Amicus Curiae Brief — Lake Carriers' Assn. v. MacMullan

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_—_—*

October Term, 1971 7

_* No. 71-422

’ LAKE CARRIERS’ ASSOCIATION

AMERICAN STEAMSHIP COMPANY, ¢

VS.

RALPH A. MacMULLAN, Individually and as Director, Michigan Department

| i of Natural Resources, et al., = |

. ; x Appellees.

~ On APPEAL FROM THE UNITED STATES DISTRICT COURT

' FOR THE EASTERN DISTRICT OF MICHIGAN

___ BRIEF AMICI CURIAE ON BEHALF OF ASSURANCEFORENINGEN GARD, .

ASSURANCEFORENINGEN SKULD, THE BRITANNIA STEAM SHIP INSURANCE

ASSOCIATION, LIMITED, THE JAPAN SHIP-OWNERS MUTUAL PROTECTING AND

INDEMNITY ASSOCIATION, THE LIVERPOOL AND LONDON STEAM SHIP PRO-

TECTION AND INDEMNITY ASSOCIATION, LIMITED, THE LONDON STEAMSHIP

OWNERS’ MUTUAL INSURANCE ASSOCIATION, LIMITED, NEWCASTLE PROTEC-

. TION-AND INDE ASSOCIATION, THE NORTH OF ENGLAND PROTECTING &

INDEMNITY ASSOCIATION LIMITED, THE STANDARD STEAMSHIP OWNERS’

PROTECTION AND INDEMNITY ASSOCIATION LIMITED, THE STANDARD STEAM-

SHIP OWNERS’ PROTECTION & INDEMNITY ASSOCIATION (BERMUDA) LIMITED,

THE .STEAMSHIP MUTUAL UNDERWRITING ASSOCIATION, LIMITED, SUNDER-

LAND STEAMSHIP PROTECTING & INDEMNITY ASSOCIATION, SVERIGES

ANGFARTYGS ASSURANS FORENING,-THE UNITED KINGDOM MUTUAL .STEAM

SHIP ASSURANCE ASSOCIATION (BERMUDA) LIMITED, THE WEST OF ENGLAND

SHIP, OWNERS MUTUAL PROTECTION AND INDEMNITY ASSOCIATION (LUXEM-

BOURG), AND THEIR RESPECTIVE MEMBERS, IN SUPPORT OF APPELLANTS LAKE

’ CARRIERS’ ASSOCIATION, AMERICAN STE HIP COMPANY, et al. ~ .

‘ . i

oe ) NicHoLas J. HEALY .

29 Broadway . os

New York,-New York 10006

GORDON W. PAULSEN

2 , One State Street Plaza

New York, New York 10004

“ “Attorneys for Movants, . °

_. 4 . Assuranceforeningen Gard, et al. .

HAIGHT, GARDNER, Poor & HAVENS | &

HEALY & BAILLIE | = .

-RAYMOND A. CONNELL st \

EmIL A. KRATOVIL, JR. ,

. oo of Counsel

TABLE OF CONTENTS|

oi]

la .

. 9 . - : P te, rete

Questions Presented ..................... eo teee at 24

Interest of Amici Curiae ........00.0..008000006.

. ARGUMENT: 7

I—The thred. judge. court below shaded its discre-

tion in declining to consider the constitution-

ality of the Michigan Watercraft. Pollution .

Control rc cae ee 4 ee Coetaee eed ca eviee Gs 9)

The. Michigan - Act violates the admiralty an

clause of the constitution and* should for that i¢

reason be declared invalid ............. teva, * 7

A. Only Congrass has the Power to Legislate |

in the Sphere wherein the maeigen Act

Purports to. Apply Se ee ee

B. . Congress has Exercised its ‘Power by Leg-

islating Extensively in the Sphere wherein

the Michigan Act Purports to Apply; to

that Extent the Act would be Unconstitu- .

tional, Even if it were Otherwige Valid ... 14

| _ |

CONCLUSION ......... espe tebe tuaneeseega wa ve~ ous 19

ERAGE soon ergy eee yes anb aa stenns yencvceus 21

Certificate of Bervicd . 20... eee eee eee ee 22

Appendix A—Memorandum: Opinion. and Final

Judgment in -American “Waterways Operators, et: -

al. v.. Askew, et al, 71- ee OD Fla.

Dec. 10, 1971) ......08.. ae ee ree fs

Cases Cited

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (i937) 6

Americar “Waterways Operators, -Inc., .et -al. v.

Askéw, et al., No. 71- 156—Civ—J. (M. D. Fia., |

December 10, 1971) yaw rerer Pee eeeseauuesss 4,4n,21 |

PSE Ney PRL

m ” » one es — capita sides were ae ame ron

| i ‘a |

° oe / PAGE

Boyer, Ex Parte, 109 U. S. 629 (4884). ./6 20.0... 16

- Butler v. Boston Steamship Co., 130 U.S. 527 (1899): 18

"Carter v. Carter Coal Co., 298 U.S, 238 (1936): . 7 a

/ eg Chelentis v. Luckenbach S.S. Co., 247° U. S. 372 (1918) 1

ie "Currin v. Wallace, 306 U.S? 1 (1939) 2...

2) O- Buelia v. Ambler Co., 272 U.S. 365. (1926) 07.2... 6,7

4 ~ Florida Lithe~ Growers” v. _ Jacobsen, 362 U.S. 730

x . (1960) . ~e ee ee sees ee aeee 7-

y es Garrett v. Moore- McCormack 0, 317, US, = |

; or (1942)... OAS ROSH epee es ee ness ee baccws 12

: Harrisburg, The, 119 U.8.199 (1886) Secetectsacs 32°

Huron Cement. Co. vz. City of Detroit, 362 U.S. 440

(1960) vee yeeeew eas Fee Wak 05a yee ceca e eens ... 013,14 |

4 - Kermarec . Ve Compagnie Generale, 358 U.S. 625 -

‘= (1959) : coiee sees heres. Seni Melee ceew dues bass dus . 12

Knickerbocker Tee Comipany V: Stewart, 258. U.S. . se

; » 149 (1920) ..... Use sesewses haere Lh ees cesses 8, 11, 15, 16 |

a Kossick v. United Fruit Co., 365 U. S, 731 (1961) . 12

:. Lottawana,, The; 88 U.S. (21 Wall.) 558 (1874) ...27, 8, 14

Loughin v. MeCaulley, 186.Pa. St. 517, 40. Atl. 1020

S; Ct. Pa. 1898)... 2.2.2... ee ee ee 18

Paulie & Nash. RR. Co. We, Garrett, 231 oa 298 |

(1918) °. ewe be - er Soe 6-0 6 : : 7

3 ~ Moragne’ v. States Marine nck Ine, 398 US. | |

oak pny vee e ete eg ewe eee [aeeduy etwas ee 127

4 a |

v ll :

a — . PAGE

‘Moses Taylor, The, 71 U.S.:(4 Wall.) 411 (1866) .. 9

‘Paladini v. Flink, 26 F.2d 21 (9th Cir. 1928) ..... wo 18°

Pennsylvania v. West Virginia, 262 USS. 553 (1923) 6

. . Pope & Talbot, Inc, v. Hawn, 346°U.S. 406 (1953) ... 12.

Roanoke, The, 189 U.S. 185 (1903) ...........0000. 9,10

Southern Pacific Co. v.. Jensen, 244 U.S . 205 (1917) 8

‘United. States v. Pink, 315 Uss. 203 (1942) on ~ 19

Washington v. Dawson 1 & Co., 264 US. 219 (1924) Co . ee

Vwickler v: Koota, 389 U.S. 241 (1960), Sy4edsveneee 7:

7 a “y= vo ..

. " Statutes Cited

An Act to Tole ment the Provisions of the Inter-

national Convention for the Prevention of Pollu-

tion of the Sea by Oil, 33 U.S.C. §9 1001-15 ......14, 14n

The Clean Waters Restoration Act of 1966, 80 Stat. oo

1252 vasues a das ewes araenstacea’ i asats<seeaey 15, 15n |

- “Constitution of. the United States, Article I, See-

tion 8,. Clause BBs ogg esas s ceuseeesacpseeanxus : 8n

Constitution af’ ‘the. United: States, Article III, Sec-

tion 2 Ley Ea keen NEG EE Ws ceed e eee ence ea ea Ox 3n

Federal Maritime Lien Act, J une5, 1920, ce. 250 §. 30, >.

subsections P- T, 41 Stat. 1006, 46 U. S.C. § 971-75 -

(1964) ....... ae eés Fandee ees euveneweues os asses = 9, 9n »

Federal Water Pollution Control Act, as amended,

33 U.S.C. §§ 1151-60 . a ee re .14, 14n, 15, 158

The Florida Oil Spill Prevention and Pollution Con-

trol Act, Laws of 1970, Ch. 376, Supplement

ace ‘1969 TORTI eT ECCT TET Tee sees 4n, 13.

; . PAGE

Jones Act, Mar. 4, 1915, e. 153, § 20, 38 Stat, “1185, |

as amended June's 5, 1920, ¢. 250; § 33, 41° Stat. 1007,

46 U.S.C. § 688 (1964) .........0.. Sr re 11, _11n

Judiciary Act of 1789, Sept. D4, i789, c. 20, 1 Stat.

76, as amended 28 U.S.C. § 1333 (1964) .......... 10, 10n

. Michivan Watercraft Poflution Act of 1970, Act 167, .

Public Acts of 1970; M.S.A. § 5353 (201) et Seq. 5

S. L. 48 § 328.331 2.02... pee eaae i. 2.2, 2n, 4,5 12; 16, 18

The New York Harbor Act of 1886, as amended, oo.

U.S.C. §§ 441-451b (1964) .... Mieyseddaes Seguee 14, 14n.

Oil Pollution Act of 1924, 33 U.S.C. (407 (1964), -

repealed, April 3, 1970, Pub, L. 91-224, Title I

§ 108, 84 Stat. ks Se ee i ore 14, 14n

| Refuse Act of 1889, 33 U.S. C. § 407 pisos Shee eos os 14, 14n,

' Rivers and Harbor Act of 1899, 33 U.S.C. S$ 403, 406 . |

(1964) ........ Meas even sce ean es bea easeeaes 14, 14n

The United States Limited Liability Act, Title 46,

U.S.C. §§ 183-188 eSvuea ey Wiese ens eeoee es suey. “17

_ Water Pollution Control. Compact Act, .c.* 407, 61

Stat. 682 ........ Pe ts eee ee rere eee 14, 14n

\ . 1 2 :

Water Quality Improvement Act of 1970 .

