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

Supreme Court brief1973

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Text

INDEX

| Page

| Opinion below —.. siesta

- Jurisdiction

| Questions presented

| Statutory provisions involved

Interest of the United States

- Statement

Summary of argument

Argument ____- : 12

I. Section 12 of the Florida Act cannot

subject shipowners to unlimited liabil-

ity for oil spills because of conflicting

federal law, but is valid insofar as it

subjects owners of terminal facilities to

unlimited liability and sets the stand-

ard of recovery against owners of ships

and terminal facilities for oil spill dam-

ages as liability without fault... 12

A. The federal Limitation of Liability

Act limits the liability of shipown-

ers for their ships’ torts despite

contrary state law. 12

JI wow wn WN F&F &

B. Florida’s subjection of terminal fa-

cilities to unlimited liability and

imposition of absolute liability as

the standard of recovery against

ships and terminal facilities are

Argument—Continued

1. Unlimited liability with respect

to terminal facilities —_______

2. Liability without fault for oil

spills from vessels and termi-

nal facilities

a. Vessels ,

b. Terminal facilities

8. Summary

C. International conventions now

pending before the Senate would, if

ratified, significantly affect the

questions discussed above regard-

ing the liability of ships for dam-

age caused by oil spills _.__

II. Florida may not impose requirements

with respect to the equipment carried

on ships for containing oil spills, but

the extent of the State’s regulatory au-

thority over terminal facilities should

not be dec.ded in this case

A. Since uniform regulations are nec-

essary in regard to the equipment

and fittings required on ships ply-

ing the navigable waters of the

United States, this is an area for

exclusive federal regulation and in-

dividual States cannot impose their

own requirements

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—

Ill

Argument—Continued Page

B. -Although recent federal legislation

gives the United States authority

‘ to regulate the operations of and

equipment on terminal facilities,

Congress recognized the States’

concurrent authority to act in this

area and the extent of Florida’s

authority in this respect cannot

now be appropriately determined

| since neither the State nor the fed-

eral government has yet promul- —

gated regulations governing termi-

nal facilities 35

Conclusion 40

CITATIONS

Cases :

Clara, The, 102 U.S. 200 __- 19

Cleveland Terminal R.R. v. Steamship

Co., 208 U.S. 316 19

Cooley v. Board of Wardens, 12 How.

298 24

Coryell v. Phipps, 317 U.S. 406... 13

Executive Jet Aviation, Inc. v. City of

Cleveland, Ohio, 448 F. 2d 151, certio-

rari granted, 405 U.S. 915 18

Firemen’s Fund Insurance Co. v. Stand-

ard Oil Co. of Cal., 339 F. 2d 148... 18

Gibbons v. Ogden, 9 Wheat. 1 __... 14, 23

; Green v. General Petroleum Corp., 205

Me Cal. 328 20

Huron Cement Co. v. Detroit, 362 U.S.

440 15, 23, 24, 31

ee a es = se ll

Cases—Continued Page

Just v. Chambers, 312 U.S. 383 24

Kelly v. Washington, 302 U.S. 1-10, 11, 24, 30,

31, 32, 38, 39

Lake Carriers’ Association v. McMullan,

No. 71-422, decided May 30, 1972... 14

Maryland Casualty Co. v. Cushing, 347

US ose 21

Moragne v. States Marine Lines, Inc.,

398 U.S. 375... FOES SER RT: SOURS 14, 20

Norwich Co. v. Wright, 13 Wall. 104 __ 13

Peytavin v. Government Employees Insur-

ance Co., 453 F. 2d 1121 ___...._.______.: 18

Phenix Insurance Co., Ex parte, 118 U.S.

610

Plymouth, The, 3 Wall. 20... 18, 19

Pope & Talbot, Inc. v. Hawn, 346 U.S.

I oo ss ge ek ~~ 21

Richardson v. Harmon, 222 U.S. 96... 13, 14

Roanoke, The, 189 U.S. 185 ____._--...-. 24

Rodrigue v. Aetna Casualty Co., 395 U.S.

RRO ene Me woke ee ee oe 17, 26

Romero v. International Term. Co., 358

Fe NE sess cdelictislesesiehaeancr ad hed abnreiencsuletie 19, 24

Rylands v. Fletcher, 3 H.L. 330. 20

Seas Shipping Co. v. Sieracki, 328 US.

gecesi ycandennsasspneoennacstniaoreaecenrernmacieah 20

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

Ea eS RE ee eC: 6, 18, 23

Standard Dredging Co. v. Murphy, 319

Bes I ah ccicecccipdeicicnnintdcaalaniedlacciaagsteeah 23

State, Department of Fish and Game v.

S.S. Bournemouth, 307 F. Supp. 922. —Ss_ 19

United States v. Standard Oil Co., 384

U.S. 224 aides : 21, 26

RIEED THROUGH POOR COPY

Cases—Continued Page

Victory Carriers, Inc. v. Law, 404 US.

202 18

Wilburn Boat Co. v. Fireman’s Fund In-

surance Co., 348 U.S. 310 _. 23

Willson v. Black-bird Creek Marsh Co.,

2 RSET ee ae 24

Constitution and statutes:

- Constitutioh of the United States:

_ Article VI, Supremacy Clause 7, 12-13, 17

Commerce Clause ___ 24, 30

Admiralty Extension Act, 46 U.S.C. 740.. 18, 19

Limitation of Liability Act, 9 Stat. 635,

as amended, 46 U.S.C. 181-189 __. 7,9, 13, 25

Ota ee) 13, 16

7 tee 200. - 14

Oil Pollution of the Sea Act, 33 U.S.C.

1001-1015:

33 U.S.C. 1003

33 U.S.C. 1005 .

Par Value Modification Act, P.L. 92-268. 29

Ports and Waterways Safety Act of 1972,

Pub. L. 92-340, Title I, 92d Cong. (July

} ae» 5 See 11, 12, 35, 36, 38

Section 101... -: 36

Section 101(7) 36

Section 102(b)_... 37

Section 201... 35

Refuse Act of 1899:

33 U.S.C. 407 21, 26

83 U.S.C. 411 26

Constitution and statutes—Continued Page

28 U.S.C. 1333(1) 19

28 U.S.C. 2281 5

46 U.S.C. 91 39

46 U.S.C. 391la 11, 34

Water Quality Improvement Act of 1970,

84 Stat. 91, as amended, 33 U.S.C.

1161-1175 6, 8, 11, 12, 18, 24, 37

1161(b) (1) a

1161 (b) (2) 39

1161(f) (1) 16

1161(f) (2) 16

1161(j) (1) 31, 36, 37

1161(0) (1) 17, 35

1161(0) (2) ace

OS) eae eee 21

1171(b) (1) 38

Florida Oil Spill Prevention and Pollution

Control Act of 1970, ch. 70-244:

Section 2 _

Section 3(9)

Section 4

pee te

pee tte)

Section 7(2) (c)

Section 7(2) (d)

Section 7(2) (e)

Section 7(2) (g) 4, 11, 35, 38,3

Section 8

Section 10

Section 11

Section 11(6) (c)

R=)

“be or on on & on

a i lie eee en ee ae -mmeeelUCOM OM OTS

vil

Constitution and statutes—Continued

Section 155.320

Page

Section 12 3, 4, 7, 8, 9, 12, 15,

16, 18, 23, 24, 26, 27

Section 14(1) 15

Section 14(3) 27

Section 16 5

Section 23 5

Miscellaneous:

Basco, Pneumatic Barriers for Oil Con-

tainment Under Wind, Wave and Cur-

rent Conditions, in Proceedings of Joint

Conference on Prevention and Control

of Oil Spills 381 (sponsored by Ameri-

can Petroleum Institute, June 15-17,

1971) 31

33 C.F.R. 124 39

33 C.F.R. 126 eis ’ 36

Coast Guard proposed regulations, 36 Fed.

Reg. 24960-24965 _ Le, oy 06, 87

Section 154.500-154.520 37

Section 154.530-154.545 0 37

ee See 37

Section 155.310 __ 32

eee eee 32

Section 155.310(a) (1) 33

Section 155.310(a) (2)... 33

pee dooeeere) 33

See tees) 33

Section 155.310(c) (1) 33

Section 155.310(c) (2) 33

Section 155.310(c) (3) ‘ 33

Val

Miscellaneous—Continued ate

Section 155.820(a) ................

Section 155.820(b) _..........

