# Petition for Writ of Certiorari — National Shipping Co. of Saudi Arabia v. Moran Trade Corp. of Delaware

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1021

## Text

oo Supremé Court, U.S.
(1) FILER

No.9? 1149 JAN - 5 1998

OFFICE OF THE CLERK
In The

Supreme Court of the United States

hp
October Term, 1997

NATIONAL SHIPPING COMPANY OF SAUDI ARABIA,
Petitioner,

vs.

MORAN TRADE CORPORATION OF DELAWARE, MORAN
TOWING OF VIRGINIA, A DIVISION OF MORAN MID-
ATLANTIC CORPORATION,

Respondents.

On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

JOHN R. CRUMPLER, JR. PATRICK J. BONNER
KAUFMAN & CANOLES, P.C. Counsel of Record

2000 Nations Bank Center FREEHILL, HOGAN & MAHAR

One Commercial Place 80 Pine Street
P.O. Box 3037 New York, NY 10005
Norfolk, VA 23514 (212) 425-1900

(757) 624-3103

Attorneys for Petitioner

utz
T2734 (800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21 L late
ervices, inc.
A DIVISION OF COUNSEL PRESS

i
QUESTIONS PRESENTED FOR REVIEW

1. Is it permissible to imply federal preemption of state
and common law claims into OPA 90, 33 U.S.C. § 2701, et seq.
when the Act expressly provides reliable indicia of the
Congressional intent with respect to state and common law
claims?

2. Can state and common law remedies, when expressly
reserved in one section of an Act, be restricted in other sections
of the same Act based on a court’s interpretation of
Congressional intent?

3. Did Congress preempt state and common law remedies
in any manner in OPA 90?

ii
LIST OF PARTIES

The parties to the proceeding sought to be reviewed are
Petitioner, National Shipping Company of Saudi Arabia
(NSCSA); Respondents, Moran Mid-Atlantic Corporation,
Moran Trade Corporation of Delaware, Moran Towing of
Virginia, Inc., a division of Moran Mid-Atlantic Corporation.
NSCSA has no parent company and no nonwholly owned
subsidiaries.

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Lana AA A tht RE PRE DLE re OS St, ta Pt oe

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TABLE OF CONTENTS
Page
Questions Presented for Review ...............006. i
NT OS TE OPE Te ee ee ee ee il
IE so) ont aad Kara 4 0.00 0.0 6 00 ae'ee 086 Os ili
et ceiaaia Cs... pes eter ee kien ili
SEPT LE LET EEL CE TEE EEE CE EEEE 1
I OE IIIs o.'s'c.5 od cw svsceeccdeseuss l
Constitutional and Statutory Provisions Involved ..... 2
UPPER oko ivcc cds cecccsccccsveces 3
A. District Court Jurisdiction ................. 3
le eS a rss see sacks accesses 3
CCR Gree ba wedevek dee seaiocaces 4
mumaeoms Tor Veramtime Ge Whit... ec cc cee % 7
EER A aR eg er a 13

TABLE OF CITATIONS

Cases Cited:

American Dredging Co. v. Miller, 510 U.S. 443 (1994)
eRe cd ViGhewdebcasns os ¥eekgee ee vo '4, 13

iv

Contents
Page
Askew v. American Waterways Operators, Inc., 411 U.S.
ARTES 65 60S OCA REG EN CCK ORES PERE EEO 11
Berman Enterprises, Inc. v. Jorling, 793 F. Supp. 408
(E.D.N.Y.), aff’d, 3 F.3d 602 (2d Cir. 1993), cert.
GUO, BOO Ue. Te CEP Kaho a vec Seki ae es 10
Boca Ciega Hotel, Inc. v. Bouchard Transp. Co., 51 F.3d |
feng ge, Lk ak... rene pene mmm TC a 10
Chick Kam Choo v. Exxon Corp., 486 U.S. 140 (1988)
EE RA TIT a aC Ne Minette 12
Frederick E. Bouchard, Inc. v. United States, 583 F. Supp.
ei Se Oe, errr ee ot eee 10
Gaspar v. United States, 460 F. Supp 656 (D. Mass. 1978)
TPE CSTE COTE CEE TO CPO Oe Cor eee 10
Golnay Barge v. Shinoussa, 1991 A.M.C. 2930 (S.D. Tex.
SHEE 4 6.60 canes 560k e eee ea eee 10
Huron Portland Cement Co. v. City of Detroit, 362 U.S.
CE ic ION s bic ok eae tase eae 12 |
|
In re Ballard Shipping, 32 F.3d 623 (1st Cir. 1994) ... 11, 12
In re Odin Marine Corp., 96 Cv. 5438 (S.D.N.Y., August
Vi ROE Cisse hakasbn ss eee esas eae 10