(W.Q.LA.”), 33: U.S.C. §§ 1161-75 ..2.2.....15,15n, 17”

46 U.S.C. §§ 811-436 foe. eee tceceeeeeeeee 160

PLL AED IRENE BO a ang PMSA cae OP SA

IN THE

‘Supreme Court of the United States

October Term, 1971

_ No. 71-422

LAKE Carters’ ASSOCIATION AND AMERICAN caemnnlanieil

Company, et al., ;

Appellants,

: vs.

Ratpw. A. MacMuuuan, Individually and as Director,

Michigan Department of Natural Resources, et al.,

_ Appellees.

On AppeaL From THE UNITED Srares District Court’ ror

THE KasteRN District oF MICHIGAN

fy. x .

Uv é

bg .

‘BRIEF OF ASSURANCEFORENINGEN GARD, ASSURANCE-.

FORENINGEN SKULD, THE BRITANNIA STEAM SHIP INSURANCE |

ASSOCIATION, LIMITED, THE JAPAN SHIP OWNERS MUTUAL

PROTECTING AND INDEMNITY ASSOCIATION, THE LIVERPOOL

AND LONDON STEAM SHIP PROTECTION AND INDEMNITY —ASSO-

. CIATION, LIMITED, THE LONDON STEAMSHIP OWNERS’ MUTUAL |

INSURANCE - ASSOCIATION LIMITED, NEWCASTLE, PROTECTION

AND INDEMNITY ASSOCIATION, THE NORTH OF ENGLAND PRO-

TECTING & INDEMNITY ASSOCIATION LIMITED, THE STANDARD

STEAMSHIP OWNERS’ PROTECTION AND INDEMNITY ASSOCIATION

LIMITED, THE STANDARD, STEAMSHIP OWNERS’ PROTECTION &.

INDEMNITY ASSOCIATION’ (BERMUDA) LIMITE, . THE STEAM-

SHIP MUTUAL UNDERWRITING ASSOCIATION, LIMITED, SUNDER- —

LAND. STEAMSHIP - PROTECTING & INDEMNITY ASSOCIATION,

SVERIGES ANGFARTYGS ASSURANS FORENING, ‘THE UNITED KING-

DOM MUTUAL STEAM SHIP ASSURANCE ASSOCIATION (BERMUDA)

LIMITED, THE WEST OF ENGLAND SHIP OWNERS MUTUAL PRO-

TECTION AND INDEMNITY. ASSOCIATION (LUXEMBOURG ) AND

THEIR RESPECTIVE MEMBERS, AS AMICI CURIAE. ;

- Assuranceforeningen Gard, Assuranceforeningen Skuld,

‘The Britannia Steam Ship Insurance Association, Limited,

‘The Japan Ship Owners Mutual Proteeting and Indemnity

Association, The Liverpool and London Steam Ship Pro- —

tection arid Indemnity Association, Limited, The London

Steamship Owners’ Mutua} Insurance Associati on Limited,

NAF eat RE Ne Bi Dias ho 8

Newcastle Protection and indemnity Association, The .

North ‘of England Protecting & fudermnity Association -

. Limited, The Standard Steamship Owners’ Pretection and

Indemnity Association Limited, The Standard Steamship

Owners’ Protection & Indemnity Association (Bermuda)-

Limited, The Steamship Mutual Underwriting Association,

Limited, Sunderland Steamship Protecting & Indemnity

Association, Sveriges-Angfartygs Assurans Forening, The —

United Kingdom Mutual Steam Ship Assurance Associa-

tion (Bermuda) Limited, The West of England Ship

Owners Mutual Protéction and~ Indemnity Association

(Luxembourg) (‘‘the Associations’’), and their respective

members, respectfully submit their Brief amici curiae,

in support of Appellants herein, on consent of all parties

| -pursuant to Rule 42.2. The ¢onsent of Appellants is evi-

denced by their letter to counsel for the Associations dated

January 17, 1972, and the consent of Appellees by. their

letter.of same date; the originals of these letters have been

submitted ‘to the Clerk for filing with this Brief.

QUESTIONS PRESENTED

The questions presented on this appeal are set forth

at pp. 5-7 of Appellants’ Jurisdictional Statement and

need not be repeated here in detail.. In the view of. the

Associations, the underlying question presented for this

‘Court’s decision is the fifth of those enumerated by Appel-: ©

lants, i.e., does the Michigan Watercraft Pollution Control

Act of .1970 (‘‘the Michigan. Act’’)! contravene the essential

purposes of, and work material injury to characteristic

features of the maxitime law and interfere with its proper

harmony and uniformity? If this ‘Court answers ‘this —

question affirmatively, the . Michigan Act must be struck

1 Act 167, PuBLIC ACTS OF 197Q, STATE OF MicHicaN; S.L. ’48

§ 323. 331; .M.S.A. § 5353(201) et seq. The text of the Act is set

out in full as Appendix G ‘to Appellants’ Jurisdictional Statement

| (pp. 56-60).

Sink ai ae aia

down as contrary to the Auimiralty Clause of the Constitu- }

tion.?.

The preliminary question requiring consideration by.

this Court is whether-or not the three-judge court below .

abused its discretion in declining to consider the constitu-.

tionality of the Michigan Act.

INTEREST OF AMICI CURIAE |

_ The Associations filing this’ brief as amici‘are ‘composed

of the owners and operators of approximately three-quar- |

ters of the world’s ocean- going vessel tonnage, flying the

flags of almost every maritime country, including approxi-

mately 4 million tons under American flag. The members

of each” of the Associations mutually insure one another

on the indemnity principle, through the medium of their

_ particular Association, against liabilities of numerous types

arising out.of the ownership and operation of their vessels, .

including liabilities for pollution damage. A substantial

nuniber of ‘vessels owned or operated by members of the

- Associations call at Michigan ports. The Associations and

their respective members are therefore materially affected

by the Michigan Act, inasmuch as it purports to require

substantial structural modifications in all vessels entering

- Michigan waters and provides that any person violating ~

any of its provisions is guilty of a misdemeanor and subject

to a fine of not more than $500. |

More importantly, -however, the Associations -are con-

cerned with the substantive question whether the individual

states may constitutionally . enact their own statutory —

schemes, no matter how w ell meant, affecting the operation,

2 ArTIcLe III, Section 2: “The judicial Power [of the United ,

States] shall extend *-* *. to all Cases of admiralty and maritime

jurisdiction see” |

4 ‘

‘ArT! Svar ee anaee

SE RRAD Nee PN ae

7 aes fe ‘ PSS CaS es fa Ser ala

. oo _ . ©

structural alteration, inspection and maintenance of domes-

tic and foreign vessels engaged in commerce on interstate —

- or international waterways, whereas Appellants will pre-

sumably concentrate on the effect of the Michigan, Act °

on Great.Lakes. shipping. The Associations and their mem-

’ bers, on the other hand, are not only directly. toncerned

with legislation affecting the Lakes, but seek to direct this

Court’s attention to the mushrooming of disparate and —

- conflictirg.,state water pollution statutes, all of which, in

the Associations’ view, contravene the Admiralty Clause,

This appeal presents an important question of constitu-

tiortal law similar to that presented in American Water-

. ways Operators, Inc. et al. v. Askew et al.,3 whertin the ,

-15 Associations were Intervening- Plaintiffs. Unlike the

court belew in the case presently before this Court, a three

judge court in American Waterways considered a water

pollution statute of the State of Florida‘ and held it uncon-

stifutional in its entirety, as in violation of the Admiralty

Clause. A Notice of Appeal from this decision, dated

December 22,1971, has been filed by the State of Florida

and the officer concerned, pursuant to’ 28 U.S.C. § 4253

and Rule 10 of this Court; under Rule 13 the appeal must

therefore be .docketed no ‘ater than March 9, 1972.

The ‘Associations will of course be parties to the appeal,

: _ which will present squarely -the. basic constitutional ques-

tion common to both appeals.. The Associations therefore

respectfully suggest the consolidation of the two appeals,

in accordance with Rule 43.5 of this Court.

3 No. 71- 156Civ-J (M. D. Fla., December 10, 1971). A copy of -

the decision is annexed as Appendix A.

* The Florida Oil Spill Prevention and Pollution Control Act,

Florida Laws of 1970, Ch. 376, 1970 Supplement to Florida Statutes,

1969 (“the Florida Act’).

ARGUMENT

_ The ‘three-judge court below abused its discretion

in declining to consider the constitutionality of the

— Watercraft Pollution Control Act. .

The terms of the Michigan Act are so plain as to require

no interpretation whatever by the Michiga courts. The

sections with which the Associations are ing vitally con-

cerned are -4(2), 7(2) and 8. Sections: 4 (2)! and 8, if held

_ valid, would empower the State to require stfuctural altera-

‘tions of domestic and foreign vessels using Michigan waters

and_to inspect such vessels for compliance. Section 7(2),

if upheld, would impose unlimited liability on vessel owners

and operators for costs incurred by the State in removing

discharges of oil and oily wastes. For the reasons here-

inafter stated, the Associations maintain that the Michigan.

Act is an ienproner incursion into areas of maritime law —

wherein, under the Admiralty Clause, only Congress may

; validly ee

The court below found that following passage of the

Michigan Act, state officers ‘‘. . . began its implementation

by, first, enforcing the requirements relating to pleasure °

craft and then by approaching the owners and operators

of Great Lakes cargo vessels in order to‘obtain compliance

with the provisions of the Act.’ 5

The court below further found that ‘‘As a result of the

overtures of state officials, with the aim of establishing

voluntary compliance eithin a reasonable time, some ship

mers have installed’ holding tanks’ to. control sewage

tscharge. ...’’®

° ‘Appendix A to Appellants’ Jurisdictional Statement, P- 24.

6 Appendix A to apeenene Jurisdictional Statement, p. 25.

798 oman’

hey

240-1 (1987) :

Neverthele’s the court below, noting that no criminal

prosecutions were pending or threatened ‘‘which would

realistically infer that plaintiffs [AppeNants] in a trial: _

of a case would be denied the benefits of the Dué Process

and Equal, Protection clauses or that a State court. would,

not consider the other constitutional issues with cireum-

spection and . thoroughness in the~usual and normal

course,’”* held that no justiciable controversy existed, and

so declined to take up the merits of'the case. ~~.»