PIGRION : BNE eciit

Section 156.4600(a)

Section 155.400(b) _......_.._____._____

Section 155.400(b) (1)

Section 155.400(b) (2) _._. B scrslgaieia as

Section 155.400(c)

Section 155.400(d)

23 Cong. Globe, 331-332, 713-720, . 776-

777 (1851) —

Currie, Federalism and the Admiralty :

“The Devil’s Own Mess”, 1960 Sup.

Seeeeyryessse g

—"

Gilmore and Black, The Law of Admiral-

Oe SE ei eters 13, 19

H. Rep. No. 92-563, 92d Cong., 1st Sess.

OS ce citece eceeinccnioneeiamines 36

International Convention on Civil Liabil-

ity for Ow Pollution Damage, Exec.

Doc. G., 91st Cong., 2d Sess. (1970). 21, 28

International Convention on the Estab-

lishment of an International Fund for

Compensation for Oil Pollution Dam-

age, Exec. Doc. K, 92d Cong., 2d Sess.

9) cy | ne ene nae 21

March, “Dynamic Keel” Oil Containment

System, in Proceedings of Joint Confer-

ence on Prevention and Control of Oil

Spills 369 (sponsored by American Pe-

troleum Institute, June 15-17, 1971)... 31

BLEED THROUGH POOR corr

Miscellaneous—Continued Page

Marks, Geiss and Hirshman, Theoretical

and dacperimental Evaluation of Ou

Spill’ Control Devices, in Proceedings of

Joint Conference on Prevention and

Control of Oil Spills 393 (sponsored by

American Petroleum Institute, June 15-

4 Ae |; | Pace eee terme emcee 31

McCoy, Oil Spill and Pollution Control:

The Conflict Between State and Mari-

time Law, 40 G.W. L. Rev. 97 (1971) _ 19

Morris on Torts, 240-255 (1953) _ 20

Note, Toward a State Remedy for Oil

Spill Damages: An Insurance Ap-

proach, 47 N.Y.U. L. Rev. 60 (1972)_ 22

Presidential Message Transmitting Two

Conventions and Amendments Relating

to Pollution of the Sea by Oil, Exec.

Doc. G, 91st Cong., 2d Sess. (1970)... 28, 29

Presidential Message Transmitting Con-

vention on the Establishment of an In-

ternational Fund for Compensation for

Oil Pollution Damage and Amendments

to the 1954 Prevention of Pollution of

the Sea by Oil Convention, Exec. Doc.

K, 92d Cong., 2d Sess. (1972) 28, 29

Selvig, Towards Strict Shipowner Liabil-

ity: Recent Trends in Norwegian Law

on Maritime Torts, 2 J. Maritime L.

and Comm. 383 (1971) _.... 20

COPY BOUND TOO CLOSE IN CENTER

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Iu the Supreme Court of the United States

OCTOBER TERM, 1972

No. 71-1082

REUBIN O’D, ASKEW, ET AL., APPELLANTS

THE AMERICAN WATERWAYS OPERATORS, INC., ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

OPINION BELOW

The opinion of the three-judge district court (App.

39-55) is reported at 335 F. Supp. 1241.

JURISDICTION

The district court entered its order and final judg-

ment enjoining enforcement of the *lorida Oil Spill

Prevention and Pollution Control Act of 1970, ch.

70-244, on December 10, 1971 (App. 48). Appellants

filed their notice of appeal on December 23, 1971

(1)

(J.S. 2, J.S. Addendum). Probable jurisdiction was

noted on April 17, 1971 (405 U.S. 1063). This

Court's jurisdiction rests upon 28 U.S.C. 1253.

QUESTIONS PRESENTED

The United States will discuss the following ques

tions:

1. Whether Section 12 of the Florida Act is valid

insofar as it seeks to subject vessels to unlimited li-

ability for damage from oil spills or discharges.

2. Whether Section 12 of the Florida Act is valid

insofar as it subjects terminal facilities to unlimited

liability for damages from oil spills or discharges.

3. Whether Section 12 of the Florida Act is valid

insofar as it makes vessels and terminal facilities

covered by the Act liable without fault for damage

caused by their discharge or spilling of oil.

4. Whether Florida may validly require certain

equipment to be carried by ships visiting its ports in

order to prevent damage from oil spills.

5. Whether Florida may validly require certain

equipment to be carried by terminal facilities with-

in the State in order to prevent damage from oil

spills.

STATUTORY PROVISIONS INVOLVED

The Florida Oil Spill Prevention and Pollution

Control Act, ch. 70-244, is set forth in the Appendix,

at pp. 56-73.

The pertinent provisions of the Water Quality

Improvement Act of 1970, 84 Stat. 91, as amended,

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33 U.S.C. 1161-1175, are set forth in the Appendix,

at pp. 75-90.

The pertinent provisions of the Limitation of Li-

ability Act, 9 Stat. 635, as amended, 46 U.S.C. 181-

189, are set forth in the Appendix, at pp. 91-92.

INTEREST OF THE UNITED STATES

The substantial interest of the United States in

the prevention and control of oil spills from ships

and waterfront facilities is indicated by federal legis-

lation and pending international conventions dealing

with the matter, which we discuss infra. The Court’s

decision in this case is likely to have a significant

impact on the implementation and enforcement of

these federal regulatory measures and on federal-state

relationships with respect to oil pollution control.

STATEMENT

This is an appeal from the decision of a three-judge

district court holding unconstitutional the Florida

Oil Spill Prevention and Pollution Control Act of

1970, ch. 70-244. Florida passed the Act for the pur-

pose of preventing and controlling oil spills into the

_ State’s navigable waters and to provide for recovery

of damages incurred by the State and private per-

sons as a result of such spills. The Act applies to all

“terminal facilities” (any waterfront facility used

for drilling for oil or handling the transfer or storage

of oil from ships) within the State, Section 3(9),

and to all ships destined for or leaving those facilities,

Section 12.

With respect to oil discharges from terminal fa-

cilities and ships, Section 12 of the Act provides that

the State may recover, on behalf of itself and private

persons, al] damages incurred as a result of the spill

and that, in such cases, it shall not be necessary for

the State to prove negligence. Section 11(6) (c),

however, confers discretion upon the state Department

of Natural Resources to allow the owner of a termi-

nal facility or vessel to be relieved of liability if the

spill resulted from an act of war, an act of God,

an act of government, or the act or omission of a

third person. Each owner or operator of a ship or

terminal facility covered by the Act must establish

evidence of financial responsibility by insurance or

a surety bond, under regulations promulgated by the

responsible state agency.”

Other provisions of the Florida Act set up a com-

prehensive regulatory scheme concerning the equip-

ment and operations of terminal facilities and ships

visiting Florida ports, to be administered by the state

Department of Natural Resources. The state agency

is authorized to require, through regulations, that

facilities and ships have certain oil containment gear

on hand, Section 7(2)(a) and (g), and that ships

allow the state port manager to board for the pur-

pose of determining the ship’s seaworthiness and

whether proper containment gear is being carried,

Section 7(2) (c).

1 The regulations (App. 73-74) require shipowners to estab-

lish and maintain evidence of financial responsibility in an

amount not to exceed $100 per gross ton of the ship o

$5,000,000, whichever is less.

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Terminal facility owners or operators must procure

a license from the state agency, which shall be issued

upon the applicant’s showing that he “can provide

all necessary equipment to prevent, contain and re-

move discharges of oil and other pollutants,” Section

6(6). The state agency also has the responsibility

to set up a system for reporting prohibited discharges,

Section 7(2)(b), to develop a plan to cope with oil

pollution when it occurs, Section 7(2)(e), and to

coordinate cleanup efforts with the federal govern-

ment, Section 8. Violation of the Act or any regula-

tion issued thereunder is punishable by a civil penalty

of not more than $50,000, Sections 10 and 16.’ The

agency is financed from the Florida coastal protection

fund, to which shall be credited all license fees and

penalties, Section 11.

Section 23 provides that all provisions of the Florida

Act are severable and that if any provision is held

unconstitutional, the decision shall not affect the other

provisions.

Merchant shippers using Florida ports, maritime

insurers, the Florida barge and towing industry, and

terminal facility owners brought suit against the

State and its officers in the United States District

Court for the Middle District of Florida, challenging

the Florida Act on federal constitutional and statu-

tory grounds, and seeking an injunction against its

enforcement (App. 1-26). Pursuant to 28 U.S.C.