Intertanko v. Lowry, 947 F. Supp. 1484 (W.D. Wa. 1996)
ee Tee ee OO ee Pe rep ee Tee eee 12

Contents

Lewis v. Brunswick Corp., 97-288 ..........0000005

Montauk Oil Transp. Corp. v. Tug El Zorro Grande, 54
POG TOs CAO GM TPE 6 heater ie ieee

Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986)

Steuart Transp. Co. v. Allied Towing Corp., 596 F.2d 609
FS EN Renner eripetnntaN pee

Tug Ocean Prince, Inc. v. United States, 584 F.2d 1151
(2d Cir. 1978), cert. denied, 440 U.S. 959 (1979) ..

United States v. Dixie Carriers, Inc. 736 F.2d 180 (Sth
Ce Se GES. ic ks cw rk betes ead ketene ohbes

United States v. Hollywood Marine, Inc., 625 F.2d 524
(Sth Cir.), cert. denied, 451 U.S. 994 (1980) ......

United States v. LeBeouf, 621 F.2d 787 (Sth Cir. 1980),
cert. denied, 452 U.S. 906 (1981) ...............

United States v. M/V Big Sam, 681 F.2d 432 (Sth Cir.
1982), cert. denied, 462 U.S. 1132 (1983) ........

United States v. Rivera, 942 F. Supp. 732 (D.P.R. 1996),
rev'd, 1997 Lexis 34186 (1st Cir. 1997) ..........

United States v. T/B Arcadian 95, 714 F.2d 470 (Sth Cir.
PD v-dAin hole CAs beets a bak a eeaenn

10

12

10

10

10

10

10

10

10

vi

Contents

Page

United States v. West of England Ship Owners Mut. Prot.,
Cre F.20 8192 URGE TROD viewer cdcescvanere 10

Yamaha Motor Corp. v. Calhoun, 116 S. Ct. 619 (1996)
ob adres eikincald Baie weave aCe Wales lea arta lds t2

Statutes Cited:

OO Wii D UB PE 6 666d pasgaacaeetaks exten I
Be Ulan § UGE « did e ei ENE Redo eee 3
oe UDA. FEROS vide Seas 0b rid eeee era 3
aD UDA GIFS ob oe ets chases ines 3
33 USL. Fares sc cc eee eee eerneeeinekee i, 4,5
3S UBL, ESI cao is teeeee shearers tiers 2
JS U.dikos § STORIE ED ws bv ON eee wabeeeens 6
SS Us Fave) os0d ca evawivweweneeores 2
33 UDG, ESAS neice ishueb eves eee ee peels 8
3S Viens ESTO 6 bis kee Caen erate w eles cores a
33 UK. § Dea. v0 ese nbvuye beewseewsaues 5
3S Uae § BFE ever s reer eeedereenee eas 6

vil

Contents
Page

PP Re Ro: ! a er Pee re ee re 6
OF TE 68 6 Fh 8 or Koes eeee weneenee snes 5, 7, 8, 12
p.BIG Lek Dey). Be ira mee Be
AG UB. SAGO GEIGER ees cece seecccrveweess 13
United States Constitution Cited:
RTE obo 6 Rete t EE EUUAR Sere ieee cu eivaséeees’s 2
Other Authorities Cited:
S. Rep. No. 99, 101st Cong., 2d Sess., reprinted in 1990

COB ae Ry. | GEARS AI eee ee 9
Gonyer, Six Years Before the Mast, 9 U. San Fran. Mar.

