Jurisdictional Statement — Askew v. American Waterways Operators, Inc.

Supreme Court brief1973

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IN THE

Supreme Court of the Wnited

OCTOBER TERM, 1971

REUBIN O'D. ASKEW, et al.,

Appellants,

vs.

THE AMERICAN WATERWAYS

OPERATORS, INC., et al., :

Appellees.

¢f

On Appeal from the United States District

Court: for the Middle District of Florida.

No. 4 1- 1082

JURISDICTIONAL STATEMENT

ROBERT L. SHEVIN

Attorney General

DANIEL S. DEARING

Chief Trial Counsel

Dept. of Legal AESeirs

The Capitol

Tallahassee, Ficrids

Attorneys for Appellants.

oe Sa ad

bh Ek ea a a 3

AMICI CURIAE

Honorable William J. Baxley

Attotney General

State of Alabama

Montgomery, Alabama 36104

Honorable Evelle J. Younger

Attorney General

State of California

600 State Building

Los Angeles, California 90012

Honorable Robert K. Killian

Attorney General

State-of Connecticut

30 Trinity Street

Hartford, Connecticut

Honorable W. Laird Stabler, Jr.

Attorney General

State of Delaware

Department of Justice

Wilmington, Delaware 19801 ;

Honorable Arthur K. Bolton

Attorney General

State of Georgia

132 State Judicial Building

Atlanta, Georgia 30334

Honorable George Pai

Attorney General

State of Hawaii

State Capitol

Honolulu, Hawaii 96813

Honorable Jack P. F. Gremillion

Attorney General

State of Louisiana

P. O. Box 44005 [Cont'd inside

Baton Rouge 70804 back cover]

Pee ee

TOPICAL INDEX

Page

Opinion Below ......... cw ceeee 1

JUTISGICCION <ccawieeses tone 2

Questions Presented .......... 2-3

Statute Involved ..ssecsssscel 3-4

Statement of the Case ........ 4-11

The Questions Presented

AVG SUDSCOMETOL <i cnvicnceas 11-20

CORCIUSION .5ccd ee usscunseeyes 20

APE IEP EGP HE CE Tet LEDG IG TOO LEO LE LYE TINE GLH” ANSI CAs ERE A Ne

TABLE OF CASES

Page

Barracuda Tanker Corp., In re,

281 F.Supp. 228 (S.D.N.Y. 1968) 18

Berman v. Parker, 348 U.S. 26

$4) oo) Bee era ena rere 15

Clyde Mallory Lines v. State

of Alabama, 296 U.S. 261

(C29 RS)- awe chee oc eww eecsceensens 15

Cooley v. Board of Port Wardens,

12 How. 299 €1881)....cccsccee'e 15

Davis v. Department of Labor §

Industries, 317 U.S. 249 (1942) 14

Day-Brite Lighting, Inc. v.

State of Missouri, 342 U.S.

421 (1952) i: TeCCTTETT TTT CCT TT 15

Griswold v. Connecticut, 381 U.S.

FO CLOOS) 44564 0 K4 GENO ERE SORES 16

Huron Portland Cement Co. v. City

of Detroit, 362 U.S. 440 (1960) 15

Just v. Chambers, 312 U.S. 383

CIOS) 454555555 %44464 854445548 14

~ Knickerbocker Ice Company v.

Stewart, 253 U.S. 149 (1920)... 11,18

Kossick v. United Fruit Co., 365

inte TOE CIOOR) se auwuceyeveses

Lottawanna, The, 21 Wall. 558

TABLE OF CASES

(Cont 'd)

Missouri v. Illinois, 180 U.S.

ROG: CROGL) ois ec keh eS eRe ce ewes cs

Missouri v. Illinois, 200 U.S.

ROG. 1270G) Wines 0654 60 06d obo 0eens

Moragne v. United States Lines,

Incs, J08 U.S. S75 CASTE) .ccesee

New York v. New Jersey, 256 U.S.

Noble State Bank v. Haskell, 219

U.S. LOG (iGiL) csevecictaweveves

Norwich, The City of, 118 U.S. 468

O00) re re er ee eee

Southern Pacific Co. v. Jensen,

244 U.S. FOS CIGD) «vce ceswccncs

Standard Dredging Corporation v.

Murphy, 319 U.S. 306 (1943)......

Steamer, The St. Lawrence , 1 Bl.

DEA CROCE?! 466455 6484 45 baw bee R CS

United States v. Standard Oil Co.,

384 U.S. 224 (1966)..............

Zabel v. Tabb, 430 F.2d 199 (Sth

Cir. 1970), cert. den. 401 U.S.

SLO C1071) 45660405 56 been wae ceaas

10,14

STATUTES

UNITED STATES CONSTITUTION

Article III, Section 2----++..-

Amendment IX ..csccssccevccees

AMONGMORE Kis cccvcucevcsesss

28 U.S.C. §§ 2281, 2284(3) .....

28 UsSi0i B& 1255 6 cw neesesviinees

33 U.S.C. § 116l.et seq........

AGO U.S.C. § 28S csesccceveduwess

Chapter 70-244, Laws of Florida,

ETO vee sew tew deo y en eew ee veeeed

CBO TO) tsb neeeweseessns ene xes

Chapter 16B-16.08, Regulations,

Department of Natural

Resources, State of Florida ..

International Convention For

The Prevention of Pollution

of the Sea by Oil (May 29,

1961), 3 U.S.T. 2989, T.I.A.S.

No. 4900, 327 U.N.T.S 3 .....

LAW REVIEWS §&

BOOKS

Comment, Oil Pollution of the

S10 C1969) ocscicssavues

Cowan, E., OIL AND WATER,

Sea, 10 Harv. Inter. L.J.

THE

TORREY CANYON DISASTER (1968).

Mendelsohn, Liability for Oil

Pollution -- Domestic and

1969) ewan sdsewecscous

International Law, 38 George

Washington L. Rev. 1 (Qct.

(1955) wc cece ee eee eee

Oil Pollution (TOVALOP)

Patterson, THE FORGOTTEN NINTH

AMENDMENT, Bobbs-Merrill

Contract Regarding an Interim

Supplement to Tanker Liability

for 0il Pollution (CRISTAL)...

Tanker Owners Voluntary Agree-

ment Concerning Liability for

Page

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1971

No.

REUBIN O'D. ASKEW, et al.,

Appellants,

vs.

THE AMERICAN WATERWAYS

OPERATORS, INC., et al.,

Appellees. ;

JURISDICTIONAL STATEMENT

ne RR Nota te

Appellants appeal from that final

judgment with memorandum opinion and

permanent injunction entered by the

United States District Court, Middle

District of Florida, on December 10,

1971, enjoining enforcement of the :

Florida Oil Spill Prevention and

Pollution Control Act, Chapter 70-244,

Laws Of Florida, 1970, published as é

Chapter 376, Florida Statutes (1970), i

for reason that said statute violates

Article III, Section 2, Clause 3 of

the Constitution of the United States.

Opinion Below

The appealed Order of the United

States District Court, Middle District

of Florida, has not yet been reported.

A copy thereof is included herewith in

the Appendix (A 1-31 ).

Jurisdiction

This appeal is from a final order

entered in a suit for injunctive relief

pursuant to 28 U.S.C. §§ 2281, 2284(3).

The order was entered December 10, 1971.

Notice of Appeal was filed in the United

States District Court, Northern District

of Florida, December 23, 1971. Jurisdic-

tion of this Court is invoked in accor-

dance with provisions of 28 U.S.C. § 1253,

authorizing appeal from an order of a

three-judge court permanently enjoining

enforcement of a state statute when such

order gives rise to a substantial question

such as one involving conflict between

State and federal interests.

Questions Presented

(1) Whether the District Court erred in

declaring unconstitutional a statute

designed to protect the state, its citi-

zens, and its environment from economic

and ecological damage resulting from

massive pollution of its territorial

waters incident to an occurrence during

the transport of oil or other substances

by sea, on ground that in Article III,

Section 2, Clause 3, United States

Constitution, the states surrendered to

the federal government all power to

enact substantive legislation affecting

maritime commerce.

2. Whether the District Court erred

in construing the Federal Water Quality

Improvement Act of 1970, Pub.L. 91-224,

9lst Congress, 2d Session (April 3, 1970);

33 U.S.C. § 1161 et seq. as preempting

the states from enacting legislation

imposing absolute and unlimited liability

upon owners or operators of vessels or

terminal facilities which cause massive

pollution of the state's territorial

waters by oil or other substances.

Statutes Involved

Chapter 70-244, Laws of Florida, 1970,

published as Chapter 376, Florida

Statutes (1970), is too lengthy for

inclusion verbatim, and is set out in

the Appendix (A 32-41).

Chapter 16B-16.08, Regulations, Depart-

ment of Natural Resources, State of

Florida, promulgated in accordance with

Chapter 70-244, §§ 7, 14, Laws of Florida,

1970, is set out in the Appendix (A 42-44).

The Water Quality Improvement Act of

1970, Pub.L. 91-224, 91st Congress, 2d

Session (April 3, 1970), Codified as

33 U.S.C. § 1161 et seq. is also set out

in appropriate part in the Appendix

(A 45-56).

The Limitation of Liability Act, origi-

nally Chapter 43, Section 3, 9 Stat. 635

(March 3, 1851), amended and codified as

46 U.S.C. § 183 (1964) is set out in the

Appendix (A 57 ).

Article III, Section 2, United States

Constitution, the Ninth Amendment to the

United States Constitution, and the Tenth

Amendment to the United States Constitu-

tion are set out in the Appendix (A 58-59),

Statement of the Case

The Water Quality Improvement Act of

1970, -Pub.L. 91-224, 91st Congress, 2d

Session, 33 U.S.C. § 1161 et seq. (here-

after "W.Q.I1.A." in citation; "Federal

Act" in text) became law April 3, 1970,

while the Florida legislature was in

anuual session. The Federal Act prohibits

the discharge by vessels of oil into

navigable waters of the United States

or the contiguous zone. W.Q.I.A. §§

ll(a), (b), et seq. Should such a dis-

charge occur through willful negligence

or willful misconduct within privity or

knowledge of the owner or operator of

the vessel, the government may recover

the entire clean-up cost from the owner

Or operator. W.Q.I1.A. § 11(f)(1). If

a discharge occurs other than from will-

ful negligence or misconduct, the govern-

ment can recover clean-up costs unless

the owner or operator can prove any of

four defenses: act of God, act of war,

’

negligence on the part of the government,

or act or omission of a third party.

