Appendix — Askew v. American Waterways Operators, Inc.

Supreme Court brief1973

Ask Donna

What actually matters in this document.

Text

Aor

a a

MS, 5 saci Mate E IE Is

Supreme Court of the United States

OCTOBER TERM, 1971

NO. 1082

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

RICHARD B. STONE, as Secretary of State of the State of

Florida,j ROBERT L. SHEVIN, as Attorney General of the

State of Florida; FLOYD T. CHRISTIAN, as Commissioner of

Education of the State of Florida; DOYLE E. CONNER, as

Commissioner of Agriculture of the State of Florida; FRED.

O. DICKINSON, JR., as Comptroller of the State of Florida;

THOMAS D. O’MALLEY, JR., as Treasurer of the State of

Florida; as an constituting THE DEPARTMENT OF NAT-

URAL RESOURCES, State of Florida; RANDOLPH

HODGES, as Executive Director, and TOM SIMPSON, as

Conservation Officer of Duval County, DEPARTMENT OF

NATURAL RESOURCES, State of Florida; and THE STATE

OF FLORIDA,

Appellants

vs.

THE AMERICAN WATERWAYS OPERATORS, INC., a

Delaware corporation; GULF ATLANTIC TOWING CORPOR-

ATION, a Florida corporation; GLIDDEN-DURKEE, a

division of SCM, CORPORATION, a New York corporation;

DIXIE CARRIERS, INC., a Delaware corporation; OIL

TRANSPORT COMPANY, INCORPORATED, a Louisiana

corporation; NATIONAL MARINE SERVICE, INC., a

Delaware corporation; THE REVILO CORPORATION, a

Florida corporation; EASTERN SEABOARD PETROLEUM

COMPANY, INC., a Florida corporation; NILO BARGE

LINE, INC., a Delaware corporation; STEUART TRANS-

PORTATION COMPANY, a Delaware corporation; INTER-

A ee a wee

EE a a

STATE OIL TRANSPORT COMPANY, a Delaware corpora-

tion; FEDERAL BARGE LINES, INC., a Delaware corpora-

tion; GULF CANAL LINES, INC., a Texas corporation; and

INGRAM OCEAN SYSTEM, INC., a Delaware corporation, all

authorized to do business in the State of Florida,

Appellees,

and

SUWANNE STEAMSHIP CO., a _ Florida corporation;

COMMODORES POINT TERMINAL CORPORATION, a

Delaware corporation; AMERICAN INSTITUTE OF MER-

CHANT SHIPPING; ASSURANCE FORENINGEN GARD;

ASSURANCE FORENINGEN SKULD; THE BRITIANNIA

STEAM SHIP INSURANCE ASSOCIATION, LIMITED; THE

JAPAN SHIP OWNERS MUTUAL PROTECTING AND

INDEMNITY ASSOCIATION; THE LIVERPOOL AND

LONDON STEAM SHIP PROTECTION AND INDEMNITY

ASSOCIATION, LIMITED; THE LONDON STEAM SHIP

OWNERS’ MUTUAL INSURANCE ASSOCIATION, LIM-

ITED; NEWCASTLE PROTECTION AND INDEMNITY f

ASSOCIATION; THE NORTH OF ENGLAND PROTECTING

& INDEMNITY ASSOCIATION, LIMITED; THE STANDARD

STEAMSHIP OWNERS’ PROTECTION & INDEMNITY

ASSOCIATION; THE STANDARD STEAMSHIP OWNERS’

PROTECTION AND INDEMNITY ASSOCIATION (BER-

MUDA), LIMITED; THE STEAMSHIP MUTUAL UNDER-

WRITING ASSOCIATION, LIMITED; SUNDERLAND

STEAMSHIP PROTECTING AND INDEMNITY ASSOCIA-

TION; SVERGIES ANGFARTYGS ASSURANSFORENING;

THE UNITED KINGDOM MUTUAL STEAM SHIP. ASSUR-

ANCE ASSOCIATION (BERMUDA), LIMITED; THE WEST

OF ENGLAND SHIP OWNERS MUTUAL PROTECTION

AND INDEMNITY ASSOCIATION (LUXEMBOURG); and

their respective members,

(PRE re

— ——— . .

SRT Pi et ADRS s La aeys On

Intervening Appellees,

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

INDEX

Record from the United State District Court for the

Middle District of Florida

ee ee ee 1

Complaint on Behalf Intervening Plaintiffs

The American Institute of Merchant Shipping,

| re ae 15

Answer to Plaintiffs’ Complaint ............... 27

Memorandum Opinion and Final Judgment ........ 39

Chapter 70-244, Laws of Florida 1970........... 56

State of Florida, Department of Natural

Resources, Division of Marine Resources

Regulations, Chapter 16B - 16.08 .............. 73

OP Wiha BIOL. oso. ees 6/40 cooks ea sade 75

MG UBM, S183: cnc kb on debadwoce® Snax; 9]

46 U.S.C. § 740..........0.......0....24.. 93

United States Constitution

rg Col 8 | a on 94

Amendment V.................00002.. 94

Amendment IX ................0.000. 94

ill

ote

wate’

ORR RL EE GSS! SAAT FRO

—

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF FLORIDA

- JACKSONVILLE, FLORIDA

THE AMERICAN WATERWAYS OPERATORS, INC., et al.,

PLAINTIFFS,

vs.

REUBIN O’D. ASKEW, et al.,

y . DEFENDANTS.

COMPLAINT

COMES NOW the plaintiffs, and for cause of action against

the defendants, complain and allege as follows:

1. This action is for an injunction pursuant to the

provisions of Sections 2281 and 2284(3), Title 28, United

States Code. Sought to be adjudged unconstitutional and

unenforceable is the whole or separable parts of, Chapter

70-244, Laws of Florida, 1970, compiled as Chapter 376,

Florida Statutes, and the rules and regulations promulgated

thereunder. The Constitutional provisions involved are: Article

I, Section 8, Clause 3 (interstate and foreign commerce);

Article VI, Clause 2 (supreme law of the land); Article III,

Section 2 (Federal Maritime Jurisdiction); and the Fourteenth

Amendment (due process and equal protection of law) of the

Constitution of the United States.

2. The validity of Chapter 70-244 (which will be referred

to hereafter as the “State Act”) must be considered in

conjunction with Public Law 91-224, (April 3, 1970) enacted

‘by the 91st United States Congress prior to the State

enactment, bearing the title: The Water Quality Improvement

Act of 1970 (which will be hereafter referred to as the

“Federal Act”, and which act amended the Federal Water

Pollution Control Act (62 Stat. 1155, as amended, 33 U.S.C.

466 et. seq.).

3. The plaintiff THE AMERICAN WATERWAYS OPERA-

REYES AGI HI

POPS Si eT

TORS, INC. is a Delaware corporation (hereinafter referred to

as the AWO) and is the nonprofit national trade association

representing the barge and towing industry. Many of the

approximately 223 members of AWO operate towing vessels

and barges and small self-propelled tankers and freighters in

the performance of transportation services into and upon the

navigable waters of the United States, utilizing the inland

waterways and intercoastal, coastal and harbor facilities in all

the states of the nation where such exist. Numerous other

members of AWO consist of shipyard companies, terminal

operators and watercraft service companies whose businesses

are directly related to shipping by navigable water. AWO has

its executive offices at 1250 Connecticut Avenue, Suite 502,

Washington, D. C. Many members of AWO are domiciled in

the State of Florida and with other members domiciled

elsewhere are all engaged in interstate commerce or other

maritime activities operating into and upon the navigable

waters of the United States to and from ports in the State of

Florida.

4. The plaintiff. GULF ATLANTIC TOWING CORPORA-

TION is a Florida corporation located at 104 East Platen

Road, Jacksonville, Florida (héreinafter referred to as

GATCO) and is a member of AWO engaged in interstate

commerce operating barges into and upon the navigable

waters of the United States in interstate commerce to and

from Florida ports, and also is a duly licensed terminal

facility. GATCO operates its barges and tankers in interstate

and international commerce both for private industry and

under contract to the United States in support of its military

services. ;

5. The plaintiff GLIDDEN-DURKEE is a division of SCM,

CORPORATION, a New York Corporation authorized to do

business in the State of Florida, having its place of business at

Jacksonville, Florida. This plaintiff is engaged in interstate

commerce operating barges and tankers into and upon the

navigable waters of the United States to and from Florida

ports.

6. The plaintiff DIXIE CARRIERS INC. is a Delaware

corporation authorized to do business in the State of Florida,

having its principle place of business at Houston, Texas. This

plaintiff is engaged in interstate commerce operating barges

into and upon the navigable waters of the United States to

and from Florida.

7. The plaintiff OIL TRANSPORT COMPANY, INCOR-

PORATED is a Louisiana corporation authorized to do

business in the State of Florida, having its principle place of

business at New Orleans, Louisiana. This plaintiff is engaged

in inter-state commerce operating barges and tankers into and

upon the navigable waters of the United States to and from

Florida ports.

8. The plaintiff NATIONAL MARINE SERVICE, INC. is a

Delaware corporation authorized to do business in the State

of Florida, having its principle place of business at St. Louis,

Missouri. This plaintiff is engaged in interstate commerce

operating barges into and upon the navigable waters of the

United States to and from Florida ports.

9. The plaintiff THE REVILO CORPORATION is a_

Florida corporation authorized to do business in the State of

Florida, having its principle” place of business at Palatka,

Florida. This plaintiff is engaged in interstate commerce

operating barges into and upon the navigable waters of the

United States to and from Florida ports.

10. The plaintiff EASTERN SEABOARD PETROLEUM.

COMPANY, INC., a Florida corporation having its principle

place of business in Jacksonville, Florida, is engaged in

interstate commerce as a petroleum cargo carrier, operating

barges into and upon the navigable waters of Florida, Georgia

and Alabama, primarily transporting fuel oil.

11. The plaintiff NILO BARGE LINE, INC. is a Delaware

corporation authorized to do business in Florida, having its

principle place of business in St. Louis, Missouri, and is

engaged in interstate commerce operating barges into and

upon .the navigable waters of the United Statesto and from

Florida ports.

12. The plaintiff STEUART TRANSPORTATION COM-

PANY is a Delaware corporation authorized to do business in

Florida, having its principle place of business in Pinty Point,

Maryland, and is engaged in interstate commerce operating

RE ae i

ON Ce om RMP

EDA ETL LT EE EE

barges and tankers into and upon the navigable waters of the

United States to and from Florida ports.

13. The plaintiff INTERSTATE OIL TRANSPORT COM.

PANY is a Delaware corporation authorized to do business in

Florida, having its principle place of business in Philadelphia,

Pennsylvania, and is engaged in interstate commerce operating

barges and tankers into and upon the navigable waters of the

United States to and from Florida ports.

14. The plaintiff FEDERAL BARGE LINES, INC. is a

Delaware corporation authorized to do business in Florida,

having its principle place of business in St. Louis, Missouri,

and is engaged in interstate commerce operating barges into

and upon the navigable waters of the United States to and

from Florida ports.

15. The plaintiff GULF CANAL LINES, INC. is a Texas

corporation authorized to do business in Florida, having its

principle place of business in St. Louis, Missouri, and is

engaged in interstate commerce operating barges into and

upon the navigable waters of the United States to and from

Florida ports.

16. The plaintiff INGRAM OCEAN SYSTEM, INC. is a

Delaware corporation authorized to do business in Florida,

having its principle place of business in New Orleans,

Louisiana, and has contracted to engage in_ interstate

commerce operating -barges and tankers into and upon the

navigable waters of the United States to and from Florida

ports.

17. The business and operation of each of the plaintiffs

involves the transportation and handling of cargo which comes

within the purview of both the Federal Act and the State

Act.

18. Each of the plaintiffs, as interstate carriers, contributes

to and facilitates the progress of interstate commerce in the

United States and significantly advances the public welfare of

Florida and the nation in its relations thereto. Each of the

plaintiffs further recognizes and accepts the fundamental

recreation and conservation values found by the Florida

Legislature and expressed in the preamble to the State Act

and will do all reasonable things for the preservation and

A a dT RGA GOO GS Vie ike

wit LARGE

i ie PARED Hs. piss! se

As te SRT

FA LLP ie

protection thereof.

19. The defendants REUBIN O’D. ASKEW, as Govermor of

the State of Florida; RICHARD B. STONE, as Secretary of

State of the State of Florida; ROBERT L. SHEVIN, as

Attorney | eral of the State of Florida; FLOYD T.

CHRISTIAN, as Commissioner of Education of the State of

Florida; DOYLE E. CONNOR, as Commissioner of Agricul-

ture of the State of Florida; FRED O. DICKINSON, JR., as

Comptroller of the State of Florida; and THOMAS D.

O’MALLEY, JR., as Treasurer of the State of Florida; as and

constituting THE DEPARTMENT OF NATURAL RE-

SOURCES, State of Florida; and RANDOLPH HODGES, as

Executive Director, and TOM SIMPSON, Conservation Officer

of Duval County, DEPARTMENT OF NATURAL RE-

SOURCES, State of Florida, under Chapter 20.25, Florida

Statutes, and the State Act, are granted the power and duty

to enforce, insofar as is material to this _cause, the

responsibilities set forth therein and the rules and regulations

therein authorized. The defendant RANDOLPH HODGES, as

Executive Director of the Department of Natural Resources is

by Section 370.02(3)(b), Florida Statutes, charged with the

statutory duty to act as the agent for the Board in

coordinating and directing its activities in the discharge of its

responsibilities. The defendant TOM SIMPSON, Conservation

Officer of Duval County, is the officer of the department who

has the duty and responsibility to enforce the provisions of

the State Act, and to execute the policies promulgated by the

department and its agent the Executive Director in the event

of any alleged violation of the State Act in Duval County,

Florida. A copy of the State Act is attached hereto as Exhibit

20. Under the presumed authority thereof, the DEPART-

MENT OF NATURAL RESOURCES, on December 19, 1970,

adopted and promulgated administrative rule “oil spill”

(Chapter 16 B-16) relating to terminal facility regulation, a

copy of which is attached hereto as Exhibit 2; and further, on

January 26, 1971, promulgated and adopted administrative

rule “oil spill bill financial responsibility—vessels,” (Chapter

16 B-16.08), a copy of which is attached as Exhibit 3.

RA SIT SY BS TL AOD

LEGO ITTL IPL SR LAT SILOS A

BOLERO ET

21. The defendant Board, acting through its agents,

officials, and employees has notified the public and the

plaintiffs that it is presently implementing, administering and

enforcing the provisions of the State Act and will implement,

administer and enforce Rule 16B-16.08 After March 15, 1971;

and plaintiffs allege that this will, in fact, be accomplished

unless defendants are restrained by this Court. Defendants are

presently issuing warming citations to plaintiffs and others

similarly situated for alleged violations of the State Act and

Tule.

