Amicus Curiae Brief — Askew v. American Waterways Operators, Inc.

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VAY 31 Wi

In the MICHAEL RORAK JR,CLERK

Supreme Court of the United States

No. 71-1082

REUBIN O’D. ASKEW, ET AL.,

APPELLANTS,

v.

THE AMERICAN WATERWAYS OPERATORS, INC.,

ET AL.,

APPELLEES.

ON APPEAL FROM A JUDGMENT OF THE UNITED STATES DISTRICT

COURT FOR THE MIDDLE DISTRICT OF FLORIDA

BRIEF FOR THE COMMONWEALTH OF

MASSACHUSETTS, AMICUS CURIAE '

Rosert H. Quinn

Attorney General

Wauter H. Mayo III

Assistant Attorney General

Rocer Trepy

Assistant Attorney General

Boston, Massachusetts 02133

373 State House

—————_[_—_—_—[—$_$S $__$_$__ $__[_——_—>=£=_=_=[=[=[[_[[[9'““7o#___=—=5=|

Blanchard Press, Inc., Boston, Mass. — Law Printers

TABLE OF CONTENTS

Page

Interest of the Amicus ......................0.0... 1

Argmment ... 2.2 cece eee eee ence eee ees 2

I. Congress May Allow the States to Enact

Laws Affecting Maritime Commerce If

Such Laws Do Not Conflict With General

Admiralty Law ......................... 2

Il. Congress Has Left Many Aspects of Oil

Pollution’ Control Unaffected by Federal

Law and, In Fact, Has Anticipated That

State Action Would Supplement Federal

PRION 3 ae se ks Sees oe ees tae os +

III. General Maritime Law Has A Limited Ap-

plication To Oil Spill Control And Liabi-

lity, Leaving Many Aspects To Action By

The States ................. ketene ees 6

IV. The Application Of State Liability Rules

To Oil Spills, Subject To Admiralty Prin-

ciples Limiting Vessel Liability, Will Not

Infringe Upon The Essential Uniformity

Required For Maritime Commerce... ...._— 9

Conclusion ............. 0.0.0.0 00. ee 12

BOO oa oo os 65 de es ss eee ee etaseanee- 13

TABLE OF CITATIONS

Cases

California v. The Bournemouth, 307 F.Supp. 922 (C.D.

Cal. 1969) ..... 0. tee eee 7

Fireman’s Fund Ins. Co. v. Standard Oil Co., 339 F.2d

148 (C.A. 9 1964) ..00 eee. 7

Gutierrez v. Waterman S.S. Corp., 373 US. 206. .... 7

ii Table of Contents

The Harrisburg, 119 U.S. 199 ...................., 8,9

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 ..... 2,4

Madruga v. Superior Court, 346 U.S. 556 ........ 7

Missouri Rates Cases, 230 U.S. 474 ................. 10

Moragne v. States Marine Lines, I'nc., 398 U.S. 375 .. 8 9

Petition of New Jersey Barging Corp., 168 F.Supp. 925

(S.D.N.Y. 1958) ..............0 0.0.0.0 0 0 cee eee, 7

Romero v. International Terminal Co., 358 U.S. 354... 3

Rylands v. Fletcher, L.R. 3 H.L. 330 ................ 8

Salaky v. The Atlas Barge No. 3, 208 F.2d 174 (C.A2

OO a re ee rn 7

Standard Dredging Co. v. Murphy, 319 U.S. 306... 3,45

Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S.

ja se rrr 3, 4

Statutes

38 USC. 4 LNG] ... 1... cece 4, 5,9

Pe OR” Sts SS : 10

46 U.S.C. § 740 20 cen. 7

Mass. G. L.c. 21 § 27(10) ........ 0, 1,11

Mass. G. L. c. 21 §§ 50-52... 6. ee. 1

Secondary Sources

Gilmore and Black, THE LAW OF ADMIRALTY

AN re 9:4 wi gn a a a a ae ae eye ee an hee 12

Healy and Paulsen, Marine Oil Pollution and the Water

Quality Improvement Act of 1970, 1 JMAR.LAW &

COMM. 537 (1970) .............. 000 cece eee eee 6

McCoy, Oil Spill and Pollution Control, 40 GEO.

