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

COPY / FitiebD

a 15 1972

| MICHAEL RODAK, JR.,CLERK

i crm Court of the United States

No. 71-1082

Revsix O’D Askew, et al.,

. Appellants,

agamst

Tae American Waterways Operators, Inc., et al.,

Appellees.

On Appeal FroM THE Unrrep States District Court

oF THE Mippie Distaict or Fiorma

=—

BRIEF OF THE STATE OF NEW YORK, JOINED BY THE

STATES OF CONNECTICUT AND DELAWARE, AS

AMICI CURIAE IN SUPPORT OF REVERSAL

$$

Louis J. Lerxowrrz

Attorney General of the

State of New York

Attorney for State of New York,

Amicus Curiae

80 Centre Street

New York, New York 10013

(212) 488-7567

Sauce, A. HimsHowrtz

First Assistant Attorney General

Pau Werrserc

Jims P. Conconan

Assistant Attorneys General

of Counsel

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— |.

TABLE OF CONTENTS

Interest of the Amicus ........-seseeeeeeeeecceceee 1

Ancuuent—Chapter 70-244 of the Laws of Florida,

1970, is a valid exercise of the State’s police

power to protect its natural resources and the

health and livelihood of its citizens. It does not

unconstitutionally interfere with Federal admi-

ralty or maritime jurisdiction, nor does it operate

ina eld preempted by Congress .............. 3

The jhature of the Florida statute ............ 3

The statute is a valid exercise of the police power 5

The alleged interference with Federal maritime

jurisdiction ........-.eeeeeeeeeecececeeeeee 9

The Water Quality Improvement Act does not

preempt this field or divest the state of juris-

diction to protect its beaches and harbors .. 12

I naan bc Santis bicis dah eendedecade staces 19

TaBLp oF CasEs

A. E. Nettleton Co. v. Diamond, 264 N.E. 2d 118, 27

N.Y. 2d 182 (1970), app. dism. sub nom. Reptile

Products Ass’n v. Diamond, 401 U.S. 969 ....... 12, 18

Adams v. Tanner, 244 U.S. 590 .........e-eeeeeeees 17

Albina Engine & Machine Works, Inc. v. Hershey

Chocolate Corp., 295 F. 2d 619 (9th Cir. 1961) .. 5,11

ii TABLE OF CONTENTS

P,

American Manufacturers’ Mut. Ins. Co.-v. Manor In. #

vestment Co., 286 F.Supp. 1007 (S.D.N.Y. 1968)

Anderson v. Pacific Coast S.S. Co., 225 U.S. 187 .... 5

Brotherhood of L. Firemen v. Chicago, R.I. & PR.

Co., 308 US. 120 ...... ove ee ‘

Chambers-Liberty Counties Naval Dist. v. Parker

‘Bros. & Co., 263 F.Supp. 602 (S.D. Tex 1967) .. 1

Chrysler Corp. v. Tofany, 419 F. 2d 499 (2d Cir,

ar eee Pere Pere rere eee 813

Commonwealth v. Manchester, 25 N.E. 113, 152 Mass,

SOE LEONE) ews 60 ene ckndneckeul opesedepas aad 4

Cooley v. Board of —— OS UD. Te cv vccicicn 5

Davis v. Department of Labor, 317 U.S. 249, reh. den.

Ae SA BA 6 0 bbo 00045 bee 2 a0e eek ee 15,16

Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421... 3

Department of Health v. Passaic Valley Sewage

Commission, 242 A. 2d 675, 100 N.J. Super. 540

(1968), aff’d 253 A. 2d 577, 105 N.J. Super. 56 11

Evansville-Vanderburgh Airport Auth. Dist. v. Delta

Airlines, Inc., US. , 92 S.Ct. 1349 ..... B

Ferguson v, Skrupa, 372 U.S. 726 ........sccceeess 6,17

Florida Lime & Avocado Growers v. Paul, 373 U.S.

WE: nd iwekedivannds ces Macs ts 00e cde 2

Goldblatt v. Town of Hempstead, 369 U.S. 590 ...... 3

Gonzalez v. Freeman, 334 F. 2d 570, 118 U.S. App.

i Be TI heb si ads ssckeststeceen nse if

Hahn v. Ross Island Sand & Gravel Co., 358 U.S. 272 16

Huron Portland Cement Co. v. City of Detroit, 362

SEs OD 6 os 085466 ci gan ceeestsbinecdeneee

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TABLE OF CONTENTS : iii

PAGE

BONY Co vpecevesecossenscresoecsescesseoeses

Kelly v. Washington, 302 U.S.1...........-++++.. 7,9

Lake Carriers’ Assn. v. MacMullan, 40 L.W. 4569 ... 9

Wstter of Engelsher v. Jacobs, 157 N.E. 2d 626, 5

N.Y. 2d 370 (1959), cert. den. 360 U.S. 902 ..... 6

Matter of Guardian Life Ins. Co. v. Bohlinger, 124

NE. 2d 110, 308 N.Y. 174 (1954), rearg. den. 125

er i Oe Mi OD vivcressvsccrvs bevae 14

Maner v. Hamilton, 309 U.S. 598 .-..........+000-- 8

McDonald v. Board of Election Commissioners, 394

SE og os oh bec oe sks phd ded o ss dnevensober 12

Mirkovich v. Milnor, 34 F.Supp. 409 (N.D. Cal. 1940) 4

Morgan’s Steamship Company v. Louisiana Board of

SEO Wd TEM cas cbaeedecsccctsoces> 5

New York State Waterways Assn. v. Diamond, ——

F Supp. —— (W.D.N.Y., Burke, J., decided Jan.