22. The Federal Act, together with pertinent prior Federal

laws and subsequent rules and regulations adopted under the

authority thereof, provides a comprehensive program having as

its purpose the effective and efficient prevention and removal

of the discharge of pollutants into any and all of the

navigable waters of the United States or upon the adjoining

shorelines or waters of the contiguous zone. Prevention

measures, penalties, and clean-up by those responsible and by

government action, as well as fines, cost and damage recovery

procedures against the persons or companies responsible for

illegal discharges, are provided. The fulfenforcement of this

Federal plan is now underway, and it provides effective means

for the prevention, clean-up and reimbursement incident to oil

spills to which the State Act is addressed, except as

hereinafter set forth. The Congress of the United States has,

thus, preempted the field of preventive safeguards, notice,

penalties, clean-up, and reimbursement made necessary by any

pollution of navigable waters of Florida and of the United

States through illegal. discharges from ships or on-shore

facilities. The State Act is, thus, a burden on interstate

commerce in f@olation of the commerce clause of the

Constitution of the United States (Article I, Section 8) and

Article VI, Clause 2 of the United States Constitution, which

declares the laws of the United States to be “the supreme law

of the land.”

23. The State Act embraces and authorizes a very broad

program of operation by its direct terms, as well as under

regulatory powers sought to be delegated. The defendants are

required to establish 11 regional, coastal districts (one

embracing each of the 11 deep-water ports of Florida). Each

district is authorized to have rules and regulations to meet its

particular requirements, including a contingency plan of

response, organization and equipment for handling emergency

clean-up operations. Beyond this, State plans are required to

include state-wide detail emergency operating procedures,

operating and inspection requirements, requirements as to

containment gear, procedures and methods for reporting a

discharge, a port manager for each district having authority to

board and inspect vessels for sea-worthiness. The State is

further mandated to adopt procedures, methods, means and

equipment to be used in clean-up, criteria and plans to meet

oil pollution, requirements for minimum weather and sea

conditions for permitting entry into any Florida port, and the

requirement that prior to the entry the master shall report to

the port manager any discharge, any mechanical difficulty and

any denial of entry elsewhere during the vessel’s current

cruise. All of the above, by the térms of the State Act, are to

_be performed independently of, but in cooperation with, the

Federal authorities. Beyond and in addition, every munici-

pality and every county of the State is expressly authorized

to pass ordinances or special acts covering the same subject

matter (376.19, F.S.), with the exception that any such

ordinance or special act shall not be in direct conflict with

the State Act, and the same may not include a similar

program of licensing and fees. The requirement on the

plaintiffs to attempt to comply with this maze of local,

county and state regulations is a burden on_ interstate

commerce of catastrophic proportions and constitutes a taking

of the plaintiffs’ property and the destruction of plaintiffs’

businesses. If the State of Florida may validly do what it is

seeking to do in this field, then so may the 27 other coastal

states, as well as every state bordering on navigable waters of

the United States (which now includes Oklahoma).

24. The State Act duplicates and conflicts with many of

the obligations of the prior Federal Act and regulations

thereunder and sets up a new highly complicated, costly and

unnecessary State bureaucracy, with the costs thereof required

to be borne by the plaintiffs and others similarly situated, in

cael ale Ae eae

i a Ala a

violation of plaintiffs’ rights and privileges under the

Fourteenth Amendment of the Constitution of the United

States.

25. The absence of procedural and substantive due process

of law, the excessive burdens imposed on_ interstate

commerce, and maritime activity, the conflicts in operation of

the State Act with Federal maritime law and with the Federal

Act, all clearly appear from the following:

(a) Under the Federal Act, a means is provided for

determining the responsibility for, and penalizing those guilty

of, causing an unlawful discharge of pollutants. Procedural

due process is effected by notice to any accused and an

opportunity for him to be heard (Section 11(5)). No such

notice or opportunity is provided under the State Act. In

fact, State authorities are directed to move upon a finding

that a discharge has occurred. The State authorities are

further authorized to predetermine guilt by means available to

them. Only after an accused has been “determined to be

liable” by the State is he accorded the opportunity to raise

one or more of the defenses (1) that the spill resulted from

act of war; (2) by an act of government, state or federal; (3)

by an act of God; or (4) by the act or omission of third

parties. And these defenses may be raised only in the

discretion of the State authorities as a “privilege conferred”,

not “as a right granted”. Then is added the due process coup

de gras: the administrative findings by the State are by the

express term of the State act declared to be “conclusive”.

(b) The Federal Act contemplates a hearing in court as a

condition precedent to the assessment of a penalty unless the

same is compromised or agreed to by the parties. No such

hearing is provided by the State Act. The clean-up cost is

alleged under the Federal Act to constitute a lien on the

vessel which may be recovered in an action in rem‘in the

Federal District Court; and the United States is further

authorized to bring an action in a court of competent

jurisdiction to recover its further costs when allowed. Under

the terms of the State Act, the state has no obligation to

adjudicate its claims in any court.

Foe IBLE RES MELEE TOE, PL

ISELIN OLE LEE EN

be as much as $50,000 per day, whereas under the Federal

Act, the maximum is $10,000 for each offense. The Federal

Act requires as a condition precedent to the assessment of a =

penalty the finding that the discharge was knowingly made =

and that the owner or operator had been given notice and ;

opportunity for hearing. The secretary is authorized to ©

compromise the penalty and is provided reasonable standards ©

to assist him in determining the proper amount of the fine.

These include: (1) appropriateness; (2) size of the business of

the operator; (3) the effect upon the owner; (4) his ability to

remain in business; and (5) the gravity of the violation. No

similar provisions are included in the State Law.

(d) The Federal Act affirmatively provides specific lim-

itations on the amounts that those found responsible may be

required to pay in reimbursement to the U. S. Government :

for costs expended in clean-up, unless the Government is able :

to show that the discharge “was the result of willful k

negligence or willful misconduct within the privity and t

knowledge of the owner.” The State Act provides no

limitation of liability whatsoever for costs expended for t

clean-up, environmental damage, or damage to third parties in |

direct conflict with the aforesaid provisions of the Federal

Act and with the Federal Limitation of Liability Act (Act of

March 3, 1851, Ch. 43, 9 Stat. 635, as amended, 46 U.S.C.

§§ 181-189 (1964)) which provides inter alia that the

liability of the owner of any vessel for any loss, damage, or

injury by collision or for any act done without the privity or

knowledge of such owner shall not exceed the amount or

value of the interest of such owner in such vessel and her

freight then pending.

(e) The State Act (Section 376.07(e)) provides that the

State’s “response team shall act independently of agencies of ;

the Federal government but it is directed to cooperate with

any Federal clean-up operation.” The effect of this is to :

provide a double capability and a double operation separately

manned and directed and is, at best, a plan which will result

in enormous waste of State effort duplicating Federal action, ‘

and a squandering of the fees exacted from plaintiffs and the 3

contributions made from the Florida treasury. At worst, it ;

brings. the two (or more) government teams face to face in

conflict to perform the same mission. A confusion of ultimate

responsibility arises and the stage is set for law-men

scapegoats for failure, which each government may appro-

priate as best fits its own political posture. Notwithstanding,

and in conflict with these provisions of the State Act

(376.07(e)), are the provisions of Section 376.09(2) thereof.

Here, it is provided that if an unlawful discharge occurs “‘into

or upon the navigable waters of the United States, the (State)

department shall act in accordance with the national

contingency play (developed under the Federal Act) and the

costs of removal incurred by the (State) department shall be

paid in accordance with the applicable provisions of said law;

that is, into the Federal treasury.

25. For many years, the plaintiffs have been engaged

severally in their businesses and now meet all requirements of

valid State and Federal law to pursue their businesses in

Florida, except for the obligations imposed by the State Act.

They and the other members of AWO have a long record of

operating with full public responsibility. Nevertheless, the

ships of plaintiffs will, pursuant to Rule 16 B-16.08, be

refused entry to any port in Florida unless a certificate of

financial responsibility has been issued to plaintiffs by the

defendants. Such a certificate will not be issued unless the

plaintiffs file with the defendants evidence of “financial

responsibility” as required, based on the capacity of the

terminal facility or tonnage of the vessel by either posting

insurance, surety bonds, qualifying as a self-insuror, or in

some other manner providing evidence of financial respon-

sibility suitable to the defendants. The plaintiffs severally have

made diligent efforts to obtain insurance and have been

unsuccessful due to the unlimited scope of liability provided

under the 1970 State Act. Such insurance has not been

denied under the Federal Act because this law imposes

specific limitations on the liability of the insureds. None of

plaintiffs’ ships have been refused entry because of not having

this State certificate up to the time of the filing of this

complaint, by some act of grace or indulgence by defendants,

but plaintiffs have been warned that the defendants will

ll &

enforce to the fullest the State Act and its said rules, ’

commencing on March 15, 1971. -

26. In order for plaintiffs to continue to engage in

interstate and international commerce utilizing Florida ports,

it is necessary under the State Act that they jeopardize their

entire assets to comply with the demands of this one state.

And this potential liability gives no consideration to plaintiffs’ ©

excellent record in preventing spills, nor is it conditioned =

upon a finding of any negligence on the part of agents

engaged in operating plaintiffs’ vessels or licensed terminal

facilities. The determination of liability is authorized to be

made initially be a nonjudicial administrative State agency for

the State benefit and for the benefit of third parties, without

affording to the plaintiffs any opportunity to present defenses

to show why they should not be held liable for the pollution

complained of. This condition has resulted in plaintiffs’

inability to induce brokers representing insurance and bonding =

companies to write bonds or insurance for plaintiffs as

contemplated by the State Act.

27. The State Act, in most of its terms and requirements,

is in violation of Article VI, Clause 2, of the United States

Constitution, which declares that the laws of the United

States are the supreme law of the land in areas properly

subject to congressional control. The maritime activities of the

plaintiffs in interstate and international commerce are within

congressional control. The Federal Act and other prior federal

statutes in the field, demonstrate that the Congress has in fact ‘

and in law exercised its constitutional power of preemption. |

Section 11(0)(1)(2) and (3) indicate a congressional intent to >

permit the states or local governments to take steps not in

conflict with the Federal program. But by Section 11(k)(1),

the power of the President to delegate is limited to Federal

agencies. Further, under the Federal Contingency Plan

(Exhibit 5), which was approved and promulgated prior to the

enactment of the State Act, it is provided only that:

“State_and- local governments, industry groups, the

academic community and others are encouraged to

commit resources for response to a spill. Their specific

commitments are outlined by the regional plans. Of

LE POREL OE LR REN DET ROTATE ITER IE!

Peschearam eee cen rere SST Ie NT TELIA OU IR EET AIS RE OC EES

special relevance here is the organization of a standby

scientific response capability.” (Section 203.1)

There is nothing here which may be said to contemplate a

parallel State enforcement program, the imposition of severe

state burdens on interstate shipping or maritime activities, or

any other State Act in conflict with the Federal Act.

28. The plaintiffs and others similarly situated have entered

into contracts over a period of many years the terms of which

require them to transport oil and other petroleum products,

by-products and other products within the contemplation of

the State Act, and the plaintiffs are now prohibited from

complying with their obligations under these contracts by said

law.

29. Each of plaintiffs is now standing in imminent danger

of serious harm. Each is exposed to liability in unlimited

amounts which may occur at any time for damages and costs

arising from spills that its agents and employees did not cause,

and for which the plaintiffs may not justly be held account-

able. The peril is exacerbated by the limitations imposed by

the State Act on plaintiffs’ rights of defense, and the absence

of limitations in said act on plaintiffs’ liability for costs and

damages. This condition has directly resulted in plaintiffs

being unable to obtain the protection of liability insurance in

the usual market place, notwithstanding their diligent efforts

to procure such. Such insurance is essential to plaintiffs’

stability, to its ability to obtain loans from banks, to market

its stock, and otherwise operate and maintain a successful,

viable business. Thus plaintiffs’ businesses are now placed in

serious jeapardy, and if these conditions are allowed to

continue, the losses to plaintiffs will be irreparable.

30. The State Act (Chapter 376, Florida Statutes) is

unconstitutional and void in that it violates the provisions of

the United States Constitution in the following respects:

(a) The statute authorizes the State agency to make a

finding of fault as to the plaintiffs or others similarly situated

without affording to the plaintiffs an opportunity to be heard

and, therefore, deprives the plaintiffs and others similarly

situated of procedural due process of law as guaranteed by

the Fourteenth Amendment of the United States Consti-

tution.

(b) The statute is unconstitutional and void in that the

same constitutes a violation of Article III, Section 2, of the

Constitution of the United States, which reserves the judicial

power in all cases affecting admiralty and maritime juris-

diction to the United States courts.

process of law as guaranteed by the Fourteenth Amendment

of the United States Constitution in that the same amounts to

confiscation of plaintiffs’ property, interferes with plaintiffs’

right of contract, and constitutes a taking of plaintiffs’

property without just compensation.

(d) The statute is unconstitutional and void in that it

attempts to cover an area preempted by the Federal Govern-

ment and is in violation of the commerce clause of the United

States Constitution.

(e) The statute is unconstitutional and void in that the

same constitutes an unreasonable burden on interstate com-

merce in violation of the United States Constitution as it

attempts to regulate and burden maritime activities in inter-

state and international commerce.

(f) The statute deprives plaintiffs of the right of equal

protection of the laws as guaranteed by the Fourteenth

Amendment of the Federal Constitution in that the same

seeks to regulate named materials when carried as cargo but

does not regulate the transportation of the same materials

when carried in the same or larger quantities other than as

cargo.

(g) The statute is unconstitutional and void in that it

violates Article VI, Clause 2, of the United States Consti-

tution, which declares that constitution, treaties, and laws of

the United States, constitute the supreme law of the land.

31. Plaintiffs have no adequate remedy at law to prevent

irreparable harm except by way of injunction to restrain the

defendants in the enforcement, execution and administration

of the State Act.

WHEREFORE, Plaintiffs, pursuant to the provisions of

Sections 2281 and 2284 of Title 28, United States Code, pray

ETRE LORI TEN ea

SI et a

bh ae

SRR RE Stee ye ates

that this Court:

(1) Convene a statutory court of three judges for the

purpose of hearing and determining this cause at the earliest

practicable date;

(2) Adjudge and declare to be in violation of the Constitu-

tion of the United States, and therefore void, the whole or

separable parts of Chapter 70-224, Laws of Florida, 1970

(Chapter 376, Florida Statutes);

(3) Issue a preliminary and permanent injunction re-

straining and enjoining the defendants from enforcing,

executing, administering or in any manner giving effect to the

provisions of Chapter 70-224, Laws of Florida, 1970 (Chapter

376, Florida Statutes), which are adjudged ard declared to be

in violation of the Constitution of the United States;

(4) Issue a temporary restraining order pursuant to Section

2284(3) of Title 28, United States Code, restraining the

defendants from enforcing, executing or administering the

whole or separable parts of Chapter 70-224, Laws of Florida,

1970 (Chapter 376, Florida’Statutes);

(5) Grant plaintiffs’ costs and disbursements and grant

plaintiffs such other and further relief as may be meet and

just in the premises.