W.Q.1.As § 11(£) (1).

This strict liability is not without

limitation, however. Recovery is limited

to $100 per gross ton of the vessel or

$14 million, whichever is less. W.Q.I.A.

gs 1l(g). Consequential] damages, or costs

imposed by such a discharge on other than

"the government,'' are not recoverable

under the Federal Act.

The Federal Act also requires owners

of vessels of more than 300 gross tons

using United States ports or navigable

waters to establish and maintain evidence

of financial responsibility equal to the

aforementioned limits by insurance, surety

bonds, qualification as a self-insuror, or

other means. W.Q.I1.A. § 11(p)(1). In the

event of a discharge, the government may

proceed directly against the insuror who

has benefit of all defenses available to

the vessel owner or operator. W.Q.I1.A. §

11(p) (3).

Section 11(0)(2) of the Federal Act

reads:

Nothing in this section shall

be construed as preempting any

State or political subdivision

thereof from imposing any re-

quirement or liability with .

respect to the discharge of oil

into any waters within such State.

i oe a

The Florida Oil Spill Prevention and

Pollution Control Act, Chapter 70-244,

Laws of Florida, 1970; Chapter 376,

Florida Statutes (1970) (hereafter re-

ferred to in citation by chapter number

and in text as "Florida Act") was a

Committee Substitute for Senate Bill No.

450 (A 32 ). It passed the legislature

less than 90 days after the Federal Act

became law, was approved by the Governor

June 30, 1970, and took effect in part

the following day (A 4} ). Provisions

of the Federal. Act were fresh in the

minds of committee members*® Federal-

State cooperation is keynoted throughout

the State Act.

The legislature further

declares that it is the

intent of this act to

support and complement

applicable provisions of

the federal water quality

improvement act of 19701

Es $3. U.8.C:A. § 1151 ot

seq.], specifically those

provisions relating to the

national contingency plan

for removal of oil and other

pollutants. Ch. 71-244,

Laws of Florida, 1970, §

2(6).

Nothing in this 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 contain-

ment or removal under the

applicable provisions of the

federal water quality improve-

ment act of 19701 [+ 33 U.S.C.A.

§ 1151 et seq.] 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.

Ch. 71-244, Laws of Florida,

1970, § 8(5).

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

19701 {+ 33 U.S.C.A. § 1151 et

.seq.]. Ch. 70-244, § 21, Laws

of Florida, 1970.

Limitations of the Federal Act were also

fresh in the minds of state legislative

committee members who reCognized gaps in

protection afforded by the Federal Act, and

sought to fill those gaps with safeguards

peculiarly necessary to Florida. Instead

of liability limited by gross tonnage of

an offending vessel up to an arbitrary

ceiling for pollution by oil alone, the

Florida Act imposes unlimited liability

without fault upon vessels discharging

other pollutants as well as oil while

destined for or leaving any Florida port.

Ch. 70-244 § 12, Laws of Florida, 1970.

Instead of recovery limited to clean-up

costs of the State alone, the Florida Act

provides for damages "resulting from

injury to others." Ch. 70-244, § 12.

Terminal facilities, whether onshore or

offshore, are subject to the same liability

as vessels. Ch. 70-244, § 3(9). Owners

and operators are liable, Ch. 70-244, § 12,

and must maintain satisfactory evidence of

financial responsibility measured by $100

per gross ton of the largest vessel up to

a $S million ceiling as opposed to the

$14,000,000 limit in the Federal Act.

Ch. 16B-16.08, Regs. Department of Natural

Resources, State of Florida; Ch. 70-244,

SS 7, 14. (A 42-44). Special containment

gear and crews trained in use thereof is

required, Ch. 70-244, § 7(1)(a), and vesse);

are subject to inspection by state officials

to ascertain presence of such gear and to

assess seaworthiness of the ship prior to

entry into any Florida port. Ch. 70-244,

$ 7(c).

The effective date for regulatory re-

quirements of the Florida Act, including

financial responsibility and unlimited

and absolute liability provisions, was

extended by the Board of Natural Resources

to March 15, 1971.

Suit was filed March 9, 1971, and a

hearing on plaintiffs' application for

temporary restraining order was held

March 11-12, 1971.

Plaintiffs and intervenors include

merchant shippers, world shipping

BLEED THROUGH POOR COPY

associations which insure an estimated

three-fourths of the world's tonnage,

certain members of the Florida coastal

barge and towing industry, and owners and

operators of oil terminal facilities and

heavy industries located in Florida ports.

Defendants are members of the Cabinet

of the State of Florida, before the Court

in dual capacities. They were sued in

their official position as highest elected

officers of the state, and they were sued

as members of the Board of Natural Resources.

Also included are the director of the De-

partment of Natural Resources, and a con-

servation officer. The State of Florida

intervened as a party defendant on ground

that interests to be adjudicated were much

broader than those protected by the eapers

ment of Natural Resources.

At the two-day hearing on plaintiffs'

application for temporary restraining

order, testimony of plaintiffs' representa-

tives revealed that not one of them had

attempted to comply with the Florida Act

or regulations issued thereunder, but that

shippers had advised them that vessels

would be diverted from Florida ports if

the Act were implemented. Indeed, certain

vessels had in fact been diverted to ports

in other states. Testimony of an employee

of the Department of Natural Resources was

to the effect that some 669 vessels had been

approved for traffic to and from Florida

ports, their owners or operators having

complied in advance with financial respon-

Sibility requirements. The temporary re-

Straining order was subsequently entered

COPY BOUND TOO CLOSE IN CENTER

nunc pro tunc tg March 12, 1971.

The three-judge panel was convened and

heard this cause on April 27, 1971. Judg-

ment of the District Court was entered

December 10, 1971, with a memorandum

opinion finding (1) that maritime law

‘evolved' under Article III, Section 2

of the United States Constitution, aug-

mented from time to time by the federal

judiciary, and changed further by con-

gressional enactment, such as the Water

Quality Improvement Act of 1970; (2) that

the Federal Act is ‘tangible evidence' that

the Florida Act is an unconstitutional

intrusion into the federal maritime domain

because it makes changes in substantive

Maritime law such as providing absolute

and unlimited liability for owners and

operators of offending vessels, and

because it also contains provisions for

compensating state and private parties

for property damage as well as clean-up

costs; (3) that oil-spill pollution is

a maritime tort governed strictly by rules

of admiralty law and is exclusively within

the federal domain; (4) that since the

Florida Act substitutes absolute and

unlimited liability for admiralty's neg-

ligence and unseaworthiness tests and

severely limited liability, it contravenes

federally protected tenets of maritime law

and is invalid upon the authority of

Southern Pacific Co. v. Jensen, 244 U.S.

205 (1917); (S$) that to permit Florida to

legislate in such fashion would be to

"sound the death knell to the principle of

uniformity'; (6) that limited remedies and

relief available under the Federal Act

notwithstanding, Congress did not leave

'gaps' in oil-spill pollution laws for

the states to fill in -- even though the

Federal Act fails to provide a remedy,

the states are nonetheless precluded

from creating one -- under authority of

Moragne v. United States Lines, Inc.

398 U.S. 375 (1970); (7) that the re-

emption disclaimer of Section 11(0) (2)

of the Federal Act does not mean what it

says because Congress lacks power to per-

mit states to legislate requirements or

liabilities with respect to discharge of

oil within state waters when such legis-

lation might tend to affect -- or con-

flict with established rules governing --

maritime commerce, on authority of

Knickerbocker Ice Company v. Stewart,

253 U.S. 149 (1920), The Lottawanna,

21 Wall. 558 (1875) and The Steamer St.

Lawrence, 1 Bl. 522 (1862); and (8) that

the Florida Act must fall in its entirety,

despite a severability clause, because,

absent fatally defective provisions, the

Act ‘would not comprise a coherent legis-

lative scheme,' a point that will not be

disputed on sioeai.

Notice of Appeal was filed with the

United States District Court, Middle

District of Florida, on December 23, 1971.

Questions Presented Are Substantial

Appellants submit that the action

taken, memorandum opinion, and final

judgment of the District Court present

iid sale

substantial questions which warrant

rg toes of jurisdiction by the Court

at this time.

The first substantial question is

whether the fact that judicial power of

the United States is extended "to all

Cases of admiralty and maritime, juris-

diction" by Article III, Section 2 of

the United States Constitution stands

as a permanent barrier in the path of

State legislatures seeking to protect

citizens, property, ecology, economy,

and general welfare from the deleterious

effects of massive oil-spill pollution

of state waters.

It should be noted at the outset that

this appeal is not concerned with de-

ballasting or tank-cleaning operations

of ships at sea, peculiarly susceptible

to treaty or international commercial

agreement. See, International Convention

For the Prevention of Pollution of the

Sea by 011, (May 29, 1961), 3 U.S.T. 2989,

T.I.A.S. No. 4900, 327 U.N.T.S. 3; Tanker

Owners' Voluntary Agreement Concerning

Liability for,0il Pollution (TOVALOP) ;

Contract Regarding an Interim Supplement

to Tanker Liability for Oil Pollution

(CRISTAL). Nor is the state concerned

in this appeal with controllable pollution

resulting from minor incidents such as

loading spills, minor collisions, seepage,

or pollution incidental to general transport

i eB aa a a a ah oem 2

_—

operations. Containment gear carried

aboard vessels or provided ‘at most sea-

ports by port committees or the United

States Coast Guard is usually adequate

for control and clean-up of such minor

hazards. Expenses for clean-up and any

damage to the ecology is recoverable to

the state under Chapter 403, Florida

Statutes (1970). A suit in admiralty

for any damage to private or state

property would not be frustrated by

limitation of liability proceedings

| inasmuch as the scope of such damages

| is severely restricted. Although

| pollution from such incidents is remedial

under the Florida Act, the Act's focus

is not so limited. The State of Florida

does not appeal here from a loss of

duplicate remedies. The state's concern

is more urgent. It goes to the heart of

the statutory scheme described in the

Florida Act. The concern is for loss of

a legislative attempt to protect the

state, its citizens, economy, and en-

vironment against effects of a maritime

disaster of Torrey Canyon proportions.

BN a ad ~

PRS Pe, Se eT ee

lror descriptions of this occurrence and

insight into its appropriateness in the :

instant context, see Mendelsohn, Maritime :

Liability for 0il Pollution--Domestic and

International Law, 38 George Washington L.

Rev. 1 (Oct. 1969); Comment, Oil Pollution ;

of the Sea, 10 Harv.Inter.L.J. 316 (1969); .

