# Opinion — Askew v. American Waterways Operators, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0128%3A29 ## Record - **Collection:** Supreme Court brief - **Document type:** Opinion - **Published:** January 1, 1973 - **Citation:** 411 U.S. 325 ## Text 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. ee ee a le Oe Ee eee et 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. ee ae. ee ae oe le | w——, 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 ——, 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 wa, 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0128%3A29. Public record. Not legal advice.