LEROY COLLINS

of Counsel

JOSEPH C. JACOBS

and

SANDERS SAULS

of the law firm of

Ervin, Pennington, Varn & Jacobs

Post Office Box 1170

Tallahassee, Florida 32302

Attorneys for Plaintiffs

(Jurats omitted in printing)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA,

JACKSONVILLE DIVISION

THE AMERICAN WATERWAYS OPERATORS, et al.,

PLAINTIFFS,

and

AMERICAN INSTITUTE OF MERCHANT SHIPPING

ASSURANCEFORENINGEN GARD, et al., and their respective

members,

INTERVENING PLAINTIFFS,

US.

HON. REUBIN O’D. ASKEW, et al., DEFENDANTS.

The Complaint of the American Institute of Merchant

Shipping, Assuranceforeningen Gard, Assuranceforeningen

Skuld, The Britannia Steam Ship Insurance Association,

Limited, The Japan Ship Owners Mutural Protecting and

Indemnity Association, The Liverpool and London Steam

Ship Protection and Indemnity Association, Limited, The

London Steamship Owners’ Mutual Insurance Association

Limited, Newcastle Protection and Indemnity Association,

The North of England Protecting & Indemnity Association

Limited, The Standard Steamship Owners’ Protection and

Indemnity Association Limited, The Standard Steamship

Owners’ Protection & Indemnity Association (Bermuda)

Limited, The Steamship Mutual Underwriting Association

Limited, Sunderland Steamship Protecting & Indemnity Asso-

ciation, Sveriges Angfartygs Assuransforening, The United

Kingdom Mutual Steam Ship Assurance Association

(Bermuda) Limited, The West of England Ship Owners Mutual

Protection and Indemnity Association (Luxembourg) and their

respective members, by their attorneys, Fowler, White, Gillen,

Humkey, Kinney & Boggs; Haight, Gardner, Poor & Havens,

and Healy & Baillie, respectfully alleges, on information and

belief, as follows:

PARTIES

1. Intervening Plaintiff The American Institute of Merchant

Shipping (“the Institute”) is a non-profit corporation

organized under and existing pursuant to the laws of the

District of Columbia and is the national trade association of

the American steamship industry. It is composed of 35

American companies which own and operate approximately

520 United States flag, ocean-going vessels of all types,

engaged in the domestic and foreign trades. Many of its

members have scheduled calls of their vessels at Florida ports

_and others may wish to serve such ports in the future. The

Institute and its members therefore have a substantial interest

in the Florida Oil Spill and Pollution Control Act Ch.

70-244, Laws of Florida, 1970 (“the Florida Act”)) and the

Regulations issued thereunder. ;

2. Intervening Plaintiffs Assuranceforeningen Gard and

Assuranceforeningen Skuld are corporations organized under

and existing pursuant to the laws of the Kingdom of Norway.

3. Intervening Plaintiffs the Britannia Steam Ship Insurance

Association, Limited; the Liverpool and London Steam Ship

Protection and Indemnity Association, Limited; The London

Steam-Ship Owners’ Mutual Insurance Association Limited;

Newcastle Protection and Indemnity Association; The North

of England Protecting & Indemnity Association Limited; The

Standard Steamship Owners’ Protection and Indemnity Asso-

ciation Limited; and The Steamship Mutual Underwriting

Association Limited; and Sunderland Steamship Protecting &

Indemnity Association are corporations organized under and

existing pursuant to the laws of the United Kingdom of Great

Britain and Northern Ireland.

4. The Japan Ship Owners Mutual Protecting and

Indemnity Association is a corporation organized under and

existing pursuant to the laws of the Empire of Japan.

5. The Standard Steamship Owners’ Protection & Indem-

nity Association (Bermuda) Limited and The United Kingdom

Mutual Steam Ship Assurance Association (Bermuda) Limited,

are corporations organized under. and existing pursuant to the

Laws of Bermuda.

ee ee

‘>

6. Sveriges Angfartygs Assuransforening is a corporation

organized under and existing pursuant to the laws of the

Kingdom of Sweden.

7. The West of England Ship Owners Mutual Protection

and Indemnity Association (Luxembourg) is a corporation

organized under and existing pursuant to the laws of the

Grand Duchy of Luxembourg.

8. The Associations ‘described in Paragraphs “2” to “7”,

inclusive (“the Association”), are composed of owners and

operators of approximately three quarters of the world’s

ocean-going vessel tonnage, flying the flags of almost every

maritime country, including approximately 4,000,000 tons

under American flag. A substantial number of vessels owned

or operated by members of the Associations have scheduled

calls of their vessels at Florida ports, and others may wish to

serve such ports in the future. 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 caused by the discharge of oil and other

substances from their vessels. The Associations and their

respective members therefore have a substantial interest in the

Florida Act and Regulations.

9. Defendants and their respective positions and respon-

sibilities are described in Paragraphs “19”, “20” and “21” of

the , original complaint in this action, filed on behalf of

original Plaintiffs The American Waterways Operators, Inc., et

al. on March 8, 1971, the allegations of which paragraphs are

incorporated herein with the same force and effect as though

herein set forth at length.

10. Defendants are citizens of the State of Florida.

JURISDICTION

11. This Honorable Court has jurisdiction of this cause by

virtue of Title 28 U.S.C. §1331 (1964), and under the

following provisions of the Constitution; Article I, Section 8,

Clause 3 (Regulation of Commerce); Article 1, Section 9,

SPA LIENS

Clause 18 (Necessary and Proper Laws); Article III, Section 2,

Clause 3 (Admiralty); Article VI, Clause 2 (Supreme Law of

the Land); Fifth Amendment (Due Process Clause); Four-

teenth Amendment (Due Process and Equal Protection

Clauses), and precepts derived from the Constitution of the

United States as a whole. The amount in controversy,

exclusive of interest and costs, exceeds the sum of $10,000.

This Honorable Court therefore has federal question juris-

diction of this action under 28 U.S.C. §1331 (1964). All

named plaintiffs in this action are foreign corporations; all

defendants are citizens of Florida and the amount in

controversy, exclusive of interest and costs, exceeds $10,000.

This Honorable Court therefore has diversity jurisdiction

under Title 28 U.S.C. § 1332 (1964).

AS AND FOR A FIRST CAUSE OF ACTION:

12. Article III, Section 2 of the Constitution extends the

judicial power of the United States to all cases of admiralty

and maritime jurisdiction, and Article I, Section 8, Clause 18,

provides that Congress shall have power to make all laws

which shall be necessary and proper for carrying into

execution all powers vested by the Constitution in_ the

Government of the United States, or in any Department of

Officer thereof.

13. By reason of the aforesaid provisions, Congress is

vested with paramount power to fix and determine the

maritime law, and where Congress has not enacted legislation,

the Federal Judiciary has the power to define the general

maritime law which is to prevail throughout the United

States. Congress has in fact enacted a comprehensive and

detailed body of statutes relating to marine oil pollution and

regulations have been duly issued by Federal agencies there-

under.

14. In view of the need for a nationally uniform maritime

law recognized by the Constitutional grant, power to enact

legislation such as the Florida Act does not exist in the States

and is not delegable to them by the Congress.

15. Contrary to the aforesaid provisions of the Consti-

neem, 2t.

“19

tution, the Legislature of the State of Florida has nevertheless

enacted the Florida Oil Spill/Prevention and Pollution Control —

Act (Chapter 70-244 of the Laws of the State of Florida), }

and the Florida Department of Natural Resources has pub- §

lished Regulations thereunder.

16. The Florida Act and Regulations purport, among other [

things:

a. To require the establishment of evidence of finan-

cial responsibility in respect of vessels carrying certain

cargoes to Florida ports, on pain of withholding per-

mission from said vessels to enter Florida ports;

b. To require the maintenance on board vessels carry-

ing certain cargoes of such containment gear as may be

| required by the Florida Department of Natural Re-

sources, with a crew trained in the use of such gear;

| c. To set up standards of liability for the maritime

| tort of marine pollution differing from those of the

general maritime law and applicable federal statutes and

to impose absolute liability, regardless of fault, for

damages resulting from discharges of oil and other

substances from vessels;

d. To deny to owners of vessels the right to limit

their liability for damage resulting from such discharges;

and

¢. To require a grant of permission of the particular

agency of the State of Florida having jurisdiction thereof

-in order for any person to deal with derelict vessels, and

to empower the State on its own initiative to control the

disposition to be made of certain derelict vessels.

f. To deprive the United States District Courts of the

cognizance of all cases of admiralty and maritime

jurisdiction which they have by virtue of the Admiralty

Clause of the Constitution (Article III, Section 2, Clause

3) and Title 28, U.S.C. § 1333, and instead to vest in the

Florida Department of Natural Resources the exclusive

power to determine liability for marine pollution

damages, purporting to give to the said Department the

absolute discretion to confer as a privilege, and not as a

right, a waiver of liability for reimbursement for such

AYP AGEL LLL IG IRE LLAPLLE ERY LVN

DLO SOLEIL NOEL OO OT

PMR IOLA

AIA ALES AE ML LB ENATEEY L LI PLGEV ALLEY LOLA LE PH LLY

damages if it finds, after hearing, that the occurrence

giving rise thereto was the result of ap act of war, act of

Government, act of God, or an act or omission of a third

party.

g- To empower the Florida Department of Natural

Resources to adopt, amend, repeal and enforce regula-

tions relating to oil spills or discharges, or the spills or

discharges of other pollutants into the waters of Florida,

or onto the coasts of that State, covering, among other

things, operation and inspection requirements for vessels;

procedures and methods of reporting discharges and

other occurrences which the Florida Act purports to

prohibit; procedures, methods, means and equipment to

be used in the removal of pollutants; requirements for

minimum weather and sea conditions for permitting

vessels to enter ports and for the safety and operation of

vessels, and requiring that, prior to being granted entry

into any port of Florida, the Master must report any

discharges of oil or other pollutants his vessel has had

since leaving her last port, any mechanical problem

creating the possibility of a spill, and any denial of entry

into any port during the vessels current voyage.

17. The Florida Act and Regulations, insofar as they deal

with the aforesaid matters and others similar thereto, are

null, void and of no effect, by reason of the Constitutional

reservation to the Congress of the paramount power to enact

legislation governing the movement of vessels in waters within

the admiralty and maritime jurisdiction of the United States,

particularly when engaged in international or interstate com-

merce, and the power of the Federal Judiciary to define the

maritime law which, in the absence of Congressional legisla-

tion, is to prevail throughout the United States.

AS AND FOR A SECOND CAUSE OF ACTION:

18. The Constitution provides, in Article I, Section 8,

Clause 3, that’ the Congress shall have power to regulate

commerce with foreign nations and among the several States.

19. Pursuant to such constitutional authority, the Congress

has enacted a comprehensive and detailed body of statutes,

and Federal regulations have been duly issued pursuant to

certain of those and other federal statutes.

20. The aforesaid federal statutes and regulations provide,

among other things:

a. For a national policy for the prevention, control ?

and abatement of water pollution.

b. For the prohibition of discharges of oil into or §

upon the navigable waters of the United States, their

adjacent shorelines, or the waters of the contiguous zone

in harmful quantities, consistent with maritime safety

and with marine and navigation laws and regulations and

applicable water quality standards;

c. For the definition of “harmful discharge” by

Presidential Regulation;

d. For fines and/or imprisonment of persons in charge

of vessels, or on- or offshore facilities, who fail to notify

the appropriate agency of the Federal Government in

case of harmful discharges from their vessels or facilities,

or who knowingly allow such harmful discharges;

e. For promulgation of a National Contingency Plan

for the removal of oil discharges;

f. For radical emergengy measures, including destruc-

tion of vessels discharging or about to discharge large

quantities of oil in or upon the navigable waters of the

United States;

g- For action by United States Attorneys to abate

actual or threatened discharges of oil imposing imminent

and substantial threats to the public health or welfare of

the United States;

h. For standards of proof by which owners or opera-

tors of vessels shall be found liable for discharges of oil,

the amount of potential liability therefor, and the

procedure for recovery of the cost of removal;

i. For standards of proof which owners or operators

of vessels must meet in order to establish liability of ‘

| third parties for discharges; '

j. For preservation of vessel owners’ or operators’

VR Oe

. LAPS ST ODBC FIT

BER Sy MOBS GGL LA PCIE AIO VOGEL TSE, LL EL LLM LOGE ALI LEILA LID DEEP ‘

{ORDO PETE Ae 7 Bata te a ,

rights against third parties;

k. For recovery by vessell owners or operators, in

proper cases, of the cost of removing discharged oil;

l. For the issuance by the President of rules and

regulations consistent with the National Contingency

Plan;

m. For civil penalties for failure to comply with said

regulations;

n. For the establishment and maintenance by owners

or operators of vessels of evidence of financial respon-

sibility to meet potential liabilities for the cost of

removal of oil discharges with the right of direct legal

action against insurers or other persons providing such

evidence of financial responsibility;

o. For cooperation by all federal agencies in com-

plying with applicable water quality standards; and

p- For preventing the obstruction of navigable waters

by disabled vessels, and for marking and removing vessels

moored, wrecked or sunk so as to form such obstruc-

tions.

21. The aforesaid federal statutory provisions, together

with the general maritime law, applicable to the plaintiff

members of the Institute and of the Associations while their

vessels engage in interstate or international maritime com-

merce with ports of Florida and other ports of the United

States, and controlling the liabilities of said members from

time to time arising, in respect of which certain of plaintiff

Associations are by contract with their respective members

required to provide indemnity, regulate commerce with

foreign nations and among the several States.

22. Contrary to the aforesaid Constitutional and statutory

provisions, the State of Florida has nevertheless enacted the

Florida Oil Spill/Prevention and Pollution Control Act

(Chapter 70-244 of the Laws of the State of Florida), and has

published Regulations thereunder.

23. The aforesaid Intervening Plaintiffs repeat and reallege

each and every allegation contained in Paragraph “16” of this

complaint, with the same force and effect as herein set forth

at length.

BIOTEC a he

24. The Florida Act and Regulations purport to impose

other and multiplicitous requirements, standards, penalties and

duties in addition to and/or duplicative of those previously

contained in federal statutes and regulations.

25. The Florida Act and regulations impose unreasonable

burdens upon international and interstate maritime commerce,

and are therefore null, void and of no effect under the

Commerce Clause of the Constitution.

AS AND FOR A THIRD CAUSE OF ACTION:

26. The Constitution provides, in Article VI, Clause 2, that

the Constitution, and the laws of the United States which

shall be made in pursuance thereof, shall be the Supreme Law

of the Land; and that the judges in every State shall be bound

thereby, anything in the constitution or laws of any State to

the contrary notwithstanding.

27. The aforesaid Intervening Plaintiffs repeat and reallege

each and every allegation contained in Paragraphs “19” and

“20” of this complaint with the same force and effect as if

herein set forth at length.

28. These aforesaid statutes, and the regulations issued

thereunder, leave no room for duplicative state legislation.