Nanda, The Torrey Canyon Disaster: Some

Legal Aspects, 44 Denver L.J. 400 (1967);

E. Cowan, OIL AND WATER, THE TORREY CANYON

DISASTER (1968).

eee Ee een ay

A substantial question is whether Article

III, Section 2 should be construed as a

surrender by the state of its power and

responsibility for providing such protec-

tion (a) in any case, or (b) when such is

not provided by the federal government.

In holding that the State of Florida

has no such power, the District Court

relied, in part, on Southern Pacific Co.

v. Jensen, supra, raising a question as

to the valid application of Jensen out-

Side the arena of its own facts. Standard

Dredging Corporation v. Murphy, 319 U.S.

306 (1943); Davis«v. Department of Labor

& Industries, 317 U.S. 249 (1942); Just

v. Chambers, 312 U.S. 383 (1941); and

the telling dissent of Frankfurter, J.,

joined by Stewart, J., in Kossick v.

United Fruit Co., 365 U.S. 731 (1961).

In resting one corner of its rule upon

a doctrinaire allegiance to the principle

of uniformity, the District Court order

presents yet another substantial question:

whether the once-necessary rule of uni-

formity in matters maritime is still’of

such vitality that it categorically bars

state legislatures from developing new

remedies to meet wrongs peculiar to our

era and to the particular state; wrongs

which were undreamt of when the only fuels

to propel ships were wind and steam,

and before such compelling state interests

as protection of the economy and environ-

ment from effects of a disaster at sea

(particularly for a state such as Florida

whose economy depends squarely upon its

environment) gave rise to new consideration

i ee te ee el se ee ae

of precisely what rights, responsibilities,

and powers have been surrendered by the

states and by individuals to exclusive

federal jurisdiction. Unless the matter

falls within such jurisdiction, a require-

ment of ‘tuniformity" is misplaced. Just

v. Chambers, supra.

The question is inescapable: are matters

such as economic welfare of the state and

its citizens, and the natural environment

of the state retained by the states as

topics appropriate to a proper exercise

of its police power, as such is recognized

by the Tenth Amendment? Or were these

responsibilities of government surrendered

to the federal domain? If the police power

of the state extends to all the great public

needs, Noble State Bank v. Haskell, 219

U.S. 104 (1911); Day-Brite Lightin Inc.

v. State of Missouri, ; ) B-

Cf. Berman v. Parker, 348 U. S. (26 (1954),

then surely such power resides in the

state to legislate protection against,

and remedies for, despoilment of property

of the state and its citizens and severe

injury to its environment. The fact that

an exercise of such police power conflicts

with tenets of maritime law does not mean

that the state interest protected must in

all cases give way before admiralty.

Because its application is felt upon

navigable waters does not mean the state

interest was surrendered. Huron Portland

Cement Co. v. City of Detroit, 362 U.S.

440 (1960); Cf. Clyde Mallory Lines V.

State of Alabama,

Cooley v. Board of Port “Wardens (12 How..

299 (1851).

ERE ERM Bs INES SEMIN GE OF RE: MOAN

If the Ninth Amendment protects rights

peculiar to the individual beyond those

specifically enumerated in the Constitu-

tion such as would vouchsafe his right to

4 ape Griswold v. Connecticut, 381 U.S,

9 (1965), concurring opinion of Goldberg,

J., then how can it be reasoned that the

individual's right to pollution-free ocean,

beaches, and estuaries is not similarly

cognizable and protected by what has been

referred to as the Forgotten Amendment?

See, Patterson, THE FORGOTTEN NINTH AMEND-

MENT, Bobbs-Merrill, 1955.

This Court has recognized the delete-

rious effects of oil pollution of rivers

and harbors, United States v. Standard Oil

Company, 384 U.S. 224 (1966); New York v.

New Jersey, 256 U.S. 296 (1921); Missouri

v. Illinois, 200 U.S. 496 (1906); Missouri

v. Illinois, 180 U.S. 208 (1901). The

Standard 011 Company case involved appli-

cation of a section of the Rivers and

Harbors Act, 33 U.S.C. § 407, but the

Court's recognition of a pollution crisis

is appropriate to the instant cause. At

384 U.S. 225-226:

This case comes to us at a time

in the Nation's history when

there is greater concern than ever

over pollution--one of the main

threats to our free-flowing rivers

and to our lakes as well. The

crisis that we face in this respect

would not, of course, warrant us

in manufacturing offenses where

Congress has not acted nor in

stretching statutory language

in a criminal field to meet

strange conditions. But

whatever may be said of the

rule of strict construction,

it cannot provide a substitute

for common sense, precedent,

and legislative history. We

cannot construe § 13 of the

Rivers and Harbors Act in a

vacuum... . Oil is oil,

and whether useable or not

by industrial standards it

has the same deleterious effect

on waterways. In either case,

its presence in our rivers and

harbors is both a menace to

navigation and a pollutant.

In Zabel v. Tabb, 430 F.2d 199

(SCir.1970) cert. den. 401 US 910(1971)

Chief Judge Brown stated:

In this time of awakening to

the reality that we cannot con-

: tinue to despoil our environment

and yet exist, the nation knows,

if. courts do not, that the

destruction of fish and wildlife

in our estuarine waters does have

a devastating effect on inter-

state commerce. (430 F.2d at

203-204)

ee Pee

II.

The second area of substantial ques-

tions presented by this appeal arises

from the District Court's construction

of Section 11(0)(2) of the Federal Act.

The order relies upon Knickerbocker Ice

Company v. Stewart, supra, for authority

that since Congress is powerless to con-

fer on the states authority to legislate

within admiralty jurisdiction, the

Federal Act cannot be construed as an

attempt to do so. So that when the Act

declares: “Nothing in this section shall

be construed as preempting any State...

from imposing any requirement or liability

with respect to the discharge of oil into

any waters of such State," the District

Court decided that Congress meant that

states are free to enforce pollution

control measures so long as they are

within the state's constitutional preroga-

tive--which, of course, the state needs no

congressional approval to do anyway. The

effect of this interpretation is that the

section is a nullity. It is a substantial

question as to whether this express dis-

claimer of preemption is congressional

recognition that States should impose

“requirements or liabilities" to protect

themselves against effects of oil-spill

pollution of their territorial waters.

Yet another substantial question

emerges from the second issue noted.

The Florida Act makes owners or operators

of offending vessels liable to individuals

who may prove damages resulting from an

oil-spill to the full amount of such

damages without limitation measured by

the value of the vessel plus pending

freight after an occurrence such as the

Torrey Canyon disaster. In re Barracuda

Tanker Corp., 281 F.Supp. 228 (S.D.N.Y.

1968), modified 409 F.2d 1013 (2d Cir.

1969). The object of the Florida Act is

clear: protection of the innocent

property-owner, state or private citi-

zen from loss of his property without

recompense. The object of the Limited

Liability Act, 46 U.S.C. 183, is equally

clear. It is succinctly stated in The

City of Norwich, 118 U. S. 468 (1886) at

page 304:

That object was to enable

merchants to invest money

in ships without subjecting

them to an indefinite hazard

of losing their whole property

by the negligence or misconduct

of the master or crew, but only

subjecting them to the loss of

their investment.

The District Court characterized ’

Florida's unlimited and absolute liability

provisions as being directly in conflict

with the Limited Liability Act and, hence,

an unforgiveable intrusion into exclusive

federal domain.

eer

Of course, Congress itself pushed back

the limitation of 46 U.S.C. 183 when it

made owners and operators liable for the

full amount of clean-up costs without

regard to valuation of the vessel and

pending freight under certain circumstances.

W.Q.1.A. § 11(£)(1). Moreover, absent

willful negligence or misconduct within

privity or knowledge of the owner, the

Federal Act further assaults limitations

of 46 U.S.C. 183 when it provides for

recovery based upon gross tonnage of the

vessel up to a $14 million ceiling instead

RE ETS ETL EMT LENE RM LINE RENE A IAT LON RNP

of the arbitrary value-of-the-vessel

measuring stick where simple negligence

is proven. W.Q.I.A. § 11l(g).

A substantial question emerges as to

the continued efficacy of the Limited

Liability Act in cases where the cause

of action is an oil-spill. Should the

State Act be precluded from following the

Federal Act across former barriers of

46 U.S.C. 183? Should the Limited

Liability Act continue to defeat one

whose property has been damaged or

destroyed ‘through no fault of his own

by barring’the State from providing a

remedy? Can the State Act be attacked

on ground that it conflicts with the

Limited Liability Act when the effect of

that provision in this context is to deny

an injured property-owner due process of

law by shielding owners and operators

from any possibility of meaningful re-

covery?

CONCLUS ION

Appellants respectfully submit that

these questions are substantial and

significant to continually developing

state-federal relationships, and in the

framework of today's concern over problems

of environmental deterioration, and that

this Court should note probable jurisdic-

tion.

Respectfully submitted,

ROBERT L. SHEVIN

Attorney General

IEL S. DEARING

Chief Trial Counsel

Counsel for. Appellants

Department of Legal Affairs

The Capitol

Tallahassee, Florida

PROOF OF SERVICE

I, Daniel S. Dearing, hereby certify

that on the 22nd day of February, 1972,

I served copies of the foregoing Juris-

dictional Statement on the several parties

hereto as follows:

On Plaintiffs THE AMERICAN WATERWAYS

OPERATORS, INC.; GULF ATLANTIC TOWING

CORPORATION; GLIDDEN-DURKEE; DIXIE

CARRIERS, INC.; OIL TRANSPORT COMPANY,

INC.; NATIONAL MARINE SERVICE, INC.;

THE REVILO CORPORATION; EASTERN SEABOARD

PETROLEUM COMPANY, INC.; STEUART TRANS-

PORTATION COMPANY; INTERSTATE OIL TRANS-

PORT COMPANY; FEDERAL BARGE LINES, INC.,

by mailing two copies to Ervin, Pennington,

SEE LA

——

Varn §& Jacobs, Attorneys for Original

Plaintiffs, P. O. Box 1170, Tallahassee,

Florida 32302;

and

On Intervening Plaintiffs SUWANNEE

STEAMSHIP CO. and COMMODORES POINT

TERMINAL CORPORATION by mailing two

copies to KURZ, TOOLE, TAYLOR, MOSELEY

§& GABEL, Attorneys for the above-named

Intervening Plaintiffs, Suite 1014

Barnett Bank Building, 112 West Adam

Street, Jacksonville, Florida 32202; and

On Intervening Plaintiffs AMERICAN

INSTITUTE OF MERCHANT SHIPPING;

ASSURANCE FORENINGEN GARD; ASSURANCE

FORENINGEN SKULD; THE BRITANNIA STEAM

SHIP INSURANCE ASSOCIATION, LIMITED;

THE JAPAN SHIP OWNERS MUTUAL PROTECTING

AND INDEMNITY ASSOCIATION LIMITED; THE

LONDON STEAM-SHIP OWNERS‘ MUTUAL INSUR-

ANCE ASSOCIATION, LIMITED; NEWCASTLE

PROTECTION AND INDEMNITY ASSOCIATION;

THE NORTH OF ENGLAND PROTECTING §&

INDEMNITY ASSOCIATION, LIMITED; THE

STANDARD STEAMSHIP OWNERS' PROTECTION

§& INDEMNITY ASSOCIATION; THE STANDARD

STEAMSHIP OWNERS' PROTECTION AND IN-

DEMNITY ASSOCIATION (BERMUDA), LIMITED;

THE STEAMSHIP MUTUAL UNDERWRITING

ASSOCIATION, LIMITED; SUNDERLAND

STEAMSHIP PROTECTING AND INDEMNITY

ASSOCIATION: 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 mailing two

copies to them c/o Fowler, White, Gillen,

Humkey, Kinney & Boggs, P. 0. Box 1438,

Tampa, Florida 33601; Haight, Gardner,

Poor & Havens, 80 Broad Street, New York,

New York 10004; and Healy §& Baillie, 29

Broadway, New York, New York 10006,

Attorneys for the above-named Interven-

ing Plaintiffs.

