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

> 1971. THE AMERICAN WATERWAYS OPERATORS, INC., et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF FLORIDA

BRIEF OF THE MARITIME LAW ASSOCIATION

rae OF THE UNITED STATES AS AMICUS CURIAE,

ei IN SUPPORT OF AFFIRMANCE

|

United States, Amicus Curiae.

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a:

SUBJECT INDEX

ARGUMENT:

I—By adopting the Admiralty Clause of the United

States Constitution, the individual States sur-

rendered to the Federal Government the para-

mount power to legislate in the maritime field

and to define the general maritime law which

must prevail throughout the cate c ae! (PUT PSR 5

II—Congress has enacted legislation specifically

covering the same areas as those covered by the

Florida Act; that Act would therefore be un-

constitutional even if it were not invalid under

the Admiralty Clause itself .................. 7

(a) The conflict between the Florida Act and

federal law governing the maritime tort of

tuttinh. sem sccun Ce eer ee ee 7

(b) The conflict between the Florida Act, on the

one hand, and federal legislation and inter-

national agreements governing the con-

struction, maintenance and inspection of

vessels, on the other ................... 8

(c) The conflict between the Florida Act and

federal statutes relating to limitation of

veigorrcas He ge ae 9

IlI—The Act for the Extension of Admiralty Juris-

diction was a valid exercise by Congress of its

Constitutional power to legislate in the mari-

time field

Pe dite a Le ET Cee

iv

PAGE

Cowstrrution or THE Unrrep States

Articue 1, Section 8, Crausze 18 (THE Necessary

amp Paces: CLAVE) «065 <oonpcnd es his coecns note 12,7

Articte 3, Section 2, Crause 3 (THE ADMmIRaLTy

CD yey cv vce c ks cao ch oe wens ene beaasacees 2,6,7

Arzrtioxe 6, CLause 2 (Tue Supremacy CLavse) .... 9

FeperaL STaTuTEs

33 U.S.C.

§§901-50 (Longshoremen’s and Harborworkers’

eee ee ere 14

§§1161-75 (The Water Quality Improvement Act

OO TN sie cs a a 8, 9, 10

46 U.S.C.

5) gs By eS ee 14

§§183-9 (The Limited Liability Act) ...... 8, 9, 10, 15

§§361-436 (Inspection, Construction and Altera-

tion Of Bina VOMONN) 5. isis s cso cides ckscnns 9

§688 (The Jones Act) ....... vie Oe eaviie 14,15

§§727-31 (The Salvage Act)..............2000. 3

§740 (The Admiralty Extension Act) ...... 3, 11-12, 15

§911-84 (The Preferred Ship Mortgage Act)... 14

§§1300-15 (The Carriage of Goods by Sea Act) 3

24 Srar. 329-0 (The New York Harbor Act of 1886) 8

FepeRaL REGULATIONS

OS OF, 6 2-000 occ vrei ett ae

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v

PAGE

INTERNATIONAL AGREEMENTS

Bills of Lading:

iyz4 Ucean Bills of Lading Convention, 51 Star.

BOP NEY A ae ER eis isk elec kckS 3

Collision :

1910 Collision Convention, 6 Benepict 37 ...... 3

Limitation of Liability:

1957 Limitation of Liability Convention, 6A

PS is hs hoi a do ocnkk i occ 3

Maritime Liens & Mortgages:

1968 Maritime Liens and Mortgages Convention,

C. Davis, U.S. Delegation to 12th Session of

Diplomatic Conference on Maritime Law, Re-

port to the Secretary of State (Oct. 10, 1967 ) 3

Oil Pollution :

1969 Civil Liability for Oil Pollution Damage

Convention, 6A Benepict 951 ............... 3

Pp

‘Salvage :

1910 Assistance and Salvage Convention, 37

se csstts Bepsartes pepe’ Ge Te eas 3

Safety of Life at Sea:

1960 SOLAS Convention, TIAS 5780, 16 UST

ute Secstuelhe dad, sd |.) Sa eee 9

Srarz Sratures

Chapter 376, Florida Statutes ( pike HEL ERTE EPS PPR 1,6,7

vi

PAGE

ConcressionaL axnD Executive Marenutis

Executive:

C. Davis, U.S. Delegation to 12th Session of

Diplomatic Conference on Maritime Law,

Report to the Secretary of State (Oct. 10,

BOONE aaa 6 Cvidcnav sees ase chit cdeweene note 11

Senate:

118 Cong. Rec. S6021-48 (daily ed. April 12,

1972) bickmmeecs <p itabcek bak One weal ies note 16

Federal Water Pollution Control Act Amend-

ments of 1971, 8.2770, 92nd Cong., Ist

POR. dc ine Sted cus) ds ee tere ed note 16

Senaté Foreign Relations Committee, Execu-

tive Report No. 92-9, ‘*1969 Oil Pollution

Conventions and Amendments’’, August 5,

1971, 92nd Cong., Ist Sess. .............. note 11

House:

118 Cong. Rec. H3770 (daily ed. May 1, 1972) note 16

Federal Water Pollution Control Act Amend-

ments of 1971, H.R. 11896, 92nd Cong., 1st

MS hones GAN Airs 05 G5 a bd eee note 16

TREATISES AND Law Reviews

Bergren, Effects of Recent Legislation wpon the

Admiralty Law, 17 Geo. Wash. L. Rev. 353

eee Pore ey Fp oe eres meee he le 15

Fauver, The Extension of Admiralty Jurisdiction

to Include Maritime Torts, 27 Geo. L. J. 252

CRD iv iiies bi odes bake va k Ges eee 15

Gumore & Buack, Tue Law or Apmmatry (1957),

6 ii cis CEA ie |

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|

Supreme Court of the United States

October Term 1971 : "

No. 71-1082

2

Singin

Revsen O’D. Asxew, ef al,

Appellants,

against

Tue American Waterways Operators, Inc., e¢ al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF FLORIDA

. Sa

ae

BRIEF OF THE MARITIME LAW ASSOCIATION

OF THE UNITED STATES AS AMICUS CURIAE,

IN SUPPORT OF AFFIRMANCE

The Maritime Law Association of the United States

(“The Association’’) respectfully submits this Brief as

amicus curiae in support of affirmance, on consent of all

parties, pursuant to Rule 42.2.'

Question Presented

This appeal has been taken by the Florida authorities

from the unanimous decision of a three-judge court holding

the Florida Oil Spill Prevention and Control Act? unconsti-

’ The original letters consenting to submission of this Brief have

been submitted to the Clerk for filing herewith.

* Chapter 376, FLoripa Statues (1970) ; see Appendix, pp. 56-

73.

——ay

2

tutional under the Admiralty Clause of the United States

Constitution’ on the ground that ‘‘admiralty cannot tolerate

the inconsistency inherent in accommodating state remedia]

statutes to exclusively maritime substantive concepts,”

(335 F. Supp. 1241, at 1249). The basic question presented,

therefore, is:

‘Whether the District Court erred in holding that

Florida Act is invalid under the Admiralty

lause.’’

Interest of Amicus Curiae

The Maritime Law Association of the United States was

founded in 1899, under the Presidency of the late Robert

Dewey Benedict, Esq., author of the leading American

Treatise on Admiralty. It has a nation-wide membership

of more than 2,000 practicing admiralty attorneys, judges,

professors of law and others interested in maritime lav.

The Association’s 1,640 attorney members represent the

full range of maritime interests—vessel owners, shippers,

consignees, charterers, seamen, passengers, owners of

shore-front properties, marine insurance underwriters and

other actual or potential maritime claimants and defend-

ants. Its objects are set forth as follows in its Articles of

Association :

“The objects of the Association shall be to ad-

vance reforms in the Maritime Law of the United

States, to facilitate justice in its administration, to

furnish a forum for the discussion and consideration

of problems affecting the Maritime Law and its ad-

® ConstiTuTION, ArTicLe 3, Section 2, Clause 3: “The judi-

cial Power shall extend .. . to all cases of admiralty and maritime

Jurisdiction.”