Further, the federal interest in the field of foreign maritime

commerce is so dominant, and the need for uniformity so

great in view of the immense potential for commercial

disruption implicit in the possible enactment of twenty-nine

differing and/or contradictory state regulatory schemes by the

coastal States (Alabama, Alaska, California, Connecticut,

Delaware, Florida, Georgia, Hawaii, Illinois, Indiana,

Louisiana, Maine, Maryland, Massachusetts, Michigan,

Mississippi, New Hanpshire, New Jersey, New York, North

Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South

Carolina, Texas, Virginia, Washington and Wisconsin), that the

federal statutes and regulations already governing the move-

ment of vessels in international and_ interstate maritime

commerce must be seen as fully occupying the field, to the

exclusion of disparate and burdensome state regulatory

schemes allegedly Operating in the same field, on the same

ah Se Oat laa 2

persons, for the same ends.

29. Existing federal legislation and regulations governing

the movement of vessels in international and_ interstate

maritime commerce preempt that legislative field as the

Supreme Law of the Land, pursuant to Article VI, Clause 2

of the Constitution, wherefore the Florida Act and regula-

tions, insofar as they impinge on that field, are null, void and

of no effect.

AS AND FOR A FOURTH CAUSE OF ACTION:

30. The Constitution provides, in the Fifth Amendment

thereto, that no person shall be deprived of property without

due process of law; and, in the Fourteenth Amendment

thereto, that no state shall deprive any person of property

without due process of law, nor deny to any person within its

jurisdiction the equal protection of the laws.

31. The aforesaid Intervening Plaintiffs repeat and reallege

each and every allegation contained in Paragraph “16” of this

complaint with the same force and effect as if herein set forth

at length.

32. The Florida Act and Regulations further purport to

provide for a civil penalty of not more than $50,000 for each

day any violation of the provisions of the Florida Act or

Regulations is found to continue; to remove from state and

federal courts altogether jurisdiction to hear and determine

questions relating to liability for civil penalties, costs of

removal and damages in respect of marine oil pollution; and

to create a rule of absolute liability, operating only in favor

of the State of Florida and other pollution damage plaintiffs

but not in favor of innocent vessel owners or operators as

third-party plaintiffs, where a discharge is caused by negligent

or willful acts of third party defendants, with the result that

such innocent owners or operators would, if the Florida Act

and Regulations were upheld, be required to respond to the

State of Florida and other pollution damage plaintiffs for

such pollution damage, with no remedy against the culpable

parties.

33. Said provisions, with others to be briefed to this

neem: eae

Honorable Court, have no reasonable basis in law or fact to

support their arbitrary disruption and/or deprivation of

intervening plaintiffs’ trade and property rights.

34. Said provisions bear no reasonable relation to the goals

sought to be achieved by the Florida Act, and discriminate

arbitrarily between the State of Florida and other pollution

claimants, on the one hand and personal injury, collision and

other maritime claimants, on the other hand.

35. Said provisions deprive Intervening Plaintiffs of trade

and property rights without due process or equal protection

of the law and are therefore null, void and of no effect under

the fifth and Fourteenth Amendments to the Constitution.

WHEREFORE, Intervening Plaintiffs the American Institute

of Merchant Shipping, Assuranceforeningen Gard, et al.

respectfully pray that this Honorable Court will hand down

its judgment:

a. Declaring the Oil Spill Prevention and Pollution

Control Act (Chapter 70-244 of the Laws of the State of

Florida) null, void, and: of no effect as said Act purports

to bear on the movement of vessels engaged in maritime

commerce, by reason of the unconstitutionality of said

Act;

b. Permanently enjoining defendants in their official

capacities, and all others who may thereafter succeed to

said official capacities, from maintaining, upholding,

implementing and/or enforcing any provision of said Act,

or any Regulations issued thereunder, as said Act

purports to bear on the movement of vessels engaged in

maritime commerce; and

c. Granting such further, other or different relief as to

this Honorable Court may appear just in the cause.

Yours, etc.,

FOWLER, WHITE, GILLEN, HUMKEY,

KINNEY & BOGGS (P.A.)

BY /s/ Dewey Villareal

A Member of the Firm

Office and P.O. Address

P.O. Box 1438

Tampa, Florida 33601

HAIGHT, GARDNER, POOR & HAVENS

BY /s/ Gordon W. Paulsen

_A Member of the Firm

Office and P.O. Address

80 Broad Street

New York, N.Y. 10004

HEALY & BAILLIE

BY /s/ Nicholas J. Healy

A Member of the Firm

Office and P.O. Address

29 Broadway

New York, N.Y. 10006

212-WH 3-3980

Attorneys for Intervening Plaintiffs

American Institute of Merchant

Shipping, Assuranceforeningen Gard,

et al.,

(Certificate of service omitted in printing)

Pe a

Paty. ts San, ey te Sie ee Ee eo

ES Pe

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

PRIS

SEX

THE AMERICAN WATERWAYS OPERATORS, INC., et al.,

PLAINTIFFS,

SLR NI

and

SUWANNEE STEAMSHIP CO., et al., and their respective

members,

FG PE EUS ANE

Oe PLY POY

INTERVENING PLAINTIFFS,

US.

REUBIN O’D, ASKEW et al.,

DEFENDANTS.

ANSWER TO PLAINTIFFS’ COMPLAINT

Defendants answer Plaintiffs’ complaint and state:

1. Defendants are without knowledge of assertions of

paragraph 1 of the Complaint and neither affirm nor deny

same.

2. Defendants deny paragraph 2 of the Complaint.

3. Defendants are without knowledge of assertions of

paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17,

and 18 of the Complaint and neither affirm nor deny same.

4. Defendants admit allegations of paragraph 19 and 20 of

the complaint.

5. Defendants admit allegations of paragraph 21 of the

Complaint.

6. Defendants deny allegations of paragraph 22 of the |

Complaint. f

7. Defendants deny the 8th sentence of paragraph 23 of

said Complaint.

8. Defendants deny allegations of paragraph 24 of the

Complaint.

9. Defendants deny allegations of paragraph 25 of the

Complaint.

10. Defendants deny allegations of paragraph 25 (a) of the

SAE

Complaint.

11. Defendants deny allegations of paragraph 25 (b) of the

Complaint.

12. Defendants are without knowledge of allegations of

paragraphs 25 (c) and 25 (d) of the Complaint and neither

affirm nor deny same.

13. Defendants deny allegations of paragraph 25 (e) of the

Complaint.

14. Defendants are without knowledge of assertions of

paragraph 26 beginning on page 11 of the Complaint

(mistakenly numbered 25”).

15. Defendants deny allegations of paragraph “26” of the

Complaint.

16. Defendants deny allegations of paragraph “27” of the

Complaint.

17. Defendants deny allegations of paragraph “28” of the

Complaint.

18. Defendants deny allegations of paragraph “29” of the

Complaint.

19. Defendants deny allegations of paragraph “30” and of

each and every sub-paragraph thereof of the Complaint.

20. Defendants deny allegation of paragraph “31” of the

complaint. .

WHEREFORE, Defendants pray that this Court dismiss

Plaintiffs’ Complaint with prejudice with costs assessable

against Plaintiffs.

ANSWER TO COMPLAINT OF INTERVENORS

SUWANNEE STEAMSHIP CO., COMMODORES POINT

TERMINAL CORPORATION, AND AMERICAN INSTITUTE

OF MERCHANT SHIPPING, et al.

Defendants answer the Complaint of these Intervenors

(hereinafter referred to as “Suwannee Complaint’) and state:

21. Defendants are without knowledge of assertions of

paragraph 1 of the Suwannee Complaint and neither admit

nor deny same.

22. Defendants are without knowledge of assertions of

paragraph 2 of the Suwannee Complaint and neither admit

nor deny same.

23. Defendants admit paragraphs 3, 4, and 5 of the

Suwannee Complaint.

24. Defendants deny allegations of paragraph 6 of the

Suwannee Complaint.

25. Defendants deny assertions of paragraph 7 and each

and every subparagraph thereof of the Suwannee Complaint.

WHEREFORE, Defendants pray this Court to dismiss the

Suwannee Complaint with prejudice with costs assessable

against these Intervenors.

ANSWER TO COMPLAINT OF INTERVENORS AMERICAN

INSTITUTE OF MERCHANT SHIPPING, et al.

Defendants answer the Complaint of these Intervenors

(hereinafter referred to as “Institute Complaint”) and state:

26. Defendants are without knowledge of assertions of

pargaraph | through 8, inclusive, of the Institute Complaint

and neither admit nor deny same.

27. Defendants admit allegations of paragraphs 9 and 10 of

the Institute Complaint.

28. As to paragraph 11 of the Institute Complaint, Defen-

dants admit that this Court has jurisdiction, but deny

appropriateness of the specific constitutional provisions set

forth therein.

29. Defendants admit allegations of paragraph 12 of the

Institute Complaint.

30. Defendants admit the first sentence of paragraph 13 of

the Institute Complaint, but deny allegations in the second

sentence thereof to the extent that the Federal Act referred

to is asserted to be of such a comprehensive nature as to

foreclose state legislation in the field of marine oil-spill

pollution control.

31. Defendants deny allegations of paragraph 14 of the

Institute Complaint.

32. Defendants deny paragraph 15 of the Institute Com-

plaint insofar as it asserts that the Florida Act is contrary to

the Constitution.

33. Defendants admit paragraphs 16 a and 16 b of the

te i ear hk

“

institute Complaint.

34. Defendants deny paragraph 16 c of the Institute

Complaint insofar as it purports to limit pollution of state

waters to the category of a maritime tort.

35. Defendants admit paragraph 16 d of the Institute

Complaint.

36. Defendants deny paragraph 16 e of the Institute

Complaint.

37. Defendants deny paragraph 16 f of. the Institute

Complaint.

38. Defendants admit allegations of go aon 16 g of the

Institute Complaint.

39. Defendants deny allegations of paragraph 17 of the

Institute Complaint.

40. Defendants admit —— 18 of the Institute Com-

plaint.

41. Defendants deny pilegntivas of paragraph 19 insofar as

they assert the Federal Act to be so comprehensive as to

foreclose the State from legislating in the field of oil-spill

pollution control.

42. Defendants are without knowledge of and therefore

neither admit nor deny allegations related to the Federal Act

contained in paragraph 20 and all subdivisions thereof, except

insofar as such allegations attempt to assert or may be

interpreted as asserting Federal preemption in the field of

oil-spill pollution control.

43. Defendants deny assertions of paragraph 21 of the

Institute Complaint insofar as it purports to allege that the

Federal Act controls liability of plaintiffs while in Florida

waters, and that the Federal Act regulates commerce with

foreign nations and between the several states.

44. Defendants deny assertions of paragraph 22 of the

Institute Complaint insofar as it alleges the Florida Act to be

contrary to the Constitution.

45. As to paragraph 23 of the Institute Complaint, Defen-

dants repeat their response to paragraph 16 and all subpara-

graphs thereof, which response is contained in Answer

paragraphs 33 through 38, inclusive, hereinabove set out.

46. Defendants deny paragraphs. 24 and 25 of the Institute

Complaint.

47. Defendants admit paragraph 26 of the Institute

Complaint.

48. As to paragraph 27 of the Institute Complaint,

Defendants repeat their responses to paragraphs 19 and 20

and all subparagraphs thereof contained in Answer paragraphs

41 and 42 hereinabove set out.

49. Defendants deny the allegations of paragraphs 28 and

29 of the Institute Complaint.

50. Defendants admit paragraph 30 of the Institute

Complaint.

51. As to paragraph 31 of the Institute Complaint, Defen-

dants repeat their response to paragraph 16 and all sub-

paragraphs thereof which response is contained in Answer

paragraphs 33 through 38, inclusive, hereinabove set out.

52. Defendants deny allegations of paragraphs 32 through

35, inclusive, of the Institute Complaint.

WHEREFORE, Defendants pray the Court to dismiss the

Institute Complaint with prejudice with costs assessable to

these Intervenors.

COUNTERCLAIM

1. This counterclaim is for treble damages and injunctive

relief arising under the antitrust laws of the United States. 15

U.S.C. § 1, et seq.

2. Counterclaimant, the State of Florida (hereinafter the

“State”), is a sovereign state of the United States, and has

sustained and will sustain damages as a result of the

combination and conspiracy in violation of the antitrust laws

herein alleged. The sovereign power of the State is invoked by

Defendant/Counterclaimant Robert L. Shevin as Attorney

General of the State of Florida.

3. Counterclaimant also brings this action in its capacity as

parens patriae, trustee, guardian and representative on behalf

of the people of the State in that it has an obligation to

maintain, protect and promote the health and welfare of its

people.

4. The damage and injury done to the people of the State

+ {RESET Rtn RST

Baer Ke tte 8S

pee ——

as a result of the combination and conspiracy alleged

herein transcends the injury sustained by them individually,

and adversely affects the economy and prosperity of the State

and the health and welfare of its citizens.

5. Counterclaimant also brings this action pursuant to Rule

23 of the Federal Rules of Civil Procedure, as representative

of the class consisting of all public and private entities and

persons injured and likely to be injured by the effects of the

combination and conspiracy herein alleged. Said members of

the class are so numerous that joinder of all members is

impracticable. The rights of the members of the class involve

common questions of law and fact. The claims of the

‘ counterclaimant are typical to those of the class. Counter-

claimant will fairly and adequately protect the interests of the

class. The questions of law and fact common to members of

the class predominate over any questions affecting only

individual members. This class action is superior to other

methods for fair and efficient adjudication of the controversy

herein described.

6. This counterclaim is brought against the following

named associations and each of their respective members, all

of whom have intervened as parties plaintiff in this cause:

AMERICAN INSTITUTE OF MERCHANT SHIPPING,

ASSURANCEFORENINGEN . GARD, ASSURANCE-

FORENINGEN SKULD, THE BRITANNIA STEAM

SHIP INSURANCE ASSOCIATION, LIMITED, THE

JAPAN SHIP OWNERS MUTUAL PROTECTING AND

INDEMNITY ASSOCIATION, AHE LIVERPOOL AND

LONDON STEAM SHIP PROTECTION AND INDEM-

NITY ASSOCIATION, LIMITED, THE LONDON

STEAMSHIP OWNERS’ MUTUAL INSURANCE ASSO-

CIATION LIMITED, NEWCASTLE PROTECTION AND

INDEMNITY ASSOCIATION, THE NORTH OF

ENGLAND PROTECTING & INDEMNITY ASSOCIA-

TION LIMITED, THE STANDARD STEAMSHIP

OWNERS’ PROTECTION AND INDEMNITY ASSOCIA-

TION LIMITED, THE STANDARD STEAMSHIP -

OWNERS’ PROTECTION & INDEMNITY ASSOCIA-

TION (BERMUDA) LIMITED, THE STEAMSHIP

MUTUAL UNDERWRITING ASSOCIATION, LIMITED,

SUNDERLAND STEAMSHIP PROTECTING & INDEM-

NITY ASSOCIATION, SVERIGES ANGFARTYGS

ASSURANSFORENING, THE UNITED KINGDOM

MUTUAL STEAM SHIP ASSURANCE ASSOCIATION

(BERMUDA) LIMITED, THE WEST OF ENGLAND

SHIP OWNERS MUTUAL PROTECTION AND INDEM-

NITY ASSOCIATION (LUXEMBOURG), and _ their

respective members.

