Opinion — Askew v. American Waterways Operators, Inc.

ASKEW, GOVERNOR OF FLORIDA, er At. ».

inh AMERICAN WATERWAYS OPERATORS,

; INC., ET AL.

4

' APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF FLORIDA

No. 71-1082. Argued November 14, 1972—Decided April 18, 1973

Florida Oil-Spill Prevention and Pollution Control Act, providing for

the State’s recovery of cleanup costs and imposing strict, no-fault

liability on waterfront oil-handling facilities and ships destined

for or leaving such facilities for any oil-spill damage to the State

or private persons, does not, in the context of this action by ship-

ping interests to enjoin application of the Florida statute, invade

a regulatory area pre-empted by the federal Water Quality Im-

provement Act, which is concerned solely with recovery of actual

cleanup costs incurred by the Federal Government, and pre-

supposes a coordinated federal-state effort to deal with coastal oil

pollution. Nor is the State’s police power over sea-to-shore pol-

lution pre-empted by the Admiralty Extension Act, which does

not purport to supply an exclusive remedy in this admiralty-

related situation. Southern Pacific Co. v. Jensen, 244 U. 8. 205,

and Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, distinguished.

Pp. 3-18.

335 F. Supp. 1241, reversed.

Doveias, J., delivered the opinion for a unanimous Court.

Riceren Thin C¥Iifnb

No. 71-1082

a. 7

Recbin, O'D. Assow @' 00,1”, Avmeal trem the United

— States District Court for

; the Middle District of

The American Waterways Sicha

Operators, Inc., et al.

[April 18, 1973]

Mr. Justice Dove.as delivered the opinion of the

Court.

This action was brought by merchant shippers, world

shipping associations, members of the Florida coastal

_barge and towing industry, and owners and operators

of oil terminal facilities and heavy industries located

in Florida, to enjoin application of the Florida Oil Spill

Prevention and Pollution Control Act, L. Fla. 1970,

c. 70-244 (hereafter referred to as the Florida Act).

Officials responsible for enforcing the Florida Act were

named as defendants, but the State of Florida intervened

as a party defendant, asserting that her interests were

much broader than those of the named defendants. A

three-judge court was convened pursuant to 28 U.S. C.

§ 2281.

The Florida Act imposes strict liability for any dam-

age incurred by the State or private persons as a result

of an oil spill in the State’s territorial waters from any

waterfront facility used for drilling oil or handling the

transfer or storage of oil (“terminal facility”) and from

any ship destined for or leaving such facility. Each

owner or operator of a terminal facility or ship sub-

ject to the Act must establish evidence of financial re-

ee ad aa on OE st Phe oe Oe

2 ASKEW v. AMERICAN WATERWAYS OPERATORS, Ivo

sponsibility by insurance or a surety bond.’ In addition

the Florida Act provides for regulation by the Sta,

Department of Natural Resources with respect to ep.

tainment gear and other equipment which must &

maintained by ships and terminal facilities for the pr.

vention of oil spills.

Several months prior to the enactment of the Florig

Act, Congress enacted the Water Quality Improvemen;

Act of 1970, 33 U.S. C. §1161 et seg. (hereinafter referrej

to as the Federal Act). This Act subjects ship owne;

and terminal facilities to liability without fault up to $14.

000,000 and $8,000,000, respectively, for cleanup costs

incurred by the Federal Government as a result of oj

spills. It also authorizes the President to promulgate

regulations requiring ships and terminal facilities tp

maintain equipment for the prevention of oil spills. It

is around that Act and the federally protected tenets of

maritime law evidenced by Southern Pacific Co. v. Jensen,

244 U.S. 205, and its progeny that the controversy turn

The District Court held that the Florida Act is an w-

constitutional intrusion into the federal maritime domain,

It declared the Florida Act null and void and enjoined its

enforcement. 335 F. Supp. 1241.