LJ. RPO Sa Viv de ecbbe senses cenekeudessss 9
McCurdy, OPA Overview & Relationship to Other Laws,

S$ U.S.P Mar. LiF. S39 CIS9S) occ eve ccccccccces 8
Mitchell, Preservation of State and Federal Authority

under the Oil Pollution Act of 1990, 21 Envtl. L. 237

by 5 I er ree ee er ee ee eee Ere 5
Morgan, The Oil Pollution Act of 1990, 6 Fordham

i Sart, | errr ery rer rrr re rere 8
Olafson, Stricken Barge Spurting Oil off Bolivar, Houston

Chronicle, March 19, 1996 .....cccccecccenccees 10

vill

Contents

Olafson, Gooey Mess Spreads Far, Fast, Houston
CINE, NE I BEE as wok sce weve ceesesdies

Olafson, Congealed Oil Spares Galveston, Houston
COICED, RMGE 2b, NOU tcc cde rccectbvnsaaves

“Rodriquez & Jaffe, The Oil Pollution Act of 1990, 15
WD : CS UPED oes suns bbdbeedese cere

Swanson, Federalism, the Admiralty and Oil Spills, 27 J.
Dene, Ba Ge CO, Bre CEE wen ics c0h Ke ueN ven

Wyatt, Navigating the Limits of State Spill Regulations, 8
eas Se Rady b COU wk waeGv i dbehactacacke’s

APPENDIX

Appendix A — Opinion Of The United States Court Of
Appeals For The Fourth Circuit Decided September 9,
[SPT Seieccheners mas suvedenees cee eteseks 6

Appendix B — Judgment And Opinion Of
The United States District Court For The Eastern
District Of Virginia, Norfolk Division Filed April 25,
Be ee er ee ee Oe re ee

Appendix C — Final Order Of The United States District
Court For The Eastern District Of Virginia, Norfolk
Division Dated May 29, 1996 ......ccccccvscees

Page

10

10

la

12a

56a

ix

Contents

Appendix D — Order Of The United States District Court
For The Eastern District Of Virginia, Norfolk Division
Filed September 18, 1995 .........0e eee eeeeeeee

Appendix E — Order Of The United States District Court
For The Eastern District Of Virginia, Norfolk Division
Filed August 14, 1995 ........ cece eee eee eens

Appendix F — Denial Of Petition For Rehearing Of The
United States Court Of Appeals For The Fourth Circuit
Filed October 6, 1997 .......cccccccccccesscens

Page

60a

62a

l

Petitioner, National Shipping Company of Saudi Arabia
(NSCSA) respectfully requests that a writ of certiorari be issued
to review the judgment of the United States Court of Appeals
for the Fourth Circuit in this case.

OPINIONS BELOW

The Opinion of the Court of Appeals for which review is
sought (Appendix, la) is unreported. The Opinion of the District
Court following the trial is reported at 924 F. Supp. 1436; 1996
A.M.C. 2604 (Appendix, 12a). The Order denying the motion
to amend the judgment in the District Court is unreported
(Appendix, 56a). The earlier District Court Order denying
reconsideration of the decision dismissing the state statutory
claim is also unreported (Appendix, 60a), as is the earlier District
Court decision dismissing the state statutory claim (Appendix,
62a). The Order denying the Petition for a Rehearing in the Court
of Appeals (Appendix, 73a) is unreported.

STATEMENT OF JURISDICTION

Petitioners seek review of an Opinion entered on September
9, 1997. The Order denying the Petition for Rehearing of that
Opinion was entered on October 6, 1997. This Petition for Writ
of Certiorari is filed within ninety days of the entry of the
October 6, 1997 Order denying the Petition for Rehearing. This
Court’s jurisdiction is invoked pursuant to 28 U.S.C. § 1254(1).

2

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

ARTICLé III OF THE CONSTITUTION

Section 2, Clause | of the United States Constitution
provides, in relevant part that:

The judicial power shall extend ... to all cases of
admiralty and maritime jurisdiction.

OIL POLLUTION ACT OF 1990 PROVISIONS

Section 1002(a) of the Oil Pollution Act of 1990 (OPA), 33
U.S.C. § 2702(a) provides in relevant part:

(a) In General. — notwithstanding any other
provision or rule of law, and subject to the provisions
of this Act, each responsible party for a vessel or a
facility from which oil is discharged, or which poses
the substantial threat of a discharge of oil, into or
upon the navigable waters or adjoining shorelines
or the exclusive economic zone is liable for the
removal costs and damages specified in Subsection
(b) that result from such incident.