In so holding, the court applied the: wrong yardstick; it.

ignored the frequently quoted definition of ‘‘controversy”’

found in Aetna ‘Life Ins. Co. v. Haworth, 300 U.S. 227,

ra ‘controversy’ in ‘this sense must’ be cine that ©

is appropriate for ‘judicial determination. A justi-

ciable controversy is thus distinguished from a dif-

‘ference ‘or dispute of a hypothetical or abstract

character; from one that is academic or moot. The

controversy must be definite and concrete, touching

- the legal relations of parties having adverse legal

interests. It must be a real and substantial con-:

troversy admitting of specific relief through.a decfee _

of .a ‘conclusive character, as distinguished from an

opinion advising. what-the law would be upon a-°

~ hypothetical .state*of facts. Where there is such a _

_. concrete case admitting of, an immediate and defini-

tive determination of the legal rights of the parties

in an adversary proceeding upon the facts alleged,

the judicial function may be appropriately exercised

although the adjudication of the rights of the liti- -

gants may not require the award of process:or the -

payment of damages. (Citations an

Lack of proof of an -immediate threat of ‘enforcement

of a, challenged statute has repeatedly been held no bar to

‘a’ consideration of the merits.of the case ‘by this Court.

Pennsylvania v. West Virginia, 262 U.S. 553 (1923) ; Euclid

3 Appendix A to Appellants’ Jurisdictional Statement, p. 30.

| | \ . : a,

v. Ambler Co.; 272 U.S. 365 (1926); Carter v. Carter Coal

Co., 298 U.S. 938 (1936) ; a hai v. Wallace, 306 ae 1

(1939).

The court below did ‘pet suggest an answer’ to the

puzzling question how the Michigan courts could consider *

a case which the three-judge court itself held did mot pre-

sent a justiciable controversy. . In any event, this Court

has frequently ‘ .. emphasized that abstention cannot be-

ordered simply bo give state courts the first opportunity

to vindicate [a] -federal claim,’ > Zwickler v..Koota, 389

_ US. 241; 251 (1967) and cases cited at pp. 250-2; a three- .

- judge court ‘has jurisdiction over all claims made against ©

a state statute, where one-of the claims presents a federal

constitutional question. Louis. & Nash. R. R. Co. v. Garrett,

931 U.S. 298 (1913).; Florida Lime Growers v. Jacobsen,

362 US. (8, 80-1 eee —

- The Michigan Act violates the admiralty clause of

the constitution and should for that reason be declared >

invalid. . : a

A. Only Congress has the Power to. Legislate in

_ the Sphere wherein the Michigan Act Purports -

- to Apply. © -

. Almost 100 years ago this Court, in The " Lottawanna,

88 U.S. (21 Wall.) 558 (1874), explained the purpose and

meaning of the Admiralty Clause in the following fre-

quently quoted language: ; sd -

“That we tive a maritime law of our own, opera- ~

’ tive thronghout the United States, cannot be doubted.

. The general system” of maritime law which was

familiar to the lawyers and statesmen of the country ©

when the Constitution. was adopted, was most cer- —

tainly intended and. referred to when it was declared ©

in that instrument that the judicial power | of the

RRP a Fe eS at Ga

3 hon ag OMB age Biasai ME A

. United: States shall extend ‘to all cases of admiralty

and maritime jurisdiction’,

; * * *°

One thing, however, is unquestionable; the Con

stitution. must have referred to a system of law

coextensive with, and operating uniformly in, the

whole: country. Tt certainly could not have been

the intention to place the rules and limits of mari-

time law under the disposal and regulation of the~

several States, as that would have defeated the

4miformity and consistency at which the Constitution

med on all subjects ofa commercial vharacter |

evting the intercourse of the States with each

other or with foreign states.”’ (pp. 574-575)

. ; * * * ;

“The ausktion as to the true limits of maritime

‘law and admiralty jurisdiction is undoubtedly, as

Chief Justice Taney intimates, exclusively a judicial

"question, and-no State law or act. of Congress can -

~ make it broader, or (it may be added) narrower, _

' than the judicial power .may determine those limits ©

to be.’’ (p. 576) ot,

This Court has since held repeatedly that the Admiralty.

Clause, read in conjunction with the N ecessary and Proper

Clause,* vests in Congress the paramount’ power to enact

. legislation in. the maritime field. Southern Pacific Co. v.

Jensen, 244 U.S. 205 (1917); Knickerbocker Ice Co. v:

Stewart, 253 U.S..149 (1920) ; Vaan v. Dawson ¢ Co. ”

264 U.S. 219-1924). -

In the landmark Jensen case, supra, this Court held that

a state workmen’s compensation statute eould not validly

be applied to the death of a longshoreman resulting from’

an accident on board a vessel afloat i in the navigable waters

. Gateeiiien, hence I, Section 8, CLauseE 18: “The Con

gress shall: have power . . . Td.make all Laws which shall be neees- -.

sary and proper for carrying into Execution the foregoing Powers,

_ and all other Powers vested by this Constitution in the Government

of the United States, or in any Deere 3 or Officer thereof.”

of the State. In holding that state legislation may not

contravene an applicable federal statute or affect the gen-

eral maritime law, except within narrowly circumscribed

' limits, the Court cited’ The Moses: Taylor, 71 U.S. (4 Wall.)

. 411 (1866), which struck down a state statute urporting to

authorize proceedings im rem according to the practice

in admiralty, and. The, Roanoke, 189 U.S. 185 (1988), hold-

‘ing that even -before enactinent of | the Federal Magitime

Lien Act,® maritimd liens for materials furnished® to

foreign vessels. could not validly be created. by state

statutes. - Referring to state. statutes in the maritime field,

the,Court said:

[PHainly, awe think no- ‘such: legislation is |

. valid if it contravenes the essential purpose ex-

~ pressed’ by. an act of Congress or works material

prejudice to the characteristic features of the general

- maritime law or interferes with the proper harmony

and uniformity of that law in its international and . -

interstate relations. This limitation, at the least, is

essential to the effective operation of the fundamen-

tal purposes for which such law was incorporated

into our national laws by the Constitution itself... .. -

A similar rule in respect to interstate commerce

deduced.'from the grant to Congress of power to

regulate it is now ‘firmly established. *‘Where the

‘subject is. national. in- its character, and admits and —

. requires uniformity of regulation, affecting alike all

the States, such as transportation. betweeri the States, -

including: the importation of goods from one State

into another, Congress can an act.upon it and

provide the needed regulation&. The absence of any

Taw of. Congress on the subject is equivalent to its

declaration that commerce in that matter shall he

ge Bowman v. Chicago & Northwestern Ry. Co.,

"125 U.S. 465, 507, 508; Vance v. Vandercook Co.,

170 U.S. 438, 444; ‘Clark Distilling Co. v. Western

Maryland Ry. Co., — U.$. 311. And the same

® June 5, 1920, c. 250, § 30,’ subsec ons P-T, 41 Stat. 1006; 46

U.S.C. ese 75 (1964). - | , fH

. ‘ . ° | 10

. ee character of reasoning which supports. this rule, we

SS. :* . think, makes imperative: the stated limitation upon

= * the power of the States fo interpose whert maritime

: ~—anattgts are involved.” (pp, 216-17), .?

Noting that tie -weark. of. a longshoreman in loading a.

7 % - vessel is maritime in. nature;-and that the rights fea

3 bilities arising from injuries sustained while engéged ih.

such work are matters clearly . within the admiral n

maritime jurisdiction of the United ‘States, the Court <

continued: a g . 2 Sw.

“

“If New York can. subject foreinn ships coming

o into her ports to such obligations as those imposed

by her Compensation Statute, other states- may do

likewise. The necessary consequence would be de-

struction of.the very uniformity in respect to mari-

time matters which the Constitution was designed to

establish; .and freedom of navigation between the

States and with foreign countries would be seriously

4. hampered and impeded. . The legislature -

Jo -exceeded its authority in attempting to extend the _

statute under consideration to conditions like those

; here disclosed. -So applied, it conflicts with the

_ Constitution and to that extent: is invalid. id (pp.

aM: -18). ag

i The Court then’ Hated that the er which the. New.

‘York Workmen’s Compensation Statute purpo to

give was of a character wholly unknown to‘ the mon

. law, incapable of enforcenient by the ordinary processes

-of any. court, and. therefore not ‘‘saved to suitors’’-from.

the otherwise ‘exclusive erant of admiralty jurisdiction to

‘ the. federal district ‘courts made ‘by Section 9 of the .

J Judiciary Act of 1789.10

Evidently acting -in the belief: that Jensen was. based

primarily on this Court’s observation that workmen’ S com-

ee ie i |

“Ss 10 Sept. 24; 1789, c. 20, 1 Stat, 76; as ose 28 ‘vy § 1333

—

eae |

wey,

‘pensation was not a commdn law remedy Saved to suitors --

under thé Judiciary Act, Congress promptly aménded that

statute so as to save to suitors, not only their common law _

remedies, but also ‘any ‘‘rights and remedies under the

Workmen’ S Compensation Law of any State’’. This amend-

ment was; however, struck down by this Court in Knicker-

bocker,- supra, where, after referring to its earlier deci-_

. $1ons, — Jensen, the Court stated:

. The Constitution itself adopted and established, |

as ‘part of the laws of the United States, a roved

rules of the general maritime law and empowered

“~

_.« ' -Congress to: legislate in respect of them and other ©

matters within the admiralty and maritime juris-

diction. Moreover, it took from the States all pow-

er, by legislation oy judicial decision, to contravene

‘the essential purposes of, or to work material injury

to,. characteristic features of such law or to inter- -

-fere with its proper. harmony and uniformity in its

international and interstate relations. To preserve ..

. adequate harmony and appropriate uniform rules

relating to maritime matters and bring them within

control of the Federal Government was\the funda-

‘mental purpose; and to such definite end Congress

was empowered to legislate within that epaere

i *. *

The field, was or left unoccupied; the: Consiitadon

itself adopted the rules concerning rights and lia-

_ bilities applicable theréin; and certainly these are .

not less paramount than ‘they would have been if

enacted by Congress ”’. (253° Uz S., at pp. 160-61)

The’ following are additional examples of the host of

decisions*of this Court holding that the States are just

as powerless to. contravene the general maritime law, as

‘accepted by. the fedgral courts, as they are to enact legis-

lation in contravention of acts of Congress :

Chelentia v. Luckenbach: S.S. Co., 247 US. 372. (1918),

- holding that prior to passage of ‘the Joss Aet,"?- the

11 Mar. 4, 1915, c. 153, § 20, 38 Stat. 1185, as amended June 5

1920, c. 250, § 33, 41 Stat. nS 20 § 688 (1964).

aa?

| a,

_—

—

12 er 8 yt.

general maritime law, and ‘not state law, must be ‘applied. |

in actions for seamen’s injuries; éven if brought in “3°

courts; | og 8 RRS. .

Garrett v. “Meore-McCormack Co. 317 U.S; 239 (1942),

where this Court refused to apply: Pennsylvania law, where-_ .

under the burden of proving the invalidity of a release is

on the releasor, in a Pennsylvania state court action for

a seaman’s injuries, and instead applied the general mari-.”

time law, whereunder ‘one asserting a Seamen’s release ~

as a. defense has the burden of proving its validity;

Kossick v. United Fruit Co., 365 U.S. 731 (1961), hold:

ing astate Statute of Frauds’ indppliontie to-an oral guar-.