The above-named counterclaim defendant denominated

American Institute of Merchant Shipping is the national trade

association of the American Steamship industry, Other of the

above-named counterclaim defendants, commonly known as

“P and I Clubs,” are British, Japanese, Norwegian, Swedish,

Bermudian and Luxembourgian associations.

7. Each of the counterclaim defendants is found or

transacts business in the Middle District of Florida, the

unlawful activities done pursuant to the combination and

conspiracy herein alleged were carried out, in part, within the

Middle District of Florida, and the interstate and foreign trade

and commerce hereinafter described is carried on in ,part

within the Middle District of Florida.

CO-CONSPIRATORS

8. Various other persons, firms, and corporations not made

‘ counterclaim defendants herein have participated as co-

conspirators with the counterclaim defendants in the offense

charged in this complaint and have performed acts and made

statements in furtherance thereof.

_ NATURE OF TRADE AND COMMERCE

9. The carriage of goods by water is an integral and

important part of the interstate and foreign commerce of the

United States and State of Florida. In 1969, waterborne

exports from the United States amounted to approximately

$20 billion and waterborne imports amounted to approx-

imately $21.6 billion. The waterborne exports of products

from and imports to Florida ports are of substantial signifi-

cance to the trade of individual businesses and to the general

economy of the state. For example, in 1968 imports and

exports from major Florida ports amounted to the following:

Thousands of Short Tons

Imports Exports

Jacksonville Harbor 3,650 1,540

Port Everglade Harbor 2,205 206

Miami Harbor 1,298 302

Tampa Harbor 2,050 10,525

Waterborne coastal trade is also significant to the above ports.

In 1968, shipments and receipts for major Florida ports were

as follows:

Thousands of Short Tons

Receipts Shipments

Jacksonville Harbor 3,854 515

Port Everglades Harbor 5,306 262

Miami Harbor 315 183

Tampa Harbor 10,463 3,383

10. Petroleum and petroleum products are of vital impor-

tance to the economy of the United States and the State of

Florida particularly for fuel purposes. In 1968, consumption

of petroleum and petroleum products in the United States

amounted to about 24,880 trillion British Thermal Units or

about 39.5% of all mineral energy and electricity consump-

tion. However, the United States has for more than a decade

produced less than its needs of petroleum and has been a net

importer of petroleum and petroleum products. In 1968 U.S.

production of petroleum and petroleum products amounted

to about 19,510 trillion British Termal Units. In 1968, U. S.

imports of crude petroleum were 472 million barrels and

imports of refined products were 567 million barrels, while

exports were two million barrels of crude and 83 million

barrels of refined. Accordingly, petroleum imports are vital

for the functioning of the economy.

11. The counterclaim defendant P and I clubs are mutual

associations formed by shipowners in order to provide

themselves with Marine Protection and Indemnity Insurance

on the indemnity principle. The associations, being fully

mutual, represent the interests of their individual shipowner

members equally with the interests of the associations

themselves. Collectively, they insure approximately three

quarters of the world’s ocean-going vessel tonnage against

liabilities arising out of the operation of their members’

vessels, including oil pollution liabilities. The counterclaim

defendant American Institute of Merchant shipping is com-

posed of 35 United States companies which own and operate

about 520 U.S.-flag, ocean-going vessels of all types, engaged

in the domestic and foreign trades. Accordingly, the opera-

tions of the members of the American Institute of Merchant

Shipping and the P and I clubs represent a significant factor

in the foreign and interstate waterborne commerce described

above, and in the importing of oil to the United States and

State of Florida.

CONSPIRACY CHARGED

12. Beginning at least as early as 1970 and continuing

thereafter up to and including the date of the filing of this

counterclaim, counterclaim defendants and their co-

conspirators have been engaged in a combination and con-

spiracy in restraint of foreign and interstate trade and

commerce in shipping, the carriage of waterborne freight and

the insurance and reinsurance of ships and shipping in

violation of the anti-trust laws of the United States, 15 U.S.C.

§ 1 et seq.

13. Said combination and conspiracy has consisted of a

continuing agreement, understanding and concert of action

among counterclaim defendants and their co-conspirators, the

substantial terms of which have been:

(a) To threaten to impair, lessen or halt the voyages

of ships to the ports of Florida.

(b) To halt the voyages of ships bound for Florida

ports, and to divert ships bound for Florida ports to

other ports.

covering ships bound for Florida ports.

14. For the purpose of forming and effectuating the

aforesaid combination and conspiracy, counterclaim defen-

dants and their co-conspirators have:

(a) Publicly announced that under stated conditions

there would be no future sailings to Florida ports,

including public announcements made during the course

of hearings in this cause;

(b) Diverted ships bound for Florida ports to ports

outside the state;

surance for ships bound for Florida ports, and refused to

provide such insurance.

EFFECTS

15. The aforesaid combination and conspiracy has had,

among other things, the following effects:

(a) Ships bound for Florida ports have been diverted

to other ports;

(b) Shipments required by importers have been

delayed and had to be shipped overland at greater

expense from ports outside the State of Florida;

(d) The free flow of interstate and foreign trade and

commerce by water carrier has been impeded.

16. By reason of the foregoing, the state and other

members of the counterclaimant class have been and will

continue to be injured in their respective businesses and

property in an amount not yet ascertained. The conspiracy

and combination herein alleged has resulted in a continuing

course of conduct by the counterclaim defendants, the effect

of which has been and will continue to be to increase the

injury to the State and other members of the counterclaimant

class while such course of conduct continues, and counter-

claimant hereby seeks leave of the Court to amend or

supplement this counterclaim from time to time to specify

the injury to business and property which shall have been

incurred.

PRAYER

WHEREFORE, counterclaimant prays:

1. That the Court adjudge and decree that counterclaim

defendants, and each of them, have engaged in an unlawful

combination and conspiracy in violation of Section 1 of the

Sherman Act.

2. That the State and other members of the counterclaim

class recover threefold the damages determined to have been

sustained by each of them respectively, and that joint and

several judgments be entered herein against counterclaim

defendants, and each of them, for the amounts determined.

3. That each of the counterclaim defendants, its successors,

assignees, subsidiaries, and transferees, and the respective

officers, directors, agents and employees, and all other persons

action or claiming to act on behalf thereof or in concert

therewith be perpetually enjoined and restrained from, in any

manner, directly or indirectly, continuing, maintaining, or

renewing the aforesaid combination and conspiracy and from

engaging in any other combination, conspiracy, agreement,

understanding, or concert of action, adopting or following any

practice, plan, program, or design having a similar purpose or

effect.

4. That this Court grant such other, further, and different

relief as may be deemed just and proper.

5. That counterclaimant and members of the class recover

the costs of this suit, together with a reasonable attorney’s

fee.

ROBERT L. SHEVIN

Attorney General

/s/DANIEL S. DEARING

Chief Trial Counsel

Attorneys for Defendants

and Counterclaimants

The Capitol

Department of Legal Affairs

Tallahassee, Florida 32304

(Certificate of service omitted in printing)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

No. 71-156-Civ-J

THE AMERICAN WATERWAYS OPERATIONS, INC., et al.,

PLAINTIFFS

and

SUWANNEE STEAMSHIP CO., et al.,

INTERVENING PLAINTIFFS,

vs.

REUBIN O’D. ASKEW, et al.

DEFENDANTS

MEMORANDUM OPINION

AND FINAL JUDGMENT

Before, RONEY, Circuit Judge, and SCOTT and TJOFLAT,

District Judges.

TJOFLAT, 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 any vessel which discharges oil or

any other pollutant while destined for or leaving any Florida

port.?- Onshore and offshore terminal facilities are subject to

the same liability.2 The Act requires every owner or operator

of a vessel using a Florida port or a terminal facility to pay

ee en eae ane nner

whatever clean up costs or damages may result from the

discharge of pollutants* and to maintain satisfactory evidence

of financial 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 containment gear and the seaworthi-

ness of the ship.” He is required to notify all other ports in

the state of any vessel refused entry to his port.®

Plaintiffs and intervenors include merchant shippers whose

vessels use Florida ports in the course of transporting goods in

foreign and interstate commerce; world shipping associations

who insure three-fourths of the ocean-going tonnage against,

among other things, liability for 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 contention 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 that the 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 Amendment due process and equal

protection grounds. The resolution of the first of these

contentions 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, and 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 interstate or

foreign commerce, including state waters.? Maritime law

governs virtually every facet of the shipping industry from the

design and construction of vessels to the regulation of their

day to day operations and the transactions in which they

engage. It comprises traditional admiralty rules and concepts

found initially in the European 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

administrative regulations.'® One of these congressional

enactments is the Water Quality Improvement Act of 1970?!

(hereinafter called “W.Q.1.A.”) which became law a few

months prior to the effective date of the Florida Act.

W.Q.LA. provides plaintiffs with tangible evidence that the

Florida Act is an unconstitutional intrusion into the federal

maritime domain.

The W.Q.I.A. reinforces the national anti-water pollution

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 operator of a

vessel or an onshore or offshore facility is subject to limited

liability without fault for the costs expended by the govern-

ment in cleaning up an oil spill.1* Where the spillage results

from willful negligence or misconduct, however, liability for

such costs can be unlimited.'* Evidence of financial respon-

sibility sufficient to cover its potential liability must be given

by any vessel of 300 gross tons or more that uses the

navigable waters of the United States.'* Additionally, the

President is authorized to issue regulations requiring, among

other things, that vessels maintain oil spill prevention equip-

ment and be subject to boarding for inspection purposes at

any time.! ©

In adopting W.Q.I.A. Congress anticipated that all

hazardous substances, in addition to oil, capable of polluting

navigable waters would be subject to similar legislative

treatment.'7 W.Q.1.A. required the President to promulgate

regulations defining such hazardous substances and estab-

lishing methods and means for their removal.!* He was also

required to report to Congress, by November 1, 1970, on the

desirability of enacting legislation to establish liability for the

cost of removing hazardous substances discharged from vessels

and onshore and offshore facilities.!°

That the Florida Act constituted unlawful intrusion into

the exclusive federal admiralty domain is apparent when one

observes the extent to which that act would change sub-

stantive maritime law. The most obvious changes would be in

the liability now imposed by W.Q.I.A. and maritime rules on

shippers and the operators of onshore and offshore facilities.

While both W.Q.LA. and the Florida Act subject vessels and

onshore and offshore facilities to strict liability for cleanup

costs, the latter imposes a far greater measure of respon-

sibility. For example, W.Q.I.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 omission 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.”?! Moreover, the amount of the recovery would be

unlimited; whereas W.Q.I.A. would place a limit on exposure,

as we have previously noted.??

There is perhaps an even greater contrast between maritime

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 long considered oil pollution as a

maritime tort for which damages may be awarded.?* Compen-

sation is recoverable for injury to property and allowances

have even been made for consequential damages. In Jn re New

Jersey Barging Corp.,** an oil spill case, the court approved

the following language from the Commissioner’s report:

In the light of the... authorities, it would seem to the

Commissioner that he is authorized, and in fact required,

to make award of compensation for such annoyance,

inconvenience and discomfort suffered by particular

claimants to the extent of and in an amount com-

mensurate with the annoyance and discomfort proven.

The recovery of damages in such cases is predicated on

proof of negligence or unseaworthiness. The owner of a

seaworthy vessel would not be liable, for example, if he

encountered an extraordinary peril which resulted in a

non-deliberate and non-negligent pollution of the shoreline.

Even if fault was established, the vessel owner’s financial

responsibility for property damage would be limited to the

value of the vessel at the end of the voyage, plus the “freight

then pending,” unless the damage was caused with the

owner’s privity or knowledge.’ 5

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 unseaworthiness as a condition to

unlimited recovery, the Florida Act, if valid, would materially

change the substant#e maritime law governing the disposition

of claims arising“frojn the pollution of coastal waters.

It is well settled that state legislation is invalid where it is

in contravention with general admiralty rules or congressional

enactments in the maritime field. In the landmark Jensen

case,*® the Supreme Court, in holding that the New York

State Workmen’s Compensation Statute could not consti-

tutionally be applied where an accidental death occurred on a

vessel afloat in navigable waters within New York’s bound-

aries, said:

And plainly, we think, no such legislation is valid if it

contravenes the essential purpose expressed by 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

fundamental purposes for which such law was incor-

porated into our national laws by the Constitution

itself.?7

If New York can subject foreign 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 destruction of the very

uniformity in respect to maritime matters which the

Constitution was designed to establish; and freedom of

navigation between the States and with foreign countries

would be seriously hampered and impeded.... The

legislature exceeded its authority in attempting to extend

the statute under consideration to conditions like those

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

tution and to that extent is invalid.” ®

The Florida Act here constitutes a far greater intrusion into

the federal maritime domain than the New York statute in

the Jensen 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 uniformity in respect to

maritime matters which the Constitution was designed to

establish; and freedom of navigation between 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 act in an area of purely local concern and its

enactment is no real encroachment on federal interests.

Rather, this is a case where the State purports to impose

upon shipping and related industries duties which under the

federal law they do not bear. It can hardly be said that

Florida is not seeking to regulate conduct in the federal

maritime jurisdiction. We need not belabor the point that to

permit the states severally to regulate these industries as

Florida seeks to do would sound the death knell to the

principle of uniformity.

Defendants argue that, to the extent the Florida Act goes

beyond W.Q.LA., it fill (sic) a “void” in the maritime law and

is justifiable under the “gap theory.”?? This theory pre-

supposes 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 question 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, citing The Tungus v.

Skovgaard,?? held that the state statute should be invoked 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 care. Plaintiff therefore

argued that an action was maintainable for a breach of either

duty.

The Supreme Court rejected the notion that the absence of

a federal statute or a maritime rule on the subject compelled

the conclusion that state law must govern. It held that

admiralty was fully capable of fashioning a remedy for the

breach 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 reinforced the policy of uniformity and is an

indication that admiralty cannot tolerate the mconsistency

inherent in accommodating state remedial statutes to exclu-

sively maritime substantive concepts.

Another argument advanced by defendants is that the

Florida Act is valid under the following provision of W.Q.LA:

Nothing in this section shall be construed as preempting

any State or political subdivision thereof from imposing

any requirement of 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 powerless to

confer on the states authority to legislate within the admiralty

jurisdiction [Knickerbocker Ice Company v. Stewart, 253 U.S.

149 (1920);3% The Lottawanna, 21 Wall. 558 (1875); The

Steamer St. Lawrence, 1 Bl. 522 (1862)] and we cannot

presume that W.Q.I.A. was an attempt to do so. There is

nothing in the language of the act which purports to grant

any such legislative authority to the states. The statement that

Congress did not intend to preclude state imposed liability for

oil pollution simply means that the 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 canhot 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 empowered to determine

the constitutionality of a statute. The rule was explained by

the Supreme Court in Carter v. Carter Coal Co.:

Whether the provisions of a statute are so interwoven

that one being held invalid the others must fall, presents

a question of a statutory construction and of legislative

intent, to tHe determination of which the statutory

provision becomes an aid. “But it is a aid merely; not an

inexorable command.” Dorchy v. Kansas, 264 U.S. 286,

290. The presumption in favor [of] 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 hold one part of a statute

unconstitutional and uphold another part as separable, -

they must not be mutually dependent upon one another.