Chief Trial Counsel

ee ig BLS Mehta ESAs LP Se Fay bite RS tein Nhl BODES, PRATIED ips i ht BOE VIE AOR Ro iss SNE aD ii AINA hs! atadiabientielsd Kou ole chara

APPENDIX

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.

NS PNAS RF

REUBIN O'D. ASKEW, et al.

pre tan 3

Defendants

—

OLLIE RIPON DA IEE OL SOOT OEM EI PLIES

MEMORANDUM OPINION

AND FINAL JUDGMENT

| PP 2eP 4

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 Act" (here-

inafter 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.2 Onshore

and offshore terminal facilities are

subject to the same liability.3 The

Act requires every owner or operator of

a vessel using a Florida port or a

terminal facility to pay whatever clean

up costs or damages may result from

the discharge of pollutants4 and to

maintain satisfactory evidence of

financial responsibility to satisfy

such liability.5 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.6

Prior to entering a Florida port,

every vessel is subject to inspect-

ion by the port manager to determine

the presence of the required contain-

BLEED THROUGH POOR COPY

ment gear and the seaworthiness of the

ship. He is required to notify all

other ports in the state of any vessel

refused entry to his port.8

Plaintiffs and intervenors include

merchant shippers whose vessels use

Florida ports in the course of trans-

porting goods in foreign and inter-

state commerce; world shipping associa-

tions who insure three-fourths of the

ocean-going tonnage against, among

other things, liability for oil spill-

age; 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 valid-

ity of the Florida Act on several

federal constitutional grounds. Plain-

tiffs' initial contention is that

Florida has sought to legislate sub-

stantive maritime law which, under the

United States Constitution, is exclus-

ively within the federal domain.

Secondly, they contend that the Act |

violates the Commerce Clause, since it

seeks to regulate foreign and inter-

state 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.

FEE ETE NE TT SE SS

OE og OPES ae

The maritime law of the United

States has evolved under Article 3,

Section 2, of the Constitution which

extends the judicial power of the

United"States "to all Cases of admir-

alty and maritime jurisdiction." In

a territorial sense that jurisdiction

covers all waters navigable in inter-

state or foreign commerce, including

state waters.2 Maritime law governs

virtually every facet of the shipping

industry from the design and con-

struction of vessels to the regulat-

ion 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 admin-

istrative regulations.10 One of

these congressional enactments is the

Water Quality Improvement Act of

197011 (hereinafter called "W.Q.I1.A.")

which became law a few months prior to

the effective date of the Florida Act.

W.Q.1I.A. provides plaintiffs with

tangible evidence that the Florida Act

is an unconstitutional intrusion into

the federal maritime domain.

me cen sprints DHOTwD CORY

The W.Q.I.A. reinforces the national

ant-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 liabil-

ity without fault for the costs expend-

ed by the qgvernment in cleaning up an

oil spill. 3 Where the spillage results

from willful negligence or misconduct,

however, liability for such costs can

be unlimited.14 Evidence of financial

responsibility 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.15 Additionally, the

President is authorized to issue

regulations requiring, among other

things, that vessels maintain oil spill

prevention equipment and be subject to

boarding for inspection purposes at

any time.16

In adopting W.Q.I.A. Congress

anticipated that all hazardous sub-

stances, in addition to oil, capable

of polluting navigable waters would

be subject_to similar legislative

treatment.!7 w.g.I.A. required the

President to promulgate regulations

defining such hazardous substances

and establishing methods and means

for their removal.18 He was also

required to report to Congress, by

ee ee ee ee eee

pee i ie

Pe ee a LS eee

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 constitutes

unlawful intrusion into the exclus-

ive 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.I.A. and the

Florida Act subject vessels and on-

shore and offshore facilities to

strict liability for cleanup costs,

the latter imposes a far greater

measure of responsibility. 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. 20 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."21

Moreover, the amount of the recovery

would be unlimited; whereas W.Q.I.A.

would place a limit on “at ce as

we have previously noted. 22

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.I1.A. creates responsibility for

cleanup costs only and leaves undis-

turbed the remedies available under

maritime law for private injury caused

by Oilgspillage or other pollution.

the teferal courts have long considered

oil‘“péllution as a maritime tort for

which damages may be awarded.23 Com-

pensation is recoverable for injury to

property and allowances have even been

made for consequential damages. In

In re New Jersey Barging Corp.,24 an

011 spill case, the court approved the

following language from the Commission-

er's report:

In the light of the ... author-

ities, it would seem to the Com-

missioner that he is authorized,

and in fact required, to make

award of compensation for such

annoyance, inconvenience and dis-

comfort suffered by particular

claimants to the extent of and

in an amount commensurate 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 en-

countered an extraordinary peril

which resulted in a non-deliberate

and non-negligent pollution of the

shoreline. Even if fault was estab-

lished, 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 penditig," unless

the damage was caused with the owner's

“privity or knowledge."25

Under the Florida Act, however,

liability without fault is the found-

ation for "damage insurred by the

state and for damage resulting from

injury to others," just as it is in

the case of cleanup costs. By sub-

stituting absolute liability for proof

of negligence or unseaworthiness as

a condition to unlimited recovery,

the Florida Act, if valid, would

materially change the substantive

maritime law governing the disposit-

ion of claims arising from the pollut-

ion of coastal waters.

It is well settled that state legis-

lation is invalid where it is in

contravention with general admiralty

rules or congressional enactments in

BLEED THROUGH POOR COPY

the maritime field. In the landmark

Jensen case, 26 the Supreme Court, in

holding that the New York State Work-

men's Compensation Statute could not

constitutionally be applied where an

accidental death occurred on a vessel

afloat in navigable waters within

New York's boundaries, said:

And plainly, we think, no such

legislation is valid if it

contravenes the essential

purpose expressed by act of

Congress or works material

prejudice to the character-

istic features of the general

maritime law or interferes with

the proper harmony and uniform-

ity of that law in its inter-

national and interstate relations.

This limitation, at the least,

is essential to the effective

operation of the fundamental

purposes for which such law

was incorporated into our

national laws_by the Constitu-

tion itself.

* * *

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 mari-

time matters which the Constitu-

ot EC RE AE Sen a Va

2 a

tion 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 Constitut-

ion and to that extent is invalid.28

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

"destriction 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.I.A.,

it fill (sic) a "void" in the maritime

law and is justifiable under the "gap

theory."29 This theory presupposes

that maritime law is an incomplete

system, with numerous gaps that can be

filled by state statutes. This is to

say, if the maritime law affords no

remedy, the states may provide one.

The Supreme Court's recent decision

in Moragne v. States Marine Lines,Inc. 39

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 Statute31

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 Congress-

ional enactment provided a remedy in

the situation. The District Court and

the Court of Appeals, citing The Tungus

. Skovgaard,32 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 com-

pelled 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 in-

consistency inherent in accommodating

state remedial statutes to exclusively

maritime substantive concepts.

Another argument advanced by

defendants is that the Florida Act

is valid under the following pro-

vision of W.Q.I1.A.:

Nothing in this section shall

be construed as preempting any

State or political subdivision

thereof from imposing any require-

ment or liability with respect to

the discharge of oil into any

waters within such State.

33. 0,8.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) ;~-~ The Lottawanna,

21 Wall. 558 (1875); The Steamer St.

Lawrence, 1 Bl. 522 (1862)] and we

cannot presume that W.Q.1.A. was an

attempt to do so. There is nothing

in the language of the act which

purports to grant any such legis-

lative 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 pollut-

ion control measures that are within

their constitutional prerogative.

For the foregoing reasons we

conclude that the Florida Act in

question cannot constitutionally

be applied to the plaintiffs and

intervenors and to the activities

in which they engage. The question

thus arises as to whether the Act is

severable. Although _it contains a

severability clause, such a pro-

vision 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 construct-

ion and of legislative intent, to

the determination of which the

statutory provision becomes an

aid. "But it is an aid merely;

not an inexorable command."

Dorchy v. Kansas, 264 U.S. 286,

290. The presumption in favor

separability does not authorize

the Court to give the statute

"an effect altogether different

from that sought by the measure

viewed as a whole." Railroad

Retirement Bd. v. Alton R. Co.,

4929 Use. 350, 2Oes

The statutory aid to construct-

ion in no way alters the rule that

in order to hold one part of a

statute unconstitutional and up-

hold another part as separable,

they must not be mutually depend-

ent 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.3® In cram

v. Board of Public Instruction37 the

Supreme Court of Florida made the

following pronouncement on the question

of severability:

The rule is well established

that the unconstitutionality

of a portion of a statute will

not necessarily condemn the

entire act. When a part of a

statute is declared unconstitut-

ional the remainder of the act

will be permitted 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 sukstance 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. 38

OVE

In the Florida Act there are no pro-

visions which, though standing by them-

selves might be considered unobjection-

able, 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 Constitut-

ion of the United States and is there-

fore 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 regulat-

ions promulgated thereunder is hereby

made permanent; provided that nothing

in this final judgment shall be

construed to prohibit the defendants

from. continuing to pay salaries of

-current employees out of the Coastal

Protection Trust Fund.