-anty allegedly. given to a seaman by his: employer;

Kermarec v. Compagnie Generale, 358 U.S, 625 (1959),

- applying the general maritime law, rather “than the law of

New York, to an injury sustained by a visitor on | board

a vessel in New York harbor; . 2

Pope & Talbot, Inc. v. Hawn; 346 U.S. 406 (1953), hold-

ing that the géneral maritime law, whereunder contributory.

negligence does noet-bar_a_recovery, but is only considered

in mitigation : ‘of damages, must be applied in’ “suits for

maritime injuries, regardless of the forum ;

_ Moragne v. States Marine Lines, Inc., 398 US. 375 7

(1970), overruling The Harrisburg, 119 U.S. 199 (1886),

and holding that the general maritime law affords a cause

of action for wrongful death and that that law, rather -

than state law, ‘must be applied in assessing liability for

a death resulting from.circumstances occurring within the

admiralty jurisdiction.

It was against the background of these and similar |

decisions that a three-judge ‘court in American Water-

ways? (from ‘which an appeal to this -Court has been

-«

12 Note 3, p. 4, supra; Appendix A hereto.

1B 0S

%- . — ’ ~~ 2 ~ \.

. oe.

10.

Lod)

- noticed) held the Florida Oil Spill Prevention and Pollu-

tion ‘Control Act !° invalid as in contravention of the

The State may argue that the Michigan ‘Statute

should be upheld under Huron Cement Co: v. _ Detrotty 362

U.S. 440 (1960) which involved a, ‘city ordinance where- _

under shipowners were subject to,a $100 fine and ships”

officers to jail Sentences of not exveeding 30 ways for the

emission of smoke from thetr vessels.

This Court found that ‘¢ .. the sole aim of the Detroit |

ordinance [w as] ‘the climiiuntion of air pollution to protect

Admiralty Clause- wl

the health and’ enhance’ the: cleanliness of the local com-*

-munity’’, whereas the purpose of the federal statutes and .

regulations relating: to boilers and propulsion and auxiliary

. machinery of sea-going vessels was ‘‘:. . to insure the sea- " ;

, going safety of .vessels ‘subject to- inspection ”.. 362 U.S.,

at p. 445. The Court therefore concluded, Justices Douglas

‘and Frankfurter dissenfing, that the federal inspection

laws and the ordinance did not ‘‘overlap’’, and that the”

federal laws therefore did not pre-empt the field. 362 U. S.,

at p. ZA6. The Court noted, however: .

<Phe-s

~ eral licensing scheme has been well delineated. - A

state may’ not. exclude from its waters a ‘ship oper-

ating under a federal license. Gibbons VS. Ogden,

9 Wheat. 1. A state may not require a local occu-

-pation license, in eee to that federally granted,

as a condition precedent to the use of its waters. -

Moran vs. New Orleans, 112 U.S. 69. While an

enrolled and ‘licensed vessel may be required to

share the costs of benefits it enjoys, Huse vs. Glover,

~—119.U.S. 543, and to pay fair-taxes imposed. by its ;

- domicile, Transportation Co. vs. Wheeling, 99 US.

273, it cannot be subjected to local license imposts

exacted for, the use of a navigable waterway, Har-

man VS. Chicago, 147 U.S. 396. See also Sinnot vs.

Davenport, 22 How. 227’.

13 Note 4, p. 4, supra. -

ORR, CO Ot ae

' The Associations respectfully sibmit that Hurgn, which |

‘makes no mention of the Admiralty Clause, cannot be |

» .- fully reconciled with the long line of decisions commencing. if

. with The Lottawanna, illustrations whereof are cited at

pp. 8-12 supra. In any event the instant. ease plainly

= ‘presents the ‘‘overlap’’ not found in. Huron, for here: fed- lm

_ eral laws and. regulations ‘were promulgated fore the same .- .

e purpose as the Michigan Act. _ |

\s a , a

_B. Congress has Exercised. its Power by. Legislat-

a _ing Extensively in the Sphere wherein the

Michigan Agt Purports to Apply;-to that :

Extent the Act would be Unconstitutional, - —- :

_ Even if it were Otherwise Valid.

1, Federal Water Pollution Legislation. Conicess hes

_ been providing by statute for the prevention and minimiza- _

' .. tion of water pollution, including pollution by vessels, since _

1886: The federal statutes in the area, which supplement

and to some extent alter the general maritime law appli-

_- cable to water pollution, include The: New York Harbor -

. oo Act of 1886;'! Rivers and Harbors Act of 1899;'* Refuse

; Act of 1899; a8 Oil Pollution Act of 1924; ;'7 Water Pollution ——-—_-——

4 _Control-Compact Act; Federal Water ‘Pollution Control

Act,-as amended;’? An Act to Implement the Provisions

- of the International Convention for- the Prevention of the

Pollution of the Sea by a ;°° The Clean Waters Restora-

.. * "Sama

44 As amended, 33 U.S.C. §§ 441-451b (4964).

15 33 U.S.C. §§ 403, 406 (1964). e |

17 33 U.S.C. §§ 431-37 (1964) ; repealed, April 3, 1970, Pub.

91-224, Title J, § 108, 84 Stat. 113.

q 18 July 3, 1947, c/ 407, 61 Stat. 682-5.

a 19-33 U.S.C. §§ 1151-60 (1964).

20 33 U.S.C. §§ 1001-15 (1964).

VR sé Seeks ANAEMIA LES Bese M8 iii

“nt

415

-. tion Act of 1966,?' and the Water Quality Improvement -

- Act of 1970 (‘*W.Q.L-A.””).2?

The latest and most comprehensive of these statutes j is

W.Q.LA., which. pyovides, among other things, elaborate

schenies for the control of vessel sewage ** and oil pollu-

tion,** as well-as for promulgation of regulations by the

President. concerning abatement of pollution by other haé- |

ardous substances. -”

Despite the detailed and comprehensive regulptory.

scheme for the control of water pollution embraced in .

W.Q.1.A. and its antecedents, the State of Michigan, by

enacting its own legislation, has sought to duplicate, con-

travene and contradict the provisions of the federal stat: -

utes, causing an intolerable bardenh upon international,

interstate and intrastate maritime commerce!

Section 11(0) (2) of the federal Water Pollution Con-

| — Act, as amended by W.Q.1.A.,”* provides that “Nothing |

in this section shall be ecnsieaed.as pre-empting any ‘State

2 3use, S$ H61- 75 (1964). As of this writing, an extensive _

or political subdivision-thereof from i imposing any require-

“ment. or liability with respect to the discharge of oil into .,

any waters within such State.””. However, it is elementary

that Congress cannot give to the States powers which

they: have surrendered to the Federal Government under

the Constitution. Knickerbocker Ice Co. v. Stewart, 253

= As amended, 33 USS.C. §§ 1153, 1185-60 41964).

revision of W.Q.1.A. is under consideration by Congress. See, for

example, Federal Water Pollution Control Act Amendments of

1971, S. 2770, 92d Cong. Ist Sess., — by the Senate on Nov. 2,

1971:

“ (2833 US.C. § 1163 cise}.

~~ 25 33°U.S.C. § 1162 (1964).

2433 U.S.C. § 1161 (1964).

. 26 33 U.S.C. § 1161(0)2 (1964).

DA IS al ees

~ : A

. : : . .

‘

q ial veer NG Net dee ater anid Nia iRotlas ralnmediuiarear dank arse Micalan dori ebadaaeenpeiald iwi eco ttse

. . .

U.S. 449, 160 (1920), supra, p. 11; Among the most im-

7 v8

portant. of these are the paramount power of Congress ©

‘2. Federal Legislation and: International Agreements

Concerning Inspection of V essels. Section 8 of the Michi- —

gan Act w ‘ould, if valid, subject domestic and foreign vessels :

using Michigan waters to pe aloha by the Michigan Water

‘Resources Commission, its .a and inspectors, or any,

peace, conserv ation: oT “police oficer: for the . purpose of

requires.

‘Federal egislation,2* toweilier: “with the "yogulations

issued pursuant thereto, set: up. a detailed and. compre--

hensive scheme, administéred by the U nited States Coast

Guard, for inspection and regulation. of all vessels (except.

-_ \ motor boats, whieh are otherwise -provided for) propelled

by steam or any other form of mechanical ' or electrical

“power. This legislation covers foreign as well as domestic

vessels “navigating any waters of the United States w hich |

are ¢ ymmon highways of commerce or open fo general or

~ ~ competitive navigation.’’ All navigable waters of the State,

of Michigan. with ,the exception of land-locked lakes, are

part of the navigable waters of the United States, and aré

thus included. Ex Parte Boyer, 109 U.S. 629 (1884)? The

federal schemé includes requirements for construction of.

vessels, their equipment and maintenance, and is in -con-

_ determinmg: whether it is epee as § 4(2) of the Act

sonance with the 1960 International Convention on the. |

' \ Safety’ of Life at.Sea ** which has been ratified or adhered

to by all maritime nations, including .the United States,

and which contains ‘detailed requirements for the construc-

tion, maintenance and inspection of all Kagoing vessels.

27 46 U.S.C. §§ 361-436 (1964).

28 TTAS 5780, 16 UST 185, 536 UNTS 27.

‘to legislate in the maritime field and the. power-of the - - a

federal judiciary to define the general maritime law w hich |

~ must prevail throughout all of the. United States.

a |

. - ;

17 | Se See -

“Tt is not only unconstitutional but totally impractical °

for the State of Michigan—or any other state—to attempt

to set up_ its own, inspection | requirements © for vessels .,

; trading” to the ‘state,‘in addition to: the detailed scheme

devised by the United States Government in coopergtion

with other maritime nations. The Mithigan legislature _

appareritly recognized the need for uniformity by enacting -

Section'9 of the. Act, which reserves to the State the ‘‘ex-

_ elusive riglit’’ to establish requirements in this area Cin

order to insure statewide uniformity.’’ But Michigan, ally

more than any of its political subdivisions, is not an island

unto itself. It is manifestly improper for Michigan, or

any other state, or. any pojitical- subdivision thereof, to

, enact its own—and conflicting—legislation i in this field.

3... The United States Limitation of Liability Act. The

‘United, States. Limited Liability Act (more commonly

known as the ‘Limitation Statute’), Title 46 U.S.q.

§§ 183-89, provides a scheme for lithitation of the liability

of a vessel owner or demise charterer for damage not

caused with his “privity or knowledge.’ e . .