The case is here on direct appeal. We reverse. We

find no constitutional or statutory impediment in per

mitting Florida, in the present setting of this case, to

establish any “requirement or liability” concerning the

impact of oil spillages on Florida’s interests or concerns

To rule as the District Court has done is to allow fed-

eral admiralty jurisdiction to swallow most of the police

power of the States over oil-spillage—an insidious form

1 At the hearing on plaintiffs’-appellees’ application for a te

porary restraining order, it was indicated that none of the plaintifis

had attempted to comply with the Florida Act. Shippers had

threatened to divert their vessels from Florida ports.

ne me mt mee 11 CoC arre oO

ASKEW v. AMERICAN WATERWAYS OPERATORS, INC. 3

of pollution of vast concern to every coastal city or port

and to all the estuaries on which the life of the ocean

and the lives of the coastal people are greatly dependent.

I

It is clear at the outset that the Federal Act does not

preclude but in fact allows state regulation. Section

1161 (0) provides that:

“(1) Nothing in this section shall affect or mod-

ify in any way the obligations of ‘any owner or

operator of any vessel, or of any owner or operator

of gny 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.

“(2) Nothing in this section shall be construed

as preempting any. State or political subdivision

thereof from imposing any requirement or liability

with respect to the discharge of oil into ” waters

within such state.

“(3) Nothing in this section shall be con-

strued .. . to affect any State or local law not in ©

conflict with this section.”” (Emphasis added.)

According to the Conference Report, “any State would

be free to provide requirements and penalties similar to

those imposed by this section or additional requirements

and penalties. These, however, would be separate and

independent from those imposed by this section and

would be enforced by the States through its courts.” ?

The Florida Act covers a wide range of “pollutants,”

§3(7), and a restricted definition of pollution. § 3 (8).

We have here, however, no question concerning any

pollutant except oil.

*H. R. Rep. No. 91-940, 91st Cong., 2d Sess., 42.

BLEED THROUGH

4 ASKEW v. AMERICAN WATERWAYS OPERATORS, inc

The Federal Act, to be sure, contains a pervasive gy,

tem of federal control over discharges of oil “into

upon the navigable waters of the United States, adjoin.

ing shorelines, or into or upon the waters of the ep.

tiguous zone.” §1161(b)(1). So far as liability 5

concerned, an owner or operator of a vessel is liable tp

the United States for actual costs incurred for the re.

moval of oil discharged in violation of § 1161 (b) (2) jn

an amount “not to exceed $100 per gross ton of suc

vessel, or $14,000,000 whichever is lesser,” § 1161 (f)(1),

except for discharges caused solely by an act of God, at

of war, negligence of the United States or act or omission

of another party. With like exceptions the owner o

operator of an onshore or offshore facility is liable tp

the United States for the actual costs incurred by the

United States in an amount not to exceed $8,000,000,

§ 1161 (f)(2-3). But in each case the owner or operator

is liable to the United States for the full amount of the

costs where the United States can show that the dis

charge of oil. was “the result of willful negligence or

willful misconduct within the privity and knowledge of

the owner.” “Comparable provisions of liability spell

out the obligations of “a third party” to the United

States for its actual costs incurred for the removal of

the oil. § 1161 (g).

So far as vessels are concerned the federal Limitation

of Liability Act, 46 U.S. C. §§ 181-189, extends to dan-

ages caused by oil spills even where the injury is to

the shore. Richardson v. Harmon, 222 U. S. 96, 106.

That Act limits the liabilities of the owners of vessels

to the “value of such vessels and freight pending.” 4

U.S. C. § 189.

Section 12 of the Florida Act makes all licensees’ of

terminal facilities “liable to the state for all costs of

* Those required to obtain a license are those who operate a ter-

minal facility. §6(11). But licenses to terminal facilities include

“vessels used to transport oil, petroleum products, their by-products,

_ —n

ASKEW v. AMERICAN WATERWAYS OPERATORS, INC. 5

cleanup or other damage. incurred by the State and for

damages resulting from injury to others,” it not being

necessary for the State to plead or prove negligence.‘

There is no conflict between § 12 of the Florida Act and

$1161 of the Federal Act when it comes to damages

‘to property interests, for the Federal Act reaches only

costs of cleaning up. As respects damages, § 14 of the

Florida Act requires evidence of financial responsibility

of a terminal facility or vessel—provisions which do not

conflict with the Federal Act.