* Motion by Appellees American Institute, ef a/. to affirm, dated

March 20, 1972, at p. 5. -

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==

ministration, and to act with foreign and other asso-

ciations in efforts to bring about a greater harmony

in the Shipping Laws, regulations and practices of

different nations.’’

In furtherance of these objectives the Association,

during the 73 years of its existence, has sponsored such

legislation as the Salvage Act (1912), the Carriage of

Goods by Sea Act (1936)* and the Admiralty Extension Act

(1948). From time to time it recommended improvements

in the former General Admiralty Rules of this Court, and

more recently it assisted the Advisory Committee on Ad-

miralty Rules in the unification of the General Admiralty

Rules and the Federal Rules of Civil Procedure. The Asso-

ciation has actively participated, with the 30 other national

maritime law associations constituting the Comité Mari-

time International,*® in the movement to achieve maximum

international uniformity in maritime law through the me-

dium of international conventions, such as those relating

Assistance and Salvage (1910), Ocean Bills of Lading

(1924),° Collisions (1910), Limitation of Liability of

Owners of Sea-Going Vessels (1957), Maritime Liens and

Mortgages (1968), and Civil Liability for Oil Pollution

Damage (1969).**

546 U.S.C. §§ 727-31.

46 U.S.C. §§ 1300-15.

746 U.S.C. § 740.

*These now include the national associations of Argentina, Bel-

gium, Brazil, Bulgaria, Canada, Chile, Denmark, Finland, France,

Germany, Greece, India, Ireland, Israel, Italy, Japan, Jugoslavia,

Mexico, Morocco, The Netherlands, Norway, Poland, Portugal,

Spai, Sweden, Switzerland, Turkey, The United Kingdom, The

United States, Uruguay, and The U.S.S.R.

* 37 Strat. 1658 (1913).

151 Srat. 233 (1937).

11910 Collision Convention, 6 KNauTH’s BENEDICT ON ADMI-

RALTY 37 (7th Ed., rev.) (hereinafter Benepicr) ; 1957 Limitatior.

of Liability Convention, 6A Benepict 634; 1968 Maritime Liens and

r

4

The Association has consistently and vigorously main.

tained that the very nature of international shipping dic.

tates that it should, to the maximum extent possible, be

governed by internationally uniform laws, and that until

such time ag international uniformity can be achieved ina

particular area of the maritime law, there should at least

be nation-wide uniformity. The Association’s objectives

are completely in accord with the Admiralty Clause of the

Constitution of the United States and the venerable line of

decisions of this Court interpreting that Clause. In those

decisions, commencing with The Lottawanna, 88 US. 558

(1874) and continuing through Moragne v. States Marine

Lines, 398 U.S. 375 (1970), this Court has repeatedly held

that except in areas of purely local concern, Congress alone

may enact maritime legislation, and that in the absence of

federal legislation in a particular area of the maritime law,

it is for this Court and the lower federal courts to define

the general maritime law which is to prevail throughout the

United States.

The holding of the three-judge court from which this

appeal has been taken is in perfect harmony with these

decisions. A reversal would turn back the clock, undoing

the nation-wide uniformity in the maritime law painstak-

ingly achieved by this Court over the past century. Allow-

ing each state unfettered, uncoordinated legislative control

Mortgages Convention, C. Davis, U.S. Delegation to 12th Session of

nplomatue ( entcreace on Maritime Law, Report to the Secretary

of State (October 10, 1967); and 1969 Oil Pollutioa Convention,

GA Bewsnoct 431. These last four conventions have not as yet been

ratified by the United States, although the. Senate Foreign Relations

Cumssuttce has reported favorably on the 1969 Civil Liability for Pol-

lution Convention, Senate Foreign Relations Committee, Executive

Report No. 92-9, “1969 Oil Pollution Conventions and Ameni-

ments”, August 5, 1971, 92nd Cong., Ist Sess. The Conven-

tions om Collisions and Limitation of Liability have been adopted

by most of the principal maritime powers and the Association has

1 passage of Congressional statutes embodying the

principles of these Conventions.