Section 1002(d)(2)(A) of OPA, 33 U.S.C. § 2702(d)(2)(A)
States in pertinent part:

Owner or operator of vessel or facility — If the act
or omission of a third party that causes an incident
occurs in connection with the vessel or facility owned
or operated by the third party, the liability of the third
party shall be subject to the limits provided in Section
1004 as applied with respect to the vessel or facility.

3

Section 1004(a) of OPA, 33 U.S.C. § 2704(a) states in
relevant part:

General Rule — Except as otherwise provided in this
section, the total of the liability of a responsible party
under section 1002 and any removal costs incurred
by, or on behalf of, the responsible party, with respect
to each incident shall not exceed — ...

(2) for any other vessel, $600 per gross ton or
$500,000, whichever is greater...

Section 1018 (a) of OPA, 33 U.S.C.§ 2718(a) provides in
pertinent part:

Preservation of State Authorities; Solid Waste Disposal Act.
— Nothing in this Act... shall —...

(2) affect or be construed or interpreted to affect
or modify in any way the obligations or liabilities of
any person under the Solid Waste Disposal Act (42
U.S.C. 6901 et. seq.) or State law, including common
Law.

STATEMENT OF THE CASE

A. District Court Jurisdiction

Jurisdiction of the United States District Court, Eastern
District of Virginia was based on 28 U.S.C. §§ 1331, 1332, and
1333.
B. Procedural History

On December 1, 1993, the tug HARRIET MORAN, owned

4

by respondent Moran Trade Corporation of Delaware collided
with the M/V SAUDI DIRIYAH, a vessel owned by Petitioner
National Shipping Company of Saudi Arabia (NSCSA). As a
result of the collision, about 9,000 gallons of fuel oil were spilled
into the Elizabeth River. NSCSA took responsibility for the spill,
cleaned it up and settled most of the claims asserted by third
parties. In March, 1995, NSCSA filed a complaint, later
amended, against Respondents, arguing that the collision was
caused by Respondents’ negligence and asserting four different
theories of liability: (1) General Maritime Law; (2) Virginia’s
State Water Control Law; (3) Virginia Common Law; and (4)
The Oil Pollution Act of 1990, 33 U.S.C. § 2701, et seg. (OPA).

On August 14, 1995, the District Court entered an Order
dismissing Count II of the complaint which sought to recover
the response costs and third party settlement claims pursuant to
Virginia State Water Control Law. On September 18, 1995, the
Court denied the Petitioner’s motion for reconsideration or
clarification of the aforementioned Order.

The case was tried non-jury in January, 1996 and the Court
issued an Order dated April 25, 1996 finding Respondents Moran
solely responsible for the collision that caused the oil spii! but
limiting Moran’s liability to $500,000 pursuant to OPA 90. The
Court found that Petitioner NSCSA’s liability to others arose
solely under OPA 90 and accordingly NSCSA was limited to
claiming under that law and was preempted from claiming under
state law or common law. The Circuit Court affirmed this
decision.

C. Background
As former Senate Majority Leader George Mitchell has

explained, efforts to enact a comprehensive Federal Oil Pollution
Law had been stymied for many years due to a disagreement

a

5

about whether such a law should preempt state law regarding
oil spills.'

In 1989 and early 1990 there were a number of major spills
around the country which led to the passage of the Oil Pollution
Act of 1990 (OPA), 33 U.S.C. § 2701, et seq. Although the Act
sets forth a comprehensive Federal liability scheme regarding
discharges of oil onto the navigable waters, it specifically
reserves the right to claim under state law and common law and
it leaves the individual states free to enact such pollution liability
laws as they deem necessary.’ This is one of the main and most
controversial features of the Act.’