2281, a three-judge court was convened.

The penalty provisions do not apply to any discharge

promptly reported and removed in accordance with the

agency’s regulations.

The court held the entire Florida Act “null ang

void and without effect” and enjoined its enforce

ment (App. 47). The court noted that federal

“[m]aritime law governs virtually every facet of the

shipping industry” and that there is extensive federal]

legislation in the area, including the Water Quality

Improvement Act of 1970 (WQIA), 84 Stat. 91, 33

U.S.C. 1161-1175, which subjects owners of vessels

or terminal facilities to liability without fault up to

$14,000,000 or $8,000,000, respectively, for cleanup

costs incurred by the federal government as a result

cf oil spills, and which authorizes the President t

issue regulations requiring that vessels and terminal

facilities maintain equipment to prevent spills (App.

40-41).

In the court’s view, the Florida Act would con-

stitute an unwarranted intrusion into federal ad-

miralty jurisdiction. It would subject shipowners to

far greater liability than that imposed by the WQIA

and, unlike the WQIA, would not allow shipowners

to defend on the basis that the oil spill was caused

by an act of God, an act of war, or the act or omission

of a third party (App. 42). Moreover, the court

believed that the Florida Act would alter general

maritime law, under which recovery in oil spill cases

would be allowed only if the injured party proved

that the ship had been negligently operated or

equipped (App. 42-43).

Citing Southern Pacific Co. v. Jensen, 244 US.

205, the court concluded that “[i]t is well settled

that state legislation is invalid where it is in con

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travention with general admiralty rules * * *” (App.

43), and that here the Florida Act would destroy

uniformity with respect to maritime affairs (App.

44), The court rejected the argument that in the

absence of a federal statute or definite maritime rule

on the subject, state law must govern (App. 46).

Although the Florida Act contains a severability

clause, the court struck down the entire statute be-

cause all of the provisions were “interwoven in pur-

pose and scheme” (App. 47).

SUMMARY OF ARGUMENT

The federal Limitation of Liability Act, 9 Stat. 635,

as amended, 46 U.S.C. 181-189, limiting recovery

to the value of the ship and her pending freight, gov-

erns the extent of a shipowner’s liability for injuries

caused by the ship, including oil spills. Under the

Supremacy Clause, Section 12 of the Florida Act can

not extend the limits set by this federal Act. How-

ever, we do not believe Section 12 should be declared

invalid in this regard since it is susceptible of an

interpretation that would avoid any conflict with

federal law; this Court should leave open the oppor-

tunity for a state court to interpret Section i2 as

subjecting shipowners to liability for all damages

up to the maximum set by federal law.

1. The Florida law is valid insofar as it subjects

operators of terminal facilities to unlimited liability

for damage from oil spills. The federal Limitation

of Liability Act apples only to vessels, and the federal

Water Quality Improvement Act of 1970 (WQIA),

33 U.S.C, 1161-1175, although limiting a terminal fg.

cility owner’s liability to the United States for cleap.

up costs, does not deal with liability to States and

private persons for damages caused by oil spills

Moreover, even if a discharge of oil from a terminal

facility were considered a maritime tort and thus

subject to general maritime law, there would be m

conflict with Section 12 of the Florida Act since the

terminal facility owner would not, in any event, be

able to limit his liability under federal law. The

Florida law in this regard at most merely restates

present federal law.

2. We believe Section 12 of the Florida Act t

be valid insofar as it sets the standard of recovery

against shipowners and terminal facility owners as

liability without fault.

a. Although a vessel’s discharge of oil into navig-

able waters could be considered a maritime tort, it is

not clear that the standard of liability would bk

negligence as the court below assumed. This area of

maritime law might, in light of current trends, de

velop a theory of liability without fault. But even

if negligence is considered to be the present standard,

there is no policy of maritime law opposed to liability

without fault for damages caused by oil spills from

ships. .

On the other hand, Florida has a legitimate in-

terest in applying its own standard of liability in view

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of the potential impact of oil spills on its environment’

and economy. There may be substantial difficulties

in proving negligence in such cases, particularly since

the only witnesses may be employees of the vessel

operator and since the acts resulting in the spill

may have been committed far away from the area of

the coast affected. Further, Florida could properly

conclude that liability without fault would encourage

a higher degree of care with respect to ships destined

for and leaving ports within the State. Since these

are the only ships covered by Section 12, Florida

law also reflects the State’s legitimate policy judg-

ment that such ships, using Florida ports for profit,

should bear the burden of loss if their oil damages

‘the State’s environment and citizens, even if the ship

had taken due care to prevent an accident,

Although application of Florida’s standard of li-

ability might create a lack of uniformity in general

maritime law, this is not a subject requiring uniform,

federal regulation. The primary conduct of those en-

gaged in maritime affairs would not be affected since

federal law already requires vessels to exercise the

highest degree of care to prevent oil spills. In addi-

tion, there would be no unwarranted disruption in the

financial planning of shipowners or their insurers

since, as we have argued above, the federal Limita-

tion of Liability Act would govern the extent of re-

covery, thereby giving notice of the limits of the ship-

owner’s liability before the ship’s voyage begins.

b. The considerations we have just summarized

with respect to vessels are, for the most part, all

the moré applicable to terminal facilities; the Florida _

law regarding the standard of liability for oil spills”

is therefore valid as applied to the owners of such

facilities.

International Conventions, currently pending bhe-

fore the Senate, provide that shipowners shall be liable

without fault to governments and private persons for

damages caused by oil spills. Under these Conven-

tions, shipowners may limit their liability to $15

million but persons or governments injured to a

greater extent may recover up to $32.4 million from

an international fund established by the Conventions.

Moreover, recovery may be had against the fund even

if the shipowner would have a defense and even if

the person injured cannot identify the source of the

oil spill. Although we believe these Conventions, if

ratified, would supersede state laws regarding liability

for oil spills from ships, we are of the view that in

the meantime Florida’s liability provision validly gov-

erns such liability to the extent indicated above.

The Florida Act directs the state agency to require

ships to carry certain “containment gear”. However,

diverse equipment regulations for ships from state to

state would pose an unreasonable burden on maritime

commerce and under Kelly v. Washington, 302 U.S.

1, 15, state law cannot govern in this area even in the

absence of any federal regulations.

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The matter will not, however, be unregulated since

the WQIA confers authority upon the President to

establish requirements for equipment on ships to pre-

vent discharge of oil. Pursuant to this authority, the

Coast Guard has published extensive and detailed

proposed regulations, which will shortly become final,

Also, recent amendments to 46 U.S.C, 391a give the

Coast Guard broad regulatory authority over equip-

ment and appliances on ships to prevent and mitigate

damage to the marine environment. Pub. L. 92-340,

Section 201, 92d Cong. (July 10, 1972). Although

these comprehensive federal laws suggest that Con-

gress has occupied the field and thus preempted the

States from acting in this area, we believe it un-

necessary to resolve this question because under Kelly

the States would be precluded from regulating equip-

ment on ships even in the absence of federal legisla-

tion on the subject.

The Florida Act also directs the state agency to

regulate equipment on terminal facilities in order to

prevent damage from oil pollution. Section 7(2) ( g).

Both the WQIA and the federal Ports and Waterways

Safety Act of 1972 confer similar-regulatory au-

thority upon the President; and the Coast Guard,

acting under the WQIA, has published extensive pro-

posed regulations dealing with the subject of the

equipment and operations of terminal facilities. 36

Fed. Reg. 24960. However, the WQIA: and the Ports _

and Waterways Safety Act recognize state authority

to act concurrently in this area to a limited extent and

the latter statute specifically provides that States may

require higher safety standards than those prescribed

by the Coast Guard. Therefore, since Florida has not

yet promulgated regulations dealing with equipment

on terminal facilities and since the Coast Guard’s

proposed regulations are not yet final, we believe

it would be inappropriate for the Court to attempt,

at this time, to define the precise extent of Florida’s

authority in this area, especially since the Florida

Act may be interpreted to allow the State to act only

in conformity with the WQIA and the Ports and

Waterways Safety. Act, thereby avoiding any con-

flict with federal law.