The Solicitor General says that while the Limitation of

Liability Act, so far as vessels are concerned, would

override § 12 of the Florida Act by reason of the Suprem-

acy Clause, the Limitation of Liability Act has no bearing

on “facilities” regulated by the Florida Act. Moreover,

$12 has not yet been construed by the Florida courts

and it is susceptible of an interpretation so far as vessels

are concerned which would be in harmony with the

Federal Act. Section .12 does not in terms provide for

unlimited liability.

Moreover, while the Federal Act determines damages”

measured by the’cost to the United States for cleaning

up oil pollution, the damages specified in the Florida Act

relate in part to the cost to the State of Florida in

cleaning up the spillage. Those two sections are har-

monious parts of an integrated whole. Section 1161 (c)

(2) directs the President to prepare a National Con-

tingency for the containment, dispersal and removal

of oil. The plan must provide that federal agencies

and other pollutants between the facility and vessels within state’

waters.” §6(4). —

‘Section 12 also provides that the pilot or the master of any vessel

or person in charge of any licensee’s terminal facility who fails “to

give immediate notification of a discharge to the port manager and

the nearest coast guard station” may be imprisoned for not more

than two years or fined not more than $10,000.

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6 ASKEW v. AMERICAN WATERWAYS OPERATORS, Inc

“shall” act “in coordination with State and log)

agencies.” {Cooperative action with the States is ala

contemplated by § 1161 (e). which ‘provides that “[ijp

addition to any other action taken by a State or loc)

government” the President may, when there is aut.

imminent and substantial threat to the public health

or welfare, direct the United States Attorney of the dis

trict in question to bring suit to abate the threat. The

reason for the provision in § 1161 (0)(2) stating that

nothing in § 1161 pre-empts any State “from imposing

any requirement or liability with respect to the discharge

of oil into any waters within such State” is that the

scheme of the Act is one which allows—though it does

not require—cooperation of the federal regime with

state regime.

If Florida wants to take the lead in cleaning up oil

_ spillage in her waters, she can use § 12 of the Florida

Act and recoup her costs from those who did the dam.

age. Whether the amount of costs she could recover

from a wrongdoer are limited to those specified in the

Federal Act and whether in turn this new Federal Act

removes the pre-existing limitations of liability in the

Limitation of Liability Act are questions we need not

reach here. Any opinion on them is premature. It is

sufficient for this day to hold that there is room for

state action in cleaning up the waters of a State and

recouping, at least within federal limits so far as vessels

are concerned, her costs.

Beyond that is the potential claim under § 12 of the

Florida Act for “other damage incurred by the state and

for damage resulting from injury to others.” The Federal

Act in no way touches those areas. A State may have

public beaches ruined by oil spills. Shrimp, clam, oyster,

and scallop beds may be ruined and the livelihood of

—- “ae

ASKEW v. AMERICAN WATERWAYS OPERATORS, INC. 7

fishermen imperiled.” The Federal Act takes no cog-

nizance of those claims but only of costs to the Federal

Government, if it does the cleaning-up.

8.Ag~to the damages of oil, spills to ecological factors it was re-

cently said in 10 Harv. Int. L. Journ. 316, 321-323 (1969):

“Some damage to marine life is obvious in the wake of a disaster

such as the one which befell the ‘Torrey Canyon.’ Surface feeding

fishes die when they swim into floating oil, and even slight, non-fatal

contact may render their flesh inedible. Shellfish, among others,

are also vulnerable to oil pollution. When the tanker ‘P. W. Thirtle’

off Newport, Rhode Island, 31,000 gallons of heavy black

oil were discharged from her tank in an effort to refloat the ship;

the result of this was the virtual destruction of the entire oyster

fishery of Narragansett Bay. The most serious consequences of oil

pollution, however, may not be those which are immediately obvious.