A second chord running through OPA is the notion that the
party responsible for the spilling vessel should cleanup the oil
and pay all claims in the first instance. Thus, the amounts paid
by the responsible party to remove the oil are credited to its
Limitation Fund.* 33 U.S.C. § 2704(a). If a responsible party
fails to cooperate and assist in the oil removal activities after
being requested to do so, the responsible party loses it’s right to
limit liability. 33 U.S.C. § 2704(c)(2). The Coast Guard is
required to officially notify the party responsible for the oil spill
of its designation as the source of the spill. The responsible party
has five days to deny this designation and if there is no denial,
the responsible party must begin advertising the procedures to

1. Mitchell, Preservation of State and Federal Authority under the
Oil Pollution Act of 1990, 21 Envtl. L. 237 (1991).

2. 33 U.S.C. § 2718
3. See Mitchell, supra, n.1.

4. This was not allowed under the Federal Water Pollution Control
Act, United States v. Dixie Carriers, Inc., 736 F.2d 180, 183 (Sth Cir.
1984).

6

submit claims. 33 U.S.C. § 2714. All claims must be submitted
to the responsible party in the first instance. 33 U.S.C. § 2713(a).
Even if it is the position of the responsible party that the spill
was caused solely by a third party, the responsible party must
still pay the removal costs in the first instance. 33 U.S.C.
§ 2702(d)(1)(B)(i).° Thus, there is an overriding intent in OPA
that the responsible party for the vessel spilling oil should
immediately begin to cleanup the oil and pay claims.

5. At the time the law was enacted, the sponsors left no doubt that
the intent was to force the spilling vessel to cleanup the oil and pay claims
immediately:

Our goal is to make certain that, when a spill occurs, the
polluter — not the taxpayer — will pay; and to make certain
that fishermen and property owners and hotel operators and
others hurt by a spill will be compensated — not 7 years
from now, not after lawyers have taken half or three-quarters
of the money, but quickly and fairly. 136 Cong. Rec. H6931
(daily ed. August 3, 1990) (statement of Rep. Studds)

The conference agreement is a strong statement that we
should never again be caught so unprepared. It tries to ensure
that industry and government are prepared for oil spills, and
that they respond quickly and effectively to contain them
and minimize damage.

To make sure that industry does clean up its spills, the
agreement requires ship and facility owners to prepare
response plans that ensure to the maximum extent practicable
sufficient private resources to deal with a worst-case spill.
136 Cong. Rec. $11537 (daily ed. August 2, 1990) (statement
of Sen. Baucus)

a

£ —~— Se

7

REASONS FOR GRANTING THE WRIT

The Opinion in National Shipping ignores these two
overriding themes in OPA and creates a dilemma for owners
and admiralty lawyers representing vessels which spill oil. If
those responsible for the vessel spilling oil accept responsibility
pursuant to OPA, under the reasoning of the court below, the
owner could be waiving any state or common law remedies for
contribution or indemnity. This creates an incentive to try to get
the local authorities to see that “State Law [is] . . . imposed to
force [the owner] to cleanup the spill or to compensate its
victims.”® This would be the only safe way to avoid preemption
and preserve the indemnity and contribution claims. One
possible way to achieve this goal would be to take no action
until ordered to do so by the state or local authorities. This is
contrary to OPA but is unfortunately one of the few options
available under the lower court’s decision.

The lower court’s interpretation of 33 U.S.C § 2718 is the
root of the problem. On its face, this section is not confusing. It
reads in relevant part as follows:

Nothing in this Act... shall

(2) affect, or be construed or interpreted to affect
or modify in any way the obligations or liabilities of
any person under . . . State Law, including common
Law.

This section was the basis for Petitioner’s claim that it had
indemnity and contribution actions under Virginia State and
common law regardless of any limitation contained in OPA or
anything else in the Act. This is the plain meaning of the words

6. National Shipping, Appendix, 10a.

of § 2718 and a view largely shared by the commentators on
OPA.’

Although the Respondents have obligations and liabilities
for contribution and indemnity under state and common law,
the lower court found that OPA shielded or protected the
Respondents from these obligations and liabilities. The court
made the implied finding that the Petitioner was preempted from
asserting these state and common law claims due to the limitation
amounts in OPA. The court held that state and common law
could be used in contribution and indemnity cases only if the
underlying obligation arose exclusively under state or common
law. Thus, the Petitioner was precluded by OPA from bringing
a state or common law action because the liability for the oil
spill arose “solely” under OPA.