When a federal court is called upon to rule on the

constitutionality of a state statute containing a severability

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 Florida made the

following pronouncement on the question of severability:

The rule is well established that the unconstitutionality

ofea portion of a statute will not necessarily condemn

the entire act. When a part of a statute is declared

unconstitutional the remainder of the act will be permit-

ted to stand provided: (1) the unconstitutional provisions

can be separated from the remaining valid provisions, (2)

the legislative 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 can be said that the

Legislature would have passed the one without the other

and, (4) an act complete in itself remains after the

invalid provisions are stricken.**

In the Florida Act there are no provisions which, though

standing by themselves might be considered unobjectionable,

are not so interwoven in purpose and scheme with the invalid

provisions of the Act as to permit the operation of the

severability clause. The announced intent of the Florida

Legislature was to “deal with the hazards and threats of

danger and damage posed by.... transfer of pollutants

between vessels, between onshore facilities and vessels, and

between offshore facilities and vessels within the jurisdiction

of the state and state waters....’°° Each provision of this

statute was enacted to realize this intent and each would

affect. the industries in which plaintiffs 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.

In consideration of the foregoing, it is

ORDERED:

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

376, Florida Statutes Annotated, is hereby declared to be in

violation of Article III], Section 2, Clause 3 of the Consti-

tution of the United States and is therfore 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 nothing

in this final judgment whall be construed to prohibit the

defendants from continuing to pay salaries of current

employees out of the Coastal Protection Trust Fund.

3. This memorandum opinion and final judgment shall

constitute the final judgment of this Court as to all issues

presented in this action.

DONE AND ORDERED at Jacksonville, Florida, this 10th

day of December, 1971.

/s/ Gerald Bard Tjoflat

UNITED STATES DISTRICT JUDGE

FOR THE COURT

£9

FOOTNOTES

1. Chapter 376, Florida Statutes Annotated; Chapter 70-244, Laws of

Florida (all further citations to the act will be to Florida Statutes

Annotated).

2. Sections 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 and 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 form, gasoline, pesticides, ammonia, cholorine, and other hazardous

materials.” Fla. Stat. Ann. §376.031(7).

3. 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, including submerged lands,

or 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, pumping, storing, handling, trans-

ferring, processing, or refining oil or other pollutants, including,

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 coming 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 of pollutants

in storage on the premises. Fla. Stat. Ann. §376.031(9) as

amended, Laws of Florida, 71-243.

“Vessel” includes every description of watercraft or other con-

trivance used, or capable of being used, as a means of transporta-

tion on water, whether self-propelled or otherwise, and includes

barges and tugs. Fla. Stat. Ann. §376.031(12).

4. See note 2, supra.

5. Section 376.14, Florida Statutes Annotated, 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 prescribed by the department

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 responsibility may be

established and maintained by any one (1), or a combination, of

the following methods acceptable to the department:

(a) Evidence of insurance;

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

conditioned 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 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 brought directly

against the bond, the insurer, or any other person providing

evidence of financial responsibility.

6. Section $376.07, Florida Statutes Annotated, provides in 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 in accordance with the

administrative procedure act, chapter 120.

(2) The department shall adopt regulations including, but not

limited to, the following matters:

(a) Operation and inspection requirements for facilities, vessels,

personnel, and other matters relating to licensee operations 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 department with a

crew trained in the use of the gear.

(b) Procedures and methods of reporting discharges and other

occurrences prohibited by this chapter.

persons subject to regulation by this chapter in the removal of

pollutants.

** *

(f) 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 terminals,

facilities, and refineries, the approach and departure from ter-

minals, facilities, and refineries and requirements that containment

gear approved by the department be on hand and maintained by

terminal facilities and refineries with adequate personnel trained in

its use.

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

port in this state, the master of a vessel shall report:

(1) Any discharges of oil or 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

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

cruise of the vessel.

7. Section 376.08(2), Florida Statutes Annotated, provides:

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 containment 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 measures 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. ‘

8. Section 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 entry of that vessel.

9. “(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 of 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.

Arguably, this would include land-locked lakes which are “‘navigable-in-

fact” in interstate commerce.

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

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

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

Congress the power to enact legislation in the maritime field. Knicker-

bocker Ice Company v. Stewart, 253 U.S. 149 (1920); Southern Pacific

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

11. 33 U.S.C. §1161 et seq.

12. 33 U.S.C. §1161(b)(1).

13. 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).

14. 33 U.S.C. §1161(f)(1), (2) and (3).

15. 33 U.S.C. §1161(p).

16. 33 U.S.C. §1161(j).

17. 33 U.S.C. § 1162.

18. Id.

19. Id.

20. 33 U.S.C. §1161(f).

21. See note 2, supra. Section 376.11 establishes the Florida Coastal

Protection Fund. One of the purposes of the fund is to provide moneys

to be used by the Department of Natural Resources in cleaning up oil

spills. The state’s recovery of cleanup costs—by simply pleading and

providing the fact of a discharge under Section 376.12—provides revenue

for the fund. If the party causing the oil spill wants to contend that the

discharge was caused by an act of God, for example, he must petition

the department after he has been held liable for the cleanup costs. If the

Department, in the exercise of its discretion, concludes that the

contention is well made, it may waive the State’s right to reimbursement

of the cleanup cost. Whether the petition is granted or not is a matter

solely for the Department to decide, for its decision on the merits is not

subject to judicial review, as Section 376.11(6)(b) provides:

“The findings of the department shall be conclusive as it is the

legislative intent that the waiver provided in this paragraph is a

privilege conferred, not a right granted.”

22. See notes 2 & 13 supra and accompanying text. The potential for

conflict is equally present between the regulatory scheme envisioned by

the Florida Act and present regulation under federal acts. Pursuant to

the W.Q.1.A. the President was required to publish a National Contin-

gency Plan to remove oil spills and to minimize damage and to

promulgate regulations “consistent with maritime safety and with marine

and navigation laws.”” 33 U.S.C. §1161(c), (j). These regulations are to

cover, for example, the establishment of

“procedures, methods, and requirements for equipment to prevent

discharges of oil from vessels and from onshore facilities and

offshore facilities and...governing the inspection of vessels

carrying cargoes in order to reduce the likelihood of discharges of

oil from such vessels ... .” 33 U.S.C. §1161(j).

The Florida Act obligates the Department of Natural Resources to act in

the same areas. See note 6 supra. The potential for conflict in these two

regulatory schemes is obvious.

It is likely that regulations promulgated under the Florida Act would

further be discordant with the Steamboat Inspection Act, Title 46,

U.S.C. §361 et seqg., and regulations promulgated thereunder. Section

376.08(2), Florida Statutes Annotated, provides that

“‘[t] he port manager shall have authority to board any vessel prior

to its entry into port in order to ascertain the seaworthiness of the

vessel and the presence of the required containment gear.”

At the same time the Steamboat Inspection Act, together with the

regulations issued pursuant thereto, sets up a detailed and comprehensive

scheme, administered by the United States Coast Guard, for main-

tenance, inspection, and regulation of all vessels (except motor 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 consonance with

the International Convention for the Safety of Life at Sea, 1960,

T.LA.S., 16 U.S.T. 185, 536 U.N.T. S.2 27, which has been ratified or

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

again, conflict between the regulations under the Florida Act and the

federal law appears unavoidable.

54 ’

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 person or property, caused by a vessel on navigable 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 Jersey Barging Corp., supra.

24.168 F.Supp. 925, 937 (S.D.N.Y. 1958).

25. United States Limited Liability Act, 46 U.S.C. §183 et seq. No

state statute can override this “Limitation Statute” within the territorial

jurisdiction of the federal maritime law. In Butler v. Boston & Savannah

Steamship Co., 130 U.S. 527, 555 (1889), the Supreme Court observed:

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

to assert, was enacted by Congress 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 in the admiralty jurisdiction, was subject to the

“Limitation Statute”, the Court went on to say:

“It is unnecessary to consider the force and effect of the statute

of Massachusetts over the place in question. Whatever force 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

league beyond the seashore, that circumstance cannot circumscribe

or abridge the law of the sea.” 130 U.S. at 557-58.

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

27. Id. at 216.

28. Id. at 217-18.

29. See, Currie, “Federalism and the Admiralty,”” The Supreme Court

Review 1960, 158 at 166-73.

30. 398 U.S. 375 (1970).

31. Fla. Stat. Ann. §768.01.

$2.

33.

358 U.S. 588 (1959).

In the Knickerbocker case the Court, speaking to the question of

state legislative authority in the maritime field, said:

34.

35.

36.

38.

39.

“The Constitution itself adopted and established, as part of the

laws of the United States, approved rules of the general 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 legislation or

judicial decision, to contravene the essential purposes of, or to

work material injury to, characteristic features of such law or to

interfere with its proper harmony and uniformity in its inter-

national and interstate relations.”” 253 U.S. at 160-61. (Emphasis

added).

Laws of Florida, 70-244 §23.

298 U.S. 238, 313 (1936).

Watson v. Buck, 313 U.S. 387 (1941).

137 So.2d 828 (Fla. 1962).

Id. at 830.

Fla. Stat. Ann. §376.021(3)(a), (4)(a).

Ch. 70-244

SECOND REGULAR SESSION

AIR AND WATER POLLUTION CONTROL

CHAPTER 70-244

COMMITTEE SUBSTITUTE FOR SENATE BILL NO. 450

An Act relating to pollutants; providing definitions; pro-

hibiting such pollution; providing for authority in the

department of natural resources to act in preventing and

controlling oil spills and other pollution; authorizing the

department to provide employees and equipment in ports

and other places; providing for recovery of cost in

controlling and cleaning pollution; providing for licenses

for terminal facilities, and for fees and exceptions;

creating Florida coastal protection fund; providing for

strict liability; providing for criminal and civil penalties;

providing for the removal of derelict vessels by the state;

providing for cooperation and coordination of all state

agencies; authorizing the department of natural resources

to require by rules and regulations that terminal facilities

and vessels establish and maintain evidence of financial

responsibility to reimburse the state and private citizens

for damages caused by discharges of pollutants; providing

an appropriation; providing an effective date.

Be It Enacted by the Legislature of the State of Florida:

Section 1. Short title

This act shall be known as “the oil spill prevention and

pollution control act.”

Section 2. Legislative intent

(1) The legislature finds and declares that the highest and

best use of the seacoast of the state is as a source of public

and private recreation.

(2) The legislature further finds and declares that the

preservation of this use is a matter of the highest urgency and

priority and that such use can only be served effectively by

maintaining the coastal waters, estuaries, tidal flats, beaches

and public lands adjoining the seacoast in as close to a

pristine condition as possible, taking into account multiple use

accommodations necessary to provide the broadest possible

promotion of public and private interests.

(3) The legislature further finds and declares that the

transfer of pollutants between vessels, between onshore

facilities and vessels and between offshore facilities and vessels

within the jurisdiction of the state and state waters is a

hazardous undertaking; that spills, discharges and escape of

pollutants occurring as a result of procedures involved in the

transfer, storage, and transportation of such products pose

threats of great danger and damage to the environment of the

state; to owners and users of shorefront property; to public

and private recreation; to citizens of the state and other

interests deriving livelihood from marine related activities; and

to the beauty of the Florida coast; that such hazards have

frequently occurred in the past, are occurring now and

present future threats of potentially catastrophic proportions,

all of which are expressly declared to be inimical to the

paramount interests of the state as herein set forth and that

such state interests outweigh any economic burdens imposed

by the legislature upon those enaged in transferring pollutants

and related activities.

(4) The legislature intends by the enactment of this

legislation to exercise the police power of the state through

the department of natural resources by conferring upon said

department power to deal with the hazards and threats of

danger and damage posed by such transfers and related

activities; to require the prompt containment and removal of

pollution occasioned thereby; and to establish a fund to

provide for the inspection and supervision of such activities

and guarantee the prompt payment of reasonable damage

claims resulting therefrom.

(5) The legislature further finds and declares that the

preservation of the public uses referred to herein is of grave

public interest and concern to the state in promoting its

general welfare, preventing diseases, promoting health and

providing for the public safety, and that the state’s interest in

such preservation outweighs any burdens of absolute liability

imposed by the legislature upon those engaged in transferring

pollutants and related activities.

(6) The legislature further declares that is is the intent of

this act to support a complement applicable provisions of

the federal water quality improvement act of 1970,' specifi-

cally those — to the national contingency

plan for removal of oil and other pollutants.

133 U.S.C.A. §1151 et seq.

Section 3. Definitions

When used in this act, unless the context clearly requires

otherwise:

(1) “Department” means the department of natural re-

sources.

(2) “Director” means the executive director of the depart-

ment of natural resources.

(3) “Barrel” means forty-two (42) U.S. gallons at sixty

degrees (60°) Fahrenheit.

(4) “Other measurements” means measurements set by the

department for products transferred at terminals which are

other than fluid or which are not commonly measured by the

barrel. (

(5) “Discharge” means any spilling, leaking, seeping,

pouring, emitting, emptying, or dumping.

(6) “Fund” means the Florida coastal protection fund.

(7) “Pollutants” shall include but not be limited to oil of

any kind and in any form, gasoline, pesticides, ammonia,

chlorine, and other hazardous materials.

(8) “Pollution”. means the presence in the outdoor

atmosphere or waters of the state of any one (1) or more

substances or pollutants in quantities which are or may be

potentially harmful or injurious to human health or welfare,

animal or plant life, or property, or which may unreasonably

interfere-with the enjoyment of life or property, including

outdoor recreation.

(9) “Terminal facility” means any waterfront facility of

any kind, other than vessels not owned or operated by such

facility, and related appurtenances located on land, including

submerged lands, or 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,

pumping, storing, handling, transferring, pro€essing, or refining

oil or other pollutants, including, but not limited to, any such

facility and related appurtenances owned or operated by a

public utility, or a’ governmental or quasi-givernmental body.

/ A vessel shall be considered a terminal facility only in the

event of a ship to ship transfer of oil, petroleum products,

their by-products, and other pollutants, and only that vessel

ya going to or coming from the place of transfer and the

terminal facility.

(10) “Owner or operator” means any person owning or

operating a terminal facility whether by lease, contract, or

any other form of agreement.

(11) “Transferred” includes both onloading and offloading

between terminal and vessel and vessel to vessel.

(12) “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 other-

wise, and includes barges and tugs.

(13) “Port manager” means the manager or director of the

port or his designee, to be approved by the department, to

carry out the requirements of this act.

(14) “Person in charge” means the person on the scene

who is in direct, responsible charge of a terminal facility or

vessel from which oil or other pollutants are discharged when

the discharge occurs. ae

(15) “Discharge cleanup organization” means any group,

incorporated or unincorporated, of owners or operators of

waterfront terminal facilities in any port or harbor of the

state, and any other person who may elect to join, organized

for the purpose of containing and cleaning up discharges of

oil and other pollutants through cooperative efforts and

shared equipment and facilities.

