UNITED STATES v. STANDARD OIL CO.
Legal provision: 33 U.S.C. 407
Argument of Nathan Lewin
Chief Justice Earl Warren: Number 291, United States versus Standard Oil Company.
Mr. Nathan Lewin: Mr. Chief Justice, may it please the Court.
This case is here on the Government's direct appeal from the dismissal by a District Court in the Middle District of Florida of a one-count information charging the Standard Oil Company of Kentucky with having caused, suffered and procured the discharge of gasoline into navigable waters in violation of Section 13 of the Rivers and Harbors Act of 1899.
The facts relevant to a disposition of the case appear in a stipulation which is at pages 5 to 7 of the trial -- of the transcript of record and that stipulation was entered into for the purpose of the motion to dismiss made by Standard Oil.
It discloses that in November 1963, after having completed the process of repairing and cleaning a line connecting the company's bulk storage tank, we have certain dock facilities on the same challenged river, the company, the employees, ran aviation gasoline from the tank into the line.
They then accidentally left open the main shut off valve, and 300 gallons of the gasoline spilled from the line on to the docks and into the river.
Justice William J. Brennan: May I ask you if the -- if that seemed to have (Inaudible) mandatory sentence?
Mr. Nathan Lewin: I think there's a minimum fine.
Justice William J. Brennan: Because (Inaudible) shall be fine or fined or (Inaudible) by not less than 30 days within the year
Mr. Nathan Lewin: I --
Justice William J. Brennan: Does that means, if it's an offense that the (Inaudible) mandatory?
Mr. Nathan Lewin: That issue of course isn't here right now but I don't think it necessarily means that, Mr. Justice Brennan.
I think -- I think they are -- well, I think that there is a mandatory minimum sentence in terms of a fine, yes.
I don't think that that the -- well, the infringement certainly is the -- to the extent that the statute is mandatory provides either for minimum infringe -- that either for a minimum fine or imprisonment, therefore, if it's a natural person who commits the offense, of course he can be fined and not imprisoned.
Justice William J. Brennan: (Inaudible)
Mr. Nathan Lewin: Yes, he must be fined.
I think that's true, but that's not involved here.
Justice William J. Brennan: Whether or not it was accidental as the (Voice Overlap) --
Mr. Nathan Lewin: Yes.
Justice William J. Brennan: -- to the facts here.
Mr. Nathan Lewin: Yes.
Justice William J. Brennan: Is that right?
Mr. Nathan Lewin: That's right.
The amount of the spill just to return the facts very briefly was not sufficient to impede navigation or to cause any fire or explosion.
But the matter was reported to the Jacksonville Fire Department and to the coastguard which arrived and dissipated the gasoline into the river.
The St.Johns River is concededly a navigable water and the gasoline, it was concededly valuable and useable before it was unintentionally spilled into the river.
The relevant portion of the governing statute which appears at page 2 of our brief is -- and here, I'm just quoting the relevant portions, makes it an offense to throw, discharge or deposit, or cause, suffer or procured to be thrown, discharged or deposited from the shore, any refuse matter of any kind or description whatever, into any navigable water of the United States.
The District Court dismissed the information on the ground that valuable and useable materials such as the gasoline in this case was not refuse matter within the meaning of Section 13.
Our contention here is that that was error because refuse matter as used in that statute does not make this -- the applicability of the statute turn on how valuable or useless the matter that spills under the river is to its owner but on the effect it has on the water into which it is spilled.
Since gasoline is clearly a polluting material, we believe that the stipulated fact stated in offense and that the District Court's order should be reversed and the case sent back for trial.
Now our construction of Section 13, is supported we believe by the three standard touchstones for legislative interpretation.
It's most consistent with the purpose for which the statute was enacted.
It's -- our construction we believe is entirely clear as a matter of legislative history that it was Congress' intent to cover the kind of conduct that was involved here.
And finally, we believe that even on the face of the statute itself construing the provision in its entirety, Section 13 as a whole, it would be clear to any reader of the statute that it must apply to use a valuable matter which spills negligently or unintentionally into a river as well as to useless matter.
Let me turn first to the purpose of the statute.
The -- it's entirely clear, we think from the very broad language that the statute uses and from the history -- the legislative course before its enactment in 1899, that Congress was concerned with two evils, one being obstruction to navigation and the second being the discharge of damaging materials or injurious deposits, as it was called in our predecessor statute into navigable waters, in other words, pollution.
Congress also meant to cover the entire range of conduct which could lead to these evils.
The statutory terms which cover not only the throwing, discharge or deposit, but also anybody who causes, suffers, or procures, the word suffer is we think is particularly broad, discloses that Congress was reaching not only willful and intentional dumping but any form of negligence or other kind of fault which could cause the discharge of these kind of materials into the water.
Chief Justice Earl Warren: Are you asking this for a per se rule?
Mr. Nathan Lewin: We think this -- we think that the statute in effect requires that, yes Mr. Chief Justice.We think that the statute said --
Chief Justice Earl Warren: Is that why you stipulated that this was accidental, you didn't attempt to show any negligence or anything, but you stipulated that it was accidental.
Was that in order to have us -- give you a per se (Inaudible) on this question?
Mr. Nathan Lewin: No, Mr. Chief Justice.
It wasn't done with any such intention at the time.
As a matter of fact, we intend to prove at the -- at trial that it was actually negligence or a form of fault that caused the spill into the river.
And we read the word accidental is not precluding that kind of evidence.
Of course, that wasn't the issue in which the District Court dismissed the information and we think that under this Court's decisions really, the only question presently before the Court wouldn't touch on whether there's a per se rule or not.
The only question presently before the Court is, whether the District Court's reading of the statute was correct, in other words, whether the word refuse matter applies only to valueless rather than valuable materials.
Justice Byron R. White: What do we suppose to say if -- that the District Court was wrong, and now reverse?