The analysis in National Shipping is further complicated
by the court’s interpretation of 33 U.S.C. § 2704, the section
dealing with the effect of a vessel’s Limitation Fund. Although

7. See, e.g., Rodriquez & Jaffe, The Oil Pollution Act of 1990, 15
Tulane Mar. L.J. 1, 18 (1990) (“additional state liabilities are not subject
to limitation either under the Act itself, or pursuant to the Limitation
Act.”); Morgan, The Oil Pollution Act of 1990, 6 Fordham Envtl. L.J. 1,
6 (1995) (“Thus, OPA’s liability limits provide no protection for
responsible parties sued under State Law”); Swanson, Federalism, the
Admiralty and Oil Spills, 27 J. Mar. L. & Comm. 379, 415 (1996) (“Under
OPA and case law, each state is apparently allowed to fashion its own
liability rules beyond those established by the Federal Law. These state
Statues may be enforced even when they contravene the general Maritime
Law.”); Wyatt, Navigating the Limits of State Spill Regulations, 8 U.S.F.
Mar. L.J. 1, 12 (1995) (“OPA permits supplementation of its liability
scheme with ‘any additional liability or requirements,’ which seems to
permit the states not only to enlarge liabilities but also expand the
categories of responsible parties to include all participants in the risk-
creating activity”) (footnotes omitted); McCurdy, OPA Overview &
Relationship to Other Laws, 5 U.S.F Mar. L.J. 439-441 (1993).

9

difficult to follow, it appears that the key figure is not the
Limitation Fund of the vessel at fault for the spill but the
Limitation Fund of the blameless vessel. Under this reasoning,
if the M/V SAUDI DIRIYAH had an OPA Limitation Fund of
$500,000, under the exact same facts, it would be entitled to
recover in full from the defendants. Using this analysis, it is the
blameless vessel’s tonnage that is the determining factor on
whether or not there is preemption of state and common law. If
the blameless vessel has a low limitation figure under OPA, there
is no preemption and a party may claim under state and common
law. However, as in the present case, if the blameless ship
owner’s Limitation Fund is greater than the cost of the cleanup,
the owner cannot use state or common law to claim against the
vessel which caused the oil spill."

It is important that the confusion in the law engendered by
National Shipping be cleared up as soon as possible. In 1988,
the country imported 6 million barrels of oil per day and there
were about 3,800 port calls by oil tankers.’ Either these tankers
used tugs to assist in docking or anchored and then off loaded
the oil to barges propelled by tugs. ). “st oil spills involve more
- than one vessel and the uncertainty about when a party can use

8. One commentator, who specializes in marine pollution cases,
thought the lower court used an economic rationale for it’s decision and
then made a determination that the larger vessel derived a greater
economic benefit from the operation. Gonyer, Six Years Before the Mast,
9 U. San Fran. Mar. L.J. 105, 120-122 (1996). If this is the underpinning
for the decision, it is certainly contrary to the plain meaning of OPA and
the Congressional intent behind the law.

9. S. Rep. No. 99 at 3, 101st Cong., 2d Sess., reprinted in 1990
U.S.C.C.N. 751. While spills from tankers or barges pose the greatest
environmental risk, in the present case, the M/V Saudi Diriyah was not a
tanker and yet the clean up costs were far higher than the tug’s Limitation
Fund. There are hundreds of similar tug assisted movements to the one
in this case each week throughout the country.

10

state law might delay a cleanup and aggravate environmental
damages after a spill. Spills involving more than one vessel
generate a substantial amount of litigation’®. Indeed, the four
largest spills since the enactment of OPA have involved tugs
and barges''. The barges are larger and have higher Limitation
Funds than the tugs. The tugs are manned, provide the propulsive
force, and are usually to blame for the collision, grounding, or
other casualty that causes the oil spill. Since the oil would come
from the barge or tanker, the barge or tanker owner would be
the responsible party and would have a claim over against the
tug. The tug’s Limitation Fund under OPA is much smaller and
the barge or tanker owner will realize that even if it is blameless,
it might not recover the cost of the clean up due to the OPA