ARGUMENT

SECTION 12 OF THE FLORIDA ACT CANNOT SUB

JECT SHIPOWNERS TO UNLIMITED LIABILITY

FOR OIL SPILLS BECAUSE OF CONFLICTING

FEDERAL LAW, BUT IS VALID INSOFAR AS IT

SUBJECTS OWNERS OF TERMINAL FACILITIES

TO UNLIMITED LIABILITY AND SETS THE

STANDARD OF RECOVERY AGAINST OWNERS

OF SHIPS AND TERMINAL FACILITIES FOR

OIL SPILL DAMAGES AS LIABILITY WITHOUT

FAULT

A. The Federal Limitation of Liability Act Limits the

Liability of Shipowners For Their Ships’ Torts

Despite Contrary State Law

Because of a conflict with federal law, Section 12

of the Florida Act (App. 68-69) is, in our view,

ineffective (under the Supermacy Clause in Article

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-—

VI of the Constitution) insofar as it purports to sub-

ject shipowners to unlimited liability for damages

caused by oil discharged from ships. The federal

Limitation of Liability Act,® enacted in 1851 in order

to put American shipping in competitive equality with

British shipping,‘ provides that the liability of the

owner of a vessel shall not exceed his interest in the

ship and her pending freight* when the ship causes

injury without his “privity or knowledge.” *

There is no doubt that the Limitation of Liability

Act applies to damages caused by oil spills from ships,

even if the injury occurs on shore.’ In Ex parte

Phenix Insurance Co., 118 U.S. 610, where sparks

from a ship’s smokestack caused a fire on shore, the

Court held that the shipowner’s liability was not

limited since the federal Act applied only to mari-

time torts, which traditionally this was not because

the injury was consummated on land. Later, how-

ever, in Richardson v. Harmon, 222 U.S. 96, where

a ship collided with a bridge and the shipowner was

*9 Stat. 635, as amended, 46 U.S.C. 181-189.

*See 23 Cong. Globe 331-332, 713-720, 776-777 (1851).

8 Norwich Co. v. Wright, 18 Wall. 104, held that, for pur-

poses of the Act, the owner’s interest must be valued after

the accident or loss, not at the beginning of the voyage.

*46 U.S.C. 183(a); see Coryell v. Phipps, 317 U.S. 406;

Gilmore and Black, The Law of Admiralty 663-748 (1957).

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

1161-1175, creates an exception to the Limitation of Liability

Act with respect to recovery by the federal government for

the costs of cleaning up oil discharged by ships. See p. 16

n. 12, infra.

—

sued under state law, the Cowrt decided that an 1884

amendment to the Act, see 46 U.S.C. 189, extended

its coverage to include non-maritime torts.

As thus interpreted, the federal Limitation of Lia.

bility Act limits a shipowner’s liability for oil spills

whether the injury is consummated onshore or off,

But under appellants’ interpretation (Br., pp. 6, 38),

Section 12 of the Florida Act purports to impose

unlimited liability upon shipowners in such situa-

tions. There is thus a direct conflict between fed-

eral and state law, and the federal law prevails.

Gibbons v. Ogden, 9 Wheat. 1, 210-211; Richardson

v. Harmon, supra.

We do not believe, however, that it necessarily

follows that this portion of Section 12 of the Florida

Act should be declared invalid. The statute does not

mention the phrase “unlimited liability,” but instead

states only that vessels and terminal facilities that

discharge oil or other pollutants “shall be liable to

the state for all costs of cleanup or other damage

incurred by the state and for damages resulting from

injury to others” (App. 68). No Florida court has

yet interpreted this provision * and it appears likely

that when and if the question does arise, the state

court would consider Section 12 in light of the fed-

eral Limitation of Liability Act and interpret it ac-

cordingly. Cf. Lake Carriers’ Association v. Me

Mullan, No. 71-422, decided May 30, 1972, slip op.

8 The Florida certification procedure was not utilized in this

case. See Moragne v. States Marine Lines, Inc., 398 U.S. 376,

377. ;

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at p. 13. This could result in a construction that

shipowners are liable under Section 12 for all dam-

ages up to the maximum set by federal law. Since

there would in that event be no conflict with the

Limitation of Liability Act,° this Court should leave

open the opportunity for such a construction by de-

claring only that if Section 12 is interpreted to im-

pose liability without limit upon shipowners, it must

give way to the federal Limitation of Liability Act.”

B. Florida’s Subjection of Terminal Facilities to Un-

limited Liability And Imposition of Absolute Lia-

bility As the Standard of Recovery Against Ships

And Terminal Facilities Are Valid

In all other respects, we believe that Section 12 of

the Florida Act is valid.

* The Court has often warned against “seeking out conflicts

between state and federal regulation where none clearly ex-

ists.” Huron Cement Co. v. Detroit, 362 U.S. 440, 446.

The court below did not separately discuss Section 14 (1)

of the Florida Act, requiring owners of terminal facilities or

vessels to maintain evidence of financial responsibility with

the State pursuant to rules and regulations promulgated by

the Florida Department of Natural Resources. The regula-

tions now require vessel owners to establish financial responsi-

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

vessel or $5,000,000 whichever is lesser” (App. 74).

Since these regulations were presumably based on the pre-

mise that shipowners are subject \to unlimited liability under

Section 12 of the Florida Act, it is reasonable to expect that

they will be revised if, as we urge, this Court holds that the

federal Limitation of Liability Act\Jimits the amount of re

covery against shipowners, despite Section 12 of the Florida

Act.

1. Unlimited liability with respect to terminal fa-

cilities. The provision in Section 12 of the Florida

Act dealing with the extent of liability applies not

only to oil spills from vessels, which we have dis

cussed above, but also to oil spills from “terminal

facili[ties].” * In contrast, the federal Limitation of

Liability Act applies only to “vessels,” see 46 U.S.C.

183(a), and the Florida Act, insofar as it imposes

unlimited diability upon terminal facilities, is there

fore not in conflict with this federal Act.

Nor do we believe this aspect of the Florida Act

to be in conflict with the federal Water Quality Im-

provement Act of 1970 (WQIA), 84 Stat. 91, 33

U.S.C. 1161-1175, which provides that an owner or

operator of an offshore or onshore facility shall be

liable to the United States in an amount not to ex-

ceed $8,000,000 for the costs incurred by the United

States in cleaning up oil discharged by the facility.”

33 U.S.C. 1161(f)(2).% Section 12 of the Florida

11 Section 3(9) defines “terminal facilit[ies]” to include

onshore and offshore facilities for “drilling for, pumping,

storing, handling, transferring, processing, or refining oil or

other pollutants * * *” (App. 59).

12 Similar liability, limited, to $100 per gross ton or

$14,000,000, whichever is less, is imposed upon vessels. 38

U.S.C. 1161 (f) (1).

13 The owner or operator is relieved of liability to the United

States if he proves “that a discharge was caused solely by (A)

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

the United States*Government, or (D) an act or omission of a

third party without regard to whether any such act or omis-

sion was or was not negligent, or any combination of the

foregoing clauses * * *.” 33 U.S.C. 1161(f) (2).

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Act concerns liability to the State and private per-

sons for damage caused by oil spills—a subject not

regulated by the WQIA, which deals only with lia-

bility to the federal government. Moreover, the

WQIA specifically states that it shall not “affect or

modify” the obligations of “any owner or operator

of any onshore facility or offshore facility to any

person or agency under any provision of law for

damages to any publicly-owned or privately-owned

property resulting from a discharge of any oil or

from the removal of any such oil.” 33 U.S.C. 1161

(o)(1). And the WQIA further provides that it

shall not preempt any State from imposing “any re-

quirement or liability with respect to the discharge

of oil into any waters within such State”’ 33 U.S.C.

1161 (0) (2).

Thus, the Florida law is valid in this regard un-

less for some other reason the Supremacy Clause de-

prives the State from holding terminal facilities lia-

ble for all recoverable damages for oil spills. In our

view, the only possible basis for doubt about the

State’s authority on this matter would be that suits

dealing with oil spills from terminal facilities into

navigable waters may be within the federal admir-

alty jurisdiction, even if the source of the oil spill

is land-based and not a “vessel,” ** and that state

law cannot serve as the decisional rule in such cases

because it offends general maritime law. However,

* Terminal facilities are not “vessels” under general mari-

time law. See Rodrigue v. Aetna Casualty Co., 395 U.S. 352,

360.

the point is immaterial here. For there is no federgl

law, statutory or otherwise, limiting the liability og

terminal facilities for damages to a State or a pri.

vate individual. Thus, even if an action for damagg

caused by a terminal facility’s discharge of oil onty

navigable waters were considered a maritime tort in

all cases,“ Section 12 of the Florida Act merely x

states the present maritime law insofar as it provide

that there is no limitation on recovery for damage

- from owners or operators of such facilities.