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5

over maritime law in the area of water pollution prevention

and liability would sound the death knell of uniformity, and

eventually lead to nothing less than complete chaos in the

waterborne commerce of the United States and of the

foreign powers on whose merchant marines the American

public has come to rely in large measure for a steady

supply of needed commodities which must be carried by sea.

ARGUMENT

2S

By adopting the Admiralty Clause of the United

States Constitution, the individual States surrendered

to the Federal Government the paramount pewer to

legislate in the maritime field and to define the general

maritime law which must prevail throughout the

country.

The basic principle was correctly stated in the opinion

below:

‘‘Tt is well settled that state legislation is invalid

where it is in contravention with general admiralty

rules or congressional enactments in the maritime

field.’’ The American Waterways Operators, Inc. v.

Askew, 335 F. Supp. 1241, 1248 (M.D. Fla. 1971).

State legislation controlling water pollution from indus-

trial plants and other shoreside installations is not within

the province of the Association. Nor does the Association

have any quarrel with the rights of states to legislate in

areas of purely local concern, even though such legislation

may relate to vessels employed on waters within the ad-

miralty and maritime jurisdiction of the United States.

State pilotage laws, for example, fall within this category.

Cooley v. Board of Wardens, 53 U.S. 299 (1851). But

legislation such as the Florida Act is plainly an unauthori-

zed incursion into what the authors of the Constitution

realized must be an area wherein national uniformity js

essential and only the Federal Government may act. The

Lottawanna, supra.

* Since, The Lottawanna, this Court has repeatedly held

that the Admiralty Clause, read in conjunction. with the

Necessary and Proper Clause,’? grants to Congress the

paramount power to legislate in the maritime field and

charges the federal judiciary with the responsibility of

defining the general maritime law which is to prevail

throughout the country. The Roanoke, 189 U. S. 18

(1903); Southern Pacific Cd. v. Jensen, 244 U. S. 2%

(1917); Chelentis v. Luckenbach S.S.-Co., 247 U. 8. 372

(1918); Knickerbocker Ice Co. v. Stewart, 253 U. §.

149 (1920); Washington v. Dawson & Co., 264 U. S. 219

(1924); Garrett v. Moore-McCormack Co., 317 U. S. 239

(1942) ; Pope & Talbot, Inc. v. Hawn, 346 U. S. 406 (1953);

Kermarec v. Compagnie Generale, 358 U. S. 625 (1959);

Kossick v. United Fruit Co., 365 U. S. 731 (1961) ; Moragne

v. States Marine Lines, Inc. 398 U. S. 375 (1970); and see

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

404 U. S. 1064 (1971).

The Florida Act purports, among other things, to pro-

vide for inspection of all vessels using Florida ports; to

require installation of certain types of vessel equipment;

to allow Florida officials to direct the movement of vessels

and otherwise interfere with their operation; to establish

new causes of action affecting vessels; to change the bases

of liability for certain maritime torts from those estab-

lished by the federal judiciary; to deny limitation of lia-

12 ConstTITUTION, ARTICLE 1, Section 8, Crause 18: “The

Congress shall have power . . . To make all Laws which shall be

necessary and proper for carrying into Execution the foregoing

Powers, and all other Powers vested by this Constitution in the

Government of the United States, or in any Department or Officer

thereof”.

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bility with respect to pollution damage, and to require

proof of financial responsibility, satisfactory to the local

authorities, as a condition of access to Florida ports.

These provisions plainly constitute an attempt to legislate

on substantial matters of general concern within the ad-

miralty jurisdiction. Under the ‘‘Admiralty’’ and the

“Necessary and Proper’’ clauses and the decisions of this

Court interpreting them, the State ef Florida had no power

to enact or enforce such legislation.

n

Congress has enacted legislation specifically cover-

ing the same areas as those covered by the Florida Act;

that Act would therefore be unconstitutional even if

it were not invalid under the Admiralty Clause itself.

