation statute. Limita- tion of liability must be looked at not from the perspec- tive of claimants, but from the perspective of shipowners who are the intended beneficiaries of the limitation legis- lation. It is of no concern that claimants may have other avenues of redress. The crucial issue is whether ship- owners’ liability, in reality, is limited to the amounts specified in § 2704, not whether claimants may recover in full from third parties, such as the Fund. Furthermore, the conclusion reached by the lower courts may not reflect the realities of some situations. For example, often the largest claimant in an oil spill case is the United States. While it is true that agencies of the United States may present claims to the Fund, as a practical matter, recovery from the Fund is nothing more than taking money out of one Governmental pocket and putting it into another Governmental pocket. In other words, the Government is simply collecting removal costs or dam- ages from itself. With respect to the public fisc, if the United States does not recover from the responsible party or its guarantor, in actuality, it will not be reimbursed for its removal expenditures or compensated for its damages. Likewise, there is some question as to whether state trustees may recover from the Fund for natural resource damage. !7 17 Compare Payrents Authorized Under Section 1012 of the Oil Pollution Act of .990, 21 Op. Off. Legal Counsel - (Sept. 25. 1997) with Matter of U.S. Coast Guard — Oil Spill Liability Trust Fund, 1995 WL 632510 (C.G.) (Oct. 30, 1995). Although the matter may have been resolved within the Executive Branch, neither Congress nor the courts have weighed in on this issue. 12 Additionally, as the Court of Appeals acknowledged, recovery against the Fund is limited to one billion dollars per incident, and, therefore, the liability of the Fund is not unlimited. The fact that recovery against the Fund is limited was dismissed by the Court of Appeals because there had been no suggestion that costs and damages in the incident in question would exceed that amount. This is not the issue the Court of Appeals should have addressed. The more cogent issue to be addressed is whether or not all of the claims that have been or might be filed against Petitioners in this case may, in the absence of some procedure such as concursus, result in liability in excess of the limits established in § 2704. Either OPA 90 provides true limitation of liability for shipowners or it does not. Either concursus is a necessary ingredient of limitation of liability or it is not. As sug- gested below, there must be uniform procedures to assure that shipowners’ right to limit can be effectuated. The holding of the Court of Appeals is not fact specific. It does not hold simply that there is no need for concursus in this case, but that there is no needa for concursus in any case under OPA 90 in which the right of limitation is implicated.'* The decision also overlooks the fact that ‘8 Admittedly, under the Limitation Act of 1851 and Supplemental Rule F, the courts have recognized some exceptions to the concursus requirement in situations where it is clear that the shipowner’s liability cannot exceed the limitation amount. There may also be exceptions under OPA 90. That issue, however, is not before this Court. vem es menens. 13 removal costs and damages which emanate from the dis- charge of oil in some cases may exceed one billion dol- lars. This is not idle speculation. The Exxon Valdez spill cost Exxon in excess of three billion dollars. The opinion of the Court of Appeals has to some extent deleted § 2704 from OPA 90 because OPA 90 con- tains absolutely no procedures for effecting limitation of liability. OPA 90 creates substantive rights to recover removal costs and damages and provides some pro- cedures for claimants to implement those rights. OPA 90 creates a Fund and provides procedures whereby claim- ants may submit claims to the Fund. OPA 90 also creates the right of shipowners to limited liability. The creation of the right to limited liability represents a Congressional determination that shipowners shall not be exposed to unlimited liability except as specifically provided in the Act. But OPA 90, in contrast to providing procedures for asserting claims against responsible parties and the Fund, contains no procedure whereby shipowners may invoke the right to limited liability as specified in the Act. How do shipowners claim the right to limited liability? What procedures in OPA 90 protect vessel owners from being held liable in amounts that exceed the limitation amount provided in the Act? There are none. If a shipowner is subjected to two lawsuits in different courts arising from the same incident, and in each it is held liable up the limitation amount provided in § 2704, the shipowner will have been subjected to liability that is twice the amount established by Congress in § 2704 of OPA 90. Ultimately, a single court must be empowered to implement the limita- tion rights provided by OPA 90. 