2. Liability without fault for oil spills from vessels

and terminal facilities. As far as Section 12 of th

Florida Act is concerned, the only remaining question

is whether the standard of recovery set forth in that

provision—liability without fault—would govern in

suits for damages from oil spills against vessels and

terminal facilities covered by the Florida Act, or

whether, instead, general maritime law must control

The question is important because, at least sine

18 Compare Firemen’s Fund Insurance Co. Vv. Standard Oil

Co. of Cal., 339 F. 2d 148 (C.A. 9), with The Plymouth, 3 Wall

20, 35 (in order for there to be a maritime tort “the wrong

and injury complained of must have been committed wholly

upon the high seas or navigable waters, or, at least, the sub

stance and consummation of the same must have taken place

upon these waters to be within the admiralty jurisdiction”),

and Executive Jet Aviation, Inc. v. City of Cleveland, Ohio,

448 F. 2d 151 (C.A. 6), certiorari granted, 405 U.S. 915;

Peytavin v. Government Employees Insurance Co., 458 Ff.

2d 1121 (C.A. 5).

The Admiralty Extension Act, 46 U.S.C. 740, which in part

overruled The Plymouth, supra, applies only to damages

caused by vessels. See Victory Carriers, Inc. v. Law, 404 US

202.

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—_—_

Southern Pacific Co. v. Jensen, 244 U.S. 205, decided

in 1917, this Court has adhered to the principle that,

in maritime cases, the same law must be applied re-

gardless of whether suit is brought in the federal

admiralty court or in state court under the “savings

clause” of 28 U.S.C. 1333(1). See Romero v. Inter-

national Term. Co. 358 U.S. 354, 373-374. And when

state law differs from the general maritime law, the

relevant state and federal interests should be con-

sidered in determining which law should prevail.’

a. Vessels. The court below correctly recognized

that a vessel’s discharge of oil into navigable waters

could be considered a maritime tort,’ even if the in-

jury were consummated on land.” But it is less clear

what the standard of liability would, or should, be

for this type of maritime tort. While general mari-

time tort law is doubtless rooted in negligence,” ad-

miralty courts have also imposed strict liability,”

particularly in regard to injuries to seamen under

the concept of “maintenance and cure” and to long-

16 See generally Currie, Federalism and the Admiralty: “The

Devil’s Own Mess,” 1960 Sup. Ct. Rev. 158.

11 See Gilmore and Black, The Law of Admiralty 21 (1957);

State, Department of Fish and Game v. S.S. Bournemouth,

807 F. Supp. 922, 924 (C.D. Cal.).

18 Before 1948, when the Admiralty Extension Act, 46 U.S.C.

740, took effect, the causing of damages onshore by a vessel

in navigable waters did not constitute a maritime tort. The

Plymouth, 8 Wall. 20; Cleveland Terminal R.R. v. Steamship

Co., 208 U.S. 316.

*” See The Clara, 102 U.S. 200.

2° See McCoy, Oil Spill and Pollution Control: The Conflict

Between State and Maritime Law, 40 G.W. L. Rev. 97, 108

(1971).

shoremen and others under the doctrine of “‘ungeg.

worthiness.” “ And if one searches for common lay

analogues to the discharge of oil by vessels, there is

the well-known English case of Rylands v. Fletcher,

8 H.L. 330 (1868), where the court held the defend.

ant strictly liable for the escape of water from his

dam onto another’s land, and thereby fostered the

idea that enterprises should pay for damages result

ing from their enterprise, especially when the actiy.

ity conducted for profit involves risks despite th

observance of due care.” With the recent enactment

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

1161-1175, federal legislation at least has moved in

that direction in regard to oil spill cleanup costs in.

curred by the federal government. Moreover, Con.

gress has declared in that Act “that it is the policy

of the United States that there should be no dis

charges of oi] into or upon the navigable waters of

the United States,” 33 U.S.C. 1161(b) (1), and gen

eral maritime law surely would take this declars-

tion of national policy into account.”

1 See, e.g., Seas Shipping Co. v. Sieracki, 328 U.S. 85, 93-96.

22 See Morris on Torts 240-255 (1953); see also Green y.

General Petroleum Corp., 205 Cal. 328, holding the owner of

an oil drilling operation liable for damages caused by a blow-

out even though the drilling was not conducted negligently.

23 See Moragne v. States Marine Lines, Inc., 398 U.S. 875,

indicating the influence of legislation on the development of

general maritime law. Cf. Selvig, Towards Strict Shipowner

Liability: Recent Trends in Norwegian Law on Maritim

Torts, 2 J. Maritime L. and Comm. 383 (1971).

[Footnote continued on page 21)

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Nevertheless, whether the general maritime law

would develop a negligence theory of recovery or, in-

stead, a type of liability without fault is difficult to

predict.* But even if one assumes, as did the court

below (App. 42-43), that the standard of liability

for this kind of maritime tort is negligence, there is

nothing in the general maritime law to indicate a

negative beer opposed to liability without fault in

such cases.”

*s [Continued]

See also the Refuse Act of 1899, 33 U.S.C. 407, making it a

criminal offense to discharge refuse into the navigable waters

of the United States. United States v. Standard Oil Co., 384

US. 224, held that “refuse” includes oil.

“The question may become moot in any event if the Senate

ratifies the pending International Convention on Civil Liability

for Oil Pollution Damage, Exec. Doc. G, 91st Cong., 2d Sess.,

at pp. 19-27 (1970), which provides that a shipowner shall be

liable for all pollution damage caused by oil that has escaped

or been discharged from his ship, unless he proves that the

damage resulted from an act of God, an act of war, negligence

of any government responsible for maintaining navigational

aids, or an act or omission by a third party with intent to

cause damage. Id. at 20. See also International Convention on

the Establishment of an International Fund for Compensation

for Oil Pollution Damage, Exec. Doc. K, 92d Cong., 2d Sess.,

pp. 1-20 (1972), which allows compensation in addition to

that provided by the Civil Liability Convention and allows

recovery in additional cases (e.g., spills caused by an act of

God). See pp. 27-29, infra.

* The state law is therefore not invalid under the principle

of Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409-410 (“While

states may sometimes supplement federal maritime poli-

cies, a state may not deprive a person of any substantial ad-

miralty rights as defined in controlling acts of Congress or by

interpretative decisions of this Court.”).

On the other hand, there are substantial state ip.

terests underlying Florida’s imposition of absolute

liability. Florida found, as Section 2 of the Ac¢

states, that oil pollution poses grave and immediate

dangers to the State’s seacoast, and, as a consequence,

threatens the State’s environment, the owners and

users of shorefront property, the livelihood of thoge

within the State who derive their living from marine

related activities, and the beauty of the Florida coast,

which the State considers best used as a source of

public and private recreation (App. 56-57).

In light of the potential impact of oil spills on the

environment and economy of the State, we believe

Florida has a legitimate concern for the application

of its own law regarding the basis for liability.” If

the standard of negligence would otherwise control,

this could present serious obstacles to the granting

of some measure of compensation for damages suf-

fered by the State and its citizens from oil spills.

The problems of proof of negligence in such cases

are obvious. Employees of the vessel operator may

be the only witnesses to the spill; it may be difficult

to determine precisely why the spill occurred; and

the acts resulting in the spill may have been com-

mitted far away from the damaged beach or the

particular area of the coast affected.”

26 Other States have also imposed liability without fault

with respect to oil spills from ships. See Note, Toward a State

Remedy for Oil Spill Damages: An Insurance Approach, 41

N.Y.U. L. Rev. 60, 65 n. 29 (1972).

27 See Note, Toward a State Remedy for Oil Spill Damages:

An Insurance Approach, 47 N.Y.U. L. Rev. 60, 61 (1972).

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In addition, Florida could properly conclude that

the standard of absolute liability rather than negli-

gence would encourage a higher degree of care. It

is relevant here that the liability-without-fault pro-

vision in Section 12 of the Florida Act applies only

to ships destined for or leaving terminal facilities

within the State. Since these vessels thus have a

significant nexus with the State and are operating

for profit by using Florida ports, the State’s regu-

latory measure legitimately expresses Florida’s policy

judgment that such ships should bear the burden of

loss if the State’s beaches*are fouled with oil from

the ship, even if due care is taken to prevent a mis-

hap. Florida has, in short, legislated within the tra-

ditional bounds of the police power in order to pro-

tect its citizens and their environment.”