WASH. L. REV. 97 (1971) ...................... 8

Morris, Hazardous Enterprises and Risk-Bearing Cap-

acity, 61 YALE L.J. 1172 (1952) .................. 12

United States Coast Guard, First Coast Guard Dis-

trict, REGION I MULTI-AGENCY OIL & HAZAR-

DOUS MATERIALS POLLUTION CONTIN-

GENCY PLAN (COASTAL) (1972) .............. 5

es. a ££ 6. ¢i,.t*mn-lale -me ete) -s'4 ee

In the

Supreme Court of the Anited States

No. 71-1082

REUBIN O’D. ASKEW, ET AL.,

APPELLANTS,

Vv.

THE AMERICAN WATERWAYS OPERATORS, INC.,

ET AL., -

APPELLEES.

ON APPEAL FROM A JUDGMENT OF THE UNITED STATES DISTRICT

COURT FOR THE MIDDLE DISTRICT OF FLORIDA

BRIEF FOR THE COMMONWEALTH OF

MASSACHUSETTS, AMICUS CURIAE

Interest of the Amicus

The Commonwealth of Massachusetts has enacted stat-

utory provisions (M.G.L. ¢c. 21, §§ 27(10), 50-52) for oil

pollution control and liability which are similar to Flori-

da’s challenged statute in a number of significant respects.

These include the authorization for a state agency to re-

move oil spilled on the Commonwealth’s waters, liability

2

without fault to the Comomnwealth for its costs incurred

in removing oil, and liability without fault to the Com.

monwealth and to property owners for damages to pnblic

and private property resulting from oil spills. Massachn.

setts, like Florida, believes that federal law and federal]

programs do not constitute a comprehensive approach to

the goal of protecting the coastal environment from oi]

spills. The gaps in federal law can be met by state action,

and will be met by any coastal state which values its ma.

rine resources. If the decision of the district court is to

stand, the constitutionality of Massachusetts’ oil spill stat.

ute is in doubt. The Commonwealth is thus vitally in-

terested in this case and urges, for the reasons hereinafter

stated, that the judgment of the district court should be

reversed.

Argument

I. Concress May ALLow THE States To Enact Laws Ar-

FECTING MarrrimE Commerce Ir Sucn Laws Do Nor

ConxFLict wiTH GENERAL ADMIRALTY Law.

Congress provided in the 1970 Water Quality Improve-

ment Act (the Act) that nothing in that act was to be

construed as preempting the states from setting their own

liability rules for oil spills within their territorial waters.

The court below held, however, that Florida’s right to enact

oil spill liability rules had been preempted by both the

Constitution and Congressional action. Relying on Knicker-

bocker Ice Co. v. Stewart, 253 U.S. 149, the court stated

that Congress is powerless to delegate to the states any

legislative authority within the admiralty jurisdiction. In

Knickerbocker, this Court invalidated an act of Congress

which would have allowed the application of state work-

men’s compensation laws to longshoremen injured in the

course of maritime employment. The Court said then that

3

the Constitution took from the states all power to legislate

individually in the maritime area and that Congress could

not disrupt the Constitution’s mandate for uniformity of

maritime law by delegating its power to the states.

However, the requirement of uniformity was itself lim-

ited in Standard Dredging Co. v. Murphy, 319 US. 306

where the Court passed on the validity of collecting a

state unemployment tax from employers of persons en-

in maritime work. The Court declined to apply the

Jensen-Knickerbocker doctrine, reasoning as follows:

‘‘‘Uniformity is required only when the essential

features of an exclusive federal jurisdiction are in-

volved.’ Just v. Chambers, 312 U.S. 383, 292. When

state compensation laws began to provide a remedy

for maritime torts, it was at least arguable that the

state remedy interfered with the existing admiralty

system of relief through actions such as maintenance

and cure .... No principle of admiralty requires

uniform state taxation.’’ 319 U.S. at 309.