3. This 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/f Gerald Bard.Tjoflat

UNITED STATES DISTRICT JUDGE

FOR THE COURT

FOOTNOTES

1. Chapter 376, Florida Statutes Anno-

tated; Chapter 70-244, Laws of Florida

(all further citations to the act will be

to Florida Statutes Annotated).

2. Sections 376.12, Florida Statutes An-

notated, 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 dam-

ages, any licensee and its

agents or servants, including

vessels destined for or leav-

ing a licensee's terminal fa-

cility, who permits or suffers

a prohibited discharge or

other polluting condition to

take place within state bound-

aries shall be liable to the

state for all costs of clean-

up or other damage incurred by

the state and for damages re-

sulting from injury to others.

In any suit to enforce claims

of the state under this chap-

ter, 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 dis-

charge prohibited by this chap-

ter 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, chol-

orine, 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 fa-

cility, and related appurten-

ances located on land, includ-

ing 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 d

the purpose of drilling for,

pumping, storing, handling,

transferring, processing, or

refining oil or other pollu- 4

tants, 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 trans-

fer 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

nn a ns ie a

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 con-

strued to include the fuel

storage tanks or other facili-

ties 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 ammended, Laws

of Florida, 71-243.

"Vessel" includes every descrip- «

tion of watercraft or other

contrivance used, or capable of

being used, as a means of trans-

portation 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 Anno-

tated, 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 responsi-

bility based on the capacity of

the terminal facility or tonnage

SES Se

of the ship, the cargo carried,

and other similar factors to

which the vessel could be sub-

jected under this chapter.

Financial responsibility may

be established and maintained

by any one (1), or a combina-

tion, of the following methods

acceptable to the department:

(a) Evidence of insurance;

(b) Surety bonds payable to

the governor of the state, con-

ditioned to pay all costs and

expenses of the cleanup of any

discharge as well as damages

caused to the state and any

person;

insurer; or

(d) Other evidence of finan-

cial responsibility satisfac-

tory to the department.

(2) A bond filed with the de-

partment shall be issued by a

bonding company authorized to

do business in the state.

.(3) Any claim for costs in-

curred by a terminal facility

or vessel may be brought direct-

ly 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

REED LE PEA LEA Hs PPP OPT TS

heey

. THN eS

of financial responsibility.

6. Se¢tion 376.07, Florida Statutes Anno-

tated, provides in part:

gulatory powers of depart- J

—tent.--The department shall

from time to time adopt, amend,

repeal, and enforce reasonable

regulations insofar as they

relate to 9il spills or dis-

charges or the spills or dis-

charges 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 follow-

ing 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 re-

quired by the department with

a crew trained in the use of

the gear.

(b) Procedures and methods

of reporting discharges and

other occurrences prohibited

TASS SEP a ee ee, ait. se see te

by this chapter.

means, and equipment to be

used by persons subject to

regulation by this chapter in

the removal of pollutants.

a ee

(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, motor-

ized 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 require-

ments that containment gear

approved by the department be

on hand and maintained by

terminal facilities and refin-

eries 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 cre-

ates the possibility of a spill;

and

(3) Any denial of entry

into any port during the current

cruise of the vessel.

%. Section 376.08(2), Florida Statutes

Annotated, provided:

The port manager shall have the

authority to board any vessel

prior to its entry into port

in order to ascertain the sea-

worthiness of the vessel and

the presence of required con-

tainment gear. Upon being

notified of a discharge the

port manager*shall have author-

ity 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 facili-

ty in his port to determine

that adequate containment gear

is on hand at the terminal fa-

cility.

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

or foreign water commerce,

whether or not the particular

body of water is wholly within

a state, and whether or not

the occurrence or transaction

that is the subject matter of

the suit is confined to one

state." Gilmore and Black,

The Law of Admiralty, §1-11l,

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 Constitution (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 mari-

time field. Knickerbocker Ice Company v.

Stewart, 253 U:S. 149 (1920); Southern

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

ll. 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, which 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(£) (1), (2) and (3).

15. 33 U.S.C. §1161(p).

16. 33 U.S.C. §1161(5).

17.\ 33 U.S.C. §1162.

1s, Sh

is. 28)

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 De-

partment 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

as it is the legislative intent

ee eee meee? lm FF ADYV

that the waiver provided in

this paragraph is a privilege

conferred, not a right granted."

22. See notes 2 & 13 supra and accompany-

ing 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.I1.A. the President was

required to publish a National Contingency

Plan to remove oil spills and to minimize

damage and to promulgate regulations "con-

sistent 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 re-

quirements for equipment to

prevent discharges of oil from

vessels and from onshore facili-

ties and offshore facilities

and . . . governing the inspec-

tion of vessels carrying cargoes

in order to reduce the likeli-

hood of discharges of oil from

Such Vessels. ..." 33 U.8:C.

§1161(%).

The Florida Act obligates the Department

of Natural ResScurces to act in the same

areas. See note 6 supra. The potential

for conflict ir these two regulatory

schemes is oObvioys.

It is likely that regulations

promulgated unter the Florida Act would

further be discordant with the Steamboat

Inspection Act, Title 46, U.S.C. §361 et

seq., and regulations promulgated there-

under. 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 sea-

worthiness 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 maintenance,

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 Con-

vention for the Safety of Life at Sea,

1960, 7.2.4.8., 316.0.8.8. 285, 336 U.4.T.

S. 27, which has been ratified or adhered

to by all maritime nations, including the

United States. Here again, conflict be-

tween the regulations under the Florida

Act and the federal law appears unavoid-

able.

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.

2a 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.

BLEED THROUGH POOR COPY

§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 admiral-

ty 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 seg. 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-exten-

sive, in its operation, with

the whole territorial domain

of that law."

In holding that a Massachusetts wrongful

death action, arising from a death occurr-

ing 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. What-

ever force it may have in

creating liabilities for acts

done there, it cannot neutralize

a Rl ll

See

POSH

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

Jeague beyond the seashore, that

circumstance cannot circumscribe

wr abridge the law of the sea.”

130 U.S. at 557-58.

26. soucnere Pacific Co. v. Jensen, 244

U.S. 205 (1937).

ao we SA,

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.

32. 336 U.8;,. 568 (1959),

33. . Im tee Sahy Semen case the Court,

speaking to the question of state legis-

lative authority in the maritime field,

said:

"The Constitution itself

adopted and established, as

part of the laws of the United

States, approved rules of the

general maritime law and em-

powered Congress to legislate

in respect of them and other

BLEED THROUGH POOR COPY

matters within the admiralty

and maritime jurisdiction.

Moreover, it took from the

States all power, by legisla-

lation or judicial decision,

to contravene the essential

purposes of, or to work

material injury to, charac-

teristic features of such

law or to interfere with its

proper harmony and uniformity

in its international and

interstate relations." 253

U.S. at 160-61. (Emphasis

added).

34. Laws of Florida, 70-244 §23.

35; 298 U8. 238, 313 (1936).

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

37. .137 So.20 828 (Fla. 1962).

38. Id. at 830.

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

(a).

z a

Ch. 70-244 seEconD REGULAR SESSION

AIR AND WATER POLLUTION CONTROL

CHAPTER 70-244

COMMITTEE SUBSTITUTE FOR SENATE BILL NO. 450

An Act relating to pollutants; providing definitions; Prohibiting such potty.

tion; providing for authority in the department of natural resources tg

act In preventing and controlling oll spills and other pollution; author.

izing the department to provide employees and equipment in ports ang

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 costal protection fund; providing for strict

ability; 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 nat.

ural resources to require by rules and regulations that terminal facilities

and vessels establish and maintain evidence of financial responsibility t

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 pristin

condition as possible, taking into account multiple use accommodations ince

sary to provide the broz dest possible promotion of public and private interests

(3) The legislature further finds and declares that the transfer of pollv-

tants between vessels, between onshore facilities and vessels and between off-

shore facilities and vesscls within the jurisdiction of the state and state

waters is a hazardous undertaking; that spills, disch *s and escape of

pollutants occurring as a result of procedures involved | transfer, stor.

age, and transportation of such products pose threats | at danger an

dainage 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 pan-

mount intcrests of the state as herein set forth and that such state interests

outweigh any economic burdens imposed by the Iegislature upon those

gaged in transferring pollutants and related activities.

(4) The legislature intends by the enactment of this legislation to exercis

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;

require the prompt containment and removal of pollution occasioned thereby;

and to establish a fund to provide for the inspection and supervision of sud

‘

rr -f o—a -—ao ie mw §i-be ¢ 1.4 *me-lalea -iilelat-.%2

SECOND REGULAR SESSION Ch. 70-244

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 discases, 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

Jegislature upon those engaged in transferring pollutants and related activi-

ties.

(6) The legislature further declares that it is the intent of this act to sup-

port and complement applicable provisions of the federal water quality im-

provement act of 1970,1 specifically those provisions relating 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 resources.

(2) “Director” means the executive director of the department of natural

resources. '

(3) “Barrel” means forty-two (42) U. S. gallons at sixty degrees (60°) Fahren-

heit.

(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 ma-

terials.

(§) “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 harinful or injurious to human health or welfare,

animai or piant life, or property, or which muy unreasonabiy 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, 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, their by-products, and other pollutants, and only

that vessel going to or coming from the place of transfer and the terminal

facility. .

(10) “Owner or operator” means any person owning or operating a termi-

nal facility whether by Icase, contract, or any other form of agreement.

(11) ““fransferred” includes both onloading and offloading between terminal

and ressel and vessel to vessel.

(12) “Vessel” includes every description of watercraft or other contrivance

used, or capable of being uscd, as a means of transportation on water,

whether self-propelled or otherwise, and includes barges and tugs.

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

desigt:ce, to be approved by the department, to carry out the requirements of

his act.

Ch. 70-244 seEcoND REGULAR SESSION

(14) “Person in charge” means the person on the scene who is in iret,

responsible charge of a terminal facility or vessel from which vil or othe

pollutants are discharged when the discharge occurs,

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

unincorporated, of owners or operators of waterfront terminal facilities in

any port or harbor of the state, and any other person who may cleet to join

organized for the purpose of containing and cleaning up discharges of oj] aml

other pollutants through cooperacive efforts and shared equipment and fag.

thes,

Section 4. Pollution and corruption of waters and lands of the state pro.

hibited

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 goy.

ernmental function in the exercise of the police power of the state. The do

partment of air and water pollution control is directed to cooperate with the

department of natural resources and to offer consultative services, enforce.

ment, prosecution, and technical advice to the departinent. 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 exten

to the boundaries of the state described in article IT, section 1 of the con.

stitution of Florida.