As two.eminent authorities have put it, ‘‘One constitu-

tional truism may be got out of the way at once: Such

state legislation is clearly invalid where it actually conflicts

with the general maritime law or federal statutes.’’?* The

Florida Act bristles with provisions conflicting with the

general maritime law and federal statutes, and is therefore

“clearly invalid’’ under this rule.

a. The conflict between the Florida Act and fed-

eral law governing the maritime tort of water

pollution.

With respect to the maritime tort of water pollution

itself, the general maritime law provides the underlying

principles. Liability is based upon fault; when fault exists,

damages, including consequential damages, are recoverable

18GitmorE & BLack, THE Law oF ApmIRALTy (1957), p. 43.

8

for injury to property, subject to possible limitation as to

~ amount, in accordance with the Limited Liability Act.“ In

addition, Congress has been legislating to control water

pollution since. 1886,’ its latest effort being the Water

Quality Improvement Act of 1970 (hereinafter

““W.Q.LA.”).1° The provisions of the Florida Act are

everywhere in conflict with those of the general maritime

law and the federal statutes relating to water pollution,

thus creating an intolerable—and constitutionally imper.

missible—burden upon international, interstate and intra-

state maritime commerce.

b: The conflict between the Florida Act, on the

one hand, and federal legislation and interna-

tional agreements governing the construction,

maintenance and inspection of vessels, on the

other.

If the Florida Act were held valid, Section 376.08 thereof

would subject any domestic or foreign vessel using Florida

ports to boarding by a State-appointed Port Manager

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

1446 U.S.C. §§ 183-89. See, e.g., Fireman’s Fund Ins. Co. v.

Standard Oil Co., 339 F.2d 148 (9th Cir. 1964) ; Salaky v. Atlas

_ Barge No. 3, 208 F.2d 174 (2d Cir. 1953) ; California v. The Bourne-

mouth, 307 F. Supp. 922 (C.D. Cal. 1969) ; Petition of New Jersey

Barging Corp., 168 F. Supp. 925 (S.D.N.Y. 1958).

15 The New York Harbor Act of 1886, 24 Stat. 329-0.

16 33 U.S.C. §§ 1161-75. As of this writing, an extensive revi-

sion of W.Q.LA. is under co :sideration by Congress. See Federal

Water Pollution Control Act Amendments of 1971, $.2770, 92nd

Cong., Ist Session, passed by the Senate on November 2, 1971, to-

gether with H.R. 11896, passed by the House on March 29, 1972.

On April 12, 1972 the Senate disagreed with the amendments by

the House to $.2770 incorporated in H.R. 11896, appointed con-

ferees, and requested a conference to resolve the differences, 118

Conc. Rec. $6021-48 (daily ed. Apr. 12, 1972) ; the House ap-

pointed its conferees on May 1, 1972, 118 Conc. Rec. H3770 (daily

ed. May 1, 1972).

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—

seaworthiness of the vessel and the presence of contain-

ment gear.’’ But federal statutes ** and regulations issued

thereunder,"*® and the International Convention on the

Safety of Life at Sea *® already specify in elaborate detail

the standards of construction, equipment, maintenance, and

inspection which must be met by all power-driven vessels

(other than motor boats, which are otherwise provided for).

- The provisions of the Florida Act relating to the equipment

and seaworthiness of vessels using Florida ports, and to the

inspection of vessels by officers of the State, go far beyond

any permissible exercise of the police power. They are |

broad enough to permit the application of criteria con-

- ficting with those established by valid federal legislation

and international conventions to which the United States is

a party, and are therefore plainly invalid under the

Supremacy Clause of the Constitution.”

c. The conflict between the Florida Act and fed-

eral statutes relating to limitation of liability.

The Limited Liability Act 7? provides for limitation of

the liability of a shipowner or demise charterer for damage

not caused with his ‘‘ privity or knowledge’’, to an amount

equal to the value of the vessel and the voyage freights.