14 The Court of Appeals supported its conclusion by adopting the approach followed in In re Metlife Capital Corp.,9 which found fundamental “conflicts” between the provisions of OPA 90 and the procedures in Supplemental Rule F. As Professors Force & Gutoff have demonstrated in discussing the In re Metlife Capital Corp. case, those “conflicts” are no different than those that presently exist under the Limitation Act of 1851 and the various claims subject to limitation thereunder.?° They state: Many of the justifications for the court's conclusion simply do not bear scrutiny. Con- trary to the suggestion of the court, Rule F requires that the person filing a limitation peti- tion must do so within six months of having received notice of a claim. The Rule then leaves it to the discretion of the limitation court to set the time in which claims may be made against the limitation fund. There is absolutely no rea- son why a court would not take into account the time needed to complete removal activities or to formulate and implement a plan for restoration of natural resources. Likewise, the Oi! Spill Lia- bility Trust Fund could file a contingent claim in any situation where it appears that it may have a right to do so. The importance of the only time limit specified in Rule F is that it would require a responsible party to act promptly to invoke the right of limitation. It in no way impinges on 19 132 F.3d 818, 1998 A.M.C. 635 (1st Cir. 1997) (The Emily S), cert. denied by Bunker Group, Inc. v. U.S., 118 S. Ct. 2367, 141 L.Ed.2d 736 (1998). 20 Force & Gutoff, supra note 9, at 363-64. 15 the discretion of the trial judge to allow claim- ants a fair and realistic opportunity to present and prove their claims. The limitation period analysis would, if car- ried to its logical conclusion, completely evisce- rate both Supplemental Rule F and the Limitation Act in non-OPA 90 cases. If the posi- tion of the court were valid, the Act of 1851, itself, would conflict with later legislation. Con- gress by statute has provided for a three year statute of limitations for personal injury claims. But personal injury claims are subject to limita- tion. Thus, there very well may be situations where a personal injury plaintiff may have to file a claim in a limitation proceeding prior to the expiration of the three years in order to assure a share in the distribution of the limita- tion fund. The same may be said as to COGSA claims where there is a one year limitation period. In the event of a collision that results in cargo damage and personal injury there is noth- ing to prevent a vessel owner from filing for limitation of liability two weeks after the inci- dent. ... More significantly, virtually every claim for damages that may be brought as an admiralty claim in federal court may also be brought in a state court under the “saving to suitors” provi- sion of 28 U.S.C § 1333. These claims are no different than OPA 90 claims where a party who has incurred removal costs or sustained dam- ages may sue in federal or state court. But just as ordinary “admiralty” claims brought in state court are subject to the exclusive jurisdiction of a federal limitation court so could OPA 90 claims brought in state court be made subject to the | | 16 exclusive jurisdiction of a federal limitation court. [Footnotes omitted] The same analysis disposes of other So-called conflicts between OPA 90 and Supplemental Rule F. Whenever a ship owner invokes its right to limit, the limitation pro- ceeding may have some effect on the usual procedural rules applicable to the underlying claims. This would be the case with respect to venue, etc. Furthermore, in the case at bar, the injunctions and motions entered in the district court accommodated the claims presentment pro- visions of OPA 90. The Appendix to the Petition for Certiorari reveals that district courts can easily tailor Supplemental Rule F to the provisions of OPA 90. Ill. The decisions of the courts below undermine the goal of uniformity in maritime law and dilute or eviscerate the right of shipowners to limit their liability under OPA 90. Uniformity in maritime law requires that a uniform procedure be applied in oil pollution cases, including concursus as the linchpin of limited liability. Congress made it clear that it was not removing oil pollution cases from the realm of maritime jurisdiction and maritime law.2! This Court has consistently opted for uniformity in maritime law, particularly where congressional legisla- tion is applicable.22 Congress has determined that ship- owners have the right to limited liability under OPA 90, 21 OPA § 2751(e). See 33 U.S.C. § 2751(e). 