By enacting W. Q. L.A., Congress effectively amended the

Limitation’ Statute in respect of one class of claims, ite.,.

claims of the United States Government for the cost of

cleaning up an oil spill which. the shipowner is unable to

‘prove was the result of. a cause excepted under W.Q.I.A.

(act of God, act of .war, negligence of. the United Biaice

Government, or act or omission, of a third party). Under

W.Q.1.A., United States Government claims for clean-up

costs are not subject to the Limitation Statute governing

* other property claims. Instead, W.Q. LA. sets ‘up a sepa-

rate ‘‘limitatiow fund’’ of $100 per gross ton (with a ceil-

7 ing of $14,000,000) for the purpose of reimbursing the -

' . United States Government for clean- -up costs. Title 33

_US.C. § 1161) (1). ;

.W.Q.I.A. thus substantially altered the pre-existing law

of” ‘limitation of liability. What Congress itself. could do, -

“=

ré Py ,

rms

PY PAR AAI gs a ATP untae ve.

18°

howsrer. the states are owertens to do; no state statute

is valid if it cdéntravenes the United States. Limitation

. Statute. Butler v. Boston Steamship Co., 130 U.S. 527

(1889); Paladini v. Flink, 26 F.2d 21 (9th Cir. .1928) ;

Ps ‘Loaghin v. McCauley, 186 Pa. St. 517, 40 Atl. 1020 (S. Ct.

Pa. 1898).

“In ‘Loughin v. McCaulley, supra, the Supreme Court of :

Pennsylvania held that’ the United States Limitation .

‘Statute was paramount over a provision of the Pennsyl- |

vania State Constitution purporting to prohibit limitations

on the amount of recoveries for i injuries resulting in death,

~The Court struck down the contention-that the Limitation .

‘ Statute could not prevail against the Pennsylvania con-

stitutional provision, saying that it was ‘‘elear that iigither

statute nor constitution , of Pennsylvania | ‘ean be -set up

against a right given by congress in its control of the

‘maritime law of the country. That control is paramount,

and, when it has been, exercised in a particilar. way, all .

state authority must conform to it.’ - —-

It is plain from the decisions cited that Section 7(2)

of the Michigan Act, insofdr as it may purport. to. impose

¢ not only absolute liability, /but liability without limit date ’

stes .

which have been discharged from. vessels, is in contra-

_ vention of the United States Limitation Statute, and would

therefore be invalid and ungntorceable, ‘even -if it” were”

otherwise valid.

as to amount, for the costs of removal of oil or oily wa

4. The Boundary Waters Treaty helweon the United

; States and Canada. “Commercial vessels which ply the

Great Lakes and the St. Lawrence Seaway fly the flags of .

_all the maritime nations of the world, and the waters them-

selves form part of the territories of .seven states of the

7 United States: and two provinges of Canada. There is no -

practical way that.any single governmental entity, acting

unilaterally without reference to the international aspects

of ° the probfem, can solve the ecological crisis, and any | _

3°

re ams teal

; | : : =

ae me a ©

. \ . é, 3 Qs ; : ~\, . _ ge.

_ - Pp | 19 | 7 - ; |

fi | »

- @ empts to do ‘so ‘unio by individual states, even if _con-

stitutional (which they are not), would -not only fail to

Solve it but would inevitably bring about.a: Serious impair-

- ment .of the essential water-borne commerce of. the area .

concerned. . It was undoubtedly in recognition of the fact

that navigation of the Great Lakes cannot be controlled’

by one natien.alone that in’ 1909 the United States and

Great Britain entered-into the Boundary Waters Treaty

between the United States and Canada,”® _pursnant to which

an International Joint Commission | was set up and given.”

jurisdiction in Zases involving the use of the Great Lakes

and related waters. .. :

As the Boundary, Waters Treaty i is: s the! éapréme lay. of

the land, and. as. the lichigan Act contraveries the Treaty,

| it would for that reason be invalid, evenif the Admiralty

_ Clause of the Constitution ‘were’ nefesdte United

States v. Pink, 315 U, S. 203, 230- 31 (1942) ~

, .% a .

Conclusion

‘The Michigan Act contravenes ‘a: .immnber of other pio-.

- visions of the United States Constitution;” including. the

Commerce Clause. However, .its provisions pertaining to 7

vessels are so manifestly in violation.of the Admiralty |

- Clause that,an analysis ofthe other constitutional ‘objec-

tions by these Amici Curide is not considered necessary.

_. Michigan. is’ Hat one of. some 30 states which border

| upon, or have navigable outlets to the sea. A pus of -

these have already enacted pollution legislation vitally

’* affecting vessels. If the Michigan Aet were permitted to ©

stand, those States that have thus far refrained from

enaéting. legislatiog of this sort would be almost certain

to. follow Michigan’ S example.

29 36 Stat. 2448, TS, 548; III Redwmand 2616. €

. > bs P

aOR

OS. So ee ae

EEE a,

20° NX

Michigan, Flor ida, Maine, Ni adeachuvalia, Rhode Island,

Washington and other state pollution laws’ already enacted

are by no means uniform. If vessel operators ev entually—

had,to contend with 30 state laws, as well as federal law,

in this country alone, the results would be completely. .

chaotic. Still more American shipowners would surely. ke

added to the growing list of those who haye been obliged. ~~

_to discontinue operations in recent years, and: many foreign

owners would reluctantly find it necessary to stop trading —

their ships to United States ports. The American public

would be bound to ‘suffer, as the end result would be

shortages of oil and other products w hich depend on water -

transportation, and higher pricés for such gs might still be ©

carried. *

-No responsible individual or company wants to see the

marine ~environment, spoiled. Every reasonable : effort

should be made to”eliminate marine pollution or,:at least,

- to keep it at an absolute minimum consistent with the

public’s demands for oil and the other, water-borne products

which have come to be considered necessities of modern

life. Improvements in the design of ships and in the :

training of the officers and. crews who man them, and

improvements in the methods employed by governmental

authorities, by the oil companies, and by vessel operators

in coping with discharges of polluting substances will be of

immense help, but it must be borne in mind that setting

such standards with respect to United States flag vessels is

‘ -a matter for national, and not for state or local regulation.

Insofar. as foreign- -going ships are concerned, it is plain

@ that the setting of standards should be internatioyal in

scope, and great progress has already been achieved in the

movement to brang this,about. Meanwiiile, such regulation

- should:be left: to the Federal Government. To permit; the

states to enter the field would ‘set the movement for in-

ternational uniformity . back. many years, ibaa any

improvement whatever i in the marifie. environment.

SO Soe Rat aaa ies een IY Pk Rae ithe esi —

- . . IN

a ’ PRAYER “ j

The Associations, as Amici. Curiae, respectfully

_ pray that this Court may, in the exercise of its discre-

tion, set this appeal down for argument together with

the appeal which has been noticed-in ‘American Water-

ways Operators, Inc., et al>v. Askew, et al., and that

-. after the hearing thereof it may reverse- the decision

of the United States District Court for the Eastern

- -District of Michigan and remand the case, with instruc-

tions. to enter a decision in favor.of Appellants.

Dated: January 20, 1972. ~

Respectfully submitted, |

Nicuotas J. HEALY, |

Gorpon W. PavLsen,

Attorneys for Assuranceforeningen Gard

et al., Amici Curiae

Haicut, GarpNER, Poor & Havens

Heary & Barr ;

‘RaymMonp A. ConNELL 7

* Emu A. Kratovit, JR.’

of Counsel

w~ ,

22 —* &

; a ; , ae : : . | . a

CERTIFICATE OF SERVICE

' We, Nicholas J. Healy and Gordon W. Paulsen, em- _

_ ‘bers of the bar of this Court, hereby certify that‘oh the |

o2/ = day of January, 1972, we served copies of the ©

foregoing Motion and Brief Amici Curiae on the several

parties hereto, as. follows:

On Appellants Lake ‘Carriers’ Association antl Ameri-.

‘can Steamship Company et al., by mailing three copies

thereof to their Attorney, Scott. i. Elder, Esq., addressed

* to him at 2700 Terminal Tower, Cleveland, Ohio 44113.

‘On Appellees Ralph A. MacMullan, Individually and

as Director, Michigan Department of Natural Resources,

et al., by mailing three copies thereof to their .attorneys,

Hon. Frank J: Kelley, Attorney General of ‘the State of

_ Michigan, Stewart H. Freeman, Esq., Assistant Solicitor:

_ General, .and Jerome Maslowski, Esq. and Francis J.

Carrier, Esq., Assistant Attorneys General addressed to

them at 630 Seven Story Building, 929 West Ottawa Street,

Lansing, Michigan 49913. - A

Dated: New ‘York, N. Y.

January -2/, 1972

_ Nicuopas J. Heay

Gorpoan W. Pavisex* |

Attorneys for Movants, °

Assuranceforeningen'Gard, et al.

_——— ~ . . >

APPENDIX A

[Memorandum Opinion and Fipal Judgment in

American Waterways Operators, et al. v. Askew,

et al., 71-156-CIV-J (M.D. Fla.; Dec. 10, 1971)]

; t .

=_—

~ \ “pliendia A :

” UNITED ‘STATES DISTRICT COURT

. MIDDLE DISTRICT OF FLORIDA |

JACKSONVILLE DIVISION ‘ oO.

i! O~ : ”

. 4 O- -t)

“ ° . <

THE AMERICAN WATERWAYS OPERATORS, INC., a Delaware corpora- .

tion, GULF ATLANTIC TOWING CORPORATION, a Florida corpora-

_ tion; GLIDDEN-DURKEE, a division of SCM, CORPORATION, a New.

-York corporation; DIXIE CARRIERS, INC., a Delaware corporation; -

OIL TRANSPORT COMPANY; INCORPORATED, a Louisiana corpora-

tion; NATIONATS MARINE SERVICE, INC., a ‘Delaware | corporation;

THE REVILO CORPORATION, a Florida cerporation; EASTERN SEA-

BOARD PETROLEUM COMPANY; INC., a Florida corporation; NILO

BARGE LINE, INC., a Delaware corporation; STEUART -TRANSPOR-

TATION COMPANY, _a Delaware corporation; INTERSTATE OIL

TRANSPORT COMPANY, a Delaware corporation; FEDERAL ale

LINES, INC., a Delaware corporation, GULF CANAL LINES, INC.,

. Texas corporation; and INGRAM OCEAN SYSTEM, INC.,°a Delaware \

corporation, all authorized to do business in the State ‘of Florida,

~ Plaintiffs,

and

SUWANNEE STEAMSHIP ‘CO. a Florida coeporatioit: COMMODORES

POINT TERMINAL CORPORATION, a Delaware corporation; AMER-’

ICAN INSTITUTE OF MERCHANT ‘SHIPPING; “ASSURANCE FORE-

NINGEN GARD; ASSURANCE FORENINGEN SKULD; THE BRITAN-

NIA STEAM SHIP INSURANCE ASSOCIATION, LIMITED; THE

JAPAN SHIP OWNERS MUTUAL PROTECTING .AND INDEMNITY

ASSOCIATION; THE.LIVERPOOL. AND LONDON STEAM Pp; .