Congress, in enacting W.Q.1.A., created an exception to the

Limited Liability Act in respect of claims of the Federal

Government for the cost of cleaning up a discharge of oil

which the owner or operator of the vessel involved cannot

prove was the result of an act of God, an act of war,

1746 U.S.C. 8§ 361-436.

1846 CFR. §§ 1-199.

8 TIAS 5780, 16 UST 185, 536 UNTS 27. The Convention

has been adopted by all of the important maritime countries, includ-

ing the United States.

20 ConsTITUTION, ARTICLE 6, CLAUSE 2.

21 Note 14, supra.

~ 10

negligence of the United States Government, or an act or

omission of a third party. W.Q.I.A. provides for a separate

‘‘limitation fund’’ of $100 per ton of the vessel’s gross

tonnage applicable to such clean-up claims.”

While Congress of course had the power to amend one

of its own statutes, i.e., the Limited Liability Act, no state

statute is valid if it contravenes that Act.”* Insofar as the

Florida Act purports to impose liability without limitation

for the costs of removal of oil and other pollutants dis.

charged from vessels, it conflicts with the Limited Liability

Act and is unconstitutional for that reason, among others,

_ Appellants argue that a general provision of W.Q.LA*

saves the Florida Act from unconstitutionality by reason of

conflict with maritime law and federal statutes.

On this point the court below rightly said:

‘‘It has long been recognized that Congress is

powerless to confer on the states authority to legis-

late within the admiralty jurisdiction * * * * and we

cannot presume that WQIA was an attempt to do so.

There is nothing in the language of the Act which

purports to grant any such legislative. authority to

the states. The statement that Congress did not

intend to preclude state imposed liability for oil

pollution simply means that the states are free to

enforce pollution control measures that are within

22 33 U.S.C. § 1161(f) (1).

28 Butler v. Boston Steamship Co., 130 U.S. 527 (1889) ; Pala-

dini v. Flink, 26 F.2d 21 (9 Cir. 1928), aff'd. 279 U.S. 59 (1929).

24 “Nothing in this section shall be construed as preempting any

State or political subdivision thereof from imposing any requirement

or liability with respect to the discharge of oil into any waters within

such State”. 33 U.S.C. § 1161(0) (2).

25 Citing Knickerbocker Ice Company v. Stewart, 253 U.S. 149

(1920); The Lottawanna, 88 U.S. (21 Wall.) 558 (1875); The

Steamer St. Lawrence, 66 U.S. (1 Black) 522 (1862).

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—

no

their constitutional prerogative.’’ 335 F. Supp.

1241, 1249.

Section 376.19 of the Florida Agt indeed indicates an

appreciation, however misplaced, of the need for some

measure of uniformity ;7* Florida’s mistake is its assump-

tion that it is enough if there is state-wide uniformity,

whereas it is in fact constitutionally required that uni-

formity in areas of maritime law of general concern must

prevail throughout the United States. The logic which

impelled the Florida legislature to include this provision is 4

the same as that which resulted in the constitutional provi-

sion that only Congress may legislate with respect to mari- :

time matters which are not of purely local concern. It is ;

unconstitutional for Florida, or any other state or political

subdivision thereof, to enact its own—and conflicting—_. 1

legislation in this field.

II!

The Act for the Extension of Admiralty Jurisdic-

tion was a valid exercise by Congress of its Constitu-

tional power to legislate in the maritime field.

CARE Te

}

Although Rule 40.1(d)(2) of this Court provides that 4

“the brief may not raise additional questions’’, Appellant’s §

Brief, for the first time, questions the constitutionality ;

of the Act for the Extension of Admiralty Jurisdiction 7’

¢

6 The section provides: | :

_ “However, in order to avoid unnecessary duplication, no

county, municipality, or other political subdivision of the /state

may adopt or establish a similar program of licensing an fees

for the accomplishment of the purposes of this chapter”.

746 U.S.C. § 740.

12

(hereinafter, ‘‘Admiralty Extension Act’’). The Brief

Amicus Curiae filed by the Attorney General of Georgia

likewise questions the validity of that Act.