Mr. Nathan Lewin: The District Court was wrong and the case is reversed for trial, yes Mr. Justice.
Justice Byron R. White: You never -- supposed to say what's the right rule (Voice Overlap) --
Mr. Nathan Lewin: Well, the right rule is that -- yes, the right rule is that refuse matter includes valuable as well as valueless material.
That's what the District Court held, that was its construction and we submit a misconstruction of the statute.
Justice William J. Brennan: Well, you sum --
Mr. Nathan Lewin: Now --
Justice William J. Brennan: You sum it up, I guess at page 5 in this one sentence, don't you?
If it is foreign matter, that is likely to pollute the water or endanger navigation that constitutes that rule.
Mr. Nathan Lewin: That's right.
We say --
Justice William J. Brennan: That's your position.
Mr. Nathan Lewin: That is exactly our position.
We say, refuse is not what the owner doesn't want but what the river as it were doesn't want.
Chief Justice Earl Warren: If this goes back for trial, are you precluded from showing this is negligence have caused this?
Mr. Nathan Lewin: No, Mr. Chief Justice.
The stipulation was entered into solely for the purpose in a motion to dismiss.
Therefore, even if the District Court would hold that the stipulation read very, very strictly means only acts -- means that the spill was entirely accidental as it were by an "Act of God" we wouldn't be precluded from preceding a trial to prove negligence because that situation was limited only for the purpose of motion to dismiss.
And the -- it was I dare say, a missed choice of terms, I think the facts on their face is stated in the stipulation to indicate that there was somebody who was careless and let the valve open.
And that's what we would intend to prove at a retrial -- at a trial.
Justice Potter Stewart: I think you have to prove that, negligence or carelessness.
Mr. Nathan Lewin: I think we can prove it here.
I really don't know.
I think it would be very hard to apply -- to apply the statute when they were -- we're entirely inadvertent and it were an "Act of God" that caused the spill.
Justice Potter Stewart: Because of the opening language of the Section 13 I suppose.
The person as to himself either to throw, discharge or deposit or he has to cause, suffer or procured to be thrown, discharged or deposit.
Now that would -- I suggest my question requires some sort of a primitive action or negligence in action on the part of the person whom you're going to try to punish.
Mr. Nathan Lewin: Although that question isn't here now.
Justice Potter Stewart: No.
Mr. Nathan Lewin: I think that that's a fair reading of the statute.
Now, we really -- it would really be quite an extension to read suffer as meaning totally in harmless or as imposing liability without cause.
Chief Justice Earl Warren: Suppose the pipe just corroded and the gasoline escaped, would you contend that they suffered this to be done and that the statute applied it?
Mr. Nathan Lewin: Not if we couldn't find any fault Mr. Chief Justice.
In other words, if they -- I think there might be an obligation to check these pipes from time to time.
Chief Justice Earl Warren: Yes, and if the --
Mr. Nathan Lewin: But if the pipes had been checked and they were in good order and they just broke on their own, I think it'd be quite hard to read the word suffers encompassing that kind of conduct.
Chief Justice Earl Warren: Well, that's what I add when I asked if you're on the per se rule because it's one thing if they left that valve opened negligently and that the gasoline be discharged, it might be entirely another thing if the pipe corrodes for instance and broke and then the gasoline poured out.
Mr. Nathan Lewin: Oh, we agree, we'd --
Chief Justice Earl Warren: You're not asking this to go that far.
Mr. Nathan Lewin: No.
No, and I don't think that question really has to be reached on -- at this posture of the case.
The only question I think that has to be reached before we introduce any proof at all really is whether the statute reaches the kind of conduct and not which the District Judge held it did not, which is the deposit of valuable material or the discharge of valuable material into the river.
Now, in terms of the statute's purpose, it hardly makes any sense to say that Congress intended to make it a crime negligently to deposit discarded material into a river, but not to make it a crime negligently to deposit valuable material into the river.
If the statute were in terms of willfulness, if the statute had a willful element then the fact that the material were not discarded or valueless, would be an indication, it would be some proof of willfulness because people can -- that can be presumed, would not be willfully depositing their valuable material, whatever it may be into the river.
But when -- if Congress was concerned, as we think the statute clearly indicates with negligent conduct as well as with willful conduct, then it makes far more sense to look at the results because people after all are negligent with property that they considered valuable to them just as they may be with property that they consider valueless, highway accidents, countless number of highway accidents prove that, people are negligent with property which you say consider valuable.
Unknown Speaker: Is this the same section we had in the Republic Steel case?
Mr. Nathan Lewin: It was the same section that this Court discussed in the Republic Steel case, yes.
So, we submit that so far as the purity of the river is concerned, and that was what Congress is aiming at, it makes no difference whether the oil or gasoline is desired by its owner or is not desired by its owner.
The history of Section 13 which is the -- we think the second touchstone which establishes our construction of statute establishes, we think not only that nobody in Congress conceives of a distinction or abrogate any thought of -- possible thought to the distinction that the District Court here relied upon but indeed, that in light of all the prior statutes Congress' intention was clearly to cover the conduct involved here.
In 1896, after -- there had been a series of river and harbor statutes mainly appropriations bill into each one of which there was (Inaudible) one or more provisions pertaining to pollution or destruction of the rivers, Congress delegated to the Secretary of War the task of codifying these areas provisions.
And in 1899, that codification was submitted by the Secretary of War to the Senate and the relevance to -- the section, they were in effect 10 sections that were aided for the 1899 River and Harbor Appropriations Bill.
And one of those sections is the present -- is the one here involved.
Now, it's entirely clear from the discussion on the floor of Congress when the bill was introduced and we've reproduced that as Appendix B of our brief, that the Senator who presented it on the floor of the Senate as well as those who spoke in support of it and that's in effect the entire legislative history for all intents and purposes of Section 13, thought that they were doing nothing more than codifying existing law.
Now what was existing law?