“According to Dr. Erwin S. Iversen, a marine biologist:

‘The greatest problem may be the toxic effects on the intertidal

animals that serve as food for other more important fishes... .

I don’t think the effect is merely that of killing large populations of

commercial fishes. Worse than that, it interrupts the so-called food

chain.’

“There have been few specific studies of the effect that oil ac-

cumulation has on this food chain. One study, conducted by Dr.

Paul Galtsoff of the United States Fish and Wildlife Service, found

that the diatoms on which oysters feed will not grow where there

is even a slight trace of oil on the water. The effect of oil on-such

microscopic marine plant life may be of great importance, because it

is estimated that it takes as much as ten pounds of plant matter to

produce one pound of fish.

“Large scale oil pollution, such as that which occurred when the

‘Torrey Canyon’ ran into the Seven Stones Reef, results in huge

losses of water birds. Aside from humane and aesthetic consider-

ations, these birds play a vital role in the ecology of the seashore, a

role which profoundly affects the fishing industry. The uncertainty

as to the actual extent of the damage done to marine life by oil

pollution makes it difficult to estimate the economic effect of such

damage, but the importance of the fishing industry within the world’s

economy is not in doubt and is steadily increasing. Between 1958

and 1963, for example, there was a 42% rise in the world catch. Be-

_» the annoyance that this causes a vacationing public seeking relief

8 ASKEW v. AMERICAN WATERWAYS OPERATORS, Inc

We held in Skiriotes v. Florida, 313 U. S. 69, tha

while Congress had regulated the size of commercial]

sponges taken in Florida waters, it had not dealt with

any diving apparatus that might be used. Florida had

such a law and was allowed to enforce it against one

of its citizens. Chief Justice Hughes, speaking for the

Court, said: “It is also clear that Florida has an inter.

est in the proper maintenance of the sponge fishing and

that the statute so far as applied to conduct within

the territorial waters of Florida, in the absence of con.

flicting federal legislation, is within the police power

of the State.” TJd., at 75.

Similarly, in Manchester v. Massachusetts, 139 U. §.

240, 266, we stated that if Congress fails to assume

control of fisheries in a bay, “the right to control such

fisheries must remain with the State which contains

such bays.”

Florida in her brief accurately states that no remedy

under the Federal Act exists for state or private prop-

erty owners dam by a massive oil slick such as

hit England and Fr&tice in 1967 in the Torrey Canyon

disaster. The Torrey Canyon carried 880,000 barrels

of crude oil.° Today not only is more oil being moved

by sea each year but the tankers are much larger.

cause of the increasing importance of seafood protein, future damage

to marine life will have progressively greater economic consequences,

“Perhaps the most noticeable damage caused by oil pollution is the

fouling of recreational beaches and shorefront property. One-half

million tons of oil are washed ashore each year, rendering beaches

junfit for swimming and filling the air with unpleasant odors. Besides

from urban life, economic loss may be considerable. It is estimated,

for example, that a serious oil spill off Long Island during the summer

months would cost resort and beach operators thirty million dollar.

Oil spills also create navigational and fire hazards in harbors, ports

and marinas.”

6 Ibid.

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ASKEW v. AMERICAN WATERWAYS OPERATORS, INC. 9

“The average tanker used during World War II had a

capacity of 16,000 tons, but by 1965 that average had

risen to 27,000 tons, and new tankers delivered in 1966

averaged about 76,000 tons. A Japanese company has

launched a 276,000 ton tanker, and other Japanese yards

have orders for tankers as large as 312,000 tons. More

than 60 tankers of 150,000 tons or more are on order

throughout the world, tankers of 500,000 to 800,000

tons are on the drawing boards, and those of more than

one million tons are thought to be feasible. On the

new 1,010 foot British tanker ‘Esso Mercia’ two officers

have been issued bicycles to help patrol the decks of

the 166,890 ton vessel.

“The size of the tanker fleet itself is growing at a rate

that rivals the growth in average size of new tankers.