Even if the Admiralty Extension Act were declared un.

constitutional (and the Association is convinced that it

should not be), such a decision would not validate the

Florida Act. At most it would entitle the states to legislate

with respect to pollution damage caused by vessels to

shoreside property. The Florida Act purports to do much

more; it seeks to regulate liability for pollution of waters

within the admiralty and maritime jurisdiction of the

United States, and for damage to vessels employed on those

waters, caused by discharges of oil and other substances

from other vessels.

Bills to accomplish the reforms ultimately effected by

the Admiralty Extension Act had long been sponsored by

both the Maritime Law Association and the American

Bar Association. See H. R. Report No. 1523, 80th Con-

gress, 2d Session, and letter of Honorable W. J. Kenney,

Acting Secretary of the Navy, annexed thereto, 1948 AMC |

1503, 1505-6.

Prior to passage of the Admiralty Extension Act the

admiralty and maritime jurisdiction of the Federal courts

in tort cases was in most instances limited to injuries con- .

summated on navigable waters; with certain exceptions

hereinafter noted, injuries to persons or property on land

(including bridges, piers and other extensions of the land)

caused by vessels operating in navigable waters were not

considered within the admiralty jurisdiction.

This restriction encouraged multiplicity of suits and

sometimes led to highly inequitable results. Thus, if a.

vessel caused injury to a shore structure such as a dravw-

bridge, or to persons thereon, a federal district court could

not entertain an admiralty suit for the resulting damages,

Cleveland Terminal and Valley R.R. Co. v. Cleveland 88. _

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_ —_

13

Co., 208 U. S. 316 (1908) ; The Troy, 208 U. S. 321 (1908) ;

Martin v. We-t, 222 U. S. 191 (1911). On the one hand,

admiralty had jurisdiction of a claim by the shipowner

for damage to his vessel caused by negligent operation

of the bridge, since the tort to the vessel was consum-

mated on navigable waters. In such a case, the ship-

owner would normally invoke the admiralty jurisdiction,

so that in the event of a finding of mutual fault he could

obtain a partial recovery under the more enlightened

admiralty rule whereunder contributory negligence does

not bar, a recovery, but merely diminishes the amount

thereof. .The bridge owner, on the other hand, had no right

to file a cross-libel for his damages in the admiralty suit,

but-was obliged to bring-a separate action in a court of

~. eommon law jurisdiction, where he would be barred from

recovering under the common law rule if contributory

negligence were found.

:

A similarly anomalous result could occur in the case of

a eollision between a vessel and a land structure caused

solely by the fault of a compulsory pilot: Before the

Admiralty Extension Act, the owner of the land structure

had no remedy (except against the pilot), because a com-

pulsory pilot is not the agent or servant of the shipowner,

Homer Ramsdell Transp. Co. v. Compagnie Generale,

182’. S. 406, 416 (1901), and a court of common law

jurisdiction is powerless to entertain. a civil proceeding

in rem against a vessel. The Moses Taylor, 71 U. S. 411,

430-1 (1866). Now, however, where injury is caused by a

vessel to persons or property ashore as a result of the

fault of a compulsory pilot, the Admiralty Extension

Act permits the injured parties to invoke the admiralty

jurisdiction and proceed in rem against the offending

vessel,

This Court has repeatedly held that the authors of the

Constitution, in extending the federal judicial power to

“all cases of admiralty and maritime jurisdiction’’, recog-

14

nized the existence of a system of maritime law and

intended to place both the substantive and procedural

features of that law under national control, because of its

intimate relation to navigation and to interstate and foy.

eign commerce. Panama R.R. Co. v. Johnson, 264 US,

375, 386 (1924). This Court has also repeatedly held that

the authors of the Constitution could never have intended

that the law should remain stagnant; it has recognized

that the maritime law existing at the time the Constitution

was adopted became the law of the United States, ‘‘subject

to power in Congress to alter, qualify or supplement it .

as experience or changing conditions might require”.