Thus, the district court erred in concluding that any

state action affecting maritime matters is barred by the

admiralty clause of the Constitution. To claim, as the court

below seemed to do, ‘‘that all enforced rights pertaining

to matters maritime are rooted in federal law is a destruc-

tive over-simplification of the highly intricate interplay of

the States and the National Government in their regula-

tion of maritime commerce.’’ Romero v. International

Terminal Co., 358 U.S. 354, 373.

We think that the proper analytical approach for examin-

ing state laws with a maritime impact was set out in WWil-

burn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310,

314. There, where Congress had not fashioned rules gov-

erning marine insurance contracts, and the states, by Con-

4

gress’ consent or acquiescence, had created varying rules,

the Court posed two questions: Is there a judicially.

established Federal admiralty rule governing warranties

in such contracts, and, if not, should the Court establish

such a rule? The Court found no rule in existence and

declined to fashion one, deeming the task an appropriate

one for Congress if uniformity were desired. The Conrt

observed that ‘‘[u]nder our present system of diverse

state regulations, which is old as the Union, the insurance

business has become one of the great enterprises of the

Nation. Congress has been exceedingly cautious about dis.

turbing this system, even as to marine insurance where

congressional power is undoubted.’’ 348 U.S. at 320-21.

It is obvious from Standard Dredging and Wilburn

Boat, both supra, that this Court has retreated from its

holding in Knickerbocker Ice, supra. There are areas of the

law which affect maritime commerce but nevertheless are

still subject to the legislative requirements of individual

states, and we submit that the instant case involves one

such area.

II. Concress Has Lerr Many Aspects oF Or Poitvtioy

ConTroL UNAFFECTED BY FEDERAL Law AnD, IN Fact,

Has ANTICIPATED THAT STATE AcTION Wovutp Svppte-

MENT FeEpeRAL ACTION.

Section 1161(c)(2) of the Act requires a National Con-

tingency Plan including an ‘‘assignment of duties and re-

sponsibilities among Federal departments and agencies in

coordination with State and local agencies, including, but

not limited to, water pollution control, conservation, and

port authorities.’’ The National Plan states that the spec-

ific commitments of state agencies and other non-Federal

interests are to be set forth in regional contingency plans,

National Oil and Hazardous Substances Pollution Contin-

5

gency Plan §203. A typical regional plan, the Region I

Multi-Agency Oil & Hazardous Materials Pollution Con-

tingency Plan (Coastal), prepared by the First Coast

Guard District in Boston, provides in §203.1:

‘‘The general policy to be followed is that the state

and local governments will be expected to respond to

spills considered by the RRT [Regional Response

Team] to be within the capability of such groups.

The Federal Government will respond in those situa-

tions considered by the RRT to be beyond the capa-

bility of such groups.’’

The ‘‘exclusive federal 8ystem’’ test of Standard Dred-

ging is not met by the basic oil spill removal program.

The district court’s ruling has.meaning only if the Act

can be read as establishing uniform principles for the

recovery of cleanup expenditures made by Federal, state

or local authorities. However, the plain language of the

statute does not sustain such a reading. 33 U.S.C. §1161

(f)(2), for example, establishes a terminal operator’s

liability ‘‘to the United States Government”’ and provides

that the ‘‘United States may bring an action against the

owner or operator of such facility in any court of com-

petent jurisdiction to recover such costs.’’ Section 1161(n)

invests the district courts of the United States with juris-

diction over such actions. No provision of the Act gives

state agencies access to the Federal courts to collect their

cleanup expenses. Thus, the declaration of non-preemption

in $1161(0)(2) must mean that state courts are to impose

appropriate liabilities when state agencies remove spilled

oil.

The International Convention on Civil Liability for Oil

Pollution Damage, signed in Brussels in 1969 and await-

ing ratification by the United States Senate, would fill

some, but not all, of the gaps in the Act.