Es Rene Pe re meer or 9;

set forth at 20-23

Oestereich v. Selective Service System, 393 U.S. 233 14

Olsen v. Nebraska, 313 U.S. 236 ............ece00- 17

Palladio, Inc. v, Diamond, 321 F.Supp. 630 (S.D.N.Y.

190), aff’d 440 F. 2d 1319, cert. den. 404 U.S.

perro edecs ubas see ehie Me sus oe oedes 13, 18

Pet, of N. Y. Trap Rock Corp., 172 F.Supp. 638

RPA SOUND a ntcevsrcescpecesedesccccsese 16

Revel v. American Export Lines, Inc., 162 F.Supp. 279

(ED. Va.), ait’ 206 F.2d GB 2... ccccccccecees 16

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iv TABLE OF CONTENTS

PAGE

_ Rice v. Santa Fe Elevator Corp., 331 U.S. 218 ...... 1001

Santa Cruz Oil Corp. v. Milnor, 130 P. 2d 256, 55 Cal,

App: 00° GB: (19GB) i... ie cca Ls |

Shell Oil Co. v. S.S. Tynemouth, 211 F.Supp. 908 .

CUR Bonk. BOER: adi s caw askin cceteceaesden 16

Skiriotes v. Florida, 313 U.S. 69 ................., 4

Slaughter-House Cases, 83 U.S. 81 ..............., 3

Southern Pacific Co. v. Jensen, 244 U.S. 205 ..... 15, 16,17

State v. Ruvido, 15 A. 2d 293, 137 Me. 327 (1940) .... 4

Swift & Co. v. Wickham, 230 F.Supp. 398 (S.D.N-Y,

1964), cert. den. 385 U.S. 1086 ................ 11,22

Terminal Railroad Assn. of St. Louis v. Brotherhood

ee: whit ee 8 ll

United States v. Maine, Orig. No. 35 .............. 4

Victory Carriers, Inc. v. Law, 404 U.S. 202, reh. den.

GR FETE, Ses wa 6c ae nncdn cn een Vb sasenene 16

Statutes Crrep

Admiralty Extension Act of 1948 (46 U.S.C. § 740) .. 16

Federal Limitation of Liability Act of 1853,

oR OR eee erry Pore I

UE SU... es... ce Ri cvunkeecaboasaaee "

Federal Water Pollution Control Act, 33 U.S.C.

—— QTUSL et seq. .... eee cece eee eee e ee eee eens 10

Water Quality Improvement Act of 1970, 33 U.S.C.

5) Re oer ert rrr 9, 13, 14

Submerged Lands Act of 1953, 43 U.S.C. §1311.... 4

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TABLE OF CONTENTS ¥

PAGE

Laws of Florida,

Chapter 70-244 ........seeseeeeeeeeeeee 1, 3, 7, 14, 18

New York Public Health Law,

Section 1221 (2) .......seeeeeeeereeeeececeees

1

TID nnn nccedsescasesccncdevecesseves 1

1

1

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—e

Gureme Cort of the United States

Revsrx O’D Askew, et al.,

: Appellants,

against

Tae American Waterways Operators, Inc., et al.,

Appellees.

Ox APPEAL FRoM THE Unrrep States Distaict Court

or THE Mippte District oF Fiona

+.

af

BRIEF OF THE STATE OF NEW YORK, JOINED BY THE

STATES OF CONNECTICUT AND DELAWARE, AS

AMICI CURIAE IN SUPPORT OF REVERSAL

Interest of the Amicus

The State of New York has long been a leader in the

enactment of legislation designed to protect the health,

safety, and welfare of its citizens from the harmful effects

of pollution. Section 1221(2) of the New York Public

Health Law prohibits the discharge of oil and other speci-

fied pollutants into the territorial waters of New York,

and in §§ 1250, 1251 and 1252, civil and criminal penalties

are imposed for such a violation. At present legislation is

pending in New York which would impose absolute liabil-

ity on those responsible for the discharge of oil into the

territorial waters of the State. This proposed legislation

has certain similarities with Chapter 70-244, Laws of Flor-

ida, 1970, the statute under consideration here.

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2

The devastating and long-lasting damage to beaches,

harbors and coastal wetlands wrought by oil Spills has bee,

demonstrated all too frequently in recent years and ig noy

a matter of which judicial notice may be taken. Subst.

tial damage has been done to the coastal waters of Ney

York, in Long Island Sound and elsewhere, by the spill

of large quantities of oil from tankers and other =

Future damage threatens to be more widespread, especially

if leases for oil drilling along the Atlantic seaboard m

the Outer Continental Shelf are granted. Such leases an

now being considered. The severe effects of snch ail

pollution on coastal lands, fisheries and waterfowl hay:

already been demonstrated in the Santa Barbara Cham

and the Gulf of Mexico, and it is our position that the

states, under the ample authority of their police powers,

may prohibit oil pollution of the coastal waters within

their territorial jurisdiction just as they may prohibit

the discharge of other hazardous and polluting substances

into their air and waters.

Because of New York’s vital concern with the preserva.

tion and protection of its waters and coastal lands, and

in view of the State’s interest in enacting legislation to

impose strict liability on oil spills within New York's

territorial waters, New York views the outcome of this

litigation with deep interest. We are concerned with the

effect that appellees’ challenge to the Florida Aet, if

successful, might have on New York’s efforts to protect

its shoreline and coastal waters, and the environmental

and economic interests represented therein, from one of

the most harmful forms of pollution known to man—0il

pollution. The decision in this litigation may therefore

have a substantial effect on the health, safety, welfare,

and legal rights of the citizens of New York State and our

sister states. Indeed, a determination that the coastal

states are without power to protect their territory from

this hazard would deal a debilitating blow to their efforts

to protect their environment from this most virulent

form of pollution.