Of course, if Florida law rather than the general

maritime law controls, this might lead to a lack of

uniformity with respect to the standard of liability

for oil pollution by ships. But that, in itself, does

not necessarily mean general maritime law must pre-

vail. Insofar as Southern Pacific Co. v. Jensen, 244

U.S. 205, 216, held that state law. may never in-

terfere with the uniformity of maritime law, the

“case has already been severely limited, and has no

vitality beyond that which may continue as to state

workmen’s compensation laws.” Standard Dredging

Co. v. Murphy, 319 U.S. 306, 309.” Instead, “[u]ni-

% See Gibbons v. Ogden, 9 Wheat. 1; Huron Cement Co. v.

Detroit, 362 U.S. 440.

* See also Wilburn Boat Co. v. Fireman’s Fund Insurance

Co., 348 U.S. 310, 321 n. 29.

formity is required only when the essential feature

of an exclusive federal jurisdiction are involved.”

Just v. Chambers, 312 U.S. 383, 392; see also Romer

v. International Term. Co., 358 U.S. 354, 873. Ct

Cooley v. Board of Wardens, 12 How. 298; Willaon

v. Black-bird Creek Marsh Co., 2 Pet. 245.

Whether a state law must fall “because the subject

is one as to which uniformity of regulation is re

quired,” Kelly v. Washington, 302 U.S. 1, 14, requires

a balancing of the particular state and federal in.

terests involved;” in this respect, the issue is not un.

like that presented in cases dealing with the validity

of state laws affecting interstate commerce. Indeed,

in maritime cases involving state regulatory measures

to maintain health, safety or the general welfare,

this Court has often spoken in terms of the Com.

merce Clause, rather than admiralty jurisdiction."

We have already discussed the important state in

terests and the policies underlying Section 12 of the

Florida Act. As against this, there is the federal

concern, identified by the Court in The Roanoke, 189

U.S. 185, 195, that “it is almost impossible for [the

master] * * * to acqaint himself with the laws of

each individual State he may visit * * *.” But this

consideration has little force here. The federal Water

Quality Improvement Act puts vessels on notice that

% See Currie, Federalism and the Admiralty: “The Devits

Own Mess,” 1960 Sup. Ct. Rev. 158, 170-174.

*1 Currie, Federalism and the Admiralty, supra, at 170; see,

e.g., Kelly v. Washington, 302 U.S. 1, 14-16; Huron Cement

Co. v. Detroit, 362 U.S. 440, 448.

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they are expected to exercise utmost care in prevent-

ing oil spills ;” the imposition by various coastal States

of strict or absolute liability in place of a negligence

standard under general maritime law would simply

reinforce the ship’s preexisting duty. There would

thus be no prejudicial effect on the primary conduct

of those engaged in maritime affairs resulting from a

lack of uniformity in this area of maritime law.

Nor do we believe that Florida’s law must fall

on the basis that absolute liability rather than negli-

gence would unreasonably expose shipowners to vast

liability to the detriment of the federal interest in

promoting maritime commerce. As we have argued

above (pp. 12-15, supra), the federal Limitation

‘of Liability Act now limits the extent of recovery

against a shipowner despite contrary state law. Like-

wise, the standard of liability set by a State cannot

extend the maximum amount recoverable against a

shipowner. Thus, if Florida’s liability standard ap-

plied, the shipowner would nevertheless know the

limits of his liability before the ship’s voyage began

and he would also know that this would not change

from state to state even if, in different states, the

basis for recovery varied. A lack of uniformity

therefore would not cause any unwarranted disrup-

tion in the financial planning of persons engaged in

maritime affairs or their insurers. In sum, since ap-

plication of Florida’s absolute liability standard would

not contravene the federal interest in the general har-

% See pp. 13 n. 7, 16, 20, supra.

mony of maritime affairs, and since the State has a

substantial stake in having its law applied, we he.

lieve the district court erred in striking down this

provision in Section 12 of the Florida Act.”

b. Terminal facilities. What we have just said

with respect to vessels is all the more applicable to

terminal facilities, where the connection with the

State is even greater and where there appears to be

even less need for uniformity since terminal facilities

do not move from state to state as do ships. Nor

do damages from terminal facilities to other shor

installations fall within the admiralty jurisdiction,

See Rodrigue v. Aetna Casualty Co., 395 U.S. 362,

360-361.

*s Federal law provides criminal penalties for the discharge

of oil by ships in certain instances, but Section 12 of the Flori-

da Act is not inconsistent since it provides a civil remedy. The

federal criminal provisions are:

(1). The Oil Pollution of the Sea Act of 1961, as amended,

83 U.S.C. 1001-1015, implementing the 1954 International

Convention for the Prevention of the Pollution of the Sea by

Oil. The Act prohibits oil discharges by ships in certain

territorial zones incident to normal operations, but does not

apply to the discharge of oil to prevent damages to the ship

or the escape of oi] resulting from damage to the ship. 3

U.S.C. 1008. Violations are a misdemeanor and are punishable

by a fine not exceeding $2,500 nor less than $500. 33 U.S.C.

1005.

(2). The Refuse Act of 1899, 33 U.S.C. 407, which provides

that any discharge from a ship of “any refuse matter of any

kind or description whatever” into any navigable water of the

United States shall be punishable by a fine not exceeding

$2,500 nor less than $500, or imprisonment not less than

thirty days nor more than one year, or both, 33 U.S.C. 411

See United States v. Standard Oil Co., 384 U.S. 224 (the Act

applies to oil spills).

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3. Summary. We conclude, therefore, that Sec-

tion 12 of the Florida Act is ineffective insofar as

it purports to subject ships to unlimited liability con-

trary to the federal Limitation of Liability Act, but

that a state court may interpret Section 12 to be

consistent with the federal Act; that Section 12

merely restates existing law insofar as it subjects

terminal facilities to unlimited liability and is there-

fore not invalid in this respect; and that Section 12’s

imposition of absolute liability on ships and terminal

facilities foroil spills is a proper exercise of the

State’s police power and should be given effect despite

the lack of uniformity with general maritime law

on this subject that might result. Accordingly, the

judgment of the court below, striking down the entire

Florida Act primarily because of the alleged uncon-

stitutionality of Section 12, should be reversed.

C. International Conventions Now Pending Before the

Senate Would, If Ratified, Significantly Affect the

Questions Discussed Above Regarding the Liability

of Ships For Damage Caused By Oil Spills

Many, if not all, of the questions discussed above

will be significantly affected if pending international

Conventions dealing with oil pollution of the seas by

% The Florida Act also contains a provision allowing direct

actions against insurers of vessels or terminal facilities, see

Section 14(3) (App. 70), which the court below did not sep-

arately discuss. In itself, this provision appears to be valid

under Maryland Casualty Co. v. Cushing, 347 U.S. 409. (The

federal Water Quality Improvement Act also contains a direct-

action provision that the federal government may invoke to

sue the shipowner’s insurer for cleanup costs. 33 U.S.C. 1161

(p) (3).)

ships, which the President has transmitted to the

Senate,™ are ratified.

The 1969 Convention on Civil Liability establishe

rules regarding the liability of oil-carrying vessels

to governments and private persons for d

from oil pollution. The shipowner is liable for suc

damages in all cases unless he can show that the oj]

spill was caused by (a) an act of God, (b) an ac

of war, (c) an act done with intent to injure o@

with negligence by the party suffering damages or

a third person, or (d) negligence of a government,

Under procedures specified in the Convention, the

owner may limit his liability per incident to $144

per gross registered ton or $15 million,” whichever

is less, unless the incident occurred as a result of his

fault or privity. Ships are required to maintain in

surance or other evidence of financial responsibility

to cover potential liability under the Convention. In

addition to the United States, eighteen other coun-

tries had signed the Convention at the time of its

transmittal to the Senate.”

38 Presidential Message Transmitting Convention on the

Establishment of an International Fund for Compensation for

Oil Pollution Damage and Amendments to the 1954 Prevention

of Pollution of the Sea by Oil Convention, Exec. Doc. K, 92d

Cong., 2d Sess. (1972) [hereinafter “1971 Convention”);

Presidential Message Transmitting Two Conventions ani

Amendments Relating to Pollution of the Sea by Oil, Exe.