In 1955 the world tanker fleet numbered about 2,500

vessels. By 1965 it had increased to 3,500, and in 1968

it numbered some 4,300 ships. At the present time

nearly one ship out of every five in the world merchant

fleet is engaged in transporting oil, and nearly the entire

fleet is powered by oil.” *

Our Coast Guard reports® that while in 1970 there

were 3,711 oil spills in our waters, in 1971 there were

8,736. The damage to state interests already caused

by oil spills, the increase in the number of oil spills,

and the risk of ever-increasing damage by reason of

the size of modern tankers underlie the concern of coastal

States.

While the Federal Act is concerned only with actual

clean-up costs incurred by the Federal Government, the

State of Florida is concerned with its own clean-up costs.

Hence there need be no collision between the Federal Act

™Id., at 317-318 (footnotes omitted).

5 Polluting Incidents In and Around U. S. Waters, Calendar Year

1971, Environmental Protection, Commandant U. S. Coast Guard.

10 ASKEW v. AMERICAN WATERWAYS OPERATORS, Inc |

and the Florida Act because, as noted, the Federal Ag

presupposes a coordinated effort with the States, and

any federal limitation of liability runs to “vessels” no

to shore “facilities.” That is one of the reasons why

the Congress decided that the Federal Act does no

pre-empt the States from establishing either “any re.

quirement or liability” respecting oil spills.

Moreover, since Congress dealt only with “clean-up”

costs, it left the States free to impose “liability” in dam.

ages for losses suffered both by the State and by private

interests. The Florida Act imposes liability without

fault. So far as liability without fault for damages

to state and private interests is concerned, the police

power has been held adequate for that purpose. State

statutes imposing absolute liability on railroads for all

property lost through fires caused by sparks emitted

from locomotive engines have been sustained. St. Louis

& San Francisco R. Co. v. Mathews, 165 U.S. 1. The

Federal Act, however, while restricted to clean-up costs

incurred by the United States, imposes limited liability

for those costs and provides certain exceptions, unles

willfulness is established. Where liability is imposed

by § 1161 (f) to (g), previously summarized, the United

States may recover the full amount of the costs where

the oil spillage was the result of “willful negligence or

willful misconduct.” If the coordinated federal plan

in actual operation leaves the State of Florida to do the

clean-up work, there might be financial burdens imposed

greater than would have been imposed had the Federal

Government done the clean-up work. But it will be

time to resolve any such conflict between federal and

state regimes when it arises.

Nor can we say at this point that regulations of the

Florida Department of Natural Resources requiring “con-

tainment gear” pursuant to § 7 (2)(a) of the Florids

COPY BOUND TOO CLOSE IN CENTER

nw,

ASKEW v. AMERICAN WATERWAYS OPERATORS, INC. 11

Act would be per se invalid because the subject to be

regulated requires uniform federal regulation. Cf. Huron

Cement Co. v. Detroit, 362 U. 8. 440. Resolution of this

question, as well as the question whether such regulations

will conflict with Coast Guard regulations promulgated

on December 21, 1972, pursuant to § 1161 (j)(1) of the

Federal Act, 37 CFR § 28250, should await a concrete

dispute under applicable Florida regulations. Finally,

the provision of the Florida Act requiring the licensing of

terminal facilities, a traditional state concern, creates

no conflict per se with federal legislation. Section 1171

(b)(1) of the Federal Act provides that federal permits

will not be issued to terminal facility operators or owners

unless the applicant first supplies a certificate from the

State that his operation “will be conducted in a manner

which will not violate applicable water quality stand-

ards.” And Tit. I, §102(b), of the recently enacted

Ports and Waterways Safety Act of 1972, Pub. L. 92-340,

86 Stat. 424, provides that the Act does not prevent “a

State or political subdivision thereof from prescribing for

structures only higher safety equipment requirements or

safety standards than those which may be prescribed

pursuant to this title.”

II

And so, in the absence of federal pre-emption and

any fatal conflict between the statutory schemes, the

issue comes down to whether a State constitutionally may

exercise its police power respecting maritime activities

concurrently with the Federal Government.

The main barrier found by the District Court to the

Florida Act are Southern Pacific Co. v. Jensen, 244 U. S.

