Amicus Curiae Brief — Hyundai Merchant Marine Co. v. United States

No. 99-142

In The

Supreme Court of the United States

S

HYUNDAI MERCHANT MARINE COMPANY, LTD.,

and BRITANNIA STEAM SHIP INSURANCE

ASSOCIATION LIMITED,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

BRIEF OF AMICUS CURIAE,

THE INTERNATIONAL GROUP OF P & I CLUBS,

IN SUPPORT OF PETITIONERS

*

Rosert D. FeiGHNeR

Attorney at Law

Counsel of Record

400 Oceangate, Suite 520

Long Beach, California 90802

Telephone: (562) 435-5172

Attorney for Amicus Curiae

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES......................... iii

INTERESTS OF AMICUS.......................... |

STATEMENT OF THE CASE....................... 3

SUMMARY OF ARGUMENT....................... 5

te ae on ETL OPT EET Ter Perea 6

1. BY EMPLOYING THE ARBITRARY AND CAPRI-

CIOUS STANDARD AT THE FIRST INSTANCE

OF REVIEW WITHOUT CONCERN FOR REA-

SONABLENESS, PRUDENCE, NECESSITY OR

ANY SIMILAR FACTOR, THE NINTH CIRCUIT

HAS ENCOURAGED OTHER COURTS TO

ALLOW UNRESTRICTED SPENDING BY THE

UNITED STATES GOVERNMENT .............. 6

2. THE BLANK CHECK PROVIDED TO THE

COAST GUARD BY THE NINTH CIRCUIT

MAKES POSSIBLE SUBSTANTIAL, IDENTIFIA-

BLE ABUSES PERTAINING TO (A) EXCESSIVE

AND UNNECESSARY MONITORING COSTS;

(B) IMPROPER, INEFFICIENT AND POLITI-

CALLY MOTIVATED DECISIONS; AND (C)

CONTINUALLY UNSPECIFIED BUT MOUNT-

Werer SP ice Coa eee 9

A. THE OPINION APPROVES THE RECOVERY

OF UNCHECKED GOVERNMENTAL MON-

ITORING COSTS, THEREBY SUBSTAN-

TIALLY AND UNNECESSARILY

INCREASING THE COST OF CLEANUP... 9

B. THE NINTH CIRCUIT HAS ENCOURAGED

THE GOVERNMENT’S EXPENDITURE OF

IMPROPER, INEFFICIENT AND EVEN

POLITICALLY MOTIVATED COSTS WHICH

DRASTICALLY INCREASE THE COST OF

NET as bien 4 6 creas chee ciacse sec cc cx 1]

il

TABLE OF CONTENTS - Continued

Page

C. THE NINTH CIRCUIT HAS DIRECTED THE

RECOVERY OF UNSPECIFIED AND

MOUNTING BASE COSTS WHICH BEAR

NO DIRECT RELATION TO THE ACTUAL

COST OF CLEANUP ........-- eee eee ences 13

3. ASA RESULT, THE NINTH CIRCUIT HAS ARUCI-

TRARILY AND SUBSTANTIALLY INCREASED

THE COST OF CLEANUP, THEREBY REQUIR-

ING UNWARRANTED SUBSIDIZATION OF THE

UNITED STATES GOVERNMENT .........----- 14

CONCLUGION ..vcccccccsscissestseveseceveseuunrs 15

TABLE OF AUTHORITIES

CASES

Conoco, Inc. v. United States, 1994 WL 24249, 2

TDD. La. 1998) cc cccccccccccccceveccecvccvcess

Matter of Bell Petroleum Services, Inc., 3 F.3d 889

CN Ge, BFS ccc cccccctcveccccvesestvesevees

United States v. Attati & Goss, Inc., 900 F.2d 429 (1st

Pc Cees sbstéveesevevenvecusnuceeesses

United States v. Murphy Exploration and Production

Co., 939 F.Supp. 489 (E.D. La. 1996)...........

STATUTES

Rs OF BOE cvcccoevevccccccescevcevcvessceses

0 Seal & SPP Prerrrerrrrr rete rier

S U.S.C. § FOG(2MA) ... ccc cvcccccececcccscccers

33 U.S.C. § 2701, et seq...... 2. eer ee cece eereeees

nore ey poe

MISCELLANEOUS

Grant Gilmore & Charles L. Black, Jr., The Law of

Admiralty 76 [2d ed. 1975].......---+05eeeeees

Leslie J. Buglass, Marine Insurance and General

Average in the United States 386-418 [3d ed. 1991]

“Oil Spill Intelligence Report,” White Paper

Series, Vol. 2, No. 2, March 1998 .........+--.

