ASKEW v. AMERICAN WATERWAYS OPERATORS, INC.

Print this transcript Transcript: 

Argument of Daniel S. Dearing

Chief Justice Warren E. Burger: First this morning in number 71-1082 Askew against the American Waterways Operators, Incorporated.

Mr. Dearing you may proceed.

Mr. Daniel S. Dearing: Thank you Mr. Chief Justice, may it please the Court.

This case is here on appeal from the Middle District of Florida wherein a three-judge panel struck the Florida Oil Spill Prevention and Pollution Control Act in 1970.

With permission of the Court, the argument will be divided between myself and the Attorney General Robert L. Shevin, State of Florida and I understand that the argument will also be divided to the appellees.

Essentially, the operating facts or the operative facts bring in this matter before the Court today of the passage in 1970 by the Florida Legislature of its Oil Spill Prevention and Pollution Control Act.

Now this Act, like most legislation was a result of recent history.

The Florida Legislature was not unaware of the serious and deleterious effects of oil spills, massive oil spills in state waters.

They are aware, all too aware of the results in the Torrey Canyon Disaster and the English Channel in 1967.

They are too aware also of spills up country.

For instance when the P.W. Thirtle went down and spilled 31,000 gallons of bunker sea oil into Narragansett Bay off to close to Rhode Island was reported to have ruined the fishing industry in Narragansett Bay as a pertain to oils spillage.

They were aware also that the United States Congress was considering the Federal Water Quality Improvement Act of 1970.

They are aware of the laborious steps taken by the various committees and the passage of this legislation.

The Florida Legislature had convened and had been in session for only a few weeks when this matter came before its attention.

The real impetus to the Florida Act however was the collision in collision in Tampa Bay of the tanker dealing the pump, and the spillage of 21,000 gallons of bunker fuel oil into Tampa bay.

This brought home adequately and clearly to the legislature the dangers involved and being vulnerable as the State is to the ravages of oil spill pollution of its territory waters and so the legislature met and passed this Act.

The Florida Oil Spill Prevention and Pollution Control Act which provides for absolute and unlimited liability against the owners of vessels, in any event, other major spill and which also provides for certain mechanics for the -- before the fact enforcement of the Act itself.

Shortly, before the Act was to go into effect that is to say the financial responsibility provisions which are going to the effect the appellees before the Court today, plaintiff below file suit challenging constitutionality of the Act on several grounds.

The lower court, the state defendant on the grounds that the Act was a valid expression of the State’s police power.

But the lower court decided that instead of being a valid expression of the State’s police power it was in fact an intrusion into an exclusive federal admiralty domain and although the Act was challenged on other grounds, the court below decided issue on that fact alone, in that decision alone.

Now the Florida, I think it is absolutely necessary to bring the Court -- invite the Court’s attention to two sections of the Act.

First of all, Section 2 which sets forth the legislative intent contains this very brief but important paragraph.

It says the legislative further declares that it is the intent of this Act to support and complement applicable provisions of the Federal Water Quality Improvement Act of 1970 and in Section 21 of the Act states that this Act being necessary for the general welfare the public health, the public safety of the state and its inhabitants shall be liberally construed to effect the purposes set forth under this Act and the Federal Water Quality Improvement Act of 1970.

Under the provisions of the Act the State Department of Natural Resources was to issue certain regulations going to the mechanics of enforcement.

These regulations, it is submitted must reflect the intent as set forth in this two phrases, the regulations as well as all other enforcement provisions of this Act, it is submitted, would have to comply and supplement the Federal Water Quality Improvement Act of 1970 and this is particularly important to the position of the State of Florida before the Court today.

Now, the court -- the lower court found that the Act violated provisions of uniformity absolutely necessary to the Federal Admiralty Maritime Domain.

Now, we submit to the Court that this is not true.

In the first place, we submit that the concern with prevention and control of oil spill collision of territorial waters is not a maritime matter at all.

