Petitioner for ReHearing — Askew v. American Waterways Operators, Inc.

FILE COPY “FILE

IN THE

MICHAEL RODAK, JR.,CLE

Supreme Court of the United States

a October Term, 1972

No. 71-1082

REUBIN 0O’D. ASKEW, et al.,

Appellants,

vs. ;

THE AMERICAN WATERWAYS OPERATORS, >—

INC., et al.,

Appellees,

On APPEAL FROM THE UNITED STATES DISTRICT COURT FOR .

THE MIDDLE DISTRICT OF FLORIDA

EE ———————————_

Mege@Ria@E APPELLEES THE AMERICAN WATER-

WAYS OPERATORS, INC., AMERICAN INSTITUTE OF

MERCHANT SHIPPING, AND ASSURANCEFORENIN-

GEN GARD, ET AL., S@R3EEESE=F0 SUPPLEMENT

© FER PETITION FOR REHEARING, 2@6883ER :

been ih a npaapapainty +

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Joserx C. Jacoss NicnHotas J. HEALy

Joun B. CHANDLER, Jr. Gorpon W. PAuLsEN

Stewart D. ALLEN Attorneys for Appellees,

Attorneys for Appellees, American Institute of Merchant

The American Waterways Shipping, Assuranceforeningen

Operators, Inc., et al. Gard, et al.

Leroy CoLLINs Haicut, GARDNER, Poor &

Ervin, VARN, Jacoss & Opom Havens

Rocers, Towers, Bartey, Heary & BaILLiz

Jones & Gay Fow.er, WuHirTeE, GILLEN,

Of Counsel HumKey, KINNEY AND

Boces, P.A.

Dewey R. VILLAREAL, JR.

Raymonp A. ConNELL

Emit A. KRaTOvIL, JR.

Of Counsel

BLEED °

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IN THE

Supreme Court of the United States

October Term, 1972

No. 71-1082

+

REUBIN O’D. ASKEW, et al.

Appellants,

vB.

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

Appellees,

+

Motion For Leave to Supplement Petition For Rehearing

Appellees The American Waterways Operators, Inc.,

et al., American Institute of Merchant Shipping, and As-

suranceforeningen Gard, et al., respectfully move for leave

to file the annexed Supplement to their Petition for Rehear-

ing filed May 14, 1978.

The annexed Supplement points out that the questions

decided in City of Burbank v. Lockheed Terminal, No. 71-

1637, handed down the same day Appellees’ Petition for

Rehearing was filed, are essentially the same as those pre-

sented in this case but that the rationales and results of

the two 6pinions appear irreconcilable. Accordingly, leave

ee eS OE A TN NS ere

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is asked to file the annexed Supplement for the Purpose of

drawing these facts to the attention of this Honorable Court,

Respectfully submitted,

JOSEPH C. JACOBS

JOHN B. CHANDLER, JR.

STEWART D. ALLEN

Attorneys for Appellees,

The American Waterways

Operators, Inc., et al,

NICHOLAS J. HEALY

GORDON W. PAULSEN

Attorneys for Appellees,

American Institute of

Merchant Shipping,

Assuranceforeningen

Gard, et al.

= -

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BLEED T

Supplemental Petition for Rehearing

Now COME Appellees The American Waterways Opera-

tors, Inc., et al., American Institute of Merchant Shipping,

and Assuranceforeningen Gard, et al., and their respective

members, who respectfully pray that this Honorable Court

grant rehearing of this cause, for the reasons set forth in

their Petition for Rehearing filed May 14, 1973, as hereby

supplemented.

The slip opinion handed down May 14, 1973 in City of

Burbank v. Lockheed Air Terminal, No. 71-1637, affirmed

exclusive Federal control of aircraft, whereas the slip opin-

ion in the present case appears to allow the States to exer-

cise extensive legislative control over vessels using the

navigable waters of the United States.

It is true that the Water Quality Improvement Act of

1970, as amended,! contains a “non-preemption” clause.?

Appellees submit, however, that that clause was not in-

tended to apply to the regulation of vessels, at least insofar

as “evidence of financial responsibility” is concerned and

that it must be considered in the context of the totality of

_ Federal regulation of vessels.

As pointed out at page 10 of Appellees’ Petition for

Rehearing, §1161 (0) (2) of 33 U.S.C. [now §1321 (0) (2)]

should be read in context with §1161 (e) [now $1321 (e)],

which preserves to the States the right to legislate with

respect only to “an actual or threatened discharge of oil

into or upon the navigable waters of the United States

1P.L. 91-224, 84 Stat. 91, as amended by Federal Water Pollu-

tion Control Act Amendments of 1972, P.L. 92-500, 86 Stat. 816;

33 U.S.C.A. §§1251-1376. The 1972 Amendments have not as yet

appeared in the Official U.S. Code.

2P.L. 92-500, 86 Stat. 816, §311 (0)(2); 33 U.S.C.A. §1321

(0) (2).

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from an onshore or o fshore facility...” (emphasis added) .