Page

INTERESTS OF AMICUS

Amicus,! The International Group of P & I Clubs (the

“Group”), represents 19 mutual insurance associations

known as “P & I clubs.”2 P & I clubs are “associations of

shipowners banded together to spread and absorb lia-

bilities falling on their members.” Grant Gilmore &

Charles L. Black, Jr. The Law of Admiralty 76 [2d ed. 1975];

see also Leslie J. Buglass, Marine Insurance and General

1 Both Petitioner and the Solicitor General have consented

to the filing of this brief. Copies of the letters of consent are

being concurrently filed. Counsel for a party did not author this

brief in whole or in part, and no person or entity, other than the

amicus curiae, its members or its counsel, made a monetary

contribution to the preparation of this brief.

2 The Group’s nineteen members include: (1) American

Steamship Owners Mutual P & I Association Inc.; (2) The

Britannia Steam Ship Insurance Association Limited; (3)

Assuranceforeningen Gard; (4) The Japan Ship Owners Mutual

P & I Association; (5) Liverpool & London Steamship P & I

Association Limited; (6) The London Steam-Ship Owners

Mutual Insurance Association Limited; (7) The North of

England P & I Association Limited; (8) The Shipowners Mutual

P & I Association Limited (Luxembourg); (9) Assurance-

foreningen Skuld; (10) Skuld Mutual Protection and Indemnity

Association (Bermuda) Limited; (11) The Standard Steamship

Owners P & I Association Limited; (12) The Standard Steamship

Owners P & I Association (Bermuda) Limited; (13) The Standard

Steamship Owners P & I Association (Europe) Limited; (14) The

Steamship Mutual Underwriting Association Limited; (15) The

Steamship Mutual Underwriting Association (Europe) Limited;

(16) The Steamship Mutual Underwriting Association

(Bermuda) Limited; (17) Sveriges Angfartygs Assurans

Forening; (18) The United Kingdom Mutual Steam Ship

Assurance Association (Bermuda) Limited; (19) The West of

England Ship Owners Mutual Insurance Association

(Luxembourg).

Average in the United States 386-418 [3d ed. 1991]. The

members of the Group are owners and operators from

practically all maritime nations, insuring in the aggregate

tens of thousand of vessels totaling in excess of 400

million gross tons or more than 90% of the world’s blue

water tonnage.

Oil spill response and related claims under the Oil

Pollution Act of 1990, 33 U.S.C. § 2701 et seq. (“OPA 90”)

and related state legislation represent a significant risk

for which the Group insures its members. The Oil Spill

Intelligence Report lists 826 oil spills of over 10,000 gal-

lons (34 Tonnes) from 1962-1997 in United States marine

waters alone.? Of these spilis, 506 or 61.3% involved

vessels and accounted for more than 82% of the total

amount of oil spilled.

From 1987 through July 20, 1999, $1,554,775,431.00 in

larger pollution claims were passed on to the Group, of

which $758,368,234.00 were on the pool and

$796,407,198.00 were on the Group reinsurance. These

pollution related claims represented 38.06% of pool

claims and 76.71% of Group reinsurance claims. Clearly,

the Group and its shipowner members have a direct and

3 “Oil Spill Intelligence Report,” White Paper Series, Vol. 2,

No. 2, March 1998. These figures necessarily underrepresent the

risk of exposure to the Group, as is highlighted by the facts of

this Petition. The spill arising from the grounding of the

Hyundai No. 12 involved substantially less than the threshold

10,000 gallon reporting figure adopted by the Report, and still

resulted in actual cleanup costs of $4.5 million, plus the

judgment on behalf of the United States totaling $1,702,553.51

(later amended to exclude penalties under the Debt Collection

Act.)

substantial interest in the manner in which OPA 90 is

interpreted, as does the public, which will ultimately pay

for the unfettered, unjustified government costs.

