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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1973
- **Citation:** 411 U.S. 325

## 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

II

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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30

—

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

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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

VI

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)
ec
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

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

—"
oo

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

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Ix

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
v.

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)

2

(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.

4

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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ww

5

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.

6

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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7

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
I

A

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.

B

1. The Florida law is valid insofar as it subjects
operators of terminal facilities to unlimited liability

8

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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9

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

10

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.
Cc

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.

II

A

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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11

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.

B

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

12

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

I

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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-—

13

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.

—

14

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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15

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.

16

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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17

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.

18

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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—_—_

19

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).

20

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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21

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.”).

22

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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28

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.

24

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.

26

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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27

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
j

% 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).)

28

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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:

29
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. >

~
“

30

II

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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31
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.

82

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.

*©§ 155.310 Cargo oil discharge containment.

(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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33

——

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.

(c) Each fixed container or enclosed deck area must
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]

—_

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;

(c) Each valve required by §§ 155.340, 155.350,
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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35

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).

——

36

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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87

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.

88

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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39

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.

40
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!

W ©. 8. covermmenr parmtine orrice; 1972

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0128%3A26. Public record. Not legal advice.