205, and its progeny. Jensen held a maritime worker on

a vessel in navigable waters could not constitutionally

receive an award under New York’s workmen’s com-

pensation law, because the remedy in admiralty was

BLEED THROUGH

12 ASKEW v. AMERICAN WATERWAYS OPERATORS, Inc |

exclusive. Later in Knickerbocker Ice Co. v. Stewar,

253 U. S. 149, after Congress expressly allowed th

States in such cases: to grant a remedy, the Court he

that Congress had no such power.

But those decisions have been limited by subsequent

holdings of this Court. As stated by Mr. Justice Frank.

furter in Romero v. International Terminal Co., 358 U.8,

354, 373, Jensen and its progeny mark isolated instancy

where “state law must yield to the needs of a uniform fed.

eral maritime law when the Court finds inroads on a har.

monious system.” Justice Frankfurter added, however:

“But this limitation still leaves the State a wide scope,

State-created liens are enforced in admiralty. State

remedies for wrongful death and state statutes provid.

ing for the survival of actions, both historically absent

from the relief offered by the admiralty, have been

upheld when applied to maritime causes of action. Fed-

eral courts have enforced these statutes. State rule

for the partition and sale of ships, state laws governing

the specific performance of arbitration agreements, state

laws regulating the effect of a breach of warranty under

contracts of maritime insurance—all these laws and

others have been accepted as rules of decision in ad-

miralty cases, even, at times, when they conflicted with

a rule of maritime law which did not require conformity.”

Id., at 373-374.

Moreover, in Just v. Chambers, 312 U. S. 383, we gave

our approval to The City of Norwalk, 55 F. 98, written

by Judge Addison Brown, holding that a State may mod-

ify or supplement maritime law even by creating a lis-

bility which a court of admiralty would recognize and

enforce, provided the state action is not hostile “to the

characteristic features of the maritime law or incon-

sistent with federal legislation,” 312 U. S., at 388. Chief

Justice Hughes after citing Steamboat Co. v. Chase, 16

Wall. 522, and Sherlock v. Alling, 93 U. S. 99, went on

COPY BOUND TOO CLOSE IN CENTER

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ASKEW v. AMERICAN WATERWAYS OPERATORS, INC. 13

to hold that, while no suit for wrongful death would lie

in the federal courts under general maritme law, state

statutes giving damages in such cases were valid. He

said, “The grounds of objection to the admiralty jurisdic-

tion in enforcing liability for wrongful death were similar

to those urged here; that is, that the Constitution pre-

supposes a body of maritime law, that this law, as a mat-

ter of interstate and international concern, requires har-

mony in its administration and cannot be subject to

defeat or impairment by the diverse legislation of the

States, and hence that Congress alone can make any

needed changes in the general rules of the maritme law.

But these contentions proved unavailing and the prin-

ciple was maintained that a State, in the exercise of its

police power, may establish rules applicable on land and

water within its limits, even though these rules incident-

ally affect maritime affairs, provided that the state action

‘does not contravene any acts of Congress, nor work any

prejudice to the characteristic features of the maritime

law, nor interfere with its proper harmony and uniformity

in its international and interstate relations. It was de-

cided that the state legislation encountered none of these

objections. The many instances in which state action

had created new rights, recognized and enforced in ad-

miralty, were set forth in The City of Norwalk, and

reference was also made to the numerous local regulations

under state authority concerning the navigation of rivers

and harbors. There was the further pertinent observa-

tion that the maritime law was not a complete and per-

fect system and that in all maritime countries there is a

considerable body of municipal law that underlies the

maritime law as the basis of its administration. These

views find abundant support in the history of the mari-

time law and in the decisions of this Court.” 312 U.S.

389-390.

BLEED THROUGH

“14 ASKEW v. AMERICAN WATERWAYS OPERATORS, INC.

Chief Justice Hughes added that our decisions ag of

1941, the date of Just v. Chambers, gave broad “recog.

nition of the authority of the States to create rights and

liabilities with respect to conduct within their borders

when the state action does not run counter to federal laws

or the essential features of an exclusive federal jurisdic.

tion.” IJd., at 391.