10. See, e.g., United States v. West of England Ship Owners Mut.
Prot., 872 F.2d 1192 (Sth Cir. 1989); United States v. Hollywood Marine,
Inc., 625 F.2d 524 (Sth Cir.), cert. denied, 451 U.S. 994 (1980); United
States v. LeBeouf, 621 F.2d 787 (Sth Cir. 1980), cert. denied, 452 U.S.
906 (1981); Frederick E. Bouchard, Inc. v. United States, 583 F. Supp.
477 (D. Mass 1984); United States v. M/V Big Sam, 681 F.2d 432 (Sth
Cir. 1982), cert. denied, 462 U.S. 1132 (1983); United States v. T/B
Arcadian 95, 714 F.2d 470 (Sth Cir. 1983); Steuart Transp. Co. v. Allied
Towing Corp., 596 F.2d 609 (4th Cir. 1979); Montauk Oil Transp. Corp.
v. Tug El Zorro Grande, 54 F.3d 111 (2d Cir. 1995); Tug Ocean Prince,
Inc. v. United States, 584 F.2d 1151 (2d Cir. 1978), cert. denied, 440
U.S. 959 (1979); Gaspar v. United States, 460 F. Supp 656 (D. Mass.
1978); Golnay Barge v. Shinoussa, 1991 A.M.C. 2930 (S.D. Tex. 1991).

11. TAMPA BAY SPILL — Boca Ciega Hotel, Inc. v. Bouchard
Transp. Co., 51 F.3d 235 (11th Cir. 1995); PUERTO RICO SPILL —
United States v. Rivera, 942 F. Supp 732 (D.P.R. 1996), rev'd, 1997 Lexis
34186 (1st Cir. 1997) (en banc); RHODE ISLAND SPILL — /n re Odin
Marine Corp. 96 CV. 5438 (S.D.N.Y.) (decision of Judge Stein August 7,
1997); TEXAS SPILL — Olafson, Stricken Barge Spurting Oil off Bolivar,
Houston Chronicle, March 19, 1996 at 11; Olafson, Gooey Mess Spreads
Far, Fast, Houston Chronicle, March 20, 1996 at 23; Olafson, Congealed
Oil Spares Galveston, Houston Chronicle, March 21, 1996 at 33.

11

limitation amount for the tug unless it has the grounds to assert
a claim under state or common law. This is the lesson that
National Shipping sends out to vessel owners and those who
practice marine pollution law.

There is a fundamental conflict between the holding in
National Shipping and the First Circuit Court’s decision in /n re
Ballard Shipping, 32 F.3d 623 (Ist Cir. 1994). In Ballard, the
court held that

an injured party may have claims arising from a
single accident both under federal maritime law and
under state law, whether legislation or common law.

Ballard, supra at 626. Even though the First Circuit Court in
Ballard affirmed the dismissal of the federal claims, it allowed
state !aw claims arising from the same incident to go forward.
It relied in part on § 2718(a) of OPA which allows additional
state law liability. The spill in Ballard occurred before OPA was
enacted but the court found that the non-retroactivity of OPA
was irrelevant. In contrast, the Fourth Circuit Court in National
Shipping made a determination the Petitioner’s liability arose
solely under OPA and held that since this liability arose under
OPA 90, the Petitioner could not claim under state or common
law due to the preemption in OPA 90. In other words, the
Petitioner could have only one claim up to its Limitation Fund
and that claim was under OPA.

The holding in National Shipping is also a clear departure
from the recent trend of Supreme Court and lower court cases
involving preemption of state and common law in the pollution
area. In Askew v. American Waterways Operators, Inc., 411 U.S.

25 (1973), this Court sustained a Florida statue that imposed
no fault liability on vessel owners and operators for damages
caused by oil spills in territorial waters and rejected a maritime