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3

ARGUMENT

Chapter 70-244 of the Laws of Florida, 1970, is a

nlid exercise of the State’s police power to protect its

mtural resources and the health and livelihood of its

It does not unconstitutionally interfere with

Federal admiralty or maritime jurisdiction, nor does it

operate in a field preempted by Congress.

A.

The nature of the Florida statute

The Court below erred grievously in treating this statute

ss an “unlawful intrusion into the exclusive federal

sdmiralty domain’? (App. p. 42). That amounted to a

distortion of the act, which is directed at the pollution of

beaches, shoreline and coastal waters caused by spills of oil

and other viscous liquids—not at navigation or admiralty.

The act prohibits such discharges into the beaches and

coastal waters of Florida (Ch. 70-244, Section 4), licenses

terminal facilities (refineries, oil storage tanks, and the

like), and imposes strict liability on oil spills within the

state’s boundaries, whether from terminal facilities or

from vessels. The regulation of these fundamental areas

is within the very core of the state’s police power, which

extends to all the great public needs, Day-Brite Lighting,

Inc. v. Missouri, 342 U.S. 421, including the protection

of the state’s coastlines, beaches, fisheries, shellfish and

territorial waters, and the natural resources contained

therein, from irreparable damage caused by the discharge

of oil into said waters. Huron Portland Cement Co. v.

City of Detroit, 362 U.S. 440 (smoke control) ; Goldblatt v.

Town of-Mempstead, 369 U.S. 590 (dredging and exca-

vating). Ever since the historic Slaughter-House Cases,

83 U.S. 81, it has been universally recognized that the

states may take reasonable steps to regulate private in-

dustry so as to prevent occurrences dangerous to the public

health. :

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4

The courts have consistently upheld the right of state,

to protect their fisheries within their territorial waters, as

does the Florida statute challenged here. See, ey

Mirkovich v. Milnor, 34 F. Supp. 409 (N.D. Cal, 194):

State v. Ruvido, 15 A. 2d 293, 187 Me. 327 (1940); In

Marincovich, 192 Pac. 156, 48 Cal. App. 474 (1920): Sant,

Cruz Oil Corp. v. Milnor, 130 P. 2d 256, 55 Cal. App. 2

56 (1942); Commonwealth v. Manchester, 25 NE. 113

152 Mass. 230 (1890); See also Skiriotes v. Florida, 313

U.S. 69. These decisions unequivocally hold that the

states have the right to legislate to protect their fisheries

and other resources in their territorial waters. The

authority of the states to license and regulate commereis]

fishing within the three-mile limit has been repeatedly up.

held as a valid exercise of the police power of the state.

In view of the serious danger to public health and natural

resources posed by pollution resulting from oil spills—

pollution of watercourses, killing of fish and

pollution of shellfish beds, and destruction of beaches and

coastal wetlands—it would be anomalous indeed were this

Court to sustain the states’ authority over fishing while

denying the states power to control oil spills which have

the capability to destroy fisheries and shellfish grounds

for years.

The minimum extent of the states’ territorial jurisdic

tion is delineated by the Submerged Lands Act of 193,

43 U.S.C. 4 1311, which codifies the states’ exclusive juris

diction over submerged lands from the shoreline to the

three-mile limit.* The effect of the amazing and regres

sive decision of the District Court, however, would be to

completely divest the states of their legal rights to safe

guard their own territorial waters within the three-mik

limit and the health of their citizens.

* It is the position of New York as well as Florida and the other

Atlantic coastal states that their jurisdiction in fact extends to th

outer limit of the Continental Shelf. See United States v. Mam,

Orig. No. 35, presently pending before this Court. That issue is

not before the Court in this case.

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5

The statute is a valid exercise of the police power

The decision below in an unprecedented and anachro-

sistic way undercuts the states’ authority to protect their

shores from pollution. In the exercise of its police

poweF, the states may act, in maritime and interstate com-

merce activities, concurrently with the Federal govern-

ment, except in fields preempted by Congress. In Huron

Portland Cement Co. v. City of Detroit, supra, 362 US.

440, this Court upheld a local Smoke Abatement Code that

applied to ships’ boiler stacks, even though the boilers had

already been inspected and licensed by the federal govern-

ment. At 442 this Court noted:

“The ordinance was e for the manifest purpose

of promoting the health and.welfare of the city’s in-

habitants. Legislation designed to free from pollution

the very air people breathe clearly falls within the

exercise of even the most traditional concept of what

is compendiously known as the police power. In the

exercise of that power, the states and their instrumen-

talities may act, in many areas of interstate commerce

and maritime activities, concurrently with the Federal

Government.”

We have progressed far beyond the era when the Fed-

eral government’s jurisdiction over maritime and inter-

state commerce activities, like the due process clause, was

used to strike down state health and sanitary regulations,

factory inspections, and safety regulations for transporta-

tion and industry. Ferguson v. Skrupa, 372 U.S. 726, 729-

132; Huron Portland Cement Co. v. City of Detroit, supra,

362 U.S. at 448. See also Albina Engine & Machine Works,

Inc. v. Hershey Chocolate Corp., 295 F. 2d 619, 622 (9th

Cir. 1961) (upholding city regulation of welding and burn-

ing aboard ships). As long ago as Morgan’s Steamship

Company v. Louisiana Board of Health, 118 U.S. 455, this

Court upheld the right of Louisiana to protect its residents

from cholera, yellow fever, and other diseases by requiring

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6

all vessels entering New Orleans to submit to a health in.

spection and the payment of an inspection fee. And sing

‘*[t]he police power of the State is the least limitable

‘all the powers of government’’ (Matter of Engelsher y,

Jacobs, 157 N.E. 2d 626, 627, 5 N.Y. 2d 370 [1959], con

den. 360 U.S. 902), it has been held, as this Court poi

out in Huron Portland Cement Co. v. City of Detroit,

supra, 362 U.S. at 447448:

“(A] federally licensed vessel is not, as such,

from local pilotage laws, Cooley v. Board of Wardens

of Port of Philadelphia, 12 How. 299, or local quaran.

tine laws, Morgan’s Steamship Co. v. Louisiana Board

of Health, 118 U.S. 455, or local safety i

Kelly v. Washington, 302 U.S. 1, or the local regula.

tion of wharves and docks, Packet Co. v. Catlettsburg,

105 U.S. 559. Indeed, this Court has gone so far as

to hold that a state, in the exercise of its police power,

may actually seize and pronounce the forfeiture of a

vessel ‘licensed for the coasting trade, under the laws

of the United States, while engaged in that trade’

Smith v. Maryland, 18 How. 71, 74. The present case

obviously does not even approach such an extreme, for

the Detroit ordinance requires no more than com

pliance with an orderly and reasonable scheme of com.

munity regulation. The ordinance does not exelnde

a licensed vessel from the Port of Detroit, nor does it

destroy the right of free passage. We cannot hold that

the local regulation so burdens the federal license as

to be constitutionally invalid.”

Here, this language is even more apt. The Florida stat

ute requires only that oil and gas drilling, storage and re

finery facilities, as well as vessels traversing the territorial

waters of the State, should assume full responsibility for

any damage they may cause to the fisheries and other re

sources of the people of the state and that such terminal

facilities and vessels be adequately insured to that end

The Florida law does not destroy the right of free pas

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‘ 7

or exclude any licensed vessels from the ports of

Florida so long as the vessels comply with the minimum

safety requirements enacted to protect the state’s citizens

from the devastation of oil spills.

In Kelly v. Washington, 302 U.S. 1, where this Court

the right of that State to require a safety inspec-

tion of all tug-boats plying its navigable waters, the Court

held (at p. 14):

‘‘When the State is seeking to prevent the opera-

tion of unsafe and unseaworthy vessels in going to

and from its ports, it is exercising a protective power

akin to that which enables the State to exclude dis-

eased persons, animals and plants. These are not

proper subjects of commerce, and an unsafe and un-

seaworthy vessel is not a proper instrumentality of

commerce. When the State is seeking to protect a

vital interest, we have always been slow to find that

the inaction of Congress has shorn the State of the

power which it would otherwise possess.’’

The catastrophic public health, environmental and eco-

nomic effects of unregulated oil spills on the victimized

state and its citizens render this reasoning and holding

equally applicable here.

The Court below disregarded the plain wording of the

statute, which by its terms deals not only—or even pri-

marily—with navigation, but with prohibiting ‘‘[t]he dis-

charge of oil, petroleum products, their by-products, and

other pollutants into or upon any coastal waters, estu-

aries, tidal flats, beaches and lands adjoining the seacoast

of the state * * *’’ (Ch. 70-244, $4). The act goes on to

license terminal facilities, defined as waterfront facili-

ties “other than vessels not owned or operated by such

facility,’’ used to drill, pump, store or refine oil (¢d.

§§3[9], 6[1]). The provisions prohibiting discharge of —

pollutants and imposing liability therefor are applicable

to terminal facilities as well as to vessels. Liability is

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8

incurred only where pollutants are discharged into or

the lands or coastal waters of the state (id. § 4), and th

‘*powers and duties’’ of the State’s agents are

limited ‘‘to the boundaries of the state’’ (id. $5[2]). The

entire thrust of the act is not to regulate navigation »

commerce but to protect against oil spills and other tu.

lawful discharges of pollutants, from terminal facilities

as mych as from vessels. To adopt the view that the

states are powerless to so protect their beaches, harbor

and fisheries would be tantamount to holding them forhig.

den by the clause forbidding undue burdens on interstat,

commerce to regulate safety on their highways and street,

See Chrysler Corp. v. Tofany, 419 F. 2d 499 (2d Cir. 1969)

(upholding state regulation of auto headlights); Brother.

hood of L. Firemen v. Chicago, R. I. é P. R. Co., 393 US,

129 (full-crew laws); Maner v. Hamilton, 309 U.S. 59

(state regulation of truck weights).

And as the Court held in Chrysler Corp. v. Tofany,

supra, 419 F, 2d at 511, ‘‘it is well-settled that where the

state’s police power is involved, preemption will not be

presumed.”’ .

In Terminal Railroad Assn. of St. Louis v. Brother.

hood of R. Traimmen, 318 U.S. 1, 6-7, this Court held,

with striking applicability to the case at bar:

‘*State laws have long regulated a great variety of

conditions in transportation-and industry, safety de.

vices and protections, purity of water supply, fire

protection, and innumerable others. * * * [W]e would

hardly be expected to hold that the price of the fed-

eral effort to protect the peace and continuity of

commerce has been to strike down state sanitary

codes, health regulations, factory inspections, and

safety provisions for industry and transportation.”

In the closely comparable field of pilotage, this Court

has consistently sustained State regulatory legislation a

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yithin the police power. Anderson v. Pacific Coast 8.8.

(o., 22 U.S. 187; Cooley v. Board of Wardens, 53 U.S.

“999, The considerations of protection of the state’s health

and resources here are at least equally powerful.

The alleged interference with Federal

tiene tertedicti

The admiralty and maritime jurisdiction of the Federal

government has never been inflated so as to paralyze the

states from enforcing laws to prevent the pollution of

their lands and coastal waters or to protect the health of

their citizens. Huron Portland Cement Co. v. City of

Detroit, supra, and Kelly v. Washington, supra, both make

it erystal clear that state health and safety regulations

otherwise valid under the police power will not be over-

turned on that ground. See also New York State Water-

ways Assn. v. Diamond, —— F. Supp. —— (W.D.N.Y., |

Burke, J., decided Jan. 12, 1971)*, upholding New York’s

Navigation Law provisions against discharge of sewage

from vessels as against a similar claim.