PROTECTION AND INDEMNITY ASSOCI D; THE

LONDON STEAM MUTUAL INSURANCE -ASSOCI:

‘ATION, LIMITED; NEWCASTLE PROTECTION AND INDEMNITY

ASSOCIATION;. THE NORTH OF ENGLAND ‘PROTECTING & IN-

DEMNITY ASSOCIATION, LIMITED; THE ‘STANDARD SFEAMSHIP

OWNERS’ PROTECTION: &* INDEMNITY ASSOCIATION; THE

STANDARD STEAMSHIP OWNERS’ PROTECTION AND INDEMNITY

ASSOCIATION (BERMUDA),. LIMITED; .THE STEAMSHIP MUTUAL

. UNDERWRITING. ASSOCIATION, LIMITED; SUNDERLAND STEAM-

_ SHIP PROTECTING AND INDEMNITY ASSOCIATION; SVERIGES

ANGFARTYGS ASSURANSFORENING; . THE’ UNITED KINGDOM

MUTUAL STEAM S@IP ASSURANCE "ASSOCIATION (BERMUDA), - #%

LIMITED; THE’ WEST OF ENGLAND’ SHIP OWNERS MUTUAL

PROTECTION AND INDEMNITY ASSOCIATION (LUXEMBOURG);

and ‘their respective members,

Intervening Plaintiffs,

against

REUBIN O’D. ASKEW, as ‘Governor of the State of Florida; RICHARD

B. STONE, as Secretary of State of the State of Florida; ROBERT L.

SHEVIN, ‘as Attorney General of the State of Florida; FLOYD T. CHRIS-

TIAN, ee Commissioner of Education of the State of Florida; DOYLE E.

. CONNER, as Commissioner of Agriculture of the State of Florida; FRED

“Oo. DICKINSON, -JR., as Comptroller of the State of Florida; THOMAS D.

O'MALLEY, JR.,.as "Treasurer of the State of Florida; as. and constituting

THE DEPARTMENT OF NATURAL RESOURCES, State of Florida; .

RANDOLPH HODGES, as Executive Director, and TOM SIMPSON, as

Conservation Officer of Duval County, DEPARTMENT OF NATURAL

RESOURCES, State of Morida; and THE STATE OF FLORIDA,

-—~ Defendants.

o—

Appendix A |

MEMORANDUM OPINION AND FINAL

~~" JUDGMENT |

Before, Roney, Circuit Judge, and © re,

Scorr and Tyortat, District Judges. °

| TsoFLAT, District Judge: “.

During the 1970 session the Florida Legislature passed

‘the “Oil ‘Spill Prevention and Pollution Control Act”’?

(hereinafter called the ‘‘Florida Act’’) in an attempt to

prevent pollution by: the shipping industry of waters within - ~ *

‘the territorial jurisdiction of the State of Florida. The

Act imposes unlimited liability without fault upon virtually

arly. vessel which: discharges oil or any other pollutant

- while destined for or leaving any Florida port.?” Onshore 4

- and offshore terminal facilities are subject to the same”

liability. Thé Act requires every ownet or operator ofa

vessel using a Floritia port or “a terminal facility to pay

- whatever cleanup costs or damages may result from the

discharge of pollutants * and to maintain satisfactory evi-.

dence of finaricial responsibility to satisfy such liability.’ —

The. Department -of Natural Resources is empowered to

require any vessel transporting a pollutant’in state waters

to be equipped with specified containment gear and a crew

trained in its use.* Prior to entering a Florida port, every

vessel is subject to inspection by the port manager to

determine the presence of the required container gear and .

the seaworthiness of the ship.’ He is required to natify.

_all other ports.in the state of any vessel refused entry to

his port.® 3

Plaintiffs and intervenors include merchant shippers

_ whose vessels use Florida portsin the course of transport-

‘ing goods in foreign and interstate commerce; world ship-

‘ping associations who insure three-fourths of the ocean-

-going tonnage against, among other things, liability for

8a 7 — ‘

Appendix A

oil spillage; a substantial portion of the barge and towing

_ industry operating along the Florida coast; and owners

of oil terminal facilities located: in Florida ports. They

have challenged the validity of the Florida Act on several

federal constitutional grounds. Plaintiffs’. initial conten-

tion is that Florida has sought to legislate substantive

maritime law which, under. the United States Constitution,

_is exclusively within the federal domain. ‘Secondly, they |

' contend thatthe Act violates the Commerce Clause, since ;

. __it seeks to regulate foreign and interstate commerce.

Certain provisions of the Act are under piecemeal attack

on Fourteenth Anrndment due protess and_ equal pro-

tection grounds. The resolution of the first of these con-

tentions dictates the decision in this case, and the others ,

will not be discussed.

_ The maritime law. of the United States has evolved

under Article 3, Section 2, of the Constitution which extends

the judicial power of the United States. ‘‘to all Cases of

admiralty and maritime jurisdiction.”’ In a territorial

sense that jurisdiction covers all waters navigable in inter-.

state or foreign commerce, including state waters.® Mari-

time law governs virtually every facet of the.shipping ~~

‘industry from the design and construction of vessels tothe

regulation of their day to day opérations’ and the trans-

actions in which they ‘engage. It comprises traditional .

admiralty rules and concepts found initially in the Euro-

pean: authorities. These rules and concepts. have_ been

augmented from time to time by the: federal judiciary '

to accommodate needs distinctive to this nation. Further

changes in the corpus of maritime law have been effected

-by a variety of congressional enactments and adminis-

trative regulations. '° .One’ of’ these congressional enact-

ments is the Water Quality Improvement Act of 1970"

(hereinafter called “<W.Q. LA.’’) Which became law a few

moriths prior to the effective date of the Florida Agt.

.W.Q.I. A. provides pause with tangible evidence that the

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A ppendiz A

Florida Act is an unconstitutional intrusion into the fedl-

- eral maritime domain:

- The W.Q.L.A. reinforces the national anti- water pollu-

tion policy. In this act Congress declared that there should

be no discharge of oil into or upon the navigable waters

and shorelines of the United States.’ The owner or opera-

tor of a vessel or an onshore or offshore facility is subject

to limited liability: without’ fault for the-costs expended by |

the ‘government in cleaning up an oil spill.** Where the |

spillage results from willful negligence or misconduct, haw-

~ ever, liability for such costs can be unliffited.’* Evidence

of financial responsibility sufficient to eover its potential

liability, must be given by any vessel of 300 gross tons or

more that uses the navigable waters of ‘the United States.2®

/ Additionally, the President is authorized to ‘issue regula-

- tions requiring. among. other things, that vessels maintain

oil. spill prevéntion equipment and be subject to maereuis

for inspection purposes at any tiie.’

-In adopting W.Q.LA. Congress anticipated that all

hazardous substanees, in addition to oil, capahle of pollut~

ing navigable waters would be subject to similar legislative

treatment.17 W.Q.1.A. required the President to promul-

‘ gate regulations defining such hazardous nahniaerer bon

establishing methods and means for their removal.

“ was also required to report tg Congress, by November 1,

1970, on the desirability of enacting legislation to establish

liability for the cost of removing hazardous substances

. . spel ella from vessels and onshore and offshore facil- -

ities.?®

That the Florida Act constitutes unlawful intrusion

into the exclusive federal admiralty domain is apparent

when one observes the extent to which that act would change

substantive maritime law .The most obvious changes would

‘be in the liapility now imposed by W.Q.I.A. and maritime

rules on shippers and the operators of onshore and offshore

facilities. _ yy, \

5a |

Appendix A

While both W.Q.I.A. and the Florida Act subject ves- .

sels and onshore and offshore facilities to strict liability.

for cleanup: costs, the latter imposes a far greater measure

of responsibility. * For. example, W.Q.L.A: would excuse a

_ shipper: who demonstrates that the oil spill was caused by

. act of God, an act of war, or the act or omissfon of a third’

party.*° -The Florida Act recognizes none of these defenses

‘to a claim by the state for cleanup costs. The: state is

entitled to judgment simply. by, pleading and proving ‘the

‘~ fact of the prohibited discharge.’’ 24. Moreover, the amount

of the recovery would be unlimited; whereas W.Q.I.A..

would place a limit on exposure, assxwe have pré¥iously

noted.?? | 8 #7 oh Fy

There is perhaps’ an even greater contrast betwéen.

_ Mmaritinie law and the Florida Act in compensating state-.

or’ private ‘interests for ‘property damage, as distinguished

from cleanup costs. W.Q.I.A. creates responsibility for

cleanup costs only and leaves undisturbed the remedies

available under maritime law for private injury caused by

oil spillage or other pollution. The federal courts have

ws: long considered oil pollution as a maritime tort for which

“" damages may be awarded.?3 | Compensation is recoverable

. for injury to property and allowances have even been made

for consequential damages. In In re New Jersey Barg-

‘ “ing Carp.,** an oil spill ¢ase, the court approved the follow-

ing language from the Commissioner’s FOPOLG? 4.2. *

_ In the light-of the . . . authorities, it would seem

to the Commissioner that_he is authorized, and in

fact required, to make. {ward of compensation for

such annoyance,. inconvenience and discomfort suf-

fered by partieular claimants to the extent of and

in an amount commensurate with the annoyance and

discomfort proven. &Y :

__-~The recovery of damages-in such cases is predicated’

proof of negligence or unseaworthiness. The owner id

. .

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Appendix A Ue

‘seaworthy vessel would not be: liable, foy dxample,. if he

encountered an extraordinary peril which resulted in a non-

deliberate and’ non- -pegligent pollution of the shoreline.