‘“‘The most fundamental difference between the Cop.

vention and Section 11 [the section covering oil spills)

is that the Convention relates not only to government

claims for ‘clean-up’, but also to claims for other dam.

ages sustained by public and private interests as

result of oil pollution. . . . Only seagoing vessels and

other seaborne craft (other than public vessels) actu.

ally carrying ‘persistent’ oil in bulk as cargo fall

under the coverage of the Convention, whereas Sec.

tion 11 applies ;to all vessels (with the exception of

public vessels) using United States waters or waters

of the contiguous zone, and to onshore and offshore

facilities as well.’’

Healy and Paulsen, Marine Oil Pollution and the Water

Quality Improvement Act of 1970. 1 J. Maritime Law &

Comm. 537, 563 (1970).

Thus, at such time as the Convention becomes effective

with respect to the United States, the liability rules for

some vessels would be established as a uniform policy and

state liability rules could not apply to those vessels. States

could recover their cleanup costs and damages to natural

resources under the Convention, but even then apart from

the Act’s limited scope there would be no codified liability

principles for shippers, terminal facilities, vessels not

covered by the Convention, or others causing oil spills.

ITI. Gewerat Marrrme Law Has a Lamirep Appuicatiox

to Om Spmx Conrrou ann Lissrmry, Leavixe Mary

Aspects To AcTION BY THE STATES.

General maritime law does not provide a broad remedy

for oil spill damage. But this lack of a broad remedy is not

reflected in the district court’s statement that the Act

‘“leaves undisturbed the remedies available under maritime

7

law for private injury caused by oil spillage or other pol-

lution.’’ 355 F.Supp. at 1247. The court supported its state-

ment by citation to several decisions in the Federal courts

which ‘‘considered oil pollution as a maritime tort for

which damages may be awarded,’’ (Ibid.), but most of

those cases were libels against a vessel: Salaky v. The Atlas

Barge No. 3, 208 F.2d 174 (C.A. 2 1953) ; California v. The

Bournemouth, 307 F.Supp. 922 (C.D. Cal. 1969); Petition

of New Jersey Barging Corp., (re The barge Perth Amboy

No. 1),168 F.Supp. 925 (8.D.N.Y. 1958). It is of course

settled law that proceedings im rem against a vessel lie

within admiralty’s exclusive jurisdiction, Madruga v. Su-

perior Court, 346 U.S. 556, 560, and owners of shoreline

property damaged by an oil spill are entitled to libel the

offending barge or tanker in admiralty, notwithstanding

that the damage or injury may have been consummated on

land, 46 U.S.C. § 740. The maritime tort liability of a

vessel found to be unseaworthy or negligently operated is

not limited to injuries actually caused by the physical agency

of the vessel, but may include injuries caused by the cargo

after the cargo leaves the ship. Gutierrez v. Waterman

8.8. Corp., 373 U.S. 206, 209.

None of the foregoing authorities cast any light on the

existence of a supposed general theory of property dam-

age liability for oil pollution in coastal waters. They in-

dicate rather a partial policy for cases resulting from the

spilling of oil by vessels, but are silent as to leakage or

spillage of oil by terminal facilities, pipelines, motor ve-

hicles, or any other means of containment.

One case cited by the court below was not a libel against

a vessel: Fireman’s Fund Ins. Co. v. Standard Oil Co., 339

F.2d 148 (C.A. 9 1964). In that case the opinion indicates

1The Act states explicitly, in §1161(0) (1), that it leaves undis-

turbed gta damage liability that may arise ‘‘under any provi-

w.’?

sion of

8

that several yachts and their insurers filed an admiralty

action in personam against the City of Los Angeles and

others as owners or operators of what appears to have

been a terminal facility for handling oil. The opinion jp.

dicates no challenge to the court’s jurisdiction and no

need to discuss alternative remedies which may have been

available in the California State courts. It has been sug.

gested that ‘‘where a traditional maritime interest is ad.

versely affected and the injury is suffered on admiralty

waters, admiralty jurisdiction exists regardless of whether

the spill originated on land or water.’’ McCoy, Oil Spill

and Pollution Control, 40 Geo. Wash. L. Rev. 97, 102 (1971),

Thus the extent of substantive maritime law on liability

for property damage caused by oil spills appears to be that

vessels can be libeled only in an admiralty court and that

owners of vessels can limit their liability in personam

under the Limitation of Liability Act. No tenet of substan-

tive maritime doctrine has been adduced which would bar

a state from applying the rule of Rylands v. Fletcher, L.R.