It included the River and Harbors Act of 1894, which appears at page 24 of our brief.
And the River and Harbors Act of 1894 made it an offense, stated that it will -- it shall not be lawful to deposit a whole enumeration of materials and ended with the statement or any other matter of any kind into certain navigable waters for which Congress had appropriated by it.
Now that enumeration included for example, assets which certainly could be of a valuable material.
And clearly we think, and I don't -- we think our appellee doesn't dispute this, that that statute covered valuable deposits as well as valueless one.
Now, Congress was not intending to change existing law when it enacted Section 13 of the River and Harbors Act of 1899, then it must have meant to include precisely the provisions which was included in the River and Harbors Act of 1894.
Justice Potter Stewart: Now how about the Rivers and Harbors Act of 1890?
Mr. Nathan Lewin: The River and Harbors Act of 18 --
Justice Potter Stewart: That was also existing law.
Mr. Nathan Lewin: The River and Harbors Act of 1890 Mr. Justice Stewart was also existing law and that was more limited.
Justice Potter Stewart: Yes.
Mr. Nathan Lewin: We agree that it was.
It covered only other waste of any kind.
Justice Potter Stewart: So the question is --
Mr. Nathan Lewin: But we --
Justice Potter Stewart: -- which did it --
Mr. Nathan Lewin: Right.
Justice Potter Stewart: -- but which of these inconsistent prior laws that it means to be codifying.
Mr. Nathan Lewin: Well, we submit Mr. Justice Stewart that those two were not inconsistent, they were prohibitions, one of which was broader than the other.
Now, we submit that when a codi -- a codifier takes a prohibition against depositing waste into the river and has the form of prohibition against depositing any matter of any kind, whether it'd be waste or valuable matter, then the two aren't inconsistent, we codified them by including the broader provision in this codification, he's not really forced to any choice at all.
However, we contend that that Congress was forced to make a choice between inconsistent provisions, we submit it was an offense in 1899 to deposit valuable matter into the water and that -- and Congress when it shows not to change that law, continued making it an offense to deposit valuable matter into the water.
Chief Justice Earl Warren: Which was the broader of the two laws, the earlier or the later?
Mr. Nathan Lewin: The later statute.
Chief Justice Earl Warren: The later was the broader?
Mr. Nathan Lewin: The 1894 statute is the broader of the two.
Now, that -- we contend that the word refuse must have been intended to narrow the application of the statute only to valueless material.
But we submit that its entirely consistent and it makes very good sense to read the word refuse not as limiting the statute in that way but as limiting it to the kinds of deposits which are enumerating those two statutes, both the 1890 and the 1894 Act.
Both of them had a long enumeration of materials which could not be deposited in the water and then concluded with general catch-all statements such as other waste of any kind or any other matter of any kind.
What the codifier did in 1899 is he eliminated the enumeration.
But of course, it was nonetheless necessary to keep the scope of the statute as no broader than those catch-all phrases would have been if construed as just and generous.
Now, in other words, if somebody has distilled water which he's throwing into the river, that ought not to be covered by the statute.
And we think that's why the codifier in 1899 put the word refuse in there, because he meant to exclude the kind of things which would not have been covered had those catch-all phrases been read a just and generous.
And we submit that the present application in Section 13 to the kind of gasoline involved here is entirely consistent with reading those statutes and their concluding phrase as prohibiting the discharge of any materials which would be harmful to the water, things such as refuse, dirt, ashes, acid and such materials and not making it a crime to deposit matters which are not foreign to the waters such as water or if somebody would put live fish into a stream and these are the sort of things that Congress was not intending to make a crime and that they -- that Congress intended to exclude from the scope of the statute by putting the word refuse then.
Justice Potter Stewart: Your difficulty is that simply not what the word refuse means, does it?
Mr. Nathan Lewin: What we think in common usage Mr. Justice Stewart, refuse means garbage, it means that -- it's true that Webster's Dictionary definition focuses on a discarded material.
But we think in common use, it means not only waste material but garbage.
And as a matter of fact, we think that the (Voice Overlap) --
Justice Potter Stewart: Well, but your argument would cover a freight cart full of diamonds.
Mr. Nathan Lewin: Well, a couple of but right.
But garbage in the sense -- well, I think garbage is probably a relative term.
It depends where it is.
A freight cart full of diamonds in a river --
Unknown Speaker: Do you say refuse?
Mr. Nathan Lewin: -- unless somebody salvages them, this is garbage.
Justice Potter Stewart: A refuse.
Mr. Nathan Lewin: From the point of view of the river, it's garbage and it's useless.
And we think that that support is indeed by the earlier legislation, the 1890.
And the 1894 statutes indeed used the word refuse or other waste of any kind or used the word -- or other refuse or mill waste apparently distinguishing between refuse and waste, not the -- not intending to have refuse and waste mean precisely the same thing.
Finally, we submit that the statute on its face means and means to a careful reader of it exactly what we say.
There are two portions to the statute.
The first provision, the first clause makes it an offense to deposit or suffer the deposit of refuse matter of any kind directly into the river.
The second is a narrower cause which makes it an offense to deposit material of any kind on the bank of the river if it's liable to be washed into the water and impede or obstruct navigation.
Now we submit that if the District Court were right and if the first half of this statute meant to apply only to valueless material, that's clearly not true of the second half.
The second half doesn't have the word refuse.
But if the District Court were right, there would be a -- an inexplicable gap in this law because what Section 13 would be providing with the -- that it would be an offense to negligently deposit valuable material on the banks of a river, from which it could be washed in to the stream, but it would not be an offense negligently to deposit the same obstructive material directly into the stream if they're valuable.
Now, any as I -- as I say, any careful reader of the statute is bound to conclude that if the second half of the statute makes it a crime negligently, for example, if you're driving pass the banks of the river with a -- with an open truck full of logs which you're taking to build the log cabin some place and you negligently allowed the logs to fall off the truck on to the bank.