Doc. G, 91st Cong., 2d Sess. (1970) [hereinafter “1969 Con-

vention’”’].

36 See note 38, infra.

*7 See 1969 Convention, supra, Exec. Doc. G, at 4-5.

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The 1971 Convention supplements the 1969 Con-

yention on Civil Liability and sets up an interna-

tional Compensation Fund. If a shipowner has lim-

ited his liability under the 1969 Convention, the

Fund will pay for additional damages up to an ag-

gregate of $32.4 million.” Also, the Fund will pay

governments or private persons up to this amount

even in cases where the shipowner would have a

defense because the damage resulted from an act of

God, the act or omission of a third person, or negli-

gent maintenance of navigational aids by a govern-

ment. Compensation up to this amount is also avail-

able where the claimant cannot identify the particu-

lar ship from which the oil escaped. The Fund is

financed by payments required from receivers of oil

importing more than a specified amount per year.

In addition to the United States, eleven other coun-

tires had signed this Convention at the time of its

transmittal to the Senate.”

If ratified, these Conventions will, under the Su-

premacy Clause, supersede state laws regarding lia-

bility for oil spills from ships. However, we are of

the view that in the meantime Florida’s liability

provision is valid to the extent indicated in our pre-

vious discussion.

8 Since the Convention sets limits according to a gold stand-

ard, these dollar figures take account of the Par Value Modifi-

cation Act, P.L. 92-268, 92d Cong.

* 1971 Convention, supra, Exec. Doc. K, at VI. We are in-

formed that as of August 1972, a total of 28 countries in ad-

dition to the United States had signed or ratified this Con-

vention. >

“

FLORIDA MAY NOT IMPOSE REQUIREMENT;

WITH RESPECT TO. THE EQUIPMENT CARRIED

ON SHIPS FOR CONTAINING OIL SPILLS, BUT

THE EXTENT OF THE STATE’S REGULATORY

AUTHORITY OVER TERMINAL FACILITIES

SHOULD NOT BE DECIDED IN THIS CASE

A. Since Uniform Regulations Are Necessary in Re

gard to the Equipment And Fittings Required 0;

Ships Plying the Navigable Waters of the United

States, This Is an Area For Exclusive Federa]

Regulation And Individual States Cannot Impose

Their Own Requirements

Section 7(2)(a) of the Florida Act directs the

state Department of Natural Resources to formulate

regulations “requiring that vessels transporting pol

lutants within state waters shall maintain on boar

such containment gear as may be required by the

department with a crew trained in the use of such

gear” (App. 62).” In our view, this provision of

the state law is invalid under the commerce and ad-

miralty clauses of the Constitution because the subject

sought to be regulated—containment equipment on

ships—requires uniform, federal regulation. The

Court’s holding in Kelly v. Washington, 302 US. 1,

15, is, we believe, controlling on this issue:

If, however, the State goes farther and attempts

to impose particular standards as to structure,

design, equipment and operation which in the

judgment of its authorities may be desirable but

4° Section 7(2) (d) of the Act also requires regulations pre

scribing “Procedures, methods, means, and equipment to be

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

in the removal of pollutants” (App. 63).

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pass beyond what is plainly essential to safety

and seaworthiness [of the ship], the State will

encounter the principle that such requirements,

if imposed at all, must be through the action of

Congress which can establish a uniform rule.

Here, Florida has authorized its Department of

Natural Resources to require certain “containment

gear” on ships entering and leaving Florida ports.

By “containment gear” Florida may mean equip-

ment to contain and prevent the spreading of oil

spills that have occurred. But there are numerous

kinds of equipment systems in various stages of de-

velopment for this purpose, including inter alia the

“dynamic keel” oil containment system,“ pneumatic

barriers using air bubbles, and various types of

“booms.” @ And the obvious difficulty is, as the Court

pointed out in Kelly, supra, 302 US. at 15, that

Florida “might prescribe standards, designs, equip-

ment and rules of one sort, [Maine] another, [New

York] another, and so on.” “ By “containment gear”

Florida may also mean fittings and equipment to

41 See March, “Dynamic Keel” Oil Containment System, in

Proceedings of Joint Conference on Prevention and Control

of Oil Spills (sponsored by American Petroleum Institute, July

15-17, 1971).

42 See Basco, Pneumatic Barriers for Oil Containment under

Wind, Wave and Current Conditions, in id. at 381.

8 See Marks, Geiss and Hirshman, Theoretical and Experi-

mental Evaluation of Oil Spill Control Devices, in id. at 393.

“By contrast, the Smoke Abatement Code of the City of

Detroit upheld in Huron Cement Co. V. Detroit, 362 U.S. 440,

did not require any particular equipment on ships, but merely

provided for the application to ships of standards for maxi-

mum allowable smoke emissions in the City.

prevent oil seepages and spills from leaving the ship,

Here again diverse equipment regulations for ships

from state to state would unreasonably burden mari.

time commerce.

Thus, even in the absence of federal law on the

subject, we believe that, under Kelly v. Washington,

supra, States cannot impose their own requirements

regarding containment equipment on ships.“ We add,

however, that the inability of the States to act in this

area will not leave the matter unregulated. The fed.

eral Water Quality Improvement Act, 33 U.S.C. 1161

(j) (1), authorizes the President to issue regulations

“establishing procedures, methods, and requirements

for equipment to prevent discharges of oil from ves-

sels and from onshore facilities and offshore facili-

ties,” and regulations governing inspection of vessels

to reduce the likelihood of discharges of oil. With

respect to ships, the Coast Guard has published, pur-

suant to this authority, extensive and detailed pro

posed regulations, a sample of which we have set

forth in the margin,“ dealing with the kind of equip

48 Florida’s regulation of containment gear does not come

within the exception in Kelly allowing States to inspect ships

entering their ports in order to insure safety and seaworthi-

ness, since this exception applies only in regard to vessels

that are “actually unsafe and unseaworthy in the primary

and commonly understood sense,” 302 U.S. at 15, which does

not include ships with containment gear different from that

required by Florida or without any containment gear on board.

(a) After December 31, 1974, no person may operate

a tank vessel that is carrying oil that has a tank capacity

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——

for 10,000 U.S. gallons or more of oil unless it has—

(1) Fixed containers or enclosed deck areas that meet

the requirements of this section under or around each oil

loading manifold and each oil transfer connection area;

and

(2) A means of draining or removing discharged oil

from each container or enclosed deck area.

(b) Each drain and scupper in an enclosed deck area

required by this section must have an attached means of

closing.

hold, in all conditions of vessel list or trim, to be en-

countered during the loading operation at least—

(1) 100 U.S. gallons if it serves one or more 6-inch

nominal diameter or smaller hose or loading arm con-

nections; ;

(2) 150 U.S. gallons if it serves one or more hose or

loading arm connections larger than 6 inches, but less

than 12 inches, nominal diameter; or

(3) 200 U.S. gallons if it serves one or more 12-inch

or larger nominal diameter hose or loading arm connec-

tions.

* * * * *

§ 155.320 Fuel oil discharge containment.

After December 31, 1974, no person may transfer oil

for fuel to a vessel of 100 gross ton or more unless—

(a) It has a fixed container or enclosed deck area of

at least 14 U.S. gallons capacity under or around each fuel

tank vent, overflow, and fill pipe; or

(b) Each fuel tank vent, overflow, and fill pipe is lo-

cated where a portable container that is at least 18 inches

deep and has at least 14 U.S. gallons capacity can be

placed under it.

* 7 + * *

§ 155.400 Valves.

After December 31, 1974, no person may operate a

vessel of 100 or more gross tons unless—

[Footnote continued on page 34]

—_

ment and fittings ships must carry in order to cop.

tain oil and prevent spills. 36 Fed. Reg. 24960.“

Further, under recent amendments to 46 U.S.

391la, enacted after the decision below, the Coast

Guard is authorized, “[i]n order to secure effective

provision * * * for protection of the marine environ.

ment,” to establish regulations for ships* “with re

spect to equipment and appliances for * * * the pre

vention and mitigation of damage to the marine ep.