3 H.L. 330, to a terminal facility operator or from applying

the concept of enterprise liability to shippers who wish

to import oil through the state’s ports.

The district court disposed of the principle that ‘‘if the

maritime law affords no remedy, the states may provide

one’’ by citing this Court’s recent opinion in Moragne v.

States Marine Lines, Inc., 398 U.S. 375. In the district

court’s interpretation, the Moragne decision ‘‘rejected

the notion that the absence of a federal statute or a mari-

time rule on the subject compelled the conclusion that state

law must govern.’’ 355 F.Supp., at 1249. This extraordinary

interpretation was derived from quite different facts and

holdings. The subject in Moragne was recovery for wrong-

ful death, on the basis of unseaworthiness, within territorial

waters. There was a maritime rule on the subject: The

Harrisburg, 119 U.S. 199, held there could be no recovery.

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9

There was & Federal statute, the 1920 Death on the High

Seas Act, which preserved state wrongful death remedies

jn territorial waters. ‘‘Congress,’’ this Court said, ‘‘merely

declined to disturb state remedies at a time when they ap-

peared adequate to effectuate the substantive duties im-

by general maritime law,”’ adding the observation

that in 1920 state law ‘‘imposed a standard of behavior

generally the same as—and in some respects more favorable

than—that imposed by federal maritime law.’’ 398 U.S., at

999, This Court in Moragne did not question the validity of

Congress’ delegation to the states in 1920: rather, it noted

that the 1920 legislation was necessitated by the ruling in

The Harrisburg, and then decided to overrule The Harris-

burg.

In the light of the Moragne decision, we submit that

Section 1161(0) (1) of the Act can be read as indicating the

disposition of Congress to let state remedies for property

damage from oil spills help to effectuate the substantive

duty to prevent oil pollution in the marine environment.

As to vessels carrying oil, state law imposes a standard

of behavior generally the same as Federal law, although

state law may be in some respects more favorable to the

interests of environmental quality. As to terminal operators

and shippers, the absence of an admiralty remedy coupled

with the ‘‘savings-to-suitors’’ clause of Art. III may not

compel the conclusion that state law must govern, but these

considerations certainly permit the conclusion that state

law may apply.

IV. Tue AppLicaTIon or Strate Liasmiry Ruies to Om

Sprnis, Svssect TO ADMIRALTY PrincrpLes LIMITING

VesseL Liasitiry, Wii Nor INFRINGE ON THE EssENTIAL

Unrrormity Requirep ror Maritime CoMMERCE.

Oil spill liability can attach to several different classes

(terminal operators, vessels and their owners, oil shippers,

10

other parties who cause spills), in several different plage,

(inland non-navigable waters, navigable rivers, territorig)

coastal waters, the high seas), and for several differen

kinds of damage (clean-up costs by various levels of goy.

ernment, clean-up by private parties, damage to public rm.

sources, and damage to private property). State rules op

liability should be analyzed for the ‘‘who, where, and what”

points of application before they are invalidated in toto, See

Missouri Rates Cases, 230 U.S. 474.

It is unnecessary to discuss place and type of damage

at length. The same law which a state clearly could enfore

on its inland non-navigable waters but could not enfore

on the high seas, it may or may not be able to enforce on

navigable and coastal waters. The differences between clean.

up costs and property damages are plain, and the district

court distinguished these two elements of damage. But the

decision below did not discuss the different classes subject

to liability under the Florida statute; it concentrated on

vessel liability and thus overstated the impact of Florida

law on uniformity of admiralty law. We submit that poten.

tial defendants should be analyzed class by class.