_Even if fault were established, {he vessel owner’s financial

responsibility , for property damage would be limited to

the value of the vesse]at the e1id of the voyage, plus the’

. ‘*freight then pending,’’ unless the damage was caused with

the owner’s ‘‘privity or knowledge,’’ *®

Under the Florida Act, however, liability without fault

is the foundation for ‘“damage: incurred by the state and

for damage resulting from injury to others”’, just as it is» ’

in the case of. cleanup costs. By. substituting. absolute

. liability for proof of negligence or unseaworthiiess as a

condition to unlimited recovery, the Florida Act, if valid,

‘would materially change the substantive maritime law gov-

-erning the disposition of claims arising ‘from thé pollution |

of coastal waters. . -

It is well settled that state legislation i is invalid where

it is in contravention with ‘generat admiralty rules or

congressional enactments in the maritime field. In the |

- landmark Jensen case,” the Supreme: Court; in Halding’.

that the New York State Workmen’s Compensation Statute

could not constitutionally be applied where an accidental —

death occurred on a vessel afloat in navigable waters within

-- New York’s boundaries, said:

_ And plainly, we-think, no such {epislation i is valid

if it contravenes font purpose expressed

by act of Congress or works, material prejudice to °

the characteristic eatures of the general maritime

law or‘interferes with the proper harmony and uni-

formity of that law in its’ international and inter-—

state relations. This limitation, at the least, is

- essential to the effective operation of ‘the fundamen-

6 ’

‘

a | Appendia A

, | i:

. tal purposes for which such law was incorporateé

~~ into our national laws by the Constitution itself.?7

. —_ * * * ’ .

.“ If New York can subject forcign ships -coming

-. into her ports to: such obligations as those imposed

by her Compensation Statute, other States may do

likewise. The necessary consequence would be de-

struction of the very uniformity in réspect to mari-

time .mattersvhich the Constitution was designed |

to establish and freedom: of navig%tion between the

- “States and with foreign countries would be @riously

: hampered and impeded. . , . The legislature exceeded

¢ . its authority in attempting to’ extend the. statute

under -consideration to conditiéns like those here |

disclosed. So applied, it. conflicts with the Consti-

-.. tution and to that extent is. invalid.?*

The Flogida Act’ here constitutes a far-greater intru ion

into the federal maritime domain than the New York

statute if the J eftsen case. If applied to the plaintiffs and.

- intervenors in this case, the Florida Act would effect—in

the words of Jensen—the ‘<destruction of the very uni-

’ formity in respect to maritime matters which the Consti-

tutiog was designed to establish; and freedom of naviga-

tion bétween the States and with foreign countries would °

be seriously hampered and impeded”’,

"This is not a situation in which a state legislature -has

sought to dct in an area of purely local concern and its

enactment is no, real encroachment on federal interests,.

Rather, this ig*a case where the State purports to impose

upon shipping and felated industrie¢ duties which. under

the federal law tliey do not bear. It can hardly be said

‘that Florida is not seeking to regulate conduct in: the

federal maritime juyisdiction.’ We*need not -belabor the

point that to permit the ‘states sevéFally to regulate these _

-_—

am chine 085. ety tanta hat

Sa Oe Ss

Appendiz A

industries ‘as Florida seeks to do would sound the death

* knell to ie principle of uniformity. -

Defendants argue that, to the extent the Florida Act

goes beyond W.Q.1.A., it fills a ‘‘void’’ in the-maritime law .

and is justifiable ander the ‘‘gap theory’’.2* This theory

presupposes that maritime law is an incomplete system,

With numerous gaps that can be filled by state statutes.

This is to say, if the maritime law affords no remedy, .

the states may provide one. The Supreme Court’s recent

decision in Moragne v. States Marine Lines, Inc.*° clearly

puts such a theory to rest.

| In that ‘case the Court had before it the saesush of the

applicability of the Florida Wrongful Death Statute * to

a claim arising out of the death of a longshoreman killed °

while working aboard a vessel in navigable waters within

the State of Florida. Neither the- general maritime law.

nor Congressional enactment provided a remedy in the’

situation. The District Court and the Court of Appeals,

eiting The Tungus.v. Skovgaard,” held that the state

statute. should be tnvoked to provide the remedy as. well

_as the basis for recovery, that is, negligence. * ~

Under maritime law, however, States: Marine Lines»

- ‘owed plaintiff’s decedent the duty to provide a seaworthy

~ vessel in addition to the. duty to exercise due caref’, Plain-

r . .

. 7

tiff. therefore argued that an action was maintainable for

-The Supreme Court rejected the notion that the absence

of a federal statute or a maritime rule on the subject

* eompelled the conclusion that state law must govern. It

held that admiralfy was fully capable of fashioning a

remedy for the breash of substantive duties imposed by .

general maritime law and thus directed the district court

to shape the remedy on remand. At the * same time the |

Court observed that the’ Florida law of negligence has

no place in the maritime field. The decision clearly re-

. ” *. P 9a 4

_Appendi A

inforeed thie policy of uniformity anil is an snidicatiod that

admiralty cannot tolerate the inconsistency inhe¥ent in

accommodating state remedial statutes to Bxcluctvely

maritime substantive concepts. _ we’

Another argument advanced by defendants. is that the »

_ Florida Act is valid undey the following provision of

W.QLA: = | _

Nothing in this section hell be construed: as .

preempting any State or political.subdivision thereof

from imposing any requirement or liability with

respect to the discharge of oil into any waters within

~ ’ such State. 33 U.S.C. § 1161(0) (2). -

It has long been recognized that Congress: is piwerless to

confer on the states authority to Tegislate within the ad-.

miralty jurisdiction [Knick@rbocker Ice Company v. Stew- .

—‘art,, 253 U.S. 14% (1920) ;33 The Lottawanna, 21 Wall. 558

(1875) ; The Steamer St. Lawrence, 1 Bl.’ 522 (1862)] and.

we ¢annot presume that W.Q. L.A. was an attempt to do so. ;

There is nothing in the language of the act.which purports

to grant any such legislative atithority to the states. The

statement that Congress did not intend to preclude state

states are free to enforce pollution control-measures that

are within their constitutional prerogative.

For the foregoing reasons we conclude that the Florida

Act in question cannot constitutionally be applied to the

_ plaintiffs and intervenors and to the:activities in which they _

engage. The question thus arises as to whether the Act is

severable. Although it contains a‘severability clause,**

such a provision is by no means binding on a court em:

powered to determine the constitutionality of a statute. 7

The rule was explained by thé Supreme Court in Carter v.

Carter Coal Co.:5. |

» Whether the peovidions: of a statute are so inter-

woven that one being held invalid the others must

®.

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10a ~

Appendix A

fall, presents a questién of a:statutdry construction

and of legislative intent, to the determination of

which the statutory provision becomes annexed.

‘‘But it is an aig merely; not an inexorable com- -

mand.’?: Dorchy v. Kansas, 264 U.S. 286, 290... The

presumption in favor separability does not authorize

the court to give the statute ‘‘an effect altogether.

different from’ that sought-by the measure: viewed

as a whole.”’ Railroad Retirement Bd. v. Alton R.

Co., 295 U.S. 330, 362. |

The statutory aid to construction in no way alters

the rule that in order to held one part of a statute’ .

unconstitutional and uphold another part as separa-

. +. “ble, they must not be mutually dependent upon one

as another. |

When a federal court is called upon to rule on the

. D cag ape a state statute containing a severabili

clause, the court will look to the decisions of the state

~ court on the effect of such a clause.** In Cramp v. Board

of Public Instruction *" the Supreme Court of Foriea made

’ the following pronouncement on the question of sever-

ability: a a" ‘= 5 *

The rule is‘well established that the unconsti-

tutionality of a portion of a statute will not neces-

sarily condemn the entire act. Wh a part of a

* statute is declared unconstitutional the remainder

of the act will be pérmitted to stand provided: (1)

the unconstitutional provisions can be separated

from the remaining valid provisions, (2) the legis-

lative purpose expressed in the valid provisions can

be accomplished independently of those which are

void, (3) the good and the bad features are not so

inseparable in substance that it cah be said that the

Legislatfre would have passed the one without the *

other and, (4) an act complete in itself renjains after

the invalid provisions @re stricken.**

In th®. Florida Act theré’are no provisions which,

though standing by themselves might be considered unob-

“la /

Appendix A

jJectionable, are not so interwoven in purpose and: scheme

with the invalid provisions of the Act as to permit the

operation of the seyerability clause. The announced intent

of the Florida Legislature was to ‘deal with the hazards

.of pollutants betweé® vessels, between onshore facilities

and vessels, and between offshore facilities and vessels .

within the jurisdiction of the state and state waters: ; . .”? 3°

Each provision of this statute was enacted to realize this

intent and each would affect the industries in which plain-

tiffs and intervenors engage. . The provisions that do not

directly frustrate the federal maritime law are so few that,

considered: together, they would not comprise. a.coherent

legislative scheme. | Accordingly, the Act in its entirety

must fall. « 7 —

In consideration of the foregoing, it is

ORDERED: - .

1. Chapter 70-244, Laws ofe Florida, as amended in

Chapter 376, Florida Statutes Annotated, is hereby de-

ctared to be in violation of Article III, Section 2, Clause 3

of the Constitution of the United States and is therefore

null and void and without effect. :

2. The temporary restraining order entered by Judge,

_Charles R. Scott on March 19, 1971, enjoining the enforce-

_ment of said chapter and any regulations promulgated

‘thereunder is hereby made permanent; provided that noth-

ing in. this final judgment shall be construed to prohibit

the defendants from continuing to pay salaries of current

employees out of the Coastal Protection Trust. Fund.

- 3. This em oi opinion and final judgment shall

constitute the final judgment of this Court as to all issues

Dont and Oxperev at Jacksonville, Florida, this 10th _

day of December, 1971.

= GeraLtp B. Tsoruat -

_ United States District. Judge

For the Court —

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- a Appendix A -

FOOTNOTES

1 Chapter 376, Florida ‘Statutes Annotated; Chapter 70-244,

Laws of Florida (all further citations to the xt will be to Florida’

Statutes Annotated). ee |

2 Section 376.12, Florida Statutes Annotated, provides in. part:

Liabilities of . licensees——Because it+is the intent of this

chapter to provide the means for rapid and effective cleanup

arid to minimize damages, any licensee and its agents or servants,

>‘including vessels destined for or leaving a- licensee’s terminal

facility, who permits or suffers a prohibited discharge or other

_ polluting condition to take place within state boundaries shall

be liable to'the state for all costs of cleanup or other damage

incurred by the state and for damages resulting from injury

to others. In any suit to enforce claims of the- state under

~ this.chapter, it shall not be necessary for the state to plead or

_ prove negligence in any form or manner on the part of the

licensee or any vessel. If the state is damaged by a discharge

prohibited: by this chapter it need only plead and prove the

fact of the prohibited discharge or. other polluting condition and

that it occurred. ,

“ ‘Pollutants’ shall include, but not be. limited to, oil of any kind

and'-in any f®rm, gasoline,’ pesticides, ammonia, chlorine, and

ether hazardgus ‘materials.” Fla. Stat. Ann. § 376.031 (7)

-8 Terminal facilities and vessels are defined as: ~

“Terminal facility’ means any’ “water front facility of -any

kind, other than vessels not owned or operated by such -facility, —

and related appurtenances located on land, | suey sub-

merged lands, o1 on or under the surface of any kind of water, |

which facility and related appurtenances are used or capable

of being used for the’ purpose of drilling for, pymping, ‘storing,

handling, transferring, processing, or refining oil or other pol-

¢ . jutants, inclyding, but not limited to, any such facility and

related appurtenances owned or operated by a public utility

or a governmental or quasi-governmental body. A vessel - shall

be considered a terminal facility only in the event of a ship-to-

ship transfer of oil, petroleum products or their by-products,

_ and other pollutants, and only that vessel going to or caming

\ _ 3 ;

13a

@ ° — Appendic A...

from the place of transfer and the terminal facility. With

respect solely to application fees for licenses and annual license

fees as required in. this act, the words “terminal . facility” shall -

not be construed to include ‘the fuel storage tanks or other

facilities of any marine service station having no more than

_ twelve hundred (1200) gallons af pollutants in storage on thé

premises. Fla. Stat. Ann. § 376.031(9) as ‘amended, Laws.

of Florida, 71-243. el

“Vessel” includes every description of watercraft or other

contrivance used, or capable of being’ used, as a. means of

transportation on water, whether self-propelled or otherwise,

and includes barges and tugs: Fla. Sta. Ann. § 376.031(12).

ss . . - . .