7

STATEMENT OF THE CASE

The Petition for Writ of Mandate (the “Petition”) filed

by Hyundai Merchant Marine Company, Ltd. (“Hyun-

dai”) and Britannia Steam Ship Insurance Association

Limited (“Britannia”)* concerns the Ninth Circuit Court

of Appeals’ interpretation of OPA 90 as applied not to the

actual cost of oil spill cleanup, but instead to attendant

monitoring and base costs incurred by the United States

Coast Guard (“Coast Guard”) and other governmental

agencies. It arises out of the grounding of the M/V Hyun-

dai No. 12 on October 2, 1991 in an environmentally

sensitive area. The Hyundai No. 12 was owned and

insured by Hyundai and Britannia, respectively.

The Petition does not address Hyundai’s respon-

sibilities of actual cleanup as responsible party, as those

duties were fully discharged. As the Ninth Circuit noted,

“Hyundai, however, performed the actual work of con-

taining the spill and freeing the ship, at great expense to

itself.” (App. 3.) The district court concurred, somewhat

more expressively, emphasizing that “The court finds that

the vessel owner, her insurers, and their contractors

responded with reasonable promptness, diligence, and

competency in carrying out their responsibilities under

* Hyundai and Britannia will be referred to collectively as

“Petitioners.”

OPA 90 in light of the difficult circumstances and remote

location of the grounding of the M/V Hyundai No. 12.”

(App. 52.)

Nor does the Petition involve a major oil spill or

resulting ecological disaster. Although the record is

imprecise with regard to the actual amount of oil spilled,

the district court found only that ” . . . from time to time,

small leaks of oil and sheen were observed.” (App. 47.)

The Ninth Circuit asserted that “fortunately, only minor

spillage occurred before Hyundai was able to free the

ship and tow it to repair docks.” (App. 3.) The Petition

confirms that “only a small amount of the approximately

200,000 gallons of fuel oil leaked during the incident.”

(Pet. 3.)

The Petition, therefore, focuses not upon the $4.5

million pollution response effort undertaken by Hyundai

under OPA 90, but rather upon the $1,322,149.00 awarded

to the United States as monitoring costs, including base

or overhead costs. While the district court understood

that reasonableness, prudence and necessity were crucial

to any review, particularly in light of the fact that the

district court was the first and only instance of factual

review, the Ninth Circuit refused to limit the application

of the arbitrary and capricious standard in any meaning-

ful way. Instead, in response to Hyundai's claim that the

judgment included substantial unnecessary and unrea-

sonable expense, the Ninth Circuit advised that”... OPA

does not restrict the recovery of the United States to costs

that were prudent, necessary, or reasonable.” (App. 9.)

The Ninth Circuit's opinion will have a vast and

dramatic effect on future cases within the Ninth Circuit,

as well as other jurisdictions which follow its lead. Given

the Group’s role as the insurer of 90% of the world’s

merchant ocean-going tonnage, it respectfully requests

that this Court grant the Petition and establish procedural

and substantive limits on the monitoring costs, including

base costs, which the United States government and other

entities will be allowed to recover in future spills.

S

SUMMARY OF ARGUMENT

The Ninth Circuit’s application of the arbitrary and

capricious standard at the first instance of review, with-

out concern for reasonableness, prudence, necessity or

any similar factor encourages courts to allow unre-

stricted, wasteful spending by the Coast Guard in mon-

itoring an oil pollution response. Without fully

considering the consequences, the Ninth Circuit has

taken a standard of review designed to be applied by a

reviewing court in addressing final agency actions and

blindly applied it to situations where the district court is,

in the first instance, reviewing the on-the-scene decisions

of the Federal On Scene Commander (“FOSC”) at an oil

pollution response. By itself, this approach creates sub-

stantial constitutional problems, but, when coupled with

the Ninth Circuit’s directive that costs charged need not

be “reasonable, prudent or necessary,” the prejudice to

the responsible party, and ultimately the Group, is insur-

mountable.

As a result, responsible parties are required to pay

limitless monitoring costs, which include gross excess

and duplication, waste caused by outside political pres-

sures and an unspecified but escalating component for

base costs, representing indirect governmental overhead.

The effect is to deprive Petitioners of due process, and at

the same time produce an unwarranted subsidization of

the United States government in one of the essential

functions of the Coast Guard.

+

ARGUMENT

1. BY EMPLOYING THE ARBITRARY AND CAPRI-

CIOUS STANDARD AT THE FIRST INSTANCE OF

REVIEW WITHOUT CONCERN FOR REA-

SONABLENESS, PRUDENCE, NECESSITY OR

ANY SIMILAR FACTOR, THE NINTH CIRCUIT

HAS ENCOURAGED OTHER COURTS TO ALLOW

UNRESTRICTED SPENDING BY THE UNITED

STATES GOVERNMENT.