Section 4. Pollution and corruption of waters and lands of

the state prohibited

The discharge of oil, petroleum products, their by-products,

and other pollutants into* or upon any coastal waters,

estuaries, tidal flats, beaches, and lands adjoining the seacoast

of the state is prohibited.

Section 5. Powers and duties of the department

(1) The powers and duties conferred by this act shall be

exercised by the department of natural resources and shall be

deemed to be an essential governmental function in the

exercise of the police power of the state. The department of

air and water pollution control is directed to cooperate with

the department of natural resources and to offer consultative

services, enforcement, prosecution, and technical advice to the

department. The department may call upon any other state

agency for consultative services and technical advice and the

said agencies are directed to cooperate in said request.

(2) The powers and duties of the department under this

act shall extend to the boundaries of the state described in

article II, section 1 of the constitution of Florida.

(3) Licenses required under this act shall be issued from

the department subject to such terms and conditions as are

set forth in this act and as set forth in rules and regulations

promulgated by the department as authorized herein.

(4) Whenever it becomes necessary for the state to protect

the public interest under this‘act, it shall be the duty of the

department of natural resources to keep an accurate record of

costs and expenses incurred and thereafter diligently to pursue

the recovery of any sums so incurred from the government of

the United States under any applicable federal act.

Section 6. Operation without license prohibited

(1) No person shall operate or cause to be operated a

terminal facility as defined in this act without a license.

(2) Licenses shall be issued on an annual basis and shall

expire on December 31 annually, subject to.such terms and

conditions as the department may determine are necessary to

carry out the purposes of this act.

(3) As a condition precedent to the issuance or renewal of

a license the department shall require satisfactory evidence

that the applicant has implemented or is in the process of

implementing state and federal plans and regulations for

control of pollution related to oil, petroleum products, their

byproducts and other pollutants and the abatement thereof

when a discharge occurs.

(4) Licenses issued to any terminal facility shall include

vessels used to transport oil, petroleum products, their

by-products, and other pollutants between the facility and

vessels within state waters.

(5) The director may require, in connection with the

issuance of a terminal facility license, the payment of a

reasonable fee for processing applications for registration

certificates. Such fee shall be reasonably related to the

administrative costs of verifying data submitted pursuant to

obtaining such certificates and reasonable inspections; pro-

vided, however, such fee shall not exceed $250.00 per

terminal facility per year.

(6) Within three (3) months of the effective date of this

act every owner or operator of a terminal facility shall obtain

a license. The department shall issue a license upon the

showing that the said registrant can provide all necessary

equipment to prevent, contain and remove discharges of oil

and other pollutants.

(7) On or after a date to be determined by the director,

but in no case later than ninety (90) days after the effective

date of this act, no person shall operate or cause to be

operated any terminal facility without a terminal facility

registration certificate issued by the director. No registration

certificate shall be valid for more than one (1) year unless

revalidated by the director, Each applicant for a terminal

facility registration certificate shall pay the annual license fee

and shall submit information, in a form Satisfactory to the

director, describing the following:

(a) The barrel or other measurement capacity of such

terminal facility.

(b) All containment and removal equipment, including, but

not limited to, vehicles, vessels, pumps, skimmers, booms,

chemicals, and communication devices, to which such facility

has access, whether through direct ownership, by contract, or

by membership in an approved discharged cleanup organ-

ization.

discharge cleanup organization to which the owner or opera-

tor of such terminal facility belongs.

(8) Upon showing of satisfactory containment and cleanup

capability under this section, and upon payment of any

registration fee required by the director under this act and the

license fee the applicant shall be issued a_ registration

certificate covering such terminal facility and_ related

appurtenances, including vessels as defined in this act.

Section 7. 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) Such regulations shall be adopted in accordance with

the administrative procedure act, chapter 120, Florida

Statutes.

(2) The department shall adopt regulations including but

not limited to the following matters: #

(a) Operating’ and inspection requirement for facilities,

vessels, personnel and other matters relating to licensee

operations under this act and specifically requiring that vessels

transporting pollutants within state waters shall maintain on

board such containment gear as may be required by the

department with a crew trained in the use of such gear.

(b) Procedures and methods of reporting discharges and

other occurrences prohibited by this act. Specifically, the

pilot and the master of a vessel causing a®discharge shall be

required to immediately report the discharge to the port

manager and to the nearest coast guard station. The port

manager, on being notified of a discharge, shall immediately

notify the response team of the department and the coast

guard and shall keep them fully informed of the need for

containment equipment and emergency action.

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

seaworthiness’ of the vessel and the presence of required

——7—"

containment gear. Upon being notified of a discharge the port

manager shall have authority to direct the vessel to immed-

jately anchor or move t°® 4 specific dock and deploy

containment gear or to moVe to the open seas and to take

such other measures as he d€€MS 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:

(d) Procedures, methods, means, and equipment to be used

by persons subject to regulation by this act and to be used in

the removal of pollutants.

(ce) Development and implementation of criteria and plans

to meet oil petroleum, and other pollution occurrences of

various degrees and kinds.

(f) The establishment of eleven (11) regional control

districts, one for each of the eleven (11) deep water ports of

the state, with a response team in each district and the

establishment of rules and regulations to meet the particular

requirements of each such district. The department shall

create a state response team which shall be responsible for

creating and maintaining a contingence plan of response,

organization, and equipment for handling emergency cleanup

operations. The state plans shall include detailed emergency

operating procedures for the state as a whole and for the

eleven (11) regional contro] districts, and the team shall from

time to time conduct practice alerts. These plans shall be filed

with the governor, all coast guard stations in the state and

with the head of each regional team. The contingency plan

shall include all necessary information for the total contain-

ment and cleanup of pollution, including but not limited to

an inventory of equipment and its location, a table of

organization with the names, addresses, and telephone

numbers of all persons reinonsible for implementing every

phase of the plan, a list of available sources of supplies

separa 2d for cleanup and designation of priority zones

within each region to detetyine the sequence and methods of

cleanup. The state respons team shall act independently of

agencies of the federal government but is directed to

cooperate with any federal ‘leanup operation

(g) 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 terminals, facilities, and refineries, the approach

and departure from terminals, facilities, and refineries, and

shall require that containment gear approved by the depart-

ment be on hand and maintained by terminal facilities, and

refineries with adequate personnel trained in its use.

(h) Requirements that, proor to being granted entry into

any port in this state, the master of a vessel shall rgport:

1. Any discharges of oil or 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.

3. Any denial of entry into any port during the

current cruise of the vessel.

(i) 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 entry of that vessel.

(j) Such other rules and regulations as the exigencies of

any condition may require or such as may reasonably be

necessary to carry out the intent of this action.

Section 8. Removal of prohibited discharges

(1) Any person discharging pollutants as prohibited by

section 4 shall immediately undertake to remove such

discharge to the department’s satisfaction. Notwithstanding

the above requirement the department may undertake the

removal of such discharge and may contract and retain agents

who shall operate under the direction of the department.

(2) Whenever oil or any other pollutant is discharged from

any terminal facility or vessel in violation of section 4 of this

act, the person in charge of such terminal facility or vessel

shall promptly remove, or arrange for the removal of, such oil

or other pollutant. If the person in charge fails so to act, the

director may arrange for the removal of such pollutant;

provided that, if such oil or other pollutant was discharged

into or upon the navigable waters of the United States, the

director shall act in accordance with the national contingency

plan for removal of oil or other pollutant established pursuant

to the federal water quality improvement act of 1970 and the

costs of removal incurred by the director shall be paid in

accordance with the applicable provisions of said law.

(3) In the event of discharge, the source of which is

unknown, any local discharge cleanup organization shall, upon

the request of the director or his designee, immediately

contain and remove such discharge. No action taken by any

person to contain or remove a discharge, whether such action

is taken voluntarily or at the request of the director or his

designee, shall be contstrued as an admission of liability for

such discharge.

(4) No person who voluntarily, or-at the request of the

director or his designee, renders assistance in containing or

removing oil or other pollutants shall be liable for any civil

damages to third parties resulting solely from acts or

omissions of such person in rendering such assistance, except

for acts or omissions amounting to gross negligence or willful

misconduct.

(5) Nothing in ths act shall affect in any way the right of

any person who renders assistance in containing or removing

oil or other pollutants to reimbursement for the costs of such

containment or removal under the applicable provisions of the

federal water quality improvement act of 1970! or any rights

which said person may have against any third party whose

acts or omissions in any way have caused or contributed to

the discharge of such oil or other pollutants.

"$3 U.S.C.A. §1151 et seq.

Section 9. Personnel and equipment

The department shall establish and maintain at such ports

within the state, and other places as it shall determine, such

employees and equipment, othcr than such equipment

furnished by the licensee, as in its judgment may be necessary

to carry out the provisions of this act. The department may

employ and prescribe the duties of such employees, subject to

the rules and regulations of the division of personnel and

retirement of the department of administration. The salaries

of such employees and the cost of such equipment shall be

paid from the Florida coastal protection fund established by

this act. The department shall periodically consult with other

departments of the state and specifically with the department

of air and water pollution control relative to procedures for

the prevention of discharges of oil and other pollutants into

the coastal waters of the state from off-shore drilling

production facilities.

Section 10. Enforcement, penalties

Whoever violates any provisions of this act or any rule,

regulations, or order of the department made hereunder shall

be punished by a civil penalty of not more than fifty

thousand dollars ($50,000) to be assessed by the department.

Each day that any violation continues constitutes a separate

offense. The provisions of this section shall not apply to any

discharge immediately reported and completely removed by a

licensee in accordance with the regulations and orders of the

department.

Section 11. Florida coastal protection fund

(1) The Florida coastal protection fund is established to be

used by the department as a ‘non-lapsing revolving fund for

carrying out the purposes of this act. The fund shall be

limited to the sum of five million dollars ($5,000,000).

To this fund shall be credited all license fees, penalties, and

other fees and charges related \to this act, including adminis-

trative expenses, and costs of removal of discharges of

pollution.

(2) Moneys in the fund not needed currently to meet the

obligations of the department in the exercise of its respon-

sibilities under this act shall be deposited with the treasurer to

the credit of the fund, and may be invested in such manner as

is provided for by statute. Interest received on_ such in-

vestment shall be credited to the Florida coastal protection

fund.

(3) Each registrant shall obtain from the department a

license for each of the terminal facilities of the registrant in

the state and shall pay therefor an annual license fee, the

amount of which is to be determined by the department upon

the basis of the total capacity of the terminal facility for oil

and other pollutants, but in no event shall exceed five

hundred dollars ($500.00). License fees for a part of a year

shall be prorated.

(4) Whenever the balance in the fund has reached the limit

provided under this act, and as long as it remains so, license

fees shall be proportionately reduced to cover only adminis-

trative expenses.

(5) Moneys in the Florida coastal protection fund shall be

disbursed for the following purposes and no others:

(a) Administrative expenses, personnel expenses and equip-

ment costs of the department related to the enforcement of

this act.

(b) All costs involved in the abatement of pollution related

to the discharge of oil, petroleum products, theirby-products

and other pollutants covered by this act and the abatement of

other potential pollution hazards as authorized herein.

itation of water fowl and other wildlife, whether performed

by the department or any other state or local agency.

(6) The department shall recover to the use of the fund

from the person or persons causing the discharge jointly and

severally all sums expended therefrom, including overdrafts,

for the following purposes; provided that recoveries resulting

from damage due to an oil pollution or other similar disaster

shall be apportioned between the Florida coastal protection

fund and the general revenue fund so as to repay the full

costs to the general revenue fund of any sums disbursed

therefrom as a result of such disaster:

(a) All costs and expenses expended under paragraphs (b)

and (c) of subsection (5) of this act.

(b) Requests for reimbursement to the fund for the above

costs if, not paid within thirty (30) days of demand shall be

turned over to the department of air and water pollution

control which, in cooperation with the attorney general, shall

undertake the collection.

for reimbursement to the fund for abatement costs under

subsection (6) the department may, after hearing, waive the

right to reimbursement to the fund from such person if the

department finds that the occurrence was the result of any of

the following:

1. An act of war.

2. An act of government, either state, federal, or

municipal.

3. An act of God, which means an unforeseeable act

exclusively occasioned by the violence of nature without

the interference of any human agency.

4. An act or omission of a third party without regard

to whether any such act or omission was or was not

negligent.

The findings of the department shall be conclusive as it is the

legislative intent that waiver provided in this act is a privilege

conferred, not a right granted.

Section 12. Liabilities of licensees

Because it is the intent of this act to provide the means for

rapid and effective cleanup and 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 act, it shall not,

necessary for the state to plead or prove negligence in &

form or manner on the part of the licensee or any vessel. If

the state is damaged by a discharge prohibited by this act it

need only plead and prove the fact of the prohibited

discharge or other polluting condition.and that it occurred. In

addition to the civil penalty, the pilot and the master of any

vessel or person in charge of any licensee’s terminal facility

who fail to give immediate notification of a discharge to the

port manager and the nearest coast guard station shall be

guilty of a felony and shall, upon conviction, be punished by

imprisonment for not more than two (2) years or by a fine of

not more than ten thousand dollars ($10,000). The depart-

ment shall, by rules and regulations, require that the licensee

designate a person at the terminal facility who shall be the

person in charge of that facility for the purposes specified by

this section.

Section 13. Emergency proclamation; governor’s powers

(1) Whenever any disaster or catastrophe exists or appears

imminent arising from the discharge of oil, petroleum prod-

ucts or their by-products, or any other pollutants, the

governor shall by proclamation declare the fact and that an

emergency exists in any or all sections of the state. If the

governor is unavailable, the lieutenant governor shall, by

proclamation, declare the fact and that an emergency exists in

any or all sections of the state. A copy of such proclamation

shall be filed with the secretary of state.

(2) In performing his duties under this act, the governor is

authorized and directed to cooperate with all departments and

agencies of the federal government, with the offices and

agencies of other states and foreign countries, and the

political subdivisions thereof, and with private agencies in all

matters pertaining to a disaster or catastrophe.

(3) In performing his duties under this act, the governor is

further authorized and empowered:

(a) To make, amend and rescind the necessary orders, rules

and regulations to carry out this act within the limits of the

authority conferred upon him and not inconsistent with the

rules, regulations and directives of the President of the United

States or of any federal department or agency having

specifically authorized emergency functions.

(b) To delegate any authority vested in him under this act,

and to provide for the subdelegation of any such authority.

(4) Whenever the governor is satisfied that an emergency

no longer exists, he may terminate the proclamation by

another proclamation affecting the sections of the state

coyered by the original proclamation, or any part thereof.

Said proclamation shall be published in such newspapers of

the state and posted in such places as the governor, or the

person acting in that capacity, deems appropriate.

Section 14. Terminal facilities and vessels required to file

bond

(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 prescribed by the

department of natural resources, evidence of financial respon-

sibility 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 act.

Financial responsibility may be established and maintained by

any one (1) of, or a combination of the following methods

acceptable to the department:

(a) Evidence of insurance,

(b) Surety bonds payable to the governor of the state

conditioned to pay all costs and expenses of the cleanup of

any discharge as well as damages caused to the state and any

other person,

(d) Other evidence of financial responsibility satisfactory

to the department.