And these logs are likely to be washed into the water and obstruct navigation.
Well, that's an offense under the second half of the statute.
Justice John M. Harlan: Would there be any room for play of the second half of the statute on the facts of this case?I mean, did the gasoline --
Mr. Nathan Lewin: We think (Voice Overlap) --
Justice John M. Harlan: -- flow right into the -- from the spicket or the pipe whatever it was under the river, did it drift along to the shores of the bank.
Mr. Nathan Lewin: Well, it did drift along at the docks and then into the water.
But we think the reason the second half wouldn't apply Mr. Justice Harlan is that the second half is limited to obstructive matter.
If the concluding clause is that it applies to material which whereby navigation shall or may be impeded or obstructed and the --
Justice John M. Harlan: And the possibility the gasoline burning would be a first class (Inaudible).
Mr. Nathan Lewin: Definitely, but we stipulated ourselves out of that.
We agreed to the end -- the stipulation specifically said that this did not construct any -- that this did not constitute any impediment to navigation of any sort.
But it -- at any event this would leave this big void in the statute whereby returning to my illustration, if I were driving fast with this open truck of logs and the logs fell directly onto the bank because of my negligence, I would have committed an offense.
And yet if the logs fell directly into the river because of my negligence and not on to the docks, then I would not have committed an offense.
That we think is the kind of construction which is -- which obviously should inform a careful reader of the statute that valueless as well as valuable material -- valuable as well as valueless materials are covered by the first part.
Justice John M. Harlan: What part do you think the rules strict construction should play in this case of any criminal statutes?
Mr. Nathan Lewin: Well, in this area Mr. Justice Harlan, as opposed to some of the cases which the appellee has cited there's really not very much reliance.
Appellee cited for example cases in which -- particular illustration being that the Harris case in 177 U.S. in which the statute was unclear as to whether it imposed a certain duty on the defendants in that case and duty to have the cattle removed from the train that was carrying them from one place to another in water.
But now, there I think the defendants been effect plan their conduct in accordance with their construction of the statute.
When -- what we're dealing with this negligence or on a strict liability, this is far less of this kind of reliance, in other words, Standard Oil knew it was liable, knew it is probably doing something responsible to itself by -- and possibly violating the statute when -- if any oil negligently or any gasoline negligently escaped into the water.
And in any event, we submit that a reading the statute on its face of course are construction.
And in prior cases, where the very same client was made for example on the Wiesenfeld Warehouse case in 376 U.S. this Court looked to the legislative history and said, "Well, from the legislative history would have been clear."
And here, we think the legislative history could just not have been clearer, that Congress was intending to encompass this kind of conduct as well as the discharge of valueless and useful material.
Chief Justice Earl Warren: Mr. Hadlow.
Argument of Earl B. Hadlow
Mr. Earl B. Hadlow: Mr. Chief Justice, may it please the Court.
Mr. Lewin has set forth the facts of this case I think precisely.
I add to that only the fact that Standard Oil Company when this -- the land was being aired during the cleaning process as a safety precaution and when they reopened the land from the shore tank to the dock side, the employee in-charge of it had left open the valve that the other -- and he immediately saw it run over and closed the valve but a few hundred gallons had spilled out.
Standard Oil then called both the Fire Department and the coastguard as a safety precaution.One which we submit would be inhibited by any such interpretation of this law as the Government would impose on people of absolute liability irrespective of cause.
They called the coastguard and once that call was made, even though the thing with them -- a very minor insignificance, it was said into effect this full weight of the Governments -- an investigative and enforcement procedure ending up this day before this Court.
The statute that's involved in this case, Section 407 of Title 33, prohibits in very plain language the throwing, discharging or depositing of any refuse matter of any kind or description other than sewage, a tremendous pollution exception, other than all sewage in the navigable waters.
It was plainly an anti-obstruction statute as any sort of reading of all of the first section of 33 U.S.Code will evidence you.
It's an anti-obstruction statute.
The first half made it unlawful to throw, discharge or to deposit any refuse matter of any kind in the navigable waters.
Now the Government in this case was faced with the fact that the material that was deposited was valuable aviation gasoline.
That can't be changed so the only way they could proceed under this statute is to eliminate the word, the descriptive adjective written from that statute.
And they have eliminated it by -- it by analogizing and saying that refuse matter is synonymous with any matter of any sort or any foreign matter.
And that is -- that's any matter of any sort of pure water, Mr. Lewin was perfectly frank about that.
He thinks that this statute saying any refuse matter covers any matter of any sort other than pure water.
Justice William J. Brennan: Do I understand your brief that you interpret the statute as if the Government is right imposing this criminal liability however it gets into the stream accidentally --
Mr. Earl B. Hadlow: Yes sir.
Justice William J. Brennan: -- or other way?
Mr. Earl B. Hadlow: That's my position.
The statute --
Justice William J. Brennan: Well, does that go so far for example as supposed -- suppose there's some youngster that come along and turned this thing open.
Do you think it would go so far as to (Voice Overlap) liable?
Mr. Earl B. Hadlow: All I say is -- excuse me sir.
All I say is that there is nothing in the statute which would inhibit prosecution, even under those circumstances.
A better example I believe is the one that Mr. Chief Justice suggested a minute ago, if the valve broke without any faults or responsibility.
Then, Standard Oil's gasoline would have -- been placed into or discharged into the river and I think we would be -- under the terms of the statute, absolutely without fault.Criminal liability without fault.
Mr. Earl B. Hadlow: Criminal liability without fault and that's one of the issues that we will subsequently urge is all the more reason that the language must be precisely read because the only protective provision of this statute is the limiting adjective, refuse.
There are several ways that Congress could have given the public some protection.They could have limited the amount of the spill.
As we've done in the second half of this Act, when they said that it had to be sufficient to impede navigation to make a stacking on the bank illegal, they could have said as they did in the Oil Pollution Act of accidental spills without fault are excluded in the Oil Pollution Act of 1924.