* [Continued]

(a) It has a valve in each fixed overboard bilge and

ballast discharge line except a line used only for dis.

charges from spaces free from sources of oil;

(b) It has a positive means of closing each valve r-

quired by paragraph (a) of this section at the valve if it

is accessible and—

(1) On or above the freeboard deck of a vessel that is

required to have a freeboard deck under 46 CFR 43.05-1

(g);or —

(2) On or above the main deck of a vessel that does not

have a freeboard deck;

155.370, 155.380, and paragraph (a) of this section has

a positive means of being sealed in the closed position; and

(d) Each valve required by §§ 155.340, 155.350,

155.370, 155.380, and paragraph (a) of this section is

conspicuously identified by a label on or next to the valve

and each remote means of closing the valve.

* * + a aa

** The Coast Guard informs us that these regulations are

now being reviewed and revised and will be formally issued by

the end of 1972.

** The amendments cover ships carrying oil or other liquid

pollutants.

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vironment * * *.” Pub. L. 92-340, Section 201, 92

Cong. (July 10, 1972).®

Together these recent amendments and the proposed

regulations under the federal WQIA indicate that

federal law has so occupied the field that the States

are preempted from acting in this area.” But in our

view this question need not be resolved since state

laws prescribing containment equipment on ships

would be invalid even in the absence of federal leg-

islation on the subject.

B. Although Recent Federal Legislation Gives the

United States Authority to Regulate the Operations

of And Equipment On Terminal Facilities, Congress

Recognized the States’ Concurrent Authority To

Act In This Area And the Extent of Florida’s Au-

thority In this Respect Cannot Now Be Appropri-

ately Determined Since Neither the State Nor the

Federal Government Has Yet Promulgated Regu-

lations Governing Terminal Facilities

In order to prevent oil spills, the Florida Act also

requires regulation of equipment relating to the use

and operation of terminal facilities. Section 7(2) (g)

(App. 64). In striking down the entire Florida Act,

the court below did not specifically discuss Section

7(2)(g). We believe it would be inappropriate for

” The Coast Guard has not yet promulgated regulations un-

der Section 201 of Pub. L. No. 92-340, supra.

* The provision in the WQIA preserving state authority and

declaring that the Act does not preempt state law “imposing

any requirement or liability with respect to” oil spills, see p.

17, supra, does not appear to apply to laws regarding the

regulation of equipment on ships. See 33. U.S.C. 1161(0) (1)

and (2).

——

this Court now to pass on the constitutionality of this

provision since its validity may substantially depend

upon how Florida seeks to exercise the regulatory ay.

thority conferred therein and upon what regulations

are promulgated by the United States Coast Guan

under the recently-enacted Ports and Waterways

Safety Act of 1972, Pub. L. 92-340, Title I, 92d Cong.

(July 10, 1972), and under the Water Quality

Improvement Act, 33 U.S.C. 1161(j)(1), see 3%

Fed. Reg. 24960." — ,

The federal Ports and Waterways Safety Act av

thorizes the Coast Guard to “prescribe minimum safe.

ty equipment requirements for structures subject to

this title to assure adequate protection from fire, ex.

plosion, natural disasters and other serious accidents

or casualties”; the purpose of such requirements is

“to protect the navigable waters and the resources

therein from environmental harm * * *.” Id., Se.

tion 101(7).” Pollution of navigable waters from

oil spills provided the impetus for this legislation"

and there is no doubt that the federal Act and the

51 Present Coast Guard regulations pertaining to “water.

front facilities” are contained in 33 C.F.R. 126.

82 The “structures” covered by the federal Act are those “on

or in the navigable waters of the United States, or any land

structure or shore area immediately adjacent to those waters

*** ” Id., Section 101. This appears to be coextensive with

coverage under the Florida Act, which defines “terminal fa-

cility” as “any waterfront facility of any kind” used for

drilling, pumping, or handling oil. Section 3(9) (App. 58

59).

58 See H. Rep. No. 92-563, 92d Cong., Ist Sess., 2-7 (1971).

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Florida Act overlap with respect to the regulation of

terminal facilities in order to prevent such environ-

mental harm. However, rather than preempting this

area, Congress left important regulatory authority

with the States. Section 102(b) of the Ports and

Waterways. Safety Act specifically provides that

“Nothing contained in this title * * * prevent[s] a

State or political subdivision thereof from prescribing

for structures only higher safety equipment require-

ments or safety standards than those which may be

prescribed pursuant to this title.”

In addition, pursu to the Water Quality Im-

provement Act, 33 “\WAS.C. 1161(j) (1), the Coast

Guard has published proposed regulations dealing with

equipment on terminal facilities, 36 Fed. Reg. 24960,

94964-24965. These regulations, which have not yet

become final,“ require, among other things, that ter-

minal facilities have equipment to prevent oil from

spilling onto the water and to contain oil that has

spilled, Section 154.530-154.545, 36 Fed. Reg. 24964;

that they have adequate means of communication with

the vessel in transfer operations, Section 154.560, 36

Fed. Reg. 24964; and that they have certain kinds of

hose assemblies, loading arms and closure devices,

Sections 154.500-154.520, 36 Fed. Reg. 24964.

The federal Water Quality Improvement Act, like

the Ports and Waterways Safety Act of 1972, supra,

recognizes state regulatory authority with respect to

% The Coast Guard expects the regulations, which are under-

going revision, to be issued in final form before the end of 1972.

terminal facilities and specifically provides that fe.

eral permits will not be issued to terminal facility op.

erators or owners unless the applicant first supplies

a certificate from the State that his operation wil

be conducted in accordance with state water quality

standards. 33 U.S.C. 1171(b) (1).

Thus, determination of the validity of a States

regulations on this subject would require a specific

comparison of them with the pertinent federal regu.

lations. But the latter have not yet been adopted by

the Coast Guard and we are informed that Florida

has not yet promulgated its regulations under Section

7(2)(g). In addition, this portion of the Plorida A¢

may be interpreted to allow the State to act only in

conformity with the federal Ports and Waterways

Safety Act and the Water Quality Improvement Act,

thus avoiding any federal-state conflict. See pp. 14-15,

supra. It would therefore be premature at this time

to pass upon the specific extent of Florida’s authority

to regulate in this area ™ since, as in Kelly v. Wash

ington, supra, 302 U.S. at 16, “[t]hat question cannot

be satisfactorily determined on this record and

[should] remain for decision as it may be presented

85 The federal Ports and Waterways Safety Act, in presery-

ing state authority to require higher safety standards, assumes

that the States have preexisting authority to regulate termi-

nal facilities. We believe this assumption to be correct. For

the obvious reason that such facilities are stationary, the site

ation is unlike that with respect to vessels, where the lack of

uniform equipment requirements from state to state would

be an unreasonable burden on maritime commerce.

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in the future in connection with some particular action

taken by the state authorities.” ®

% There may be other areas of potential conflict between the

Florida Act and federal law. For example, the Water Quality

Improvement Act, 33 U.S.C. 1161(b) (2), exempts discharges

of oil in such quantities and places as determined by the

President, through regulations, not to be harmful. On the

other hand, Section 4 of the Florida Act appears to prohibit

all discharges of oil in any quantity upon the State’s coastal

waters and beaches.

Also, compare Section 7 (2) (g) of the Florida Act (author-

izing regulations setting minimum weather and sea conditions

for permitting a vessel to enter and leave port), with 46 U.S.C.

91 (clearance to leave port) ; 33 C.F.R. 124 (Coast Guard reg-

ulations on control over movement of vessels issued under

Exec. Order 10173); and the Ports and Waterways Safety Act

of 1972, supra (authorizing the Coast Guard to control vessel

traffic in order to prevent environmental harm from vessel

damage). (Florida has not yet issued regulations under Sec-

tion 7 (2) (g) .)

We believe matters such as these should not be resolved now,

but should be “left to be determined when the precise question

arises” in the future. Kelly v. Washington, supra, 302 U.S. at

15.

CONCLUSION

For the foregoing reasons, the judgment of th

court below should be affirmed insofar as it holds that

Florida may not validly regulate equipment on ships

but should be reversed in all other respects since th

provisions dealing with the extent of liability of ship.

owners and the regulation of the equipment operations

of terminal facilities may be interpreted to avoid

invalidity and since the other provisions we have

discussed are valid.

Respectfully submitted.

ERWIN N. GRISWOLD,

Solicitor General.

KENT FRIZZELL,

Assistant Attorney General.

HARLINGTON WOOD, JR., °

Assistant Attorney General. °

A. RAYMOND RANDOLPH, JR.,

Assistant to the Solicitor General.

SEPTEMBER 1972.

475007 10!

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