In proclaiming that OPA 90 does not restrict the

recovery of the United States to costs that were “prudent

or necessary or reasonable,” the Ninth Circuit has issued

a directive to future courts that governmental waste or

excess arising from the Coast Guard’s monitoring efforts,

whether caused by neglect, ignorance or any other factor

short of that approaching actual bias or ill motive, is to be

tolerated and, in effect, encouraged. When coupled with

the fact that in cases involving oil pollution response

there is no possible opportunity to obtain review of the

government's actions prior to the district court’s applica-

tion of the arbitrary and capricious standard, Petitioners’

constitutional rights to due process will continue to be

violated as unrestricted monitoring costs continue to

mount.

The threshold problem arises as a result of the Ninth

Circuit’s adoption of the arbitrary and capricious stan-

dard of review from the Administrative Procedure Act

(“APA”), 5 U.S.C. § 706(2)(A). The APA, however, utilizes

that standard in describing the standard of review to be

applied by a reviewing court in addressing final agency

actions. 5 U.S.C. §§ 107, 706; United States v. Attati & Goss,

Inc., 900 F.2d 429 (1st Cir. 1990.) As Petitioners have

emphasized, the actions of the FOSC at an oil pollution

response are not “final agency actions.” See Conoco, Inc. v.

United States, 1994 WL 24249, *2 (E.D. La. 1994). To the

contrary, the decisions of the FOSC are often necessarily

“on the spot” decisions which, by their nature, cry out for

subsequent meaningful review. Yet the Ninth Circuit has

mandated that the judiciary need not be concerned with

the reasonableness, prudence or even necessity of any

item of cost, despite the absence of any prior meaningful

review of the FOSC’s decisions.

At least some attempt at a reconciliation of the judi-

cial tension between the application of the arbitrary and

capricious standard with the need for meaningful review

appears in the district court’s opinion in United States v.

Murphy Exploration and Production Co., 939 F.Supp. 489

(E.D. La. 1996). In Murphy, the United States sued to

recover some $16,951.50 for helicopter overflights calcu-

lated on the basis of a charge of $3,767.00 per hour

(roughly five hours of flight.) Murphy opposed the gov-

ernment’s claim, emphasizing that it had performed a

total of 48 helicopter overflights over a three day period

by privately leasing a helicopter for a total cost of

$1,278.00 per day. Murphy also argued that the private

helicopters were available for government use.

In agreeing with Murphy to limit the government's

cost to $1,278.00 per day, the district court made two

essential points. First, in paraphrasing Petitioners’ due

process argument, the court noted that“. . . to suggest

that a cost is recoverable if the requisite causation exists

simply because the FOSC authorized it in substance

deprives a responsible party of any judicial review, and

such a position would pose a serious due process prob-

lem.” (939 F.Supp. at 493.)5 Second, the court in Murphy

recognized a need for some type of qualitative limit,

which it described as “fairness and proportionality” in

the analysis of what is arbitrary and capricious. (939

F.Supp. at 493.)¢

The Ninth Circuit, however, has now restricted any

such analysis. “Fairness and proportionality” have, in all

likelihood, gone the way of reasonableness, prudence and

necessity. In short, there is no basis upon which to limit

the courts’ future use of an inflexible standard of review,

which, according to the Ninth Circuit is to be applied

5 Oddly, Judge Berrigan in the Murphy decision quotes

from Judge Holland’s Order on Motion for Partial Summary

Judgment/Removal Costs in the case below. (App. 37.) That

same sentiment seems to have been forgotten in the district

court’s final resolution of the case and ignored completely by

the Ninth Circuit.

6 Judicial concern for providing the United States

government (in this case EPA under the companion CERCLA

statute, 42 U.S.C. § 9607) a “blank check in response actions”

was also raised by the Fifth Circuit in Matter of Bell Petroleum

Services, Inc., 3 F.3d 889, 906-908 (5th Cir. 1993).

without regard to the fairness, necessity or reasonable-

ness of any cost.