Or they could have done it as they did here.
They could have said, only refuse is covered because that is a limiting word.
I've -- I mention to say if you ask a thousand town people, if refuse meant any matter of any sort, you wouldn't get a single person to say that's what it meant or that is what you could reasonably construe or believe it to mean.
Chief Justice Earl Warren: Mr. Hadlow, I purport your statement that this is an obstruction statute only, seems to me I've read the number of instances where they have prosecuted ships for discharging oil in a navigable stream or a bay.
What statute have they prosecuted those (Voice Overlap) violations?
Mr. Earl B. Hadlow: -- those prosecuted Mr. Chief Justice, under the Oil Pollution Act of 1924.
Chief Justice Earl Warren: Yes, not under --
Mr. Earl B. Hadlow: There's a later section of this same Act.
This -- it's the later section of Title 33 was passed in 1924 and it does -- does not have a word refuse in it.
It profit -- it makes a criminal offense, the dispensing of oil into the navigable waters of any sort of oil.
It specifically says oil, and the legislative history of that Act goes into some detail about problems they were having with 1899 Act about whether or not oil had to be refuse or waste oil or not.
So they clarified it as -- with respect to oil from ships in 1924.
Justice Abe Fortas: Did you say that that part of the statute expressly excludes accidental discharge of oil?
Mr. Earl B. Hadlow: Yes sir and under the Oil Pollution Act of 1924.
Justice Abe Fortas: Which you say is now incorporated as part of this statute?
Mr. Earl B. Hadlow: But not the one we're proceeding under, that's another separate section of this Title.
Justice Abe Fortas: Of the same Title?
Mr. Earl B. Hadlow: Of the same Title, yes sir.
And it specifically excludes accidental or "Acts of God", or discharges the -- unconnected with fault which definitely is not here.
Well, to summarize briefly if I may, the argument that Standard Oil uses against the Government position, it seems clean to Standard Oil that the statute doesn't say what the Government says it does.
It simply doesn't -- it says refuse, it doesn't say any matter.
It could have been any matter in several other federal statutes have said that.
The New York Harbor Act says, the 1894 Act that he said, mentioned and said it, but this one doesn't.
This one says refuse, a limiting word.
The second point is would this highly sophisticated interpretation which the Government would impose upon this normal word, would it give the public fair notice?
Mr. Lewin was frank to admit, in respect to that that there's not much a reliance on that but we don't get the notice, there's no question about that.
The public doesn't get fair notice.
Is there any specific logical congressional history to justify this strained construction that he imposes on us.
And I'd say there's not a word.
The only thing that his research in mind could find in the congressional history in 1899, was a very brief five senatorial remarks were urging the Senate to pass it without discussions saying, we're not trying to make any material change, we're simply trying to wind up one of -- which the -- is codifying existing law and to eliminate one or two ambiguity.
That seems to me the most obvious ambiguity of all is the one between barring all waste that it was in 1894 Act.
All matter of any sort in 1894 Act which applies by the ways only to rivers and harbors on which Congress had previously appropriated money in answer to a question that you asked Mr. Chief Justice.
Mr. Lewin said that the later Act was broader but that -- it was not broader in scope, it applies to a limited theory.
The 1890 Act was broad over all Rivers and Harbors Act of that day, it applies to all rivers.
The 1894 Act was imposed on top of it later.
Without repelling the 1890 Act, instead as to these few rivers which we've already appropriated money in respect to -- as to those rivers, it shall be wrongful to deposit any matter of any sort.
Then in 1899, they have two of this, Congress was going to codify existing law, with almost no congressional approval, they took the two existing laws, they put the 1890 Act in my view and passed it almost verbatim again.
They've -- so that Act said that would be illegal to deposit any waste or refuse matter of any sort in the river.
They were faced with a choice when they selected the narrow and not the broad approach.
It seems inconceivable to me that they were faced with a choice.
The two statutes were right, the form, one of them saying any matter, one of them saying any waste or refuse.
They'd selected the narrow and the Government says they meant to select the broad and that the narrow must submit the broad.
Well, I can't just follow that at all.
Unknown Speaker: (Inaudible)
Mr. Earl B. Hadlow: Well, the only way you can say that they've collected both Your Honor is if --
Unknown Speaker: (Inaudible)
Mr. Earl B. Hadlow: Is that a codification designed not to make any material change in the law but simply to eliminate one or two ambiguities and this is the only ambiguity we've been able to find, the one between any matter on the one hand and any refuse on the other.
Unknown Speaker: (Inaudible)
Mr. Earl B. Hadlow: And finally --
Unknown Speaker: (Inaudible)
Mr. Earl B. Hadlow: My final point in here is there any need for the Government's awkward construction of the statute and I say there has been none shown, none in the congressional history.
No practical needs proven and I don't believe there is any.
Briefly, that really concluded my summary of what I -- what I'm going to argue and I got really just carried away when my summary that I --
Justice John M. Harlan: Well, what you do say, it's just the right (Inaudible)?
Mr. Earl B. Hadlow: In my brief, I pointed out two very good reasons I believe Your Honor, for that difference.
In the first place, the second section which is broader saying, any material which is stacked alongside the bank is a violation.
That is likely to be washed into the river and impede navigation, has a protective kicker on the ends of it and that is, it must be such a large deposit that it will impede navigation.
The public is given some protection against willy-nilly enforcement of liability without fault there.
It must be a large deposit.
And second, it is likely that a person will deposit valuable, useable material alongside of a bank purposely or in a negligent manner where it will be washed into the river.
But it is -- and it's therefore you need a statute protecting against that course of conduct.
But it is totally unlikely that you will purposefully deposit valuable material into the river.
And therefore, you don't need the same amount of protection against that.