Indeed, the District Court, under well-established prin-

ciples, should have abstained from reaching these issues

at all prior to affording the state courts an opportunity to

pass on the statute, since it is possible the Florida courts

might construe it so as to avoid some or all of the issues

here raised. Lake Carriers’ Assn. v. MacMullam, 40 L.W.

4569, 4573.

The Court below placed great reliance on the Water

Quality Improvement Act of 1970 (33 U.S.C. $1161) as

“tangible evidence that the Florida Act is an unconstitu-

tional intrusion’? (App. p. 41). But this is belied by the

terms of the Federal act itself. Section 1161(e) of the

Act expressly provides that the Federal statute shall not

be construed to preempt the right of a state to impose

9

_*A copy of that decision is annexed hereto as an appendix to

this brief at pp. 20-23.

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10

“‘any other requirement or liability’’ with respect to the

discharge of oil into the territorial waters of the tate.

Congress, far from preempting the field, has actually jp.

vited the states to enact legislation to protect their om

) vital environmental and economic interests from the threat

of oil pollution.

The Florida statute represents a reasonable effort by

the State to protect its own waters from pollution, };

the Federal Water Pollution Control Act, 33 Ug¢

§§ 1151 et seq., in pari materia with the 1970 Act, Con,

gress specifically recited and reiterated the tradition)

powers and responsibilities of the states in this area

(§ 1151[b]) :

‘In connection with the exercise of jurisdiction over

the waterways of the Nation * * *, it is declared to he

the policy of Congress to recognize, preserve and pro.

tect the primary responsibilities and rights of the

States in preventing and controlling water pollu.

tion, eee

Again (§ 1151[c]):

‘‘Nothing in this chapter shall be construed as im.

pairing or in any manner affecting the right or juris

diction of the States with respect to the waters * * *

of such States.’’

And §1160(b) provides:

‘‘State and interstate action to abate pollution of in

terstate or navigable waters shall be encouraged and

shall not * * * be displaced by Federgl enforcement

action.’’

Since this Court has repeatedly held that federal pre-

emption of the ‘‘historic police power of the States”’ wil

not be decreed ‘‘unless that was the clear and manifest pur-

pose of Congress,’’ Rice v. Santa Fe Elevator Corp., 331

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11

US. 218, 230, it is clear that the Florida statute in issue

must stand as a valid constitutional exercise of that state’s

inherent powers. See also Department of Health v. Passaic

Valley Sewage Commission, 242 A. 2d 675, 679-680, 100 N.J.

Super. 540 (1968), aff’d 253 A. 2d 577, 105 N.J. Super. 565:

“(NJo legislation is extant which has whittled away

the power of the State or its agency, the Department,

so as to deprive the Department of jurisdiction over

pollution prevention in the New Jersey waters of upper

New York Bay * * *.”’

See also Albina Engine and Machine Works, Inc. v.

Hershey Chocolate Corp., 295 F. 2d 618, 622, supra:

‘‘We find no conflict nor any Federal intent in pre-

venting the City of Portland from legislating in this

area [regulation of welding or burning aboard ships]

in which the City’s interest so obviously appears.’’

Absent Congressional intent to create an exclusive system

of regulation, the presumed validity of the Florida statute

should be upheld. Swift é Co. v. Wickham, 230 F. Supp.

398, 406 (S.D.N.Y. 1964), cert. den. 385 U.S. 1036 (uphold-

ing State regulation of weights of fowl despite Federal

Poultry Products Inspection Act). See also Terminal R.

Assn. of St. Louis v. Brotherhood of R. Trainmen, supra,

318 U.S. 1, 7 (rejecting a claim that the Railway Labor Act

preempted state laws regulating working conditions).

The Court below strangely insisted that the fact that the

statute concerns itself with water pollution from, among

other sources, vessels, in some way acted as a talisman to

remove its subject-matter from the state’s jurisdiction. But

the fact that navigable waters are involved no more de-

prives the state of authority than does the fact that com-

merce is involved bar the states from regulating highways,

or foodstuffs, or air pollution. This Court has, as we have

shown, consistently rejected such arguments. The recent

public concern over protection of the environment, coupled

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with the advent of supertankers and the granting of Teases

for offshore oil drilling, has prompted legislation such as

Florida’s which concededly regulates, among other

discharges from ships in its territorial waters. The legal

footing of such legislation is as solid as is that i

state regulation of emissions from motor vehicles or from

factories engaged in interstate commerce.

The Water Quality Improvement Act does not

preempt this field or divest the state of

jurisdiction to protect its beaches and harbors

The District Court confusingly interwove the plaintiffs’

claims of ‘‘interference with navigation’ and of “pre.

emption.’’ This was symptomatic of its failure to properly

weigh the state’s profound interest in protection of its

natural resources and economy as well as the health of its

citizens. In fact the Court below ignored the powerful pre.

sumption of constitutionality of the statute, McDonald y,

Board of Election Commissioners, 394 U.S. 802, 809, and

stretched the language of the Water Quality Improvement

- Act in a seeming effort to create Federal preemption where

none exists, and where Congress clearly expressed its in-

tent that none exist.

In determining whether the Federal act preempted the

entire field, the District Court should have commenced

with the premise that only where the Federal and state

acts inevitably collide, or where Congress has unmistak-

ably expressed its intent to occupy the field, is preemption

to be inferred. Florida Lime & Avocado Growers v. Pau,

373 U.S. 132, 142. Instead it sought out conflict where

none exists, ignoring the host of recent cases in which, on

comparable facts, this Court has rejected the claim of

preemption. Swift & Co. v. Wickham, supra, 230 F. Supp.