(3) Licenses required under this act shall be issned from the department

fBSubject to such terms and conditions as ure sect forth in this act and as get

forth in rules and regulations promulgated by the department as authorizd

herein.

(4) Whenever it hecomes necessary. for the state te protect the public in

terest under this act, it shall be the duty of the department of natural re

sources to keep an accurate reeord of costs and expenses incurred and there.

after diligently to pursue the recovery of any sums so incurred from the gov

ernment of the United Stites under any applicable feleral 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 ixsued on an annual basis and shall expire on Deceniber

31 annually, subject to such terms and conditions as the department may de

termine are necessary to carry out the purposes of this act. :

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

department shall require satisfactory evidence that the applicant has imple

-mented or is in the process of implementing state and federal plans and regu-

lations for control of pollution related to oil, petroleum products, their by-

products and other pollutants and the abatement thercof when a discharge

occurs. :

(4) Licenses issued to any terminal facility shall inelude vessels used. to

transport oil, petroleum products, their by-products, and other pollutants be

tween the facility and vessels within state waters,

(5) The director may require, in connection with the issuance of a terminal

facility license, the peyment 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; provided, however, such fee shall

not exceed $250.00 per terminal facility per year.

DIitiocoen wTeRP rnin POOR COPY

SECOND REGULAR SESSION Ch. 70-244

(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

jssue 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 (%) 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 J) 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 satisfac-

tory to the director, deseribing 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 discharge cleanup organization,

up organization to which the owner or operator 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 di-

rector under this act and the license fee the applicant shall be issued a regis-

tration 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 iu accordance with the adininistvative

procedure act, ehapter 120, Florida Statutes,

(2) The departme nt shall adopt regulations including but not limited to

the following matters:

(a) Operating and inspection requirement for facilities, vessels, personnel

and other inatters relating to licensee operations under this act and spccifical-

ly requiring that vesscls transporting pollutants within state waters shall

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

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

(b) Procedures and inethods 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 gu: ird 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 thein fully informed of

the need for containment equipment and emergeney action.

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 immediately

anchor or move to a specific dock and deploy containment gear or to move

to the open seas and to take such other measures as hedeeins 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 termi-

nal favility.

3 F.S.A. Sess.Laws '70--9

mens DBALIAIN TAK CT OCE IN CENTER

Ch. 70-244 sEcOND REGULAR SESSION

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

ject tu regulation by this act and to be ued in the removal of pollutants,

(ec) Development and implementation of criteria and plans to meet gj

petroleum, and other pollution occurrences of various degrees and kinds

(f) The establishment of eleven (11) regional control districts, one for eae,

of the eleven (11) deep water ports of the state, with a response team jp

each district and the establishment of rules and regulations to: mect the pay.

ticular requirements of each such district. The department shall ereate ,

state response team which shall be responsible for creating and maintainiye

a contingence plan of response, organization, and equipment for handling

emergency cleanup operations. The state plans shall include detajly

emergency operating procedures for the state as a whole and for the elevey

(11) regional control districts, and the team shall from time to time condug

practice alerts. These plans shall be filed with the governor, all coast guar

stations in the state and with the head of cach regional team, The ¢op.

“tingency plan shall include all necessary information for the total contajip.

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 responsible for implementing every

phase of the plan, a list of available sources of supplics necessary for cleanup

and a designation of priority zones within cach region to determine the

quence and methods of cleanup. The state response team shall act inde

pendently of agencies of the federal government but is directed to cooperate

with any federal cleanup operation.

(g) Requirements for minimum weather and sea conditions for permitting

a vessel to enter port and for the safcty 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 ani

departure from terminals, facilitics, and refineries, and shall require that cop

tainment gear approved by the department be on hand and maintained ly

terminal facilities, and refinerics with adequate personne] trained in its use,

(th) 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 sinc

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 vesse] 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

act.

Section 8. Removal of prohibited discharges

(1) Any person discharging pollutants as prohibited by section 4 shall im-

mediately undertake to remove such discharge to the department’s satisfac

tion. 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

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SECOND REGULAR SESSION Ch. 70-244

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 — improvement act of 1970 and the costs

of removal incurred by the director Shall be paid in accordance with the ap-

plicable 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 coutain or remove a discharge, whether such action is taken

voluntarily or at the request of the director or his designee, shall be con-

strucd as an admission of liability for such discharge.

(4) No person who yoluntarily, 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, cxcept for acts

or omissions amounting to gross negligence or willful misconduct.

(5) Nothing in this act shall affect in any way the right of any person who

renders assistance in containing or removing oil or other pollutants to re-

jmbursement for the costs of such containment or removal under the appli-

cable provisions of the federal water quality improvement act of 19701 -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,

133 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, other

than such equipment furnished by the licensee, as in its judgment may be

necessary to-carry out the provisions of this act. The departinent may em-

ploy-and prescribe the duties of such employecs, 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 equip-

ment shall be paid from the Florida coastal protection fund established by

this ait. The Geparuacnt »Lall periodically consult with other departments

of the state and specifically with the department of air and water pollution

control relative to procedures forthe prevention of discharges of oil and other

pollutants into the coastal waters of the state from off-shore drilling produc-

tion facilities. f .

Section 10. Enforcement, penalties ’

Whoever violates any provisions of this act or any fule, regulation, 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 depart-

ment. Keach 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 regu-

lations and orders of the department. s

~ Section 11. Florida coastal protection fund Pi

(1) The’ Florida coastal protection fund-is established to be used by the de-

partnient 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). Yo this fund shall be credited all license fees, penalties, and other

fees and cliarges related to this act, including administrative 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 responsibilities under this act shall be de-

posited with the treasurer to the eredit of the fund, and may be invested in

such manner as is provided for by statute. Interest received on such invest-

ment shall be eredited to the Florida coastal protection fund.

;

wee

PRY AIEEE RUT NR SOME ERAS CSTR MEN SRP pO? cua

TAPCO REARING AY

so D RT

SEES Oe MSS IE Ce oy

COPY BOUND TOO CLOSE IN CENTER

Ch. 70-244 sEcOND REGULAR SESSION

(3) Each registrant shall obtain from the department a license for tach

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 @

partment upon the basis of the total capacitr of the terminal facility fo

oil and other pollutants, but in no event shall excced five hundred doliag

($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 uD

der this act, and as long as it remains so, license fees shall be proportionat.

ly reduced to cover only administrative expenses.

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

the following purposes and no others:

(a) Administrative expenses, personnel expenses and equipment costs

the @epartment related to the enforcement of this act. ;

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

of oil, petroleum products, their by-products and other pollutants covered by

this act and the abatement of other potential pollution hazards as authorize

hercin.

and other wildlife, whether pefformed by the department or any other state

or local agency.

(G) The department shall recover to the use of the fund from the person o

persuns causing the discharge jointly and severally all sums expended ther

from, including overdrafts, for the following purposes; provided that m

coveries resulting from damage due to an oil pollution or other similar dis.

aster shall be apportioned between the Florida coastal protection fund ang

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 sud

section (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 ge-

eral, shall undertake the collection.

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 fol-

lowing:

1. An act of war.

2. An act of government, cither state, federal, or municipal.

3. An act of God, which means an unforesceable act exclusively oc

casioned 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 net negligent.

The findings of the department shall be cenclusive as it is the legislative ip

tent that waiver provided in this act is a privilege conferred, net a right

granted,

Section 12. Liabilities of licensees

Reeause it is the intent of this act to provide the mcans for rapid and

effective cleanup and to minimize daimares, 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 dxmage incurred by the state and for damages resulting

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

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SECOND REGULAR SESSION Ch. 70-244

act, it shall net be necessary for the state to plead or prove negligence in

auy form or mariner 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 licensce’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 department shall, by rules and

regulations, require that the licensee designate a person at the terminal facili-

ty 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 aris-

ing from the discharge of oil, petroleum products 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 licutenant 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 seerctary 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 gov-

ernment, with the offices and agencies of other states and foreign countrics,

and the political subdivisions thercof, and with private agencies in all mat-

ters pertaining to a disaster or catastrophe.

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

thorized and empowered:

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

tions 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 dcparhucnt of agener having

specifically authorized emergency functions.

(bh) To delegate any authority vested in him under this act, and to provide

for the subdelegation of any sach authority.

(4) Whenever the governor is satisfied that an emergency no longer ex-

ists. he may terminate the proclamation by another proclamation affecting

the sections of the state covered 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, decms 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 aud maintain, under rules

and rernlations prescribed by the department of natural resources, evidence of

financial responsibility based on the capacity of the terminal facility or ton-

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

sel could be subjected under this act. Financial responsibility may be estab-

lished and maintainges} by any one (1) of, or a combination of the following

methods acceptable to the department:

(a) Evidence of irsurance,

(b) Surety bonds payable to the gorerner of the state conditioned to pay all

costs and expenses of the cleanup of any discharge as well as damages causcd

to the state And any other person,

(ce) Qualification as a self-insurer, or

(d) Other evidence of financial responsibility satisfactory to the department.

COPY BOUND TOO CLOSE IN CENTER

Wie Pe Oe.

Ch. 70-244 seconxD REGULAR SESSION

(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 terminaf facility or vessel may be

bronght directly against the insurer or any other person providing Cvideng

of financial responsibility. Any claim for costs of cleanup, civil Penalticg or

damages by the state and any claim for damages by any injured person

be brought directly against the bond, the insurer, or against any other Person

providing evidence of financial responsibility.

(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 aban.

doned 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 author.

ized and empowered to remove any derelict vessel from public waters in any

instance when the same obstructs or threatens to obstruct navigation or con-

tributes to air or water pollution or in any other way constitutes a danger or

potential danger to the environment. This section shall constitute the author.

ity of the department for such removal, but is not intended to be in con

travention of any applicable federal act. The attorney gencral shall be th

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 hy 9 civil penalty up to fifty tivusanu doliars (850,000) to be

assessed by the department. Each day during any pfortion of which such

violation occurs constitutes a separate offense. VPenaltics assessed herein

for a discharge shall be the only penalties assessed by the state and the as

sessed 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 applr

to any discharge promptly reported and removed by a licensce in accordance

with the rules, regulations and orders of the department.

Section 17. Reports to the legislature

The department shall include in its recommendations to cach legislature spe

cific recommendations relating to the operation of this act, specifically includ

ing a license fee formula to reflect individual licensee experience, and a fe

schedule based upon volatility and toxicity of petroleum products, their by-

products and other pollutants.