(a) Vessels and their owners

Massachusetts does not challenge the Limitation of Lia-

bility Act (46 U.S.C. §§ 181-189) and concedes that a ship-

owner sued in personam for oil pollution damages could

limit his liability under that Act. Beyond this, the Florida

and Massachusetts statutes do not undermine or conflict

with any principle known to require uniform nationwide

application. The Water Quality Improvement Act allows

four defenses to an action against a vessel for cleanup ex-

penses, and the states do not explicitly allow the same de-

fenses on the same terms. However, the principal purpose

of the Act is to prevent oil spills, not to prevent the imposi-

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—

il

tion of liability on vessels. This essential purpose is re-

inforced by both the Florida and Massachusetts statutes.

(b) Terminal Facilities

Business enterprises such as oil terminals which are lo-

cated on the waterfront deal with maritime commerce on

one side and shoreside commerce on the other. The opera-

tors must therefore deal with state and local governments

with respect to many matters ranging from taxation and

Iand use regulation to industrial safety standards. Just as

states may strive to attract certain types of industries

through tax concessions, special zoning provisions, and so

forth, states have a concomitant power to discourage the lo-

cation of some industries on terms incompatible with the

state’s interests. Such conditions do not interfere with a uni-

form admiralty law, since admiralty law does not purport to

control the relationship between businessmen who happen

to do business on the waterfront and their state and local

governments and littoral neighbors. Certainly, no limit on

liability similar to that given vessels exists for shorefront

facilities at admiralty. Only in the Act’s eight million dollar

limitation on liability to the Federal government does any

concept of limitation for terminal facilities’ liability exist,

and the Act’s scheme is manifestly not an exclusive Federal

one.

(c) Shippers and owners of oul

Although Florida law does not mention shippers, Massa-

chusetts extends liability to ‘‘persons who owned or control-

led the oil’’ spilled on waters of the Commonwealth. M.G.L.

¢. 21, §27(10). The owners of such oil will in many if not most

cases be importing it to Massachusetts to sell within the

Commonwealth. As they are held strictly accountable for

oil spill costs, they can spread the cost of insuring against

12

such enterprise liability among the consumers. The market

price of oil will consequently come closer to reflecting a)

costs, including social costs, of bringing oil to these gop.

sumers. See Morris, Hazardous Enterprises and Risk.

Bearing Capacity, 61 Yale L.J. 1172 (1952).

Admiralty rules govern the liability of cargo to the vesge}

in various situations such as general average, and the rights

of salvors in cargo are another subject of admiralty. See

Gilmore and Black, Tue Law or Apmrma tty, chs. V, VII]

(1957). But no rule bars enterprise liability for cargo,

The economic effects of such liability would be felt locally

on land rather than generally throughout the maritime

community, and adoption of such laws thus becomes a poli-

tical question for each coastal state. Massachusetts has

decided that more pervasive security against oil spills is

worth a slight increase in the price its citizens must pay

for oil.

Conclusion

For the reasons stated herein, the Commonwealth of

Massachusetts urges that the judgment of the district court

should be reversed.

Respectfully submitted,

Rosert H. Quinn

Attorney General

Water H. Mayo III

Assistant Attorney General

Rocer Tippy

Assistant Attorney General

June 1972.

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13

APPENDIX

Massacuvusetts GeneraL Laws, Cu. 21

§27. Duties and Responsibilities of Division; Oil Pollution

of Waters.

It shall be the duty and responsibility of the division to

enhance the quality and value of water resources and to

establish a program for the prevention, control, and abate-

ment of water pollution. Said division shall:

a * -

(10) Undertake immediately, whenever there is spillage,

seepage or other discharge of oil into any of the waters of

the commonwealth or into any off-shore waters which may

result in damage to the waters, shores or natural resources

utilized or enjoyed by citizens of the commonwealth to cause

said spillage, seepage or discharge to be contained and re-

moved by whatever method it considers best. Chemicals

shall not be used in the clean-up operation of oil spills un-

less their use has been authorized by the division, and if a

public water supply or shelfish beds may be affected, by

the department of public health.