398, 406, cert. den. 385 U.S. 1036 (upholding state poultry.

weight regulations as against claim of preemption by Food

& Drug Act); A.E. Nettleton Co. v. Diamond, 264 NE. %

118, 27 N.Y. 2d 182 (1970), app. dism. sub nom. Reptile

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13 “f

Products Assn. v. Diamond, 401 U.S. 969 (upholding state

| species legislation although broader than Fed- .

eral law); Palladto, Inc. v. Diamond, 321 F. Supp. 630

(S.D.N.Y. 1970), aff'd 440 F. 2d 1319, cert. den. 404 U.S.

963, See also Evansville-Vanderburgh Airport Auth. Dist.

* y, Delta Airlines, Inc., US., , 928. Ct. 1349; Chrys-

ler Corp. v. Tofany, supra, 419 F. 2d 499. In the Evansville

Airport case this Court aptly held that state departure

taxes do not ‘‘conflict with any federal policies furthering

wiform national regulation of air transportation. No. fed-

eral statute or specific Congressional action or declaration

evidences a Congressional purpose to deny or pre-empt

state and local power to levy charges designed to help de-

fray the costs of airport construction and maintenance.’’

92 §. Ct. 1349, 1357.

The Federal act dovetails with rather than conflicts with

the state law here. It sets forth as ‘‘the policy of the United

States that there should be no discharges of oil into or

upon the navigable waters of the United States [or] ad-

joining shorelines’’ (33 U.S.C. § 1161[b][1])—the precise

goal of the Florida statute. The Federal law repeatedly

emphasizes cooperation with the states, as in the National

Contingency Plan for removal of oil (id. $1161[c][2])

(assignment. of duties and responsibilities among Fed-

eral departments and agencies in coordination with State

and local agencies, including, but not limited to, water pol-

lation control, * * *’’).

Again, abatement action by United States attorneys is

to be taken ‘‘[i]n addition to any other action taken by a

State or local government’’ (id. §1161[e]). And, most

precisely on point here, the Federal act states (id.

$1161[0]):

(1) Nothing in this section shall affect or modify

in any way the obligations of any owner or operator

of any vessel, or of any owner or operator of any

onshore facility or offshore facility to any person or

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14

agency under any provision of law for damages tp

any publicly-owned or privately-owned property tp.

sulting from a discharge of any oil or from the np

moval of any such oil. .

(2) Nothing im this section shall be construed x

preempting any State or political subdivision thereof

from imposing any requirement or liability with rm

spect to the discharge of oil into any waters within

such State. * * *’’

Had Congress sought to deprive the states of authority

in this area it would hardly have explicitly provided oyer

and over again for state action.

The distinctions drawn by the Court below between the

Water Quality Improvement Act and the state law (App.

pp. 42-43) are inapposite for several reasons. In the first

place the Florida act, like the Federal law, excuses oi

spills caused by an act of God, an act of war or the fault

of a third party. See § 11(6)(c), explicitly permitting the

person determined to be liable to obtain reimbursement

if the State finds the occurrence was the result of any of

these events.*

And while the state act imposes liability for cleanup

costs upon the polluter without the monetary ceiling ere

ated by the Federal statute, there is nothing in the Fed

eral act which prohibits the states from going further

than the limited liability set forth in § 1161(f). The same

is true as to remedies for damage caused by discharges

* Although the Court below made much of the provision of the

Florida act that “[t]he findings of the department shall be condu-

sive” as to a claim for reimbursement in case of a non-negligent spill,

this is a distinction without a difference. The courts have consistently

read into such statutory language provision for judicial review to e-

sure against arbitrary action. See, e.g., Oestereich v. Selective Serv-

ice System, 393 U.S. 233; Gonzalez v. Freeman, 334 F. 2d 570, 118

U.S. App. DC. 180 (1964) ; Matter of Guardian Life Ins. Co. ¥.

Bohlinger, 124 N.E. 2d 110, 308 N.Y. 174, 183 (1954), rearg. den.

125 N.E. 2d 867, 308 N.Y. 810.

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15

aside from cleanup costs. As to this the Federal law is

silent, leaving “undisturbed,” in the language of the Court

helow (App. p. 42), the remedies the states make available.

There is nothing in the Constitution or any Federal law

ghich deprives a state of authority to provide for lia-

bility for damage occasioned by an oil spill without the

necessity of proving negligence, so long as such liability

is referable only to damage done within the borders of the

state.

The District Court’s heavy reliance on Southern Pa-

cifie Co. v. Jensen, 244 U.S. 205, was misplaced. In the

first place that decision dealt with injuries on shipboard.

The statute here attacked is addressed to damage resulting

from oil spills from all sources—onshore facilities as well

as ships. The lower court repeatedly treated this case as

one involving navigation only.

Moreover, Jensen, a product of an earlier period in which

the states’ police power in the economic field was narrowly

defined, and dealing with a field utterly alien to the case

at bar and one in which entirely different considerations

obtain, held that a state workmen’s compensation law did

not extend to injuries which occurred in navigable waters,

even though there was then no equivalent Federal remedy.

The Jensen decision, utterly inapplicable to the case at bar,

was in any event severely sapped by Davis v. Department

of Labor, 317 U.S. 249, reh. den. 317 U.S. 713, in which

this Court held it constitutional to permit recovery under

a state workmen’s compensation law even though the dece-

dent was engaged in a maritime occupation and the acci-

dent had occurred on a navigable body of water. Although

the Court did rot expressly overrule Jensen, Jensen’s con-

tinuing vitality is open to serious question even in the field

where it applies.