Congress did not intend to give the States the right to

regulate vessels. By imposing what it was Satisfied were

maximum liabilities, and by demanding maximum evidence

of financial responsibility under the Federal Act, Congress

in fact preempted that field with respect to vessels‘ because

it “left no room for the States to supplement . . .”s thoge

requirements,

Any doubt concerning Federal preemption with respect

to “evidence of financial responsibility” was resolved

by Congress when, by the 1972 Amendments, it added

Subparagraph (H) *, which made it clear that the Fed.

eral Act addressed itself to State recoveries of clean-up

costs from the Federal Government. The Attorney General

of Florida conceded at the oral argument on November 14

1972 that “If the federal act were to address itself to state

recoveries, which it does not, then such a conflict might be

found.”” The Attorney General was mistaken in his belief

that the Federal Act does not address itself to State reeoy.

eries. In fact it does so address itself, and therefore, as he

would appear to concede, a conflict in fact exists.

3P.L. 92-500, 86 Stat. 816, §311 (e) ; 33 U.S.CA. §1321 (e),

“See Appellees’ Petition for Rehearing filed May 14, 1973, pp.

8-9. It is significant that the Federal Act requires évidence of fi-

nancial responsibility only with respect to vessels, and not onshore

and offshore facilities. “The Florida Act, on the other hand, re-

quires such evidence from terminal facilities, as well as vessels. As

suggested in the Solicitor General’s Brief Amicus, the Federal Act

would appear to have preempted the field of “evidence of financial

responsibility” only insofar as vessels are concerned.

5 Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947),

quoted with approval at p. 9 of the Burbank slip opinion.

$86 Stat. 816, §311 (c) (2) (H); 33 U.S.C.A. §1321 (c) (2)

(H). See Appellees’ Petition for Rehearing, filed May 14, 1973, p. -

7 Transcript, pp. 14-15,

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It became necessary for Congress to enact Section 1508

of the Federal Aviation Act of 1938° because the authors

of the Constitution did not contemplate that airspace would

become a medium of interstate and foreign commerce. But

the Constitution itself, by the Admiralty Clause, provided

for Federal control of the navigable waters of the United

States. With respect to control of maritime matters, “it was

universally agreed at that time, that as this jurisdiction

brought us into relations with the citizens and subjects of

foreign countries, uniformity was indispensable. Amid all

the questions on which our ancestors wrangled this is one

of the few that was conceded to the common government

without a groan.”® Giving the States the power to bar

vessels from their ports unless they meet State-imposed

“fnancial responsibility” requirements, in addition to those

imposed by the Federal Government, results in the same

type of “fractionalized control” with respect to maritime :

commerce that is decried in Burbank (slip opinion, page 15) a |

with respect to air commerce.

The District Court in Burbank found the take-off cur-

few ordinance unconstitutional on both “preemption/con- ;

flict” and “undue burden” grounds, under the Commerce

: and Supremacy Clauses.’° This Court, because affirming

§P.L. 85-726, 72 Stat. 731; 49 U.S.C. §1301 et seg. See p. 3 of

the Burbank opinion.

*Bausman, Admiralty and Maritime Jurisdiction, 36 Amer. L.

Rev. 182, 186 (1902). The author uses the term “jurisdiction” in

the sense in which it was frequently used in, earlier days, i.e., as

referring to “a general authority to govern”, and not merely to “the

scope of judicial authority”. See Robertson, Admiralty and Federal-

ism, p. 136 (1970).

10 Lockheed Air Terminal, Inc. v. City of Burbank, 318 F. Supp.

914, 921 et seq. (preemption), 926 et seg. (undue burden) (C.D.

Calif. 1970) ; Burbank slip opinion, p. 2, note 1.

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on Supremacy “preemption/conflict” grounds, did not reach

the Commerce Clause “undue burden” challenge. Jp

Askew, however, the situation is reversed. The District

Court found the Florida pollution regulatory scheme uncon-

stitutional only on Admiralty Clause grounds, and expressly

declined to reach alternate Commerce Clause “undue bur-

den” and other constitutional challenges;!2 but the slip

opinion in Askew, though reversing on the Admiralty Clause

challenge, nowhere considered the “undue burden” or other

constitutional objections presented on the record.

We submit that the Askew slip opinion should be modi-

fied as requested in the Petition for Rehearing, or at least

remanded for consideration of Constitutional objections

under the Commerce and Supremacy clauses, so that the

apparent inconsistencies between Burbank and Askew

might be resolved.

11 Burbank slip opinion, p. 2, note 1.

12 Opinion below, A40.

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Respectfully submitted,

JOSEPH C. JACOBS

JOHN B. CHANDLER, JR.

STEWART D, ALLEN

Attorneys for Appellees,

The American Waterways

LeRoy COLLINS Operators, Inc., et al.

Ervin, VARN, JACOBS & ODOM

RoGERS, TOWERS, BAILEY, JONES & GAY

Of Counsel

NICHOLAS J. HEALY

GORDON W. PAULSEN

Attorneys for Appellees,

American Institute of

Merchant Shipping, 4

Assurance foreningen :

~ Gard, et al. ;

HAIGHT, GARDNER, Poor & HAVENS

HEALY & BAILLIE

FOWLER, WHITE, GILLEN, HUMKEY, KINNEY

AND Booes, P.A.

DEWEY R. VILLAREAL, JR.

RAYMOND A. CONNELL

Emit A. KRATOVIL, JR.

Of Counsel