22 See, e.g., Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990); cf., Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 210-11 (1996). Nett Met ATO be rie Re nha ae - 17 and it is urged upon this Court that the right should be enforced according to a uniform procedure. The holding of the Court of Appeals that there is no right to concursus under OPA 90 is premised on the assumption that Con- gress, by specifying the procedures for bringing “claims,” omitted any reference to concursus. Although OPA 90 does not expressly provide for concursus, it is fair to assum.2 that Congress w-3 aware that concursus had become an indispensable ingredient for making limitation statutes work. If Congress had wanted to eliminate con- cursus in limitation proceedings under the Act, it could have said so. As was the case in the Limitation Act of 1851, OPA 90 specifies no procedures for effecting limitation under the Act. Just as it was necessary for this Court to promulgate rules for uniform procedures to be applied in limitation proceedings under the Limitation Act of 1851, it is now necessary for this Court to establish uniform procedures to be applied to limitation proceedings under OPA 90. This could be done readily by the application of Supple- mental Rule F. Failure to establish a uniform procedure whereby shipowners can invoke their right to limit their liability means not only that chaos will reign in the litiga- tion that inevitably follows major spills, but that this free- for-all approach to litigation will undermine the right of limitation of liability. In cases where multiple claims are filed in multiple courts, the right to limitation created in § 2704 of OPA 90 may be compromised or even lost. This Court has again and again taken the lead in establishing procedures to be used in admiralty cases, first in the promulgation of the Admiralty Rules and later through the promulgation of the Supplemental Rules. The 18 creation of these various uniform rules has had the effect not only of making the enforcement of rights viable, but also the creation of these uniform procedures has resulted in procedural reliability, predictability and stability. Fur- thermore, the application of a uniform rule, such as Sup- plemental Rule F, is essential to achieve fundamental fairness. Without such a procedure, shipowners may be treated unfairly by being subjected to liability in excess of the statutorily established limitation amount. Conversely, claimants who win the race to the courthouse may pre- clude subsequent claimants from recovery. A concursus procedure which provides notice to all claimants and gives all claimants an opportunity to present their claims in a single proceeding assures not only that shipowners will not be liable in excess of the limitation amount, but that all claimants will have a fair opportunity to share in the limitation fund. CONCLUSION This case has serious implications for all industries that are directly and indirectly involved in bringing oil to United States or otherwise involved in the transportation of oil in United States waters. Despite the unequivocal grant of the right to limited liability in OPA 90, the decisions of the lower courts have made it almost impos- sible for shipowners to invoke that right. The right to limited liability is dependent on the availability of pro- cedures whereby the right can be effectuated. A key procedural component of the right to limitation of lia- bility is a concursus of claims where the party seeking to limit its liability establishes a limitation fund according to ee Ceara es 6 A eth At lat Bee 19 the formula specified by Congress which then is available to satisfy all claims arising from the incident in question. The lower courts have concluded that there are no such procedures available for limitation of liability under OPA 90. The absence of such procedures seriously damages the right to limitation of liability expressly created by the Act. This case provides this Court with a critical and unique opportunity to establish uniform procedures implementing the limitation of liability provisions of OPA 90, and therefore Petitioners’ writ should be granted. Respectfully submitted, Howarp M. McCorMack Counsel of Record Hearty & Batu LLP 29 Broadway New York, NY 10006-3293 (212) 943-3980 (212) 425-0131 (Fax) Counsel for The Maritime Law Association of the United States as Amicus Curtae* November 23, 1998 *Counsel wishes to acknowledge the assistance of Pro- fessor Robert Force in the preparation of this Brief. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1075%3A5. Public record. Not legal advice.