Panama R.R. Co. v. Johnson, supra, holding the Jones

Act ** constitutional; The Thomas Barlum, 293 U.S. 21, 8

(1934), upholding the constitutionality of the Preferred

Ship Mortgage Act; ** Crowell v. Benson, 285 U.S. 22, 39

(1932), holding the Longshoremen’s and Harborworkers’

Compensation Act *° constitutional. See, also, Providence

and N.Y. 8.8. Co. v. Hill Mfg. Co., 109 U.S. 578 (1883),

declaring the Fire Statute ** constitutional; The Hamilton,

207 U.S. 398 (1907), relating to the constitutionality of

the Limited Liability Act,*? and Victory Carriers, Inc. v.

Law, 404 U.S. 202, rehearing den. 404 U.S. 1064 (1971),

wherein this Court recognized the power of Congress to

extend the jurisdiction of the federal courts beyond the

historic boundaries of the maritime law.

As stated, even before passage of the Admiralty Exten-

sion Act the jurisdiction of admiralty in tort cases was

28 46 U.S.C. § 688.

29 46 U.S.C. §§ 911-84.

80 33 U.S.C. §§ 901-50.

31 46 U.S.C. § 182.

32 Note 14, supra.

;

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15

not always limited to torts consummated on navigable

yaters. Thus, in cases falling under the Limited Liability

Act, the federal district courts, by virtue of their admiralty

jurisdiction, had power to entertain claims for injuries

caused by vessels to persons and property ashore. Rich-

ardson v. Harmon, 222 U.S. 96 (1911). Independently of

the Admiralty Extension Act, a suit under the Jones Act,

which could be’ brought either in admiralty or as an ordi-

nary ‘civil’? suit in a federal district court or a state

court of general jurisdiction, would lie even if the injury

occurred ashore. O’Donnell v. Great Lakes & Dock Co.,

318 U.S. 36 (1943). Long before passage of the Admiralty

Extension Act, damage caused by a vessel to an aid to

navigation was within the admiralty jurisdiction, even

though the navigational aid was affixed to the land. The

Blackheath, 195 U.S. 361 (1904). ~

As noted by Mr. Justice White in Victory Carriers v.

“Law, supra, the Admiralty Extension Act has already with-

stood several attacks in-the lower courts. See United States

-y, Matson Navigation Co., 201 F.2d 610, 614-16*(9th Circuit

1953); American Bridge Co. v. The Gloria O, 98 F. Supp.

11, 13-74 (E.D.N.Y. 1951) ; Fematt v. City of Los Angeles,

196 F. Supp. 89, 93 (S.D. Cal. 1961). See also Fauver,

The Extension of Admiralty Jurisdiction to Include Mari-

time Torts, 27 Geo. L.J. 252 (1949); Bergren, Effects of

Recent Legislation Upon the Admiralty Law, 17 Geo. Wash.

LRev. 353 (1949). To hold otherwise would be to resurrect —

the evils the Act was designed to cure, and has effectively

cured, during the 24 years it has been in force.

Conclusion

The Florida Act contravenes a number of other provi-

sions of the United States Constitution. However, the

interest of the Association lies specifically in upholding the

principles of national uniformity and harmopy of the mari-

i

16

time law required by the Admiralty Clause, and any discus.

sion of the remaining constitutional objections will be left

to others.

If there were a reversal of the decision below, it would

be only a matter of time before each of the coastal states

would enact its own statutes, covering not only the area of

water pollution, but other areas of general concern in the

admiralty. The various state water pollution statutes

already enacted are by no means harmonious, and it could

scarcely be expected that state legislation in other areas

of maritime law would be any less free of conflicting provi-

sions. The result would be an impossible tangle of dif.

fering laws and an intolerable burden on the maritime

commerce of the United States.

The Association realizes that all levels of Government

have important roles to play in the developing concern with

ecological problems, which the members of the Association

share with all responsible citizens. However, the position

of the State of Florida is, in effect, to usurp powers which

can constitutionally—and practically—be exercised by the

Federal Government alone.

This Honorable Court should therefore affirm the deci-

sion below.

July 26, 1972.

Respectfully sumbitted,

¢

oun C. Gare

Attorney for the Maritime Law

Association of the United States,

Amicus Curiae.

[ice RAC MUM tn Seen hyn eich Lacs