Justice Abe Fortas: Well, how about that -- suppose you had a refinery located near a river and for some economic reason whatever it might be, the company operating their refinery decided that it did not want to salvage one of the constituent products from their refining process?
But let us assume that that constituent product had a -- has a value, commercial value, market value, and so they turned it into the stream.
In your construction, that would not be a violation of the statute because it would not be inherently a refuse.
Mr. Earl B. Hadlow: No sir.
Justice Abe Fortas: It would be a product of value.
Mr. Earl B. Hadlow: No sir, I -- it is the Government that ties refuse to value.
It is not our -- I say that it is material which is thrown away, rejected, refuse and the material that you describe in your analogy is both.
The value is absolutely immaterial.
If the (Inaudible) -- if the effluent or refuse may be valuable and have some value and they poured it into the river and they're nevertheless determining willfully to reject it, to refuse it then it's covered under the Act.
Justice Abe Fortas: What you're doing as I understand it is relating the standard, the word refuse to the matter of willfulness and you're saying that unless it is willful, a willful and deliberate rejection it cannot be refuse.
Now we're not -- as I understand it, we don't here have to struggle with the question of whether willfulness is necessary under this statute.
But your -- what you're doing as I understand it is to say that is substance is not refuse unless it is rejected by the respon -- person responsible for its deposit, is that your point?
Mr. Earl B. Hadlow: Refuse is in the eye of the person holding the material.
It does not have to be willfully poured into the river because a garbage truck could be bouncing along with a load of refuse and negligently dumped it in there and there would be the element of negligence.
Or you could have material which you have determined to be refuse or any reason and it could negligently get in the river.
But what I say is not covered is the accidental spillage into the river of valuable material, when it did not go in willfully and therefore would not refuse nor was it otherwise refuse.
It seems to me there's more than one way for it to be refuse.
But there's one way that cannot be reached is to say that valuable material accidentally spilled is refuse.
I just can't think of any possible description of the word that doesn't read it right out of existence, it obliterates it from the statute.
Chief Justice Earl Warren: But would it make any difference in your argument whether if it was accidental or willful, if it did not follow your definition of refuse?
Mr. Earl B. Hadlow: My definition of refuse is brought in a -- and it seems to me to cover almost any material.
And I'm not certain I understood your question sir.
Chief Justice Earl Warren: Well, I mean this, would it make any difference whether it was accidental or willful if the ship discharged into the waterway something that was not refuse under your decision, under your --
Mr. Earl B. Hadlow: Under my definition of refuse, if it's waste oil for example, whether when in accidentally or on purpose, it would be refuse.
If it was valuable oil and it went in on purpose, they must have thrown it in as refuse, so it would be covered.
If it was valuable oil, accidentally discharged, then it would not violate the statute.
Chief Justice Earl Warren: May I give you another case, suppose your ship was loaded and at the time it was about to depart to determined that weather conditions being taken into consideration that was -- it was overloaded and they had -- they wanted to get rid of some of the cargo and they discharged it into the stream.
Would that be refuse?
Mr. Earl B. Hadlow: In my view, that's plainly refuse.
They have (Voice Overlap) --
Chief Justice Earl Warren: I beg your pardon?
Mr. Earl B. Hadlow: It is plainly refuse --
Chief Justice Earl Warren: It is refuse --
Mr. Earl B. Hadlow: Yes sir that's --
Chief Justice Earl Warren: -- under your --
Mr. Earl B. Hadlow: They have determined to dispose of it and they did.
Now whether it has some value a moment before is immaterial but they've -- they made it refuse when they elected to throw it away, and that would be covered.
Chief Justice Earl Warren: I see.
Justice Abe Fortas: And then she would --
Unknown Speaker: (Inaudible)
Justice Abe Fortas: If you or wasn't the gasoline here a refuse after it was deposited in the stream in the same way as conceded by your response to the Chief Justice's question after it was deposited in the stream, it was not valuable, was it?
Mr. Earl B. Hadlow: No sir.
My response to the Chief Justice was that when the people determined to lighten their load and reject and all these -- throw away the oil, that was refuse.
They determined to do so.
In an accidental spill, it was not refuse, it was valuable material accidentally falling out into the river.
The time --
Justice Abe Fortas: So --
Mr. Earl B. Hadlow: The time, the critical time as to whether it's refuse or not is when it goes in, not what it becomes afterwards because in the navigable streams of this country almost anything that falls into the river becomes refuse once it gets in there.
And that -- and if that were the determining factor, those -- the car load of diamonds becomes refuse.
And the Government's own brief uses a tremendous example it seems to me of how far they will go with -- once they are (Inaudible) -- once they are freed from the des -- limiting descriptive word refuse.
There's no length of it -- were a logical thinking, they used the example of a barge full of chlorine, a valuable barge full of chlorine.
It sunk in the Mississippi River and stayed there a year or two and the owner abandoned it finally.
And after abandoning, the Government went in and dug it up.
The value of the cargo and the barge when they got it up after being at the bottom of the river for two years was $80,000.
But the Government in its brief claims that could be refuse because the cost of getting it up was a million dollars and that the -- now it seems to me that shows you the literature --
Justice Abe Fortas: What you're saying is that if that barge were deliberately sunk, it would be refuse but if they were not deliberately sunk, it would not be refuse.
Mr. Earl B. Hadlow: Yes sir.
To me that's entirely plain that if you abandon the barge and throw it away and throw it in there as refuse, no matter how it's built or what it is.
But if it's accidentally sunk, the thought of a barge full of a valuable cargo being a refuse when it's accidentally sunk and being subjective of this mandatory penalty --
Justice Byron R. White: That's when he decide not to reclaim it, if it's salvageable that these -- that the moment he decides not to reclaim it, it becomes a refuse?
Mr. Earl B. Hadlow: Well, that -- not under my view.
My view is once that -- it depends on how it gets into the navigable waters.