(2) If a bond is filed with the department, then such bond

shall be issued by a bonding company authorized to do

business in the state.

(3) Any claim for costs incurred by such terminal facility

or vessel may be brought directly against the insurer or any

other 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 brought directly against the bond, the insurer, or

against any other person providing evidence of financial

responsiblity.

(4) Each owner or operator of a terminal facility or a

vessel subject to the provisions of this act shall designate a

person in the state as his legal agent for service of process

under this act and such designation shall be filed with the

secretary of state. In the absence of such designation the

secretary of state shall be the designated agent for purposes of

service of process under this act.

Section 15. Derelict vessels

(1) It is unlawful for any person, firm or corporation to

store or leave any vessel in a wrecked, junked or substantially

dismantled condition or abandoned upon any public waters or

at any port in this state without the consent of the agency

having jurisdiction thereof, or docked at any private property

without the consent of the owner of such private property.

(2) The department is hereby designated as the agency of

the state authorized and empowered to remove any derelict

vessel from public waters in any instance when the same

obstructs or threatens to obstruct navigation or contributes to

air or water pollution or in any other way constitutes a

danger or potential danger to the environment. This section

shall constitute the authority of the department for such

removal, but is not intended to be in contravention of any

applicable federal act. The attorney general shall be the

representative of the department of natural resources in such

actions.

Section 16. Enforcement and penalties

It shall be unlawful for any person to violate any provision

of this act or any rule, regulation or order of the department

made hereunder. Violation shall be punishable by a civil

penalty up to fifty thousand dollars ($50,000) to be assessed

by the department. Each day during any portion of which

such violation occurs constitutes a separate offense. Penalties

assessed herein for a discharge shall be the ofily penalties

assessed by the state and the assessed person or persons shall

be excused from paying any additional penalty for water

pollution assessable under chapter 403, Florida Statutes, for

the same occurrence. The penalty provisions of this act shall

not apply to any discharge promptly reported and removed

by a licensee in accordance with the rules, regulations and

order of the department.

Section 17. Reports to the legislature

The department shall ‘nclude in its recommendations to

each legislature specific recommendations relating to the

operation of this act, specifically including a license fee

formula to reflect individual licensee experience, and a fee

schedule based upon volatility and toxicity of petroleum

products, their by products and other pollutants.

Section 18. Budget approval

The department shall submit to each legislature its budget

recommendations for disbursements from the fund. Upon

approval thereof, the comptroller shall authorize expenditures

therefrom as approved by the department.

Section 19. County and municipal ordinances; powers

limited

Nothing in this act shall be construed to deny any county

or municipality by ordinance or by law from exercising police

powers under any general or special act, and laws and

ordinances promulgated in furtherance of the intent of this

act to promote the general welfare, public health, and public

safety shall be valid unless in direct conflict with the

provisions of this act or any rule, regulations, or order of the

department adopted under authority of this act; provided,

however, that in order to avoid unnecessary duplication, no

county, municipality, or other political subdivision of the

state may adopt or establish a similar program of licensing

and fees for the accomplishment of the purposes of this act. —

Section 20.

Nothing in this act shall be deemed to apply to the storage

or transportation of liquefied petroleum gas or to industrial

effluents discharged into the waters or atmosphere of the

state pursuant to a permit issued by department of air and

water pollution control.

Section 21. Construction

This act, being necessary for the general welfare, the public

health, and the public safety of the state and its inhabitants,

shall be liberally construed to effect the purposes set forth

under this act and the federal water quality improvement act

of 1970.!

133U.S.C.A. § 1151 et seq.

Section 22.

There is hereby appropriated from the general revenue

fund one hundred thousand dollars ($100,000) to be trans-

ferred and deposited in the trust fund created in section 11 of

this act. When the trust fund exceeds one million dollars

($1,000,000), then the total sum transferred originally from

the general revenue fund shall be returned to the general

revenue fund. —

Section 23.

The provisions of this act are severable, and it is the

intention to confer the whole or any part of the powers

provided herein, and if any of the provisions of this act shall

be held unconstitutional by any court of competent jurisdic-

tion, the decision of such court shall not affect or impair any

of the remaining provisions.

Section 24. This act shall take.effect July 1, 1970.

Approved by the Governor June 30, 1970.

Filed in Office Secretary of State June 30, 1970.

STATE OF FLORIDA

DEPARTMENT OF NATURAL RESOURCES

Division of Marine Resources

oo” CHAPTER 16B-16.08

Chapter 70-244 - Oil Spill Bill

Financial Responsibility - Vessels

16B-16.08

(1) No vessel or barge, carrying oil of any kind and in any

form, gasoline, pesticides, ammonia, chlorine, or other hazard-

ous materials as cargo, shall use any port. in Florida on or

after March 1, 1961, for any purpose unless a certificate of

financial responsibility has been issued by the Department

covering such vessel or barge. ;

(2) Either owners or operators of vessels or barges subject

a oc

to Chapter 70-244, Laws of Florida, must establish and

maintain with the Department evidence of financial responsi-

bility in an amount not to exceed $100 per gross ton of such

vessel or $5,000,000 whichever is lesser. Provided, however,

that if an applicant is the owner of more than one vessel or

barge subject to this rule, financial responsibility need only be

established in an amount necessary to meet the maximum

amount of financial responsibility to which the largest vessel

or barge could be subjected hereunder. Nothing herein shall

be construed to prohibit third parties from establishing

evidence of financial responsibility for such owners or

operators of vessels or barges.

(3) The financial responsibility herein required may be

established and maintained by any one (1) of, or a combin-

ation of, the following methods acceptable to the Depart-

ment:

(a) Evidence of imsurance - conditioned to pay all costs

and expenses of the cleanup of any discharge as well as

damages ‘caused to the state and any other person.

(b) Surety bonds payable to the governor of the State

conditioned to pay all costs and expenses of the cleanup of

any discharge as well as damages caused to the state and any

other person.

(d) Other evidence of financial responsibility satisfactory

to the Department.

(4) All applications, evidence, documents, and other state-

ments required to be filed with the Department shall be in

English, and any monetary terms shall be expressed in terms

of United States currency. Such evidence of financial responsi-

bility shall be on_ forms furnished by the Department upon

request of the applicant.

(5) Where evidence of financial responsibility has been

established, a separate certificate covering each vessel shall be

issued evidencing the Department’s finding of adequate finan-

cial responsibility to meet the minimum requirements of this

rule.

General Authority

Chapter 70-244(7) Law Implemented

General Laws of Florida Chapter 70-244(14)

General Laws of Florida

33 U.S.C. § 1161.

§ 1161. Control of pollution by oil—Definitions

(a) For the purpose of this section, the term—

(1) “oil” means oil of any kind or in any form,

including, but not limited to, petroleum, fuel oil, sludge,

oil refuse, and oil mixed with wastes other than dredged

spoil;

(2) “discharge” includes, but is not limited to, any

spilling, leaking, pumping, pouring, emitting, emptying or

dumping;

(3) “‘vessel” means every description of watercraft or

other artificial contrivance used, or capable of being

used, as a means of transportation on water other than a

public vessel;

(4) “public vessel” means a vessel owned or olden

chartered and operated by the United States, or by a

State or political subdivision thereof, or by a foreign

nation, except when such vessel is engaged in commerce;

(5) “United States” means the States, the District of

Columbia, the Commonwealth of Puerto Rico, the Canal

Zone, Guam, American Samoa, the Virgin Islands, and

the Trust Territory of the Raciiic Islands;

(6) “owner or operator” means (A) in the case of a

vessel, any person owning, operating, or chartering by

demise, such vessel, and (B) in the case of an onshore

facility, and an offshore facility, any person owning or

operating such onshore facility or offshore facility, and

person who owned or operated such facility immediately

prior to such abandonment;

(7) “person” includes an individual, firm, corporation,

association, and a partnership.

(8) “remove” or removal” refers to removal of the

oil from the water and shorelines or the taking of such

other actions as may be necessary to minimize or

mitigate damage to the public health or welfare, includ-

eee a ee ae rae:

DO EVA PMT GND OL LPO ED

PP ES Pe a ne DP

TOIL AEE PEDRO LODE EUS ME

ing, but not limited to, fish, shellfish, wildlife, and public

and private property, shorelines, and beaches;

(9) “contiguous zone” means the entire zone estab-

lished or to be established by the United States under

article 24 of the Convention on the Territorial Sea and

the Contiguous Zone;

(10) “onshore facility” means any facility (including,

but not limited to, motor vehicles and rolling stock) of

any kind located in, on, or under, any land within the

United States other than submerged land;

(11) “offshore facility” means any facility of any

kind located in, on, or under, any of the navigable

waters of the United States other than a vessel or a

public vessel;

(12) ‘tact of God” means an act occasioned by an

unanticipated grave natural disaster;

(13) “barrel” means 42 United States gallons at 60

‘degrees Fahrenheit.

Congressional declaration of policy; prohibition against dis-

charge of oil; exceptions; rules and regulations; determi-

nation of harmful quantities of discharged oil, notification

of United States of discharge of oil; penalties for failure to

notify; procedure for imposition of civil penalties for

knowingly discharging oil; withholding of clearance

(b) (1) The Congress hereby declares that it is the policy

of the United States that there should be no discharges of oil

into or upon the navigable waters of the United States,

adjoining shorelines, or into or upon the waters of the

contiguous zone.

(2) The discharge of oil into or upon the navigable waters

of the United States, adjoining shorelines, or into or upon

the waters of the contiguous zone in harmful quantities as

determined by the President under paragraph (3) of this

subsection, is prohibited, except (A) in the case of such

discharges into the waters of the contiguous zone, where

permitted under article IV of the International Convention for

the Prevention of Pollution of the Sea by Oil, 1954, as

amended, and (B) where pern Ss

and locations or under suchitted in quantities and at times

the President may, by regCircumstances or conditions as

harmful. Any regulations issudation, determine not to be

consistent with maritime safal under this subsection shall be

tion laws and regulations ancy and with marine and naviga-

dards. applicable water quality stan-

(3) The President shall, by :

as possible after April 3, 197regulation, to be issued as soon

this section, those quantities |, determine for the purposes of

such times, locations, circumf oil the discharge of which, at

harmful to the public health tances, and conditions, will be

including, but not limited or welfare of the United States,

public and private property, », fish, shellfish, wildlife, and

that in the case of the dischorelines, and beaches, except

waters of the contiguous zonarge of oil into or upon the

threaten the fishery resource, only those discharges which

threaten to pollute or conts of the contiguous zone or

territory or the territorial seibute to the pollution of the

determined to be harmful. of the United States may be

(4) Any person in charge °

facility or an offshore facof a vessel or of an onshore

knowledge of any discharge dty shall, as soon as he has

in violation of paragraph (2) oil from such vessel or facility

notify the appropriate agencyf this subsection, immediately

ment of such discharge. Any of the United States Govern-

immediately such agency «ch person who fails to notify

conviction, be fined not mot such discharge shall, upon

for not more than one year than $10,000, or imprisoned

pursuant to this paragraph ‘or both. Notification received

exploitation of such notificat- jnformation obtained by the

such person in any criminal,, shall not be used against any

perjury or for giving a false Strase, except a prosecution for

(5) Any owner or opcratolement.

or offshore facility from whig¢ any vessel, onshore facility,

violation of paragraph (2) of, oi] is knowingly discharged in

a civil penalty by the Secretyis subsection shall be assessed

the Coast Guard is operating, of-the department in which

cach offense. No penalty shal) ¢ not more than $10,000 for

be assessed unless the owner or

or es ee

PTT Bee

PEE OPEL LIN TP III AE Re

PEIN ORLA SE Me RB BOS: HE SE eS

tS ORID EEE

POP LIE BO LEY RSA

operator charged shall have been given notice and opportunity

for a hearing on such charge. Each violation is a separate

offense. Any such civil penalty may be compromised by such

Secretary. In determining the amount of the penalty, or the

amount agreed upon in compromise, the appropriateness of

such penalty to the size of the business of the owner or

operator charged, the effect on the owner or operator’s ability

to continue in business, and the gravity of the violation, shall

be considered by such Secretary. The Secretary of the

Treasury shall withhold at the request of such Secretary the

clearance required by section 91 of Title 46, of any vessel the

owner or operator of which is subject to the foregoing

penalty. Clearance may be granted in such cases upon the

filing of a bond or other surety satisfactory to such Secretary.

National Contingency Plan for removal of discharged oil;

provisions; revisions; compliance

navigable waters of the United States, adjoining shorelines, or

into or upon the waters of the contiguous zone, the President

’ is authorized to act to remove or arrange for the removal of

such oil at any time, unless he determines such removal will

be done properly by the owner or operator of the vessel,

onshore facility, or offshore facility trom which the discharge

occurs.

(2) Within sixty days after April 3, 1970, the President

shall prepare and publish a National Contingency Plan for

removal of oil pursuant to this subsection. Such National

Contingency Plan shall provide for efficient, coordinated, and

effective action to minimize damage from oil discharges,

including containment, dispersal, and removal of oil, and shall

include, but not be limited to—

(A) assignment of duties and responsibilities among

Federal departments and agencies in coordination with

State and local agencies, including, but not limited to,

water pollution control, conservation, and port author-

ities;

(B) identification, procurement, maintenance, and

storage of equipment and supplies;

consisting of personnel who shall be trained, prepared,

and available to provide necessary services to carry out

the Plan, including the establishment at major ports, to

be determined by the President, of emergency task forces

of trained _personnel, adequate oil pollution control

equipment and material, and a detailed oil pollution

prevention and removal plan;

(D) a system of surveillance and notice designed to

insure earliest possible notice of discharges of oil to the

appropriate Federal agency;

(E) establishment of a national center to provide

coordination and direction for operations in carrying out

the Plan;

(F) procedures and techniques to be employed in

identifying, containing, dispersing, and removing oil; and

(G) a schedule, prepared in cooperation with the

States, identifying (i) dispersants and other chemicals, if

any, that may be used in carrying out the Plan, (ii) the

waters in which such dispersants and chemicals may be

used, and (iii) the quantities of such dispersant or

chemical which can be used safely in such waters, which

schedule shall provide in the case of any dispersant,

chemical, or waters not specifically identified in such

schedule that the President, or his delegate, may, on a

case-by-case basis, identify the dispersants and other

chemicals which may be used, the waters in which they

may be used, and the quantities which can be used safely

in such waters.

The President may, from time to time, as he deems advisable,

revise or otherwise amend the National Contingency Plan.

After publication of the National Contingency Plan, the

removal of oil and actions to minimize damage from oil

discharges shall, to the greatest extent possible, be in

accordance with the National Contingency Plan.

Marine disasters; creation of a substantial threat of a pollution

hazard; removal or elimination of pollution hazard; removal

or destruction of vessel; employment of personnel; expenses

(d) Whenever a marine disaster in or upon the navigable

waters of the United States has created a substantial threat of

a pollution hazard to the public health or welfare of the

United States, including, but not limited to, f

This text is long and has been trimmed here. Open the source document for the complete record.

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.