In Davis, the Court stated (317 U.S. 249 at 257):

“We find here a state statute which purports to cover

these persons, and which indeed does cover them if

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16

the doubtful and difficult factual questions to whig

we have referred are decided on the side of the const.

tutional power of the state. The problem here jy

comparable to that in another field of constitutiong)

law in which courts are called upon to determin

whether particular state acts unduly burden inter.

state commerce. In making the factual judgment there,

we have relied heavily on the presumption of const.

tutionality in favor of the state statute. South Garo.

lina Highway Dept. v. Barnwell Bros., 303 US. 177,

188, 191.”

Therefore, as to injuries occurring in a maritime occ.

pation, if there are sufficient contacts with the state, the

employee may recover under the state statute rather than

the Federal. See Victory Carriers, Inc. v. Law, 404 US,

202, reh. den. 404 U.S. 1064, in which this Court held state

rather than Federal maritime law applicable to a suit bya

longshoreman involving an accident sustained on shore,

noting that state law governs ‘‘where a ship or its gear,

through collision or otherwise, caused damage to per.

sons ashore or to bridges, docks or other shore-based

property.’’ 404 U.S. at 209. Although the Court noted that

the Admiralty Extension Act of 1948 (46 U.S.C. §740)

was enacted to ‘‘overrule or circumvent’’ that doctrine, that

statute was intended to provide a Federal remedy, not to

destroy remedies under state statutes. Shell Oil Co. vy.

S.8. Tynemouth, 211 F. Supp. 908, 910 (E.D. La. 1962);

Revel v. American Export Lines, Inc., 162 F. Supp. 279, 283

(E.D. Va.), aff’d 266 F. 2d 82; Pet. of N.Y. Trap Rock

Corp., 172 F. Supp. 638, 646 (S.D.N.Y. 1959).

Again, see Hahn v. Ross Island Sand & Gravel Co., ¥8

U.S. 272, reaffirming the decision in Davis, and permitting

the employee to sue his employer in the state courts for

negligence, though the employer was covered by the Fed-

eral statute but had elected not to be covered by the state

plan. Thus the reliance of the lower court on Jensen was

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17

ioongruous and betrayed a narrow, archaic view of the

states’ police power which has been discarded by this

Court ever since Olsen v. Nebraska, 313 U.S. 236, and other

decisions of more than a generation ago. The insistence

of the lower court that Jensen is dispositive here is rem-

iniscent of the insistence of the challengers of the state

statute in Ferguson v. Skrupa, 372 U.S. 726, 728-730, that

that case was governed by the long-since discredited

Adams v. Tanner (244 U.S. 590).

In this connection it is well to note that 28 U.S.C. § 1333,

conferring admiralty and maritime jurisdiction on the

Federal courts, was enacted explicitly ‘‘saving to suitors in

all cases all other remedies to which they are otherwise

atitled.”? Under this statute the state and Federal courts

have concurrent jurisdiction, American Manufacturers’

Mut. Ins. Co. v. Manor Investment Co., 286 F. Supp. 1007

(S.D.N.Y. 1968) ; Chambers-Liberty Counties Naval Dist. v.

Parker Bros. & Co., 263 F. Supp. 602, 605 (S.D. Tex. 1967),

and absent clearly expressed Congressional language, an

intent to divest the states of jurisdiction under their police

power should not lightly be inferred.

The weight placed by the District Court on the Federal

Limitation of Liability Act of 1853, 46 U.S.C. § 183, is

inexplicable. That statute simply restricted the liability

of shipowners to the extent of their investment in cases

where the damage occurred without their knowledge. It in

no way prevents states from enacting liability statutes of

their own relating to damage within the state, and there

is nothing in the Limitation of Liability Act which states

otherwise. Over and above this, the materiality of that

Act is highly questionable. It was enacted at a time when

the protection and nurturing of this country’s developing

shipping industry was a vital interest, and environmental

considerations as we know them today were undreamed of.

All this aside, this Court has consistently held that

conflicts between Federal and state statutes should not be

sought out simply because the Federal and state statutes

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18

are not perfectly symmetrical. And the state’s right to

legislate on all subjects relating to the health, safety, and

welfare of its citizens should not be restricted

where Congress has unmistakably voiced its intent to gy

so. A. E. Nettleton Co. v. Diamond, supra, 264 NB, ”

118, 27 N.Y. 2d 182, app. dism. sub nom. Reptile Product;

Ass’n v. Diamond, 401 U.S. 969; Palladio, Inc. v. Diamong

supra, 321 F. Supp. 630, aff’d 440 F. 2d 1319, cert, den, 4

U.S. 983, where the courts upheld the constitutionality of

the New York endangered species statute even though the

state law was more stringent than the Federal prohibitions,

The District Court here repeatedly begged the question

whether the Florida statute was within the “admiralty

jurisdiction.” The act is, as we have shown, in fact not

limited to seagoing vessels at all but applies to oil dis.

charges from on-shore facilities, docks, drilling rigs, and

barges and other sources concededly not within the Federal

admiralty jurisdiction.* Here the state has plenary respon.

sibility, consistently expressed by its Legislature, to pro.

tect its waters, harbors, wetlands and beaches from oil

spills, over and above whatever remedies may exist under

Federal law. The regressive, grudging view of the police

power espoused by the District Court would leave the

states remediless at a time of rapidly increasing threats

to their shores.

* Even assuming, arguendo only, that some conflict existed where

vessels were involved, the District Court should have either declined

to exercise jurisdiction until such issue was squarely before it, or,

at most, and mindful of the statute’s severability clause (§ 23), lim-

ited its decision to those portions of the act which relate to such ves-

sels, leaving the remainder intact.