2. THE BLANK CHECK PROVIDED TO THE COAST

GUARD BY THE NINTH CIRCUIT MAKES POSSI-

BLE SUBSTANTIAL, IDENTIFIABLE ABUSES PER-

TAINING TO (A) EXCESSIVE AND UNNECESSARY

MONITORING COSTS; (B) IMPROPER, INEFFI-

CIENT AND POLITICALLY MOTIVATED DECI-

SIONS; AND (C) CONTINUALLY UNSPECIFIED

BUT MOUNTING BASE COSTS.

A. THE OPINION APPROVES THE RECOVERY

OF UNCHECKED GOVERNMENTAL MON-

ITORING COSTS, THEREBY SUBSTAN-

TIALLY AND UNNECESSARILY INCREASING

THE COST OF CLEANUP.

In discussing the subject of monitoring costs, it is

important to focus upon the literal definition of that term.

Inevitably, as in this case, the task of actual cleanup is

performed by the responsible party, not by the Coast

Guard. At issue is what amount of cost is to be allowed

for purposes of supervision, overseeing or other related

consultation,” and what party is to be charged for those

activities.

Depending upon how the judgment below is charac-

terized, monitoring costs relating to this incident

7 Admittedly, the Coast Guard may perform a vital function

at the inception of an incident, but that concept is not

principally at issue. The majority of Petitioners’ objections

below related to costs arising from subsequent monitoring

efforts.

10

increased the total cost of this spill by roughly 29%.8 In

absolute terms, the Group was required to pay an addi-

tional $1,322,149 in monitoring costs, over and above its

actual cleanup costs. Unfortunately, the charge for sub-

stantial monitoring costs incurred by the Coast Guard in

the Hyundai No. 12 incident has become all too common-

place.

Other spills demonstrate similar results. In the North

Cape incident occurring on January 19, 1996 in Moonstone

Beach, Rhode Island, the Group was required to pay the

government slightly less than $3,400,000.00 in addition to

actual cleanup costs in excess of $4,500,000.00. Costs paid

to the government as monitoring costs totaled

$4,000,000.00 in the Tampa Bay incident occurring on

August 10, 1993, while government demands relating to

the Kuroshima, an incident arising out of Summer Bay,

Alaska on November 26, 1997, are expected to approxi-

mate $3,800,000.00. Governmental costs arising out of a

February 4, 1999 incident in Coos Bay, Oregon involving

the New Carissa will likely exceed all prior estimates.

Accordingly, the Group’s interest and that of its

mutually insured shipowner members in the Petition is

not merely conceptual, as, by any standard, the payment

of such significant monitoring costs represents a substan-

tial additional expense. Even worse, much of the monitor-

ing expense incurred will continue to be both duplicative

8 Excluding attorneys’ fees, penalties and administrative

fees, the district court awarded what it termed “removal costs”

in the total sum of $1,109,963.00, plus interest in the amount of

$212,186.75 over an assumed actual cleanup cost of

$4,500,000.00.

11

and unnecessary, as the Ninth Circuit has foreclosed any

meaningful challenge.

B. THE NINTH CIRCUIT HAS ENCOURAGED

THE GOVERNMENT’S EXPENDITURE OF

IMPROPER, INEFFICIENT AND EVEN POLIT-

ICALLY MOTIVATED COSTS WHICH DRAS-

TICALLY INCREASE THE COST OF

CLEANUP.

Much of the government’s waste and inefficiency

results simply from overkill. In the Hyundai No. 12, for

instance, the Coast Guard brought four vessels to the

scene, one of which served largely as a hotel (at a cost of

$97,000.00). Petitioners were charged more than

$132,000.00 for transportation of equipment which was

unuseable (although Petitioners were not charged for the

equipment.) Government supervisory or monitoring per-

sonnel far outnumbered the number of private individ-

uals involved in actual cleanup.

Other examples are equally egregious. In the New

Carissa incident, the Coast Guard required the use of an

extremely expensive pumping system which ultimately

pumped more than 135,000 gallons of fluid from the

vessel. . .. of which some 250 gallons turned out to be oil.

Sadly, the Ninth Circuit’s approach offers no disincen-

tives to such expenditures.