But if it is, it is certainly a non-exclusive maritime matter where there is concurrent jurisdiction between both the state and the federal governments and we would illustrate that fact.

Justice Byron R. White: You mean without any shoreside damage?

Mr. Daniel S. Dearing: No, Your Honor we don’t mean without any shoreside damage.

Justice Byron R. White: Well, then what about when there is no shoreside damage does the state have any business in the area?

Mr. Daniel S. Dearing: If there is no shoreside damage then the state may not have any interest in the area to protect.

We would submit however in response to the question that the ecological balance which is interrupted by a spill even though the slick never touches shore has a very detrimental and adverse effect shoreside.

Justice Byron R. White: Well you mean on those people who are making their living at sea like in fishing?

Mr. Daniel S. Dearing: Mr. Justice White it certainly has an application there but it also has --

Justice Byron R. White: Do you think, I just to ask you again does the State get any business providing the rule of liability for an oil spillage at sea that have no immediate impact shoreside?

Mr. Daniel S. Dearing: The State does not purport to have any responsibility --

Justice Byron R. White: So your answer is no?

Mr. Daniel S. Dearing: No, Your Honor.

Justice Byron R. White: Alright.

Mr. Daniel S. Dearing: Our answer is no.

The question is I think, in that instance whether there is any adverse effect shoreside and only then does the State purport to represent to have any concern or interest in the matter that would give rise to the police officer.

Unknown Speaker: While you are interrupted, could I ask you if you read the District Court’s opinion as looking at the Federal Water Pollution Act as being an exercise of congressional jurisdiction in the admiralty area?

Mr. Daniel S. Dearing: The State does not so interpret it, Your Honor.

Unknown Speaker: What authority does the federal government have to adopt the Water Pollution Act?

Mr. Daniel S. Dearing: The State --

Unknown Speaker: What congressional -- what constitutional authority was Congress exercising?

Mr. Daniel S. Dearing: I believe the State that the Congress had authority under the commerce power to exercise and it did so exercises this power under in the Act itself, Mr. Justice White.

Unknown Speaker: And you don’t think it has anything to do with the -- with admiralty jurisdiction or admiralty power?

Mr. Daniel S. Dearing: No sir, we do not and we would --

Unknown Speaker: Does it make any difference?

Mr. Daniel S. Dearing: Yes sir, we think it makes a considerable difference.

Unknown Speaker: Well doesn’t if the question is a conflict with the Federal Act is it with the Constitutional Act?

Mr. Daniel S. Dearing: I’m sorry.

I beg your pardon Mr. Justice?

Unknown Speaker: Well, let’s assume however the Water Pollution under -- whatever authority the Water Pollution Act was adopted.

If the question is one of conflict with a valid Federal Act then it doesn’t make any difference of what the source of the congressional authority was?

Mr. Daniel S. Dearing: No, sir.

It would not make any difference at all if the Florida Act it conflicts with the Federal Water Quality Improvement Act.

Unknown Speaker: If the District Court then did ascertain some conflict between the Water Pollution Act and the Federal -- and Florida law, didn’t it?

Mr. Daniel S. Dearing: Yes, sir.

To be more specific, they said that the Federal Water Quality Improvement Act was proof positive or strong indication in the area that of the conflict that their conflict existed and we construed that to be or we interpret that as being giving grasp to the pre-emption question which is --

Unknown Speaker: Well then, is it really important in this case to talk about the admiralty jurisdiction if we’re really talking about the question of pre-emption under the Water Pollution Control Act?

Mr. Daniel S. Dearing: We believe it’s important not only because we’re appealing from an order that stated this was applicable that provisions of maritime law applied here.

We maintained that they do not.

Justice William J. Brennan: Just tell me, Mr. Dearing if the source was not -- the admiralty power what was the source?

Mr. Daniel S. Dearing: Commerce --

Justice William J. Brennan: Commerce.

Mr. Daniel S. Dearing: -- Mr. Justice Brennan.

Yes.

We submit that the reason.

Justice William J. Brennan: Well, would it make a difference as perhaps I’m asking the same question Mr. Justice White did, would it make a difference on pre-emption whether it was the commerce power or the admiralty power?

Mr. Daniel S. Dearing: Yes it would for reasons if I may just the address myself briefly to it at this point.

Justice William J. Brennan: On the Jensen, I suppose.

Mr. Daniel S. Dearing: This is what the Court said below and this is what we take issue with.

We don’t believe that this is a matter of exclusive jurisdiction (a) if there is any admiralty jurisdiction at all it isn’t exclusive, it’s concurrent and in (b) we would suggest to the Court that the reason it is not admiralty or maritime is because of traditional view of this Court.

This is based upon the premise that the Court and the Court alone can determine the limits of the maritime grant under the Constitution.

Congress cannot determine those limits.

Only this Court can construe the Constitution.

This Court has so construed the Constitution and defined the limits of the maritime grant as being and applying the locality test, those occurrences which occur on navigable waters.

A sea to shore toward being consummated ashore is beyond the purview of that low county test limitation.

Justice William H. Rehnquist: But Mr. Dearing if Knickerbocker Ice Company, the Court held that a land based employee’s workmen’s compensation claim couldn’t be enforced by the State because it was sufficiently closely related to the admiralty, surely the type of oil spillage you’re talking about here is a good deal more closely related to traditional admiralty jurisdiction and what the Court was talking about the Knickerbocker, wasn’t it?

Mr. Daniel S. Dearing: Yes, sir.

We would agree that the incidental effect of the legislation on maritime law would be much more emphatic than would be the workman’s compensation laws at issue in Jensen and reflected in the Knickerbocker case.

Justice William H. Rehnquist: What do you do with those cases?

Mr. Daniel S. Dearing: We would ask the Court to continue the statement that appeared in the Standard Dredging case and severely limit the Knickerbocker, the Jensen doctrine to its facts of workman’s compensation cases which is what this Court said of course in the Standard Dredging case that Jensen is limited to its facts and if we may, there is an alternative to looking at this from the point of view of the strict point of view of maritime law and I would invite the Court’s attention at this time to what the Attorney General has to say and I respect.

Thank you.

Chief Justice Warren E. Burger: Mr. Shevin?

Argument of Robert L. Shevin

Mr. Robert L. Shevin: Mr. Chief Justice, may it please the Court.

You Honors, just as maritime law was developed to meet the crisis of developing industry with peculiar problems, so environmental needs of today we believed demand their own jurisprudence.

The Federal Act, the Water Quality Improvement Act is reflective of this need to develop new concepts of legal responsibilities in crimes against the environment.

The Federal Act sets the pattern.

The Florida Act we contend is a legitimate response to the Federal Act to the awakening of a growing necessity by Congress and if conflicts the necessity to deal with massive oil spills which is not here before it had been dealt with and if it conflicts with the tenants of Maritime Law or any other body of law then we contend that the conflict is purely incidental and unfortunate.

There’s certainly is no a reconcilable conflict between the Federal and Florida Acts.

The two Acts speak to federals state relationship, cooperation and meeting the threats of massive oil spills.

The Act speaks of joint cooperation between the state and the federal government to meet serious economic and environmental problem.

The national contingency plan that’s outlined in the Water Quality Improvement Act of 1970 speaks to a coordination of effort with matters such as containment, dispersal and removal of oil with state and local agencies.

In the Federal Act, when it speaks of a marine disaster, it talks of coordinating all public and private interest so the two Acts they interrelate rather than conflict and the implication in both statutes is not competition but cooperation.

And as Mr. Dearing point out the Florida Act itself says that the intent of this Act to support and complement the applicable provisions of the Federal Water Quality Improvement Act of 1970.

Now many environmental problems at the state of local level exist, Your Honors in the first instance.

Unknown Speaker: Mr. Attorney General you -- just incidentally as you say as you put it is there a conflict between the Florida Law and the federal law?

Mr. Robert L. Shevin: Oh!

No, Your Honor, we contend there is no conflict.

There is no conflict between the Florida Law of 1970 and the Federal Water Quality Improvement Act of 1970.

Unknown Speaker: Is there a limitation of liability in the Federal Act?

Mr. Robert L. Shevin: There is in effect in the Federal Act, Your Honor, an absolute liability but it’s somewhat qualified with certain defenses that can be read.

Unknown Speaker: It’s limited liability?

Mr. Robert L. Shevin: To a certain extent not the same that was the 1851 limitation.

Unknown Speaker: But there isn’t any limitation on the Florida?

Mr. Robert L. Shevin: There is no limitation and to this, Your Honor, we contend that the Federal Government and the anti-preemption clause specifically granted to the State the right to pass any requirement of liability and those are the words any requirement or liability or the terms, the words that are used in the anti-preemption clause so we contend that the Florida Act is simply an extension.

With regard to the question of limitation, the Federal Act does allow certain defenses, the Florida Act also allows certain similar defenses of acts of God, and third parties that would be responsible for the negligence and so forth are provided within the Florida Act as well that they can be raised.

Your Honors, many of these problems exists in the first instance because of pressures to continue traditional tenants of established jurisprudence.

Time manner concepts and property law obstruct the State many times in an effort to protect the rights of beaches of inland waterways of natural resources and compound problems with sewage treatment, water purity and other problems severe water pollution.

So we contend that the Federal Act, the Water Quality Improvement Act is a step forward.

It’s a threshold upon which the state local governments can build together with the federal government a new system of laws and environmental jurisprudence to meet the crucial demands brought by the industrial system itself.

We contend that this is federalism in the truest sense.

If the law were to seek to limit or to extend damages to the federal agency involved which is what the Federal Act speaks to, then and only then where there be a conflict.

There is no irreconcilable conflict between the two Acts that are being reviewed here.

If the Federal Act were to address itself to state recoveries which it does not then such conflict might be found.

On the contrary, the Federal Act invites the state to impose any requirement or liability with respect to the discharged of oil into the waters of the State and Florida has done this.

The danger of a massive oil spill by pollution is both a federal and a state problem that District Court by its decision we contend has frustrated this expression of federalism and if federalism is to be more than an academic theory then it requires an expression in the instant case by reversal of the lower court and a declaration of the Florida law is valid in all respects.

This is a matter of particular concerned to Florida.

Unknown Speaker: Attorney General in your point, I think you stated in your brief that the District Court’s refusal to several portions of the state statute will not be disputed on appeal.

Does this mean it is your position because I think you’ve just intimated that the Act is valid in its entirety and that you want the whole thing or --and would not be contend with any portions of it?

Mr. Robert L. Shevin: Your Honor, we take the position that the Act is valid in its entirety.

Quite obviously, it contains the severability clause, the Solicitor General in his amicus brief which supports the position of the State in many respects disagrees with the position of the State in one or two other respects here just the Court to strike certain portions and allow others to remain and of course the Court has this option.

But its our contention and we take the position in this appeal that the entire Act spell it and that within the traditional police powers of the State, the State has a compelling and urgent and reasonable need to legislate in this field to complement with federal legislation that release is not obtainable in the admiralty courts when the limitation of liability is based upon the value of the vessel after the fact because if the vessel sinks we’re talking about the limitation being based upon the salvage value of the vessel that this will not give us the type of remedy that’s necessary to cleanup massive oil spills and to give a relief to third party as to citizens of Florida who have a justifiable cause and cannot obtained any justice in the courts if they are limited to going in through an admiralty proceeding.

Unknown Speaker: Well suppose the Court should hold that the Florida Act in so far as it affects criminal facilities for instance is valid and the rest of it is not.

Would you take at least that much if you could have it?

Mr. Robert L. Shevin: Well, Your Honor quite obviously, I’ll be less than candid if I said that we would not want to see certain portions at least certain portions of the Act upheld but we feel very strongly that the entire should be upheld.

Your Honor, on this point of the relief and the remedy, I would challenge the appellees to show us how a third person, a citizen, a hotel owner whose surrounding beaches that are available to the public and to his hotel guests if those beaches are ruined how he’s going to receive relief in the admiralty courts and how the State of Florida is going to cleanup a massive spill in the admiralty courts.

Unknown Speaker: What about up to this day if a vessel sitting and appear are navigable waters causes a fire ashore and the hotel burns down?

Now, what’s the governing law in that situation?

Mr. Robert L. Shevin: I think the governing law in that situation it would again depend if we’re talking about a sea to shore tort.

Unknown Speaker: I’m talking about the cause of fire that originates on the ship causing a shoreside injury now about the Admiralty Extension Act?

Mr. Robert L. Shevin: Your Honor, I believe in that case that the hotel owner would have his third party rights common law rights and would not be limited to the relief that the Congress purports to give under the Admiralty extension because I don’t believe that the Congress could properly extend.

Unknown Speaker: Then there must be a law in that area.

Do you mean your answer depends on the constitutionality of the Admiralty Extension Act?

Mr. Robert L. Shevin: My answer to that question would Your Honor.

Yes, sir.

Unknown Speaker: Let’s assume the Admiralty Extension Act is constitutional, what about the hotel owner then?

Mr. Robert L. Shevin: Well, I think in that case that he would be limited by to go into the Court of Admiralty.

He would be limited in his remedies to that extent.

Unknown Speaker: So that this thing you’re talking about the people injured to shore by an oil slick, those people are like the hotel owner?

Mr. Robert L. Shevin: Well, there’s the hotel owner people who --

Unknown Speaker: Multiplied many times.

Mr. Robert L. Shevin: Many times citizens, the State in its cleanup processes.

Unknown Speaker: But again, assuming the constitutionality of the Admiralty Extension Act, what about that?

Mr. Robert L. Shevin: Well, Your Honor assuming the constitutionality of the Admiralty Extension Act.

It creates a very serious problem except for the fact that the Congress and the Water Quality Improvement Act, we think founded that on the Commerce Clause specifically recognizes other responsibilities, other concepts of liability rather than the old 1851 Standards and specifically, Your Honor if the Federal Water Quality Improvement Act was considered by the Congress to be in the admiralty area dealing with oil spills then why would they have provided the Act that the remedies are in the Federal District Court?

That would have been totally unnecessary.

Unknown Speaker: Well you must then be arguing also that the Admiralty Extension Act has been somehow modified by the water pollution.

Mr. Robert L. Shevin: Yes, we are arguing that the Congress --

Unknown Speaker: And that Congress has power to cede to that the State in effect that certain jurisdiction in this area in this zone.

Mr. Robert L. Shevin: Yes we’re arguing that the Congress recognized an emerging new concept that jurisprudence that they legislated accordingly, that they clearly gave the states the responsibility and invited the States to pass similar legislation and to go further and this is what the State of Florida has done and if the Water Quality Improvement Act is to have any meaning in the field of jurisprudence to be able to react to and prevent a massive oil spill, then the State ought to be able to legislate in this field as well.

Now, You Honors, the Federal Act does nothing more than set minimum standards.

I gives the states the rights to adopt more stringent requirements, this is what the State has done just like in the Clean Air Act, just like in the Water Pollution Act in and of the Air and Water Pollution Acts the State had been given the right to move further just like the present cooperation between the Federal Government and Florida to save Florida’s coastal lands and tidal waters.

The Florida Act is no more violative of the Water Quality Improvement Act than our Water Quality Standards develop by the States violative of another Section of the law 33 U.S.C. 1171 subsection (b) of which requires a party seeking a federal discharge permit to obtain certification from the State Water Pollution Agency that