* See note 2, supra. ; so.

a 4. / ®

° Section 376.14, Florid& Statutes Annotatéd, provides, in part:

(1) Each owner or- operator of a terminal facility or vessel,

including any barge, using, any port in Florida shall establish and

maintain under rules and regulations preseribed by thie depart-

ment of natural resources, evidence of financial responsibility

. based on the capacity of the terminal facility or tonnage of the

ship, the cargo carried, and other similar factors to which the-

vessel could be subjected under this chapter. Financial respon-

sibility may be established and maintained’ by any one (1), or

a combination, of the following methods acceptable to the de-

- partment: —

(a) Evidence of insurance ;

(b) ‘Surety bonds payable to the governor of the state, con-

ditioned to pay ‘all costs and expenses of the cleanup of any -

. discharge as well as damages caused to the state and any person;

(d) Other evidence of financial responsibility satisfactory to

_ the department. ; ° ; ; /

(2) A bond filed with the department shall be issued by a

bonding company authorized to do business in the state..

. (3) Any claim for costs incurred by a terminal facility or

- vessel may. be brought directly against the insurer or any other

WALLIN I EY

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CTT

sos os | l4a

Appendiz A .

ic person providing evidence-of financial responsibility. Any claim

for costs of cleanup,-civil penalties, or damages. by the state,

; and any claim for damages: by any injured person, may be .-

cre ~~ brought~directty-against-the -bond;-the insurer, or any other

person peouidiog ev eet of financial Pe ponehihey: .

Bt + eel

_ 6 Séction 376.09, Florida Statutes ‘Annotated: provides a part:

Regulatory powers of department. —The department shall

from time to time adopt, amend, repeal, and enforce ‘reasonable

- : - regulations insofar as they relate to oil spills or discharges or

- the spills or discharges of other pollutants into the waters of

€ this state or onto the ‘coasts of this state.

(1). The regulations shall be adopted itt accordance wah the

administrative procedure act, chapter 120.

(2) The department shall adopt regulations including, but

not limited to, the following matters:

(a) Operation and ifispection requirements for facilities,

vessels, personnel, and: other matters relating to licensee opera-

tions under this chapter, and specifically requiring that vessels

transporting pollutants within state waters shall maintain on

board such containment gear as may be required by the depart-

ment with a crew trained in the use of the gear.

(b) Procedures and methods of reporting discharges and.

“other occurrences prohibited by this chapter.

by persons subject to aeunon by this ae in the removal*

~of pollutants.

x *

“@(£) ‘Requirements for minimum weather and sea conditions for

permitting a vessel to enter port and for the safety and operation

of vessels, barges, tugs, motor vehicles, motorized equipment,”

and other equipment relating to the use and operation of termi-

nals, facilities, and refineries, the appproach _; and departure from

- terminals, facilities, and refineries and requirements that con-

tainment: gear approved by the department. be on hand and

- maintained by terminal facilities and refineries with adequate

_personnel trained in its use. .

& (8) Requirements that, prior to, being granted entry into any

; (tk port in this state, ‘the master of a vessel shall report:

i _s

fo | iba .

‘Appendix A’

(1) Any discharges of oil of other pollutants the vessel has

had since leaving the last port ; . .

(2) ‘Any mechanical problem on the vessel which creates the

possibility of a spill; and 7

(3) Any denial of entry into any -port-during the current

; cruise of the vessel. .

” Section 376.08(2), Florida Statutes Annotated, provided:

g ' The port manager shall have the authority to board any

vessel prior to its entry into port in order to ascertain the

seaworthiness of the vessel and the presence of required con-

tainment gear. Upon being notified of a discharge the port

manager’ shall have authority to direct the vessel to anchor: ’

immediately or move to a specific dock and deploy containment

gear or to move to the open seas and to take such other mea-

sures as he deems necessary. The port manager shall have.the

additional duty to inspect’ any terminal facility in ‘his port to

determine that adequate containment-gear is on hand at the

terminal facility.

. Settion 376.08(3), Florida Statutes Annotated, provides:

A port manager who refuses entry of any vessel into the port |

| under his charge shall be required to notify all other ports in

the state. of his refusal of en ry of that vessel.

°“[T]he admiralty jurisdiction of the United States extends. to

: all waters, salt or fresh, with or without tides, natural or artificial,

which are in fact navigable ‘in interstate or foreign water commerce,

whether or ‘not the particular body of water is wholly within a state;

and whether or, not the occurrence or transaction that is the: subject ;

matter of the suit is confined to one state.” Gilmore and Black,

The Law of Admiralty, § 1-11, at 28-29 (1957) and cases cited

therein. : é - rae

Arguably, this would include landlocked lakes which are “navi-~

gable-in-fact” in interstate commerce.

10 The “Necessary and Proper Clause” of the United States Con-

stitution (Article I, Section 8, Clause 18), read in context with the

“Admiralty Clause” (Article III, Section 2, Clause 3) confers upon

aaeiaall

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7” 16a

- Appendix A

Congress the power to enact: legislation in the maritime field. Knick-

erbocker Ice (ompany.v. Stewart, 253 U.S. 149 (1920); Southern

maciNe: Co. v: cenTEN, 244 U.S. 205 (erat) ;

11 33 usd 1161 et seq.

12 33 U.S.C. § 1161(b) (1).

~ ton or $14,000,000, whichever is less. The liability of an onshore or

offshore facility is limited to $8,000,000. 33. U.S. C. §1161(f)(1),* -

(2) and (3).

“At the same time the Steamboat frapedtion Act, " together’ with -

the regulations issued pursuant thereto, sets up a detailed and com-

prehensive scheme, administered by the United States Coast Guard

for maintenance, inspection, and regulation of all vessels (except

thotor boats, which are otherwise provided for) propelled in whole

or in part by mechanical or\electrical’ power in the navigable waters

of the United States. 46 U.S.C. §§ 361-62. The Federal scheme is |

_in consonafce with the International Convention for the Safety of

‘Life at Sea, 1960, T-1.A.S., 16 U.S.T. 185, 536 U.N.T.S. 27, which

has been ratified or adhered to -by ‘all maritime nations, including

the United States. Here again, conflict between the regualtions

‘under the Florida’ Act and the federal law appears unavoidable.

23 See, e.g., Fireman's Fund Ins. Co. v. Standard Oil Co., 339

F.2d¢148 (9th Cir. 1964); Salaky v. Atlas Barge No. 3, 208 F.2d

174 (2nd Cir. 1953) ; California v. The Bournemouth, 307 F.Supp.

922 (C.D. Cal. 1969) ; Petition of New Jersey Barging Corp., 168

F.Supp. 925 (S.D.N.Y. 1958). Since the Congressional enactment

of the Admiralty. Extension Act in 1948 (46 U.S.C. §:740) “all cases

of damage or injury, to pérson or property, caused by a ‘vessel on

navigablé water, notwithstanding that such damage or injury be done

or consummated on land” (emphasis added) are considered maritime

torts and thus within the admiralty jurisdiction. - Petition of New

ss Barging Corp., supra. ;

24168 F.Supp. 925, 937 (S.D.NY. 1958).

* 25 United ‘States Limited, Liability Act, 46°U.S.C. § 183 et .seq.

No state statute can override this “Limitation Statute” within the

Seas

_ Supreme Court observed :

“ — 17a +

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territorial jurisdiction of the federal maritime law. In Butler y.

Boston & Savannah Steamship Co., 130 U.S. 527, 555. (1889), the

“The, law of limited liability, as we have frequently had

occasion to assert, was enacted by Congtess as a part of the .

‘maritime law of this country, and therefore’ it is co-extensive,

in its operation, with the whole territorial domain of that law.”

In holding that a Massachusetts wrongful death action; arising from

a death occurring inthe admiralty. jurisdiction, was subject to the.

imitation Statute”, the Court went on to say\

. “It is unnecessary. to’ consider. fhe force and effect of the

tatute of Massachusetts over the place in question. Whatever

rce it may have in creating liabilities for acts done there, it:

cannot neutralize or affect the admiralty or maritime jurisdiction

or the operation of the maritime law in maritime cases. Those

are; matters of national interest. If,the territory of. the state

technically “extends a marine leagué beyond the seashore, that

. circumstance cannot circumscribe ot abridgé the law’of the sea.”

130 U.S. at 557-58, . aver ao .

2° Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917). x

*7 Id. at 216.

28 Td" at 217-18. . me : a a

Court ew 1960, 158 at 166-73.

20 308 U.S. 375 (1970). - |

™ Fla. Stat. Atin. § 768.01.

* 92 358 U.S. 588 C1959). + ee a

83 In the Knickerbocker case the Court, speaking to the question \

of state legislative authority in the maritime field, said: \,

“The Constitution itself adopted anf” established, as part of

the laws .of the United ‘States, approved rules of the. general

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maritime law and empowered Congress to legislate in respect

of them and other matters within the admiralty and maritime

jurisdiction. Moreover, it took*from the States all power, by

legislatiqn or judicial decision, to contravene the essential pur-, °

poses of,-or to work material injury to, characteristic features

of such law dr to interfere with its proper harmony and uni-

- formity in its mternational and ‘interstate relations.” 253 U.S...

at 160-61, /(Emphasis added).

- 84 Laws of Florida, 70-244 § 23:

1 35 208 us 238, 313 (1936). |

8° Watson v. Buck; 313 U.S. 387 (1941).

81137 So.2d 828 (Fla. 1962):

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49 Fld. Stat. Ann. §'376.021(3) (a), (4) (a).

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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.