# Amicus Curiae Brief — Lake Carriers' Assn. v. MacMullan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0019%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1972 - **Citation:** 406 U.S. 498 ## Text _—_—* - 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 on TABLE OF CONTENTS| oi] ww 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. 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. iv ; . 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 4) Vv 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, Qe 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 _ . © . . e 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’). ° J 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 — 1 IL - 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 a Pd 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.” 2 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... .. - $6 A similar rule in respect to interstate commerce deduced.'from the grant to Congress of power to regulate it is now ‘firmly established. *‘Where the ‘subject is. national. in- its character, and admits and — . requires uniformity of regulation, affecting alike all the States, such as transportation. betweeri the States, - including: the importation of goods from one State into another, Congress can an act.upon it and provide the needed regulation&. The absence of any Taw of. Congress on the subject is equivalent to its declaration that commerce in that matter shall he ge Bowman v. Chicago & Northwestern Ry. Co., "125 U.S. 465, 507, 508; Vance v. Vandercook Co., 170 U.S. 438, 444; ‘Clark Distilling Co. v. Western Maryland Ry. Co., — U.$. 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 bs P ad a aOR OS. So ee ae ad 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 4, 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) “ ° . ‘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; (c) Qualification as a self-insurer; or (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 ee oo) ae eee eee CTT sos os | l4a a 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. (c) Procedures, methods, means, and equipment to be used 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: Le 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 via Sth (AN ate UIT os ag e ; Haan LAN inertial ead Pasar toh! 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). 18 The amount of liability of a vessel is limited to $100 per gross © ~ 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 + ~- Apnendiz A | ee 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 © See Currie, | “Federalism and the. Admiralty,” The Supreme 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 at RR aarti eco foes Pg, ‘Wa : Appentlia A 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): o a's | 7 ' 8 idat 880. tee 49 Fld. Stat. Ann. §'376.021(3) (a), (4) (a). yA . . . \ s e ‘ % ‘ +) / ° « P A 4 rr) oa a vy saaiatintettaaneeniaee nn ee & ace? ‘> --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0019%3A08. Public record. Not legal advice.