Section 18. Budget approval

The department shall submit to cach legislature its budget recommendations

for disbursements from the fund. Upon approval thereof, the comptroller shall

authorize cxpenditures therefrom as approved Ly 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 yalid unless in direct conflict with the provisions of this act or

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SEC(

ND REGULAR SESSION Ch. 70-244

rule, regulations, or order

act; provided, however, ff the department adopted under authority of this

county, municipality, or oat in order to avoid unnecessary duplication, no

establish a similar progran'¢et political subdivision of the state may adopt or

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

Section 20.

Nothing in this act shall

of liquefied petroleum gas ve deemed to apply to the storage or transportation

or atmosphere of the stater to industrial effluents discharged into the waters

and water pollution contropursuant to a permit issued by department of air

Section 21. Constructlor

This act, being necessary

public safety of the state for the general welfare, the public health, and the

effect the purposes set fortnd its inhabitants, shall be liberally construed to

provement act of 1970.1 1 under this act and the federal water quality im-

133 U.S.C.A. § 1151 et seq.

Section 22.

There is hereby appropr

thousand dollars ($100,000)ated from the general rerenue fund one hundred

created in section 11 of thisto be transferred and deposited in the trust fund

lars ($1,000,000), then the act. When the trust fund exceeds one million dol-

revenue fund shall be retuotal sum transferred originally from the general

Section 23. ‘ned to the general revenue fund.

The provisions of this a

the whole or any part of tlt are severable, and it is the intention to confer

sions of this act shall be» powers provided herein, and if any of the provi-

jurisdiction, the decision Oheld unconstitutional by any court of competent

remaining provisions. such court shall not affect or impair any of the

Seccrion 24. ais act sha

Approved by the Governo take effect July 1, 1970.

Filed in Office Sccretary June 30, 1970.

of State June 30, 1970,

~ mens PAIN TAH CT.

STATE OF FLORIDA

DEPARTMENT OF NATURAL RESOURCES

Division of Marine Resources

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 forn,

gasoline, pesticides, ammonia,

chlorine, or other hazardous

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 to

Chapter 70-244, Laws of Florida,

must establish and maintain with

the Department evidence of

financial responsibility in an

amount not to exceed $100 per

ross 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 respon-

sibility to which the largest

vessel or barge could be sub-

jected hereunder. Nothing herein

shall be construed to prohibit

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(3)

(4)

vessels or barges.

third parties from establishing

evidence of financial responsibility

for such Owners or operators of

The financial responsibility herein

required may be established and

maintained by any one (1) of, or

a combination of, the following

methods acceptable to the Depart-

ment:

(a) Evidence of insurance -

conditioned to pay all costs

and expenses of the cleanup of a

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 weil as

damages caused to the state

and any other person.

insurer, or

(d) Other evidence of financial

responsibility satisfactory to

the Department.

SS a a eli ein

All applications, evidence, docu-

ments, and other statements re-

quired 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 responsibility

shall be on forms furnished by

the Department upon request of

the applicant.

(S) Where evidence of financial

responsibility has been estab-

lished, a separate certificate

covering each vessel shall be

issued evidencing the Department's

finding of adequate financial

responsibility to meet the mini-

mum requirements of this rule.

General Authority

Chapter 70-244(7)

General Laws of Florida

Law Implemented

Chapter 70-244(14)

General Laws of Florida

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33 § 1160

No. 2, set out as a note under section 1151

of this title.

Functions of Secretary of Health, Edu-

cation, and Welfare under subsections (c)

(4) and (f) of this section were trans-

ferred to Secretary of the Interior by sec-

tion 1(d) (2) of 1966 Reorg.Plan No. 2, set

out as a note under scction 1151 of this ti-

tle.

Selection of Members of Hearing

Boards. Secretary of the Interior to give

the Secretary of Health, Education, and

Welfare opportunity to select a member of

each Hearing Board appointed pursuant

to subsections (c) (4) and (f) of this sec-

tion as modified by 1966 Reorg.Plan No. 2,

see section 1(d) (3) of 1966 Reorg.Plan

No. 2, set out as a note under section 1151

of this title.

Actions by Surgeon General Relating to

Interstate Pollution. Section 5 of Act July

9, 19%6, provided that: ‘In the case of any

discharge or discharges causing or contri-

buting to water pollution with respect to

which the actions by the Surgeon General

NAVIGABLE WATERS

Ch. 23

prescribed under paragraph (2) of section

2(a) of the Water Pollution Control Act

{section 1153(d) (2) of this title]. as in ef-

fect prior to the enactment of this Act

{July 9, 1956}, have already been complet-

ed prior to such enactment, the provisions

of such section shall continue to be appli-

cable; except that nothing in this section

shall prevent action with respect to any

such pollution under and in accordance

with the provisions of the Water Pollution

Control Act [this chapter], as amended by

this Act [Act July 9, 1956].”

Legisiative History. For legislative his-

tory and purpose of Act June 30, 1948, see

1HS8 U.S.Code Cong. Service, p. 2215. See,

also, Aet July 17, 1952, 1952 U.S.Code

Cong. and Adm.News, p. 2312; Act July 9,

1936, 1956 U.S.Code Cong. and Adm.News,

p. 2023; Pub.L. 87-88, 1961 U.S.Code Cong.

and Adm.News, p. 2076; Pub.L. 89-234,

1965 U.S.Code Cong. and Adm.News, p.

3313; Pub.L. 89-753, 1966 U.S.Code Cong.

and Adm.News, p. 3969; Pub.L. 91-224,

1970 U.8.Code Cong. and Adm.News, p. —.

Library References

Navigable Waters ¢=35. C.J.8. Navigable Waters § 11.

§ 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” inciudes, 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 bare-boat char-

tered and operated by the United States, or by a State or politi-

cal subdivision thereof, or by a foreign nation, except when

such vessel is engaged in commerce;

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

lumbia, the Commonwealth of Puerto Rico, the Canal Zone, 4

Guam, American Samoa, the Virgin Islands, and the Trust Ter- ;

ritory of the Pacific Islands; E

(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 tke case of an onshore facility, and an off-

shore facility, any person owning or operating such onshore fa-

Ch. 23 POLLUTION CONTROL 33 § 1161

cility or offshore facility, and (C) in the case of any abandoned

offshore facility, the person who owned or operated such fagijj.

ty immediately prior to such abandonment;

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

ciation, and a partnership.

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

the water and shorelines or the taking of such other actions 4

may be necessary to minimize or mitigate damage to the publi,

health or welfare, including, but not limited to, fish, shellfish,

wildlife, and public and private property, shorelines, and beach.

es;

(9) “contiguous zone” means the entire zone established 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, buy

not limited to, motor vehicles and rolling stock) of any kind lo

cated in, on, or under, any land within the United States other

than submerged land;

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

cated in, on, or under, any of the navigable waters of the Unite

States other than a vessel or a public vessel;

(12) “act of God” means an act occasioned by an unantici-

pated grave natural disaster;

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

Fahrenheit.

Congreasional deciaration of policy; prohibition against discharge ef oil;

exceptions; rules and regulations; determination of harmiul quantities

of @ischkargced olf; motificution of United State. of @ischerze ef oft:

penalties for failure to notify; procedure for imposition of civil penalties

for knowingly discharging oil; witbholding 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 shore

lines, 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, ex-

cept (A) in the case of such discharges into the waters of the cor-

tiguous 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 permitted in quantities and at times and

locations or under such circumstances or conditions as the Presi-

dent may, by regulation, determine not.to be harmful. Any regula

tions issued under this subsection shall be consistent with maritime

safety and with marine and navigation laws and regulations and ap

plicable water quality standards.

T. 33 U.S.C.A. §§ 901-End—43

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—

33 § 1161 NAVIGABLE WATERS Ch. 23

(3) The President shall, by regulation, to be issued as soon as

possible after April 3, 1970, determine for the purposes of this sec-

tion, those quantities of oil the discharge of which, at such times,

jocations, circumstances, and conditions, will be harmful to the pub-

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

to, fish, shellfish, wildlife, and public and private property, shore-

lines, and beaches, except that in the case of the discharge of oil

into cr upon the waters of the contiguous zone, only those dis-

charges which threaten the fishery resources of the contiguous zone

or threaten to pollute or contribute to the pollution of the territory

or the territorial sea of the United States may be determined to be

harmful.

(4) Any person in charge of a vessel or of an onshore facility or

an offshore facility shall, as socn as he has knowledge of any dis-

charge of oil from such vessel or facility in violation of paragraph

(2) of this subsection, immediately notify the appropriate agency of

the United States Government of such discharge. Any such person

who fails to notify iramediately such agency of such discharge shall,

upon conviction, be fined not more than $10,000, or imprisoned for

not more than one year, or both. Notification received pursuant to

this paragraph or information obtained by the exploitation of such

notification shall not be used against any such person in any crimi-

nal case, except a prosecution for perjury or for giving a false

statement.

(5) Any owner or operator of any vessel, onshore facility, or off-

shore facility from which oil is knowingly discharged in violation of

paragraph (2) of this subsection shall be assessed a civil penalty

by the Secretary of the department in which the Coast Guard is op-

erating of not more than $10,000 for each offense. No penalty shall

f be assessed uniess the owner or 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 com-

promised by such Secretary. In determining the amount of the pen-

ality, 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 Secre-

tary. :

National Contingency Plan for removal of discharged oll;

provisions; revisions; compliance

ble waters of the United States, adjoining shorelines, or into or

COPY BOUND TOO CLOSE IN CENTER

Ch. 23 POLLUTION CONTROL 33 § 116)

upon the waters of the contiguous zone, the President is authoring

to act to remove or arrange for the removal of such oil at any tj

unless he determines such removal will be done properly by the

owner or operator of the vessel, onshore facility, or offshore facility

from which the discharge occurs.