Historically, damages to the shore or to shore facilities

were not cognizable in admiralty. See, e. g., The Plym-

outh, 3 Wall. 20; Martin v. West, 222 U.S. 191. Justice

Story wrote in 1834, “In regard to torts I have always

understood that the jurisdiction of the Admiralty is

exclusively dependent upon the locality of the act. The

Admiralty has not, and never [I believe] deliberately

claimed to have any jurisdiction over torts, except such .

as are maritime torts, that is, such as are committed on

the high seas, or on waters within the ebb and flow of

the tide.”* Thomas v. Lane, 2 Sumn. 1, 9.

On June 19, 1948, Congress enacted the Admiralty Ex-

tension Act, 46 U.S.C. § 740.’° The Court considered the

Act in Victory Carriers, Inc. v. Law, 404 U.S. 202. In

that case the Court held that the Admiralty Extension

Act did not apply to a longshoremen performing loading

and unloading services on the dock. The longshoreman

was relegated to his remedy under the state workmen's

compensation law. /d., at 215. The Court said, “At

least in the absence of explicit congressional authoriza-

*A statement we recently quoted with approval in Erecutive Jet

Aviation, Inc. v. City of Cleveland, — U.S. —, —, and Victory

Carriers, Inc. v. Law, 404 U. S. 202, 205.

10 Tt provides in relevant part: “The admiralty and maritime juris

diction of the United States shall extend to and include all cases of

damage or injury, to person or property, caused by a vessel on

navigable water, notwithstanding that such damage or injury be

done or consummated on land.”

= mex, eALERTS RrM FT MCE hs CC aArTe e

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ASKEW v. AMERICAN WATERWAYS OPERATORS, INC. 15

tion, we shall not extend the historic boundaries of the

maritime law.” Jd., at 214."

The Admiralty Extension Act has survived constitu-

tional attack in the lower federal courts’? and was ap-

plied without question by this Court in Gutierrez v.

Waterman S. S. Corp., 373 U. S. 206 (1963). The Court

recognized in Victory Carriers, however, that the Act

may “intrude on an area that has heretofore been re-

served for state law.” Jd., at 212. It cautioned that

under these circumstances, “we should proceed with cau-

tion in construing constitutional and statutory provisions

dealing with the jurisdiction of the federal courts.” bid.

While Congress has extended admiralty jurisdiction be-

yond the boundaries contemplated by the Framers, it

hardly follows from the constitutionality of that exten-

sion that we must sanctify the federal courts with ex-

clusive jurisdiction to the exclusion of powers tradi-

tionally within the competence of the States. One can

read the history of the Admiralty Extension Act without

finding any clear indication that Congress intended that

sea-to-shore injuries be exclusively triable in the federal

courts.” ,

Even though Congress has acted in the admiralty area,

state regulation is permissible, absent a clear conflict with

the federal law. Thus in Kelly v. Washington, 302 U. S.

1, it appeared that, while Congress had provided a com-

"The Longshoremen’s and Harbor Workers’ Compensation Act,

33 U. S. C. § 901 et seq., recently was amended to cover employees

working on shoreside areas customarily used by an employer in load-

ing, unloading, repairing or building a vessel. Longshoremen’s and

Harbor Workers’ Compensation Act Amendments of 1972, Pub. L.

No. 92-576, § 2, 86 Stat. 1251.

12See Victory Carriers, 404 U. S. 209 n. 9.