If it is thrown in there or disposed of, and that's what the Act says that you throw it or dispose of it or dispatch it into the river.
It doesn't say what happens to it after it gets in.
Justice Byron R. White: You don't think that if I -- if I'm sailing down the river or if on a canoe going the river and I just get to the bank and I don't want that canoe anymore, I just push it back out into the streams, is that refuse or not?
Mr. Earl B. Hadlow: That's -- in my view, that's refuse.
You refuse it, you threw it away.
Justice Byron R. White: Well it wasn't -- it wasn't when went in?
Mr. Earl B. Hadlow: Well, you put it back in when you abandon it.
When you --
Justice Byron R. White: Well, wasn't -- never got out.
Mr. Earl B. Hadlow: Well, that's the refinement that I wasn't prepared to go to but for all practical purposes, you made a new decision on that canoe when you got out on the bank.
You then threw it into the water --
Justice Byron R. White: Just like the chlorine, mode of chlorine, negligent based -- negligently sunk and then decision to abandon.
Mr. Earl B. Hadlow: Yes sir.
Justice Byron R. White: Would not be refuse?
Mr. Earl B. Hadlow: No sir.
Justice Byron R. White: Alright.
Mr. Earl B. Hadlow: The sinking of a valuable barge is simply not refuse.
That was not refuse or rejected or anything.
It went down.
Now, there's another separate statute on the books, Section 403 of the same title.
That is directly aimed at sunken barges that impede navigation.
And in the very case that's cited by Mr. Lewin in his brief, they did not even mentioned the refuse statute.
The chlorine barge, they preceded under Section 403.
And that -- it's only applicability here is to show you that if you eliminate the restricted word refuse from the refuse statute, you can -- there's no end to where you can go.
If two automobiles run off of a pier, as one did in Jacksonville just a week ago, the value of the automobile before it went in is going to determine under Mr. Lewin's theory whether it's refuse or not.
Well, if it's a valuable car and you have some salvage value, then it's alright.
If the car was an old cheap car and the cost of salvaging it exceeded the value of the car then it would be refuse and you'd be -- you violated a criminal statute.
And I submit --
Justice Abe Fortas: (Voice Overlap) theory anyway under the second part of the statute here, wouldn't you?
Mr. Earl B. Hadlow: The second part of the statute is the stacking part which says that if you stack or deposit it alongside of a bank where it is likely to be washed into a stream and impede navigation, then you have violated the second half.
The -- I see, I only have few more minutes.
The legislative history on which the Government based this substantially, its own case, simply takes two Acts which involve a choice.
It seems to me, one of them broad and one of them narrow, the Government selected the narrow one.
And the Government then would impose on this Court.
It seems to me that the -- that they should have or they meant to somehow pick the broad one.
As a matter of interest, 11 years later, they passed another Act almost identical to this one, applying to Lake Michigan and it's found in 33 U.S.C. 421.
And 11 years later, they used the same language of refuse, the narrow language instead of the broad.
The New York Harbor Act was changed from the narrow to the broad but not by judicial construction, they simply amended the statute in 1888 from the 1886 statute and they went from refuse and waste matter to any matter.
It seems to me that it's impossible to believe that Congress did not understand the difference between the narrow word and the broad when they have used the two in separate statutes.
And in the same statute and in the two-halves of this very same statute, they used the narrow in the beginning and the broad in the second half.
They say, “Refuse that is forwarded into the stream and any matter or material if it's stacked along the bank where it's likely to be washed in.”
Justice Byron R. White: Do you think Congress just would normally rely what this normal -- normally we're just relying on the normal -- this in connection to throw away valuable material?
Mr. Earl B. Hadlow: In my view, there's -- that would -- under my section of brief where I talk about the need for it, I'd say -- it seems to me that there is -- it is so unlikely that a person will normally repetitiously throw away valuable materials that there is simply no need for criminal sanctions against it.
And in 1948, at the very end of this Title, the Government had passed a long comprehensive Water Pollution Act under which without criminal sanctions, the Government can prohibit and update nuisances to water pollute (Voice Overlap) --
Justice Byron R. White: Yes, but there is criminal --
Mr. Earl B. Hadlow: -- new (Voice Overlap) water pollution.
Justice Byron R. White: There are criminal sanctions, there's criminal negligence, criminal negligence is covered in the Oil Pollution Act.
Mr. Earl B. Hadlow: In the Oil Pollution Act of 1924 but there's a --
Justice Byron R. White: That's right.
Mr. Earl B. Hadlow: -- comprehensive Water Pollution Act which had just been passed.
It was just amended for 1965.
But if it's been on the books since 1948 and there's a Water Pollution Control Commission and they have the right to abate any sort of pollution to the navigable water of this country now.
And that's the Act the Government ought to proceed under and they're not limited in anyway by this readable construction of this Act.
The only construction it seems to me which give the public fair notice of the crime of which it might be guilty.
Justice Abe Fortas: Does the new Federal Water Pollution Act cover this situation?
I know that -- I believe it has no criminal proceedings but do the abatement provisions in the new Water Pollution Act applied to this kind of a situation?
Justice Byron R. White: It said it can abate any sort of water pollution which is contrary to the health, morals and general welfare of this country.
So I'm saying it's very broad language.
It can be abated by any sort of procedures available to the Government.
I would say that it could very easily -- if somebody persistently abuse --
Justice Abe Fortas: Persistently, then it -- do you have to have the omen of persistent abuse for purposes of abatement under the Water Pollution Act, do you --
Mr. Earl B. Hadlow: I assume that under the enforcement, that they were the -- there's a persistent course of conduct that they would be after.
And it seems to me after all that needn't -- need be protected against.
Justice Abe Fortas: But I gather you're not --
Mr. Earl B. Hadlow: And --
Justice Abe Fortas: -- you're not confident, well, that's a different matter.
I don't want to get an -- misapprehens in what you're saying.