(2) Within sixty days after April 3, 1970, the President shal] pre.

pare and publish a National Contingency Plan for removal of ¢jj

pursuant to this subsection. Such National Contingency Plan shyj

provide for efficient, coordinated, and effective action to minimi,

damage from oil discharges, including containment, dispersal, an

removal of oil, and shall include, but not be limited to—

(A) assignment of duties and responsibilities among Feder

departments and agencies in coordination with State and loc

agencies, including, but not limited to, water pollution control,

conservation, and port authorities;

(B) identification, procurement, maintenance, and storage of

equipment and supplies;

of personnel who shall be trained, prepared, and available tp

provide necessary services to carry out the Plan, including th

establishment at major ports, to be determined by the President,

of emergency task forces of trained personnel, adequate oil pol.

lution control equipment and material, and a detailed oil polly.

tion prevention and removal plan;

(D) a system of surveillance and notice designed to insur

earliest possible notice of discharges of oil to the appropriate

Federal agency; — :

(E) establishment of a national center to provide coordina

tion 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 quan-

tities of such dispersant or chemical which can be used safelr

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, ona

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

which may be used, the watcrs 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 publics

tion of the National Contingency Plan, the removal of oil and ac

tions to minimize damage from oil discharges shall, to the greatest

: 49

33 § 1161 NAVIGABLE WATERS Ch. 23

extent possible, be ‘in accordance with the National Contingency

Plan

Marine dinanterns;,creation of a substantial threat of a polluti hasard;

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, includ-

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

and private shorelines and beaches of the United States, because of

a discharge, or an imminent discharge, of large quantities of oil

from a vessel the United States may (A) coordinate and direct all

public and private efforts directed at the removal or elimination of

such threat; and (B) summarily remove, and, if necessary, destroy

such vessel by whatever means are available without regard to any

provision of law governing the employment of personnel or the ex-

penditure of appropriated funds, Any expense incurred under this

subsection shall be a cost incurred by the United States Government

for the purposes of subsection (f) of this section in the removal of

oil.

Action by United States attorney to abnite actual or threatened discharae of

oil from an onshore or offshore facility; jurisdiction; nature of rclief

(e) In addition to any other action taken by a State or local gov-

ernment, when the President determines there is an imminent and

substantial threat to the public health or welfare of the United

States, including, but not limited to, fish, shellfish, and wildlife and

public and private property, shorelines, and beaches within the Unit-

ed States, because of an actual or threatened discharge of oil into

or upon the navigable waters of the United States from an onshore

or offshore facility, the President may require the United States at-

torney of the district in which the threat occurs to secure such re-

lief as may be necessary to abate such threat, and the district

courts of the United States shall have jurisdiction to grant such re-

lief as the public interest and the equities of the case may require.

Liability of owner or operator of vesscl, onshore facility. or offshore

facility for discharne of vil; exceptionx; amount of liability;

procedure for recovcry

(f) (1) Except where an owner or operator can prove that a dis-

charge was caused solely by (A) an act of God, (B) an act of war,

an act or omission of a third party without regard to whether any

such act or omission was or was not negligent, or any combination

of the foregoing clauses, such owner or operator of any vessel from

which oil is discharged in violation of subsection (b) (2) of this

section shall, notwithstanding any other provision of law, be liable

to the United States Government for the actual costs incurred under

subsection (c) of this section for the removal of such oil by the

United States Government in an amount not to exceed $100 per

COPY BOUND TOO CLOSE IN CENTER

Ch. 23 POLLUTION CONTROL 33 § 116)

gross ton of such vessel or $14,000,000, whichever is lesser,

that where the United States can show that such discharge wast),

result of willful negligence or willful misconduct within the Privj

and knowledge of thé owner, such owner or operator shall be liable

to the United States Government for the full amount of such costs

Such costs shall constitute a maritime lien on such vesse] Which

may be recovered in an action in rem in the district court of th,

United States for any district within which any vessel may }

found. The United States may also bring an action against the ow.

er or operator of such vessel in any court of competent jurisdictic,

to recover such costs.

(2) Except where an owner or operator of an onshore facility

can prove that a discharge was caused solely by (A) an act of God,

(B) an act of war, (C) negligence on the part of the United State

Government, or (D) an act or omission of a third party withoy

regard to whether any such act or omission was or was not negli.

gent, or any combination of the foregoing clauses, such owner or op.

erator of any such facility from which oil is discharged in violation,

of subsection (b) (2) of this section shall be liable to the Unite

States Government for the actual costs incurred under subsectioy

Government in a:; amount not to exceed $8,000,000, except that

where the Unit« 4 States can show that such discharge was the re.

sult of willful negligence or willful misconduct within the privity

and knowledge of the owner, such owner or operator shall be liable

to the United States Government for the full amount of such costs,

The United States may bring an action against the owner or open-

tor of such facility in any court of competent jurisdiction to recover

such costs. The Secretary is authorized, by regulation, after consul.

tation with the Secretary of Commerce and the Small Business Ad.

ministration, to establish reasonable and equitable classifications of

those onshore facilities having a total fixed storage capacity of

1,000 barrels or less which he determines because of size, type, and

location do not present a substantial risk of the discharge of oil in

violation of subsection (b) (2) of this section, and apply with re

spect to such classifications differing limits of liability which may

be less than the amount contained in this paragraph.

(3) Except where an owner or operator of an offshore facility

can prove that a discharge was caused solely by (A) an act of God,

(B) an act of war, (C) negligence on the part of the United States

Government, or (D) an act or omission of a third party without re-

gard to whether any such act or omission was or was not negligent,

or any combination of the foregoing clauses, such owner or operator

of any such facility from which oil is discharged in violation of

subsection (b) (2) of this section shall, notwithstanding any other.

provision of law, be liable to the United States Government for the

actual costs incurred under subsection (c) of this section for the te.

BLEED THROUGH POOR COPY

33 § 1161 NAVIGABLE WATERS Ch. 22

moval of such oil by the United States Government in an amount

not to excced $8,000,000, except that where the United States can

show that such discharge was the result of willful negligence or

willful misconduct within the privity and knowledge of the owner,

such owner or operator shall be liable to the United States Govern-

ment for the full amount of such costs. The United States may

bring an action against the owner or operator of such a facility in

any court of competent jurisdiction to recover such costs.

Proof by owner or operator of vensel, onshore facility, or offshore facility of

Hability | third party for discharge of oll; exceptions to third party

Hability; amount of UMability; procedare for recovery

(g) In any c&se where an owner or operator of a vessel, of an

onshore facility, or of an offshore facility, from which oil is dis-

charged in violation of subsection (b) (2) of this section proves

that such discharge of oil was caused solely by an act or omission

of a third party, or was caused solely by such an act or omission in

combination with an act of God, an act of war, or negligence on the

part of the United States Government, such third party shall, not-

withstanding any other provision of law, be liable to the United

States Government for the actual costs incurred under subsection

ernment, except where such third party can prove that such dis-

charge was caused solely by (A) an act of God, (B) an act of war,

an act or omission of another party without regard to whether such

act or omission was or was not negligent, or any combination of the

foregoing clauses. If such third party was the owner or operator of

a vessel which caused the discharge of oil in viviation of subsection

(b) (2) of this section, the liability of such third party under this

subsection shall not exceed $100 per gross ton of such vessel or

$14,000,000, whichever is the lesser. In any other case the liability

of such third party shall not exceed the limitation which would have

been applicable to the owner or operator of the vessel or the on-

shore or offshore facility from which the discharge actually oc-

curred, if such owner or operator were liable. If the United States

can show that the discharge of oil in violation of subsection (b) (2)

of this section was the result of willful negligence or willful mis-

conduct within the privity and knowledge of such third party, such

third party shall be liable to the United States Government for the

full amount of such removal costs. The United States may bring an

action against the third party in any court of competent jurisdiction

to recover such removal costs.

' Preservation of richts of owner or operator of vessel, onshore facility, or

offshore facility, or United States against any third party

(h) The liabilities established by this section shall in no way af-

fect any rights which (1) the owner or operator of a vessel or of an

onshore facility or an offshore facility may have against any third

party whose acts may in any way have caused or contributed to

GOPY BOUND TOO CLOSE IN CENTER

Ch. 23 POLLUTION CONTROL 33 § 116)

gross ton of such vessel or $14,000,000, whichever is lesser,

that where the United States can show that such discharge was the

result of willful negligence or willful misconduct within the priyj

and knowledge of the owner, such owner or operator shall be liable

to the United States Government for the full amount of such costs.

Such costs shall constitute a maritime lien on such vessel which

may be recovered in an action in rem in the district court of the

Uni States for any district within which any vesse] may be

found. The United States may also bring an action against the own.

er or operator of such vessel in any court of competent jurisdiction

to recover such costs.

(2) Except where an owner or operator of an onshore facility

can prove that a discharge was caused solely by (A) an act of God,

(B) an act of war, (C) negligence on the part of the United States

Government, or (D) an act or omission of a third party without

regard to whether any such.act or omission was or was not negli.

gent, or any combination of the foregoing clauses, such owner or op-

erator of any such facility from which oil is discharged in violation

of subsection (b) (2) of this section shall be liable to the United

States Government for the actual costs incurred under subsection

Government in an amount not to exceed $8,000,000, except that

where the United States can show that such discharge was the re-

sult of willful negligence or willful misconduct within the privity

and knowledge of the owner, such owner or operator shall be liable —

to the United States Government for the full amount of such costs. |

The United States may bring an action against the owner or opera- |

tor of such facility in any court of competent jurisdiction to recover

such costs. The Secretary is authorized, by regulation, after consul-

tation with the Secretary of Commerce and the Small Business Ad-

ministration, to establish reasonable and equitable classifications of

those onshore facilities having a total fixed storage capacity of

1,000 barrels or less which he determines because of size, type, and

location do not present a substantial risk of the discharge of oil in

violation ofysubsection (b) (2) of this section, and apply with re-

spect to such classifications differing limits of liability which may

be less than the amount contained in this paragraph.

(3) Except where an owner or operator of an offshore facility

can prove that a discharge was caused solely by (A) an act of God,

(B) an act of war, (C) negligence on the part of the United States

Government, or (D) an act or omission of a third party without re-

gard to whether any such act or omission was or was not negligent,

or any combination of the foregoing clauses, such owner or operator

of any such facility from which oil is discharged in violation of

subsection (b) (2) of this section shall, notwithstanding any other

provision of law, be liable to the United States Government for the

actual costs incurred under subsection (c) of this section for the re

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33 § 1161 NAVIGABLE WATERS Ch. 22

moval of such oil by the United States Government in an amount

not to excced $8,000,000, except that where the United States. can

show that such discharge was the result of willful negligence or

willful misconduct within the privity and knowledge of the owner,

such owner or operator shall be liable to the United States Govern-

ment for the full amount of such costs. The United States may

bring an action against the owner or operator of such a facility in

any court of competent jurisdiction to recover such costs.

Preof by owner or operator of veasel, onshore facility, or offshore facility of

ability of third party for discharge of oll; exceptions to third party

Nability; amount of liability; procedare for recovery”

(g) In any case where an owner or operator of a vessel, of an