12

law preemption challenge. Similarly, in Huron Portland Cement
Co. v. City of Detroit, 362 U.S. 440 (1960), the Court held that
state air pollution laws were a classic example of police power
and that the state could act in such areas of interstate commerce
and maritime activity concurrent with the federal government.
Lower courts have followed this trend. Thus, in Ballard, supra,
the court held that the Rhode Island State Law was not preempted
by applicable Federal Law. OPA 90 did not apply to this case
although the court left little doubt that OPA 90 compelled it to
allow the claims under Rhode Island Law. In a case interpreting
Section 2718 of OPA, a New York court held that a New York
pollution statute was not preempted by OPA. Berman
Enterprises, Inc. v. Jorling, 793 F. Supp. 408, 414-16 (E.D.N.Y.),
aff'd, 3 F.3d 602 (2d Cir. 1993), cert. denied, 510 U.S. 1073
(1994). In another case interpreting Section 2718 of OPA, the
District Court in Seattle held that the OPA 90 non preemption
language applied to Washington State regulations which
governed tanker operations and other maritime subjects.
Intertanko v. Lowry, 947 F. Supp 1484 (W.D. Wa. 1996).

A large part of this Court’s admiralty docket over the past
few years has dealt with the conflict between State Law and
Federal Admiralty Law; both statutory and judge made
Admiralty Law. Apparently, there remains confusion in some
courts about when State Law is preempted by Federal Law. In
certain admiralty cases, this Court has made it clear that there
is no preemption. See, e.g., Yamaha Motor Corp. v. Calhoun,
116 S. Ct. 619 (1996); American Dredging Co. v. Miller, 510
U.S. 443 (1994); Chick Kam Choo v. Exxon Corp. 486 U.S. 140
(1988). In other admiralty cases, the Court has held that State
Law cannot be used in certain admiralty actions. See, e.g.,
Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986). This
Court has recognized that this choice of law puzzle is very
difficult and

13

it would be idle to pretend that the line separating
permissible from impermissible state regulation is
readily discernible in our admiralty jurisprudence,
or indeed is even entirely consistent within our
admiralty jurisprudence.

American Dredging, supra. at 452. Justice Ginsburg repeated
Justice Scalia’s quote in Yamaha, supra and then wrote “we
attempt no grand synthesis or reconciliation of our precedent
today ...” and left many questions for another day. Yamaha,
supra at 626 n.8. That day has arrived for this area of the law.
Although OPA 90 and prior Supreme Court cases dealing with
preemption in pollution cases may seem to draw a clear, bright
line on the choice of law issue, this line is not discernible in
National Shipping and the holding in National Shipping will
spawn other cases which will blur the line even further.

This Court has recognized the importance of the preemption
issue and the need for clear guidelines about when Federal law
will preempt state and common law in statutory claims. The
Court has granted certiorari in Lewis v. Brunswick Corp., 97-
288. The questions presented in that case deal with the implied
preemption of state common law claims under the Boat Safety
Act, 46 U.S.C. § 4301, et seq. The decision in National Shipping
deals with the implied preemption of state and common law
claims under OPA and raises many of the same issues as Lewis
in the maritime oil pollution area. The main difference is that in
the maritime pollution area, the unsettled law could cause a delay
in cleaning up a large spill and could aggravate environmental
damage. This uncertainty should be resolved prior to the next
large oil spill which history shows us, is sure to occur.

CONCLUSION

1. For the forgoing reasons, this Court should grant the
petition and exercise its jurisdiction to resolve the confusion

14

about the preemption of state and common law ina maritime
oil spill case.

2. In the alternative, Petitioner prays for a summary reversal
of the decision below.

3. In the alternative, Petitioner requests that certiorari be
granted and National Shipping be identified as a companion case
to Lewis v. Brunswick Corp., 97-288 because of the similarity
of issues involving the implied or explicit preemption of state
law by federal statutes dealing with maritime matters.

4. In the alternative, Petitioner prays that the Court hold
the case without action until Lewis v. Brunswick Corp. is decided
and then either grant certiorari to consider any issues not decided
in that case or grant certiorari and vacate and remand in light of
the decision in Lewis v. Brunswick Corp.

Respectfully submitted,

PATRICK J. BONNER

Counsel of Record

FREEHILL, HOGAN & MAHAR
80 Pine Street

New York, NY 10005

(212) 425-1900

JOHN R. CRUMPLER, JR.
KAUFMAN & CANOLES, P.C.
2000 Nations Bank Center

One Commercial! Place

P.O. Box 3037

Norfolk, VA 23514

(757) 624-3103

Attorneys for Petitioner

2
a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2045%3A1. Public record. Not legal advice.