See H. R. Rep. No. 1523, 80th Cong., 2d Sess.; S. Rep. No. 1593,

80th Cong., 2d Sess.

eecenrm LID CW IL

16 ASKEW v. AMERICAN WATERWAYS OPERATORS, INC,

prehensive system of inspection of vessels on the navi-

gable water, id., at 4, the State of Washington also had

a comprehensive code of inspection. Some of those state

standards conflicted with the federal requirements, id., at

14-15; but those provisions of the Washington law re-

lating to safety and seaworthinees were not in conflict

with the federal law. So the question was whether the

absence of congressional action and the need for uni-

formity of regulation barred state action. Chief Jus

tice Hughes, writing for the Court, ruled in the negative,

saying:

“A vessel which is actually unsafe and unseaworthy

in the primary and commonly understood sense is

not within the protection of that principle. The

State may treat it as it may treat a diseased animal

or unwholesome food. In such a matter, the State

may protect its people without waiting for federal

action providing the state action does not come _

into conflict with federal rules. 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 pass beyond what is plainly

essential to safety and seaworthiness, the State will

encounter the principle that such requirements, if

imposed at all, must be through the Action of Con-

gress which can establish a uniform rule. Whether

the State in a particular matter goes too far must

be left to be determined when the precise question

arises.” Id., at 15.

That decision was rendered before the Admiralty Ex-

tension Act was passed.

Huron Cement Co. v. Detroit, supra, however, arose

after that Act became effective. Ships cruising navi-

gable waters and inspected and licensed under fed-

COPY BOUND TOO CLOSE IN CENTER

ASKEW v. AMERICAN WATERWAYS OPERATORS, INC. 17

eral acts were charged with violating Detroit’s Smoke

Abatement Code. The company and its agents were

indeed criminally charged with violating that Code. The

Court in sustaining the state prosecution said:

“The ordinance was enacted for the manifest pur-

post of promoting the health and welfare of the

city’s inhabitants. Legislation designed to free from

pollution the very air that people breathe clearly

falls within the exercise of even the most traditional

concept of what is compendiously known as the

police power. In the exercise of that power, the

states and their instrumentalities may act, in many

areas of interstate commerce and maritime activities,

concurrently with the federal government.” 362

U. S., at 442.

The Court reasoned that there was room for local con-

trol since federal inspection was “limited to affording pro-

tection from the perils of maritime navigation,” while

the Detroit ordinance was aimed at “the elimination of

air pollution to protect the health and enhance the clean-

liness of the local community.” Id., at 445. The Court,

in reviewing prior decisions, noted that a federally licensed

vessel was not exempt (1) “from local pilotage laws”;

(2) “local quarantine laws”; (3) “local safety inspec-

tions’; or (4) “local regulations of wharves and docks.”

Id., at 447.

It follows a fortiori that sea-to-shore pollution—his-

torically within the reach of the police power of the

State— is not silently taken away from the States by the

Admiralty Extension Act, which does not purport to sup-

ply the exclusive remedy.

As discussed above, we cannot say with certainty at

this stage that the Florida Act conflicts with any fed-

eral act. We have only the question whether the waiver

BLEED THROUGH

18 ASKEW v. AMERICAN WATERWAYS OPERATORS, fie

of pre-emption by Congress in § 1161 (0) (2) concen

the imposition by a State of “any requirement Bi

bility” is valid.

It is valid unless the rule of Jensen and Knickerbodl

Ice is to engulf everything that Congress chose to ¢qlj

“admiralty,” pre-empting state action. Jensen an

Knickerbocker Ice have been confined to their facta, viz

to suits relating to the relationship of vessels, plying the

high seas and our navigable waters, to their crews. The

fact that a whole system of liabilities was established on

the basis of those two cases, led us years ago to estab

lish the “twilight zone” where state regulation wa

permissible. See Davis v. Department of Labor, 317

U. S. 249, 252-253. Where there Was a hearing bys

federal agency and a conclusion by that agency that

the case fell within the federal jurisdiction, we made its

findings final. Ibid. Where there were no such find

ings, we presumed state law, in terms applicable, wis

constitutional. Jd., at 257-258. That is the way’ the

“twilight zone” has been defined. : #

Jensen thus has vitality left. But we decline to move

the Jensen line of cases shoreward to oust state lay

from situations involving shoreside injuries by ship

on navigable waters. The Admiralty Extension Act does

not pre-empt state law in those situations. See Nacirems

Operating Co. v. Johnson, 396 U. S. 212. be

The judgment below is

Revensl