In this clause, the word ‘‘oil’’ shall mean insoluble or

partially soluble oils of any kind or origin or in any form

including, but not limited to, crude or fuel oils, lube oil or

sludge, asphalt, insoluble or partially insoluble derivatives

of mineral, animal or vegetable oils.

The division shall determine the person responsible for

causing such spillage, seepage or discharge and the names

of all persons who owned or controlled the oil or who owned

or controlled or leased the vessel, tank, pipe, hose or other

container in which the oil was located when the spillage,

seepage or discharge occurred. Said persons shall be jointly

and severally liable to the commonwealth for all costs and

expenses incurred by the division in making such investiga-

tion, and in containing and removing the oil, and shall be

14

jointly and severally liable to the commonwealth for all dam.

ages done to natural and recreational resources, including al]

costs of restoring damaged areas to their original condi.

tion, and to any other person for any damages to his req]

and personal property. The person responsible for causing

such spillage, seepage or discharge shall be punished by a

fine of not more than ten thousand dollars for each day such

spillage, seepage or discharge continues, or by imprison.

ment for not more than two years or both.

Upon request of the director, the attorney general shall

bring an action to recover all costs and expenses incurred

for such investigation, containment, removal and restora.

tion.

Such costs and expenses shall be recovered in an action

of tort, and shall be credited to the account from which said

sums of money had been advanced and may, subject to

appropriation, be expended by the division for the purposes

set forth in this clause. In any such action the common-

wealth may also seek recovery for all loss and damage to

the natural and recreational resources of the commonwealth.

Any owner or operator of a vessel, vehicle, railroad car

or facility used for the production, processing, transporta-

tion, transfer or storage of oil shall, as soon as he has knowl-

edge of any such spillage, seepage or discharge of oil into

or adjacent to waters of the commonwealth, promptly

notify the director of the division or his representative of

such discharge. Any person who fails so to notify the direc-

tor or his representative of such discharge shall be pun-

inshed by a fine of not more than five thousand dollars.

Any person who removes oil, as defined in this clause,

from the waters of the commonwealth or adjoining shore-

lines shall be entitled to reimbursement from any other

person for the reasonable costs expended for such removal,

if such oil resulted from the negligence of such other per-

son. When such discharge results from the joint negligence

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15

of two or more persons, each shall be liable to the others

for his pro rata share of the costs of removal.

Any person who gratuitously renders assistance at the

request of a duly authorized officer in removing oil from

the waters of the commonwealth or adjoining shorelines

shall not be held liable, notwithstanding any other provision

of law, for civil damages as a result of any act or omission

by him in removing such oil, except acts or omissions

amounting to gross negligence or willful or wanton mis-

conduct.

§50. Oil Pollution of Waters; Division May License Cer-

tain Terminals, Issue Regulations, Inspect Equipment, and

Require Payment of Fees; Penalty for Operation of Terminal

without License.

The division shall have the power to license all terminals

in the commonwealth for the loading or discharge of pe-

troleum products from vessels, and may issue reasonable

rules and regulations in connection therewith for the pur-

poses of protecting the public safety and for preventing the

spilling of the liquids into the water of the commonwealth.

The division shall inspect periodically hoses, gaskets,

tanks, pipelines and other equipment to make certain that

they are in good operating condition, and may order the re-

newal of any of such equipment found unfit for further use.

The division may require by rules and regulations that

suitable equipment be readily available to remove from

the waters of the commonwealth any petroleum or chemical

liquids spilled or discharged therein.

The division may require the payment of reasonable

fees, designed to cover the costs incurred by the above in-

spections and its other duties.

Whoever operates such a terminal without a license from

the division shall be punished by a fine of one hundred dol-

lars per day during such period of unauthorized operation.

16

§50A. Oil Pollution of Waters; Terminal Operators 1,

ee ee eee ae

thority of Director; Penalties.