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e

—

19

CONCLUSION

The decision of the District Court should be re-

yersed, and the Statute declared to be constitutional

in all respects.

Dated: New York, New York, June 9, 1972.

Respectfully submitted,

Louis J. LEFKowITz

Attorney General of the

State of New York

Attorney for State of New York,

Amicus Curiae

Samve, A. HirsHowiTz

First Assistant Attorney General

Pai WEINBERG

James P. Corcoran :

Assistant Attorneys General

of Counsel

The following Attorneys General join in the submission

of this brief :

Connecticut

Hon. Rosert K. Kiiui1an

Attorney General

Hartford, Connecticut

Delaware

Hon. Larrp W. Sraster, JR.

Attorney General

Wilmington, Delaware

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APPENDIX

New York State Waterways Assn. v. Diamond,

Opinion, United States District Court, Western Distt

of New York (Burke, D.J.). ‘

Plaintiffs on July 13, 1971 filed an amended complaint

asking for a declaratory judgment and injunctive relief,

They ask this court to convene a three judge court purm.

ant to Section 2284 of Title 28, U.S.C., that Section 33-6 of

the Navigation Law of New York and the regulatin

promulgated, as applied to plaintiffs’ watercraft, be de

clared unconstitutional in whole or in part, that the court

enjoin temporarily and permanently the defendants, eol.

lectively and individually, from enforcing the provisions

of Section 33-C of the Navigation Law, and particularly

the criminal provisions thereof, and an injunction pending

this suit.

This court fixed a date for a hearing on plaintiff’s ap

plication for a preliminary injunction.

The defendants by notice of motion dated August 18

1971 moved to dismiss the complaint on specific grounds

stated, among which are that this court lacks jurisdiction

over the subject matter, that the action is premature, and

that this court should abstain from taking jurisdiction

under the doctrine of equitable abstention. The motions

came on for a hearing and oral nt. The respective

parties have filed written meno.

Finosprncs or Facr

1. Section 33-c of the New York Navigation Law was

enacted by the New York State Legislature in 1966 (Law:

of 1966, Chapter 897). It prohibits the placing, throwing,

deposit or discharge into the waters of New York State,

e vm

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21

from any watercraft, marine or mooring, of any ‘‘sewage

or other liquid or solid materials which render the water

msightly, noxious or otherwise unwholesome so as to be

detrimental to the public health or welfare or to the enjoy-

ment of the water for recreational purposes.’’ It prohibits

the use of marine toilets on watercraft on the water of New

York State ‘‘unless the toilet is equipped with facilities

that will adequately treat, hold, incinerate or otherwise

handle sewage in a manner that is capable of preventing

water pollution, as required by this section.’’ This provi-

sion went into effect March 1, 1970. The plaintiff contends

that the statute is unconstitutional on the grounds that it

conficts with certain provisions of the Federal Water

Quality Improvement Act and Water Pollution Control

Act, creates an unconstitutional burden on interstate com-

merce, and is unconstitutionally vague and discriminatory.

2 This court declines to convene a three judge court

as demanded in the complaint.

3. The plaintiffs do not sue for money damages, but

only for a declaratory judgment and injunctive relief. They

assert that this is a case involving also the admiralty and

maritime jurisdiction of this court. Admiralty cannot

give injunctive relief, Khedivial Line vs. Seafarers’ Int.

Union, 278 F.2d 49 (2 Cir. 1960) ; nor can it issue a declara-

tory judgment. This is not a case involving admiralty or

maritime jurisdiction nor have the plaintiffs alleged any

other valid basis for jurisdiction of this court. This court

lacks jurisdiction over the subject matter of the suit.

_ 4, The Federal Water Pollution Control Act, 33 U.S.C.

Section 1151 et seq., does not evidence congressional intent

to preempt this field or to exclude state action at this time.

5. There is no merit to the argument of the plaintiffs

that the state is powerless to act to protect the health and

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22

welfare of its residents during the period prior to the

effectiveness of federal standards.

6. There is no merit to the claim of the plaintiffs that

the statute constitutes an unconstitutional burden on inter.

state commerce.

7. There is no merit to plaintiffs’ claim that Section

33-C could result in the impairment of contractual rights,

_ 8. There is no merit to plaintiffs’ claim that the provi.

sions of Section 33-C permitting boarding and inspection

of watercraft by state agents without a prior warrant con.

stitutes a violation of the Fourth Amednment prohibition

against warrantless searches. Moreover, none of the plain.

tiffs has been made the victim of an allegedly unconstity.

tional search nor has such a search been threatened, nor

has the statute been enforced against any of them. When

and if any plaintiff is prosecuted for violation of Section

33-C, and if that prosecution resulted from « search of its

vessel without a warrant, it will then have an opportunity

to raise its Fourth Amendment claims, if applicable, as a

defense in a criminal prosecution.

9. Section 33-C fully complies with the constitutional

requirements of due process and equal protection under

the Fourteenth Amendment. Neither the complaint nor

the amended complaint raises any substantial federal ques-

tion. .

10. Even if this court did have jurisdiction, it should

abstain from exercising such jurisdiction in the circum-

/ stances of this case. Reetz vs. Bozanich, 397 U.S. 82;

- Zwickler vs. Koota, 389 U.S. 241. No state court has ever

had an opportunity to interpret and construe the statute

and procedures under attack here.

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23

Conociusion or Law

1, Plaintiffs’ motion for a preliminary injunction is

denied. It 13 Henzsy 80 ORDERED.

Ir 13 Henesy Onpenep, ADJUDGED and Deorzep that the

complaint and the amended complaint herein are dismissed.

Hanotp P. Burks

Hanoitp P. Burks

United States District Judge

January 12, 1972.

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