You're not representing to us your view that the Federal Water Pollution Act would apply to this kind of a situation, that is to say the one time discharge of gasoline into a navigable stream?
Mr. Earl B. Hadlow: I don't think they will -- that it's designed for that purpose.
And I don't think that's likely they'll use it for that purpose and neither do I think this was designed for that purpose.
Just to conclude if I may, the Government --
Chief Justice Earl Warren: May I ask you just one more --
Mr. Earl B. Hadlow: Yes sir.
Chief Justice Earl Warren: -- question there.
What was the basic purpose of Congress in enacting any of this legislation?
Was it to regulate the disposal of refuse or was it to prevent pollution?
Mr. Earl B. Hadlow: It was to prevent obstruction of the water by regulating the disposal of all sorts of enumerated waste.
The 18 (Voice Overlap) --
Chief Justice Earl Warren: But this doesn't have to be obstruction.
Mr. Earl B. Hadlow: This does not have to be obstruction.
Chief Justice Earl Warren: (Voice Overlap) -- this has to do with pollution.
Now when it enacted these laws it referred to pollution, what was the basic purpose of it?
Was it to regulate the manner in which the ships dispose the refuse or was it to prevent the pollution of our waterways?
Mr. Earl B. Hadlow: It was to -- I hate to argue with the --
Chief Justice Earl Warren: No --
Mr. Earl B. Hadlow: -- with you sir, but --
Chief Justice Earl Warren: No, it's alright.
Mr. Earl B. Hadlow: I think --
Chief Justice Earl Warren: You --
Mr. Earl B. Hadlow: -- it was designed to prevent the filing of the waterways.
It leaves --
Chief Justice Earl Warren: But suppose --
Mr. Earl B. Hadlow: It was mostly for obstruction that -- and twice in that same statute it refers to obstruction of navigation.
There was an exception at the bottom that neither side has mentioned in this case because I hadn't been material where the Department of the -- Army Engineers can permit refuse to be put in the water if it doesn't feel that it would restrict unduly navigation and impede navigation.
That's right in this same Section, 407.
Chief Justice Earl Warren: But I under -- I understood you to say that if this gasoline was tainted in some ways so that it's no longer merchantable and they poured it into the stream that it would be refuse and therefore would come within the Act.
Mr. Earl B. Hadlow: Yes sir.
Chief Justice Earl Warren: Now that one wouldn't obstruct --
Mr. Earl B. Hadlow: No sir.-- wouldn't obstruct the navigation?
Mr. Earl B. Hadlow: You do as the requirement of an obstruction of navigation does not apply to the first half of the Act, but I'd say that this Act in all of the sections surrounding in at the time of passage was designed and aimed at prohibiting the fouling of those waters.
If the 1890 Act lists 18 different kinds of material and every one of them was a waste product, a refuse, a residue, saw dust, ashes, cinders, it's everything and then finally concluded with refuse or waste matter of any sort.
That's what they were aimed at.
Now if -- my concluding remark is this, the Government in its brief is frank to admit that you could be prosecuted for the most trivial spillage under this Act.
And it says, in one of the most unusual statements and one of the most frank statements I've ever heard, that the protection that the public need in a case like this, comes from the good conscience and circumspection of prosecutors.
And I submit our own case is the best and most conclusive evidence that you'd done that that certain inspection is off and absent.
We have con -- we've cooperated with every arm of the United States Government in this case.
The United States Engineers, the coastguard, the prosecuting attorney, I worked -- I've worked with them from the very beginning on this case, nobody could stop it, it just got -- there was snowball in the long and not a soul would stop this little case.
Another case that's cited in the Government's brief is United States versus Standard Oil of California and California was prosecuted and convicted and fined of a crime because of two barrels of Bunker C Fuel Oil in Hawaii harbor.Once the case gets started there's no stopping it.And it is not right under American jurisprudence to subject a major corporation to a criminal conviction because it lost two barrels of Bunker C Fuel Oil.
Chief Justice Earl Warren: Mr. Lewin.
Rebuttal of Nathan Lewin
Mr. Nathan Lewin: May it please the Court.
I just like to cover two -- three points that were raised in the appellee's argument.
First of all, it seems to me the important point with regard to this statute that must be recalled is that Congress was legislating with regard to what harmed river is.
And it's equally of harmful to rivers when injurious deposits are put in there whether the owner personally wants them or not.
It doesn't make any difference to the river what the owner is subjective and can't is, whether he wanted to throw it in or whether it ended in there negligently.
So far as the Oil Pollution Act is concerned, and that was right, the Oil Pollution Act of 1924 applies only to deposits of oil from ships into coastal waters, it wouldn't cover this kind of a deposit.
And the problem at the time, the reason that the Oil Pollution Act was passed had nothing to do with whether the statute applied to refuse or not but it was because of a limiting construction which we submit was a misconstruction of the statute.
The reading this refuse act is defined only to obstruct the materials that the Oil Pollution Act was passed and that that made entirely clear that ships in coastal waters were committing offenses.
And of course, let the Refuse Act and specifically did left any other Act enforced that would apply to cover violations of this sort.
And Mr. Hadlow's there repeated references to our illustrations regarding the sunken barge, we don't contend and didn't contend that that was a violation of Section 13 because it was entirely -- insofar as we can tell inadvertent or an accident in line with your line of questions Mr. Chief Justice.
That illustration was put into a footnote in our brief only with reference to an alternative argument which we made for the construction of the word refuse.
And that construction was supported by the decision of the Second Circuit by the late Judge Learned Hand and we put the -- a reference in the footnote in there to explain what it would cover and what it would not.
And finally, although -- I must say that Mr. Hadlow say that this is a -- just a very minor case, of course the readings from prosecution don't appear from the record but we contend that this has to be left to the good sense of prosecutors and that there was good cause in this instance to proceed criminally against this discharge of valuable matter into navigable waters.
It doesn't appear in the record but there was good cause.