At other times, governmental agencies can be

affected by political pressures. The tendency to require a

procedure known as “high pressure hot water,” (some-

times referred to colloquially as “steam cleaning”) to an

oil infested beach area has often been documented, even

——

12

though this procedure is far more expensive as well as

substantially more hazardous to the environment. While

a high volume moderate pressure or low pressure flush

might well allow some level of algal residue to remain

(and thus the life cycle to continue to regenerate), such a

procedure does not appear as “clean” on the eleven

o'clock news. Similarly, expensive skimming procedures

are often employed, even when they have little chance of

ultimate success, particularly in inclement weather, solely

because of the image the Coast Guard hopes to create.

In other instances, the Coast Guard simply has too

many agendas to fill. In many instances, functions other

than “marine environmental response” are the real reason

for the Coast Guard’s appearance. In the Hyundai No. 12

incident, for instance, the contemporaneous records of

the Sherman, one of the four vessels which the Coast

Guard sent to the scene, reveal that the mission listed for

the vessel was either “Alaskan fishery patrol” or “search

and rescue Alaska fishery patrol,” but never “marine

environmental response.”

These “marine environmental responses” represent

an opportunity for the Coast Guard to employ its person-

nel,? which, by itself, may not be inappropriate. Charging

Petitioners or other responsible parties for that exercise,

however, raises serious questions. Blindly passing those

costs along without allowing Petitioners the opportunity

to contest either the reasonableness or necessity of the

charge not only raises grave constitutional concerns, but

9 Discovery in various spills reflects an extremely high

number of Coast Guard personnel on “guard duty” being

shuffled in and out of the scene.

13

also needlessly escalates the cost of oil pollution

response.

C. THE NINTH CIRCUIT HAS DIRECTED THE

RECOVERY OF UNSPECIFIED AND MOUNT-

ING BASE COSTS WHICH BEAR NO DIRECT

RELATION TO THE ACTUAL COST OF

CLEANUP.

A substantial portion of the judgment below encom-

passed what have been referred to as “base costs.” Base

costs include costs which the Coast Guard would have

incurred even in the absence of an oil spill, such as

routine salaries and depreciation or capital costs which

do not “result from” the incident. While the Petition

demonstrates various rationales why these costs are not

recoverable under OPA 90 (see Petition at 9, 14), the

Group raises yet another significant practical concern.

In conducting its own informal study in an attempt to

learn the impact of the unfettered award of base costs, the

Group found that it was simply unable to quantify the

amount of base costs charged from incident to incident.

The Coast Guard decides upon the amount it will charge

without providing any basis upon which the charge is

calculated, thereby foreclosing any meaningful challenge

by the party charged. The end result is that the responsi-

ble party has no idea precisely which salaries up the

chain of command it is being asked to pay. By definition,

each of these salaries would have been paid by the proper

governmental agency in the absence of a marine environ-

mental response.

14

To provide this Court with some form of quantitative

analysis, Charles King, Petitioners’ expert economist, tes-

tified at trial that the Coast Guard’s costs which were

actually incurred as a result of (i.e. but for) this incident

were in the amount of $118,922.38. Yet the government

was awarded more than $1,322,149, including interest,

strictly for monitoring costs, a substantial portion of

which represented base costs.

3. AS A RESULT, THE NINTH CIRCUIT HAS ARBI-

TRARILY AND SUBSTANTIALLY INCREASED

THE COST OF CLEANUP, THEREBY REQUIRING

UNWARRANTED SUBSIDIZATION OF THE

UNITED STATES GOVERNMENT.

The effect of the Ninth Circuit’s opinion is to require

Petitioners, and ultimately the shipowners, to subsidize

the Coast Guard in the area of oil pollution response. Two

principal problems result from this approach. First, an

inordinately large amount of resources must be commit-

ted to oil pollution response, as overall costs skyrocket.

Second, the shipowners are required to shoulder a dis-

proportionate amount of that burden, as, despite the

increase in waste and duplication, there is no judicial

requirement that the Coast Guard act reasonably or pru-

dently. The Ninth Circuit’s approach now insulates the

government's cost excesses from any meaningful review.

+

a

15

CONCLUSION

For these reasons, the Group respectfully urges this

Court to grant the petition for writ of certiorari filed by

Hyundai Merchant Marine Company, LTD, and Britannia

Steam Ship Insurance Association Limited.

Dated: September 20, 1999

Respectfully submitted,

Rosert D. FEIGHNER,

Attorney at Law

Counsel of Record

400 Oceangate, Suite 520

Long Beach, California 90802

Telephone (562) 435-5172

Attorney for Amicus Curiae

The International Group

of P & I Clubs