Notwithstanding the provisions of section fifty, every

owner or operator of an oil terminal or wharf shall em.

ploy a trained crew and have a plastic or wooden boom

which is capable of encircling any ship or vessel d

oil into tanks or other receptacles at such terminal or wharf,

and which is designed to prevent seepage, overflow or ex.

cess oil from polluting or contaminating any lake, river,

harbor, tidal water or flats. If the director finds that because

of the negligence of such owner, operator or one of his

agents or servants repeated seepage, overflow or excess oil

has contaminated any lake, river, harbor, tidal waters or

flats he shall require every such owner or operator to en-

circle every ship or vessel depositing oil at his wharf or

terminal with such a boom. The authority granted to the

director under the preceding sentence shall not be construed

to diminish his powers to regulate and control oil spillage,

including his power to require the use of booms, granted by

section fifty. The owner or operator of any such wharf or

terminal shall remove any oil held within such boom prior

to a ship or vessel leaving the same. Whoever violates the

provisions of this section shall be punished by a fine of not

more than one thousand dollars. A license issued under

section fifty to operate a terminal may be revoked for viola-

tion of any of the provisions of this section.

§50B. Bond to Be Furnished by Vessels Receiving or Dis

charging Petroleum Products; Forfeiture to Extent of Dam-

age, Costs, Fines; Penalties for Operation Without Bond.

Any vessel, whether or not self-propelled, in or entering

upon the waters of the Commonwealth for the purpose of

discharging or receiving a cargo of any bulk petroleum

product in the commonwealth shall post a bond with the

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division of at least twenty-five thousand dollars payable to

the commonwealth. Said bond shall be in a form approved

by the division and may be obtained individually or jointly

by the vessel, its owners or agent, its charterer, or by the

owner or operator of the terminal at which the vessel dis-

charges or receives said petroleum products. If the divi-

sion determines that oil, as defined in clause (10) of sec-

tion twenty-seven, has been discharged into the waters of

the commonwealth from said vessel, the bond shall be for-

feited to the extent of the costs incurred by the division in

containing and removing said oil, to the extent of damage

caused to the natural and recreational resources of the com-

monwealth, and to the extent of any otherwise uncollectable

fines levied against the operators of said vessel for viola-

tion of any laws relating to water pollution abatement. The

remedies provided in this section shall be in addition to all

other remedies available. No bond shall be released with-

out certification by the division that the vessel has not

been a source of oil pollution. Other evidence of financial

responsibility which is satisfactory to the division may be

accepted by the division in lieu of bonding. Any vessel in

the waters of the commonwealth for the purpose of dis-

charging, or which receives, cargo of bulk petroleum prod-

ucts in the commonwealth without being bonded as provided

in this section, or without having submitted other evidence

of financial responsibility acceptable to the division, and

the owner, agent and charterer of said vessel, and the

operator of any terminal which receives or discharges such

cargo from or to a vessel not so bonded, shall be punished

by a fine of not more than five thousand dollars.

The superior court in equity shall have jurisdiction to

enforce the provisions of this section. -

§51. Same Subject; Division to Represent Commonwealth

in Its Relations with Federal Government and with Cities,

18

Towns and Authorities, and May Enter into

ments and Contracts.

The division shall represent the commonwealth i

lations with the federal government and with citi Y

and authorities in all matters relating to oil pollytj

the waters of the commonwealth or off-shore waters, J

enter into agreements ‘with said agencies to coo ting 1a ,

pervisory activities and, subject to appropriation, t¢

reasonable costs. ssi a

It may contract with public or private individualag

cerns or agencies for such protective and clean-up. segj

asitmay require. a

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§52. Same Subject; Collection and Disposal of Was ny

Permit. “dig

No one shall engage in the business of collecti

oil or shall dispose of waste oil in any waters of t ~

monwealth, without a permit from the division. Said]

mit shall not be granted unless the division is satisfied

such disposition will not result in further pollutionas

The division shall consult with and advise persons,

gaged or intending to engage in the business of dispos

of waste oil as to the most appropriate and best metho

disposal. It shall conduct a program of study and ress

and demonstration, relating to new and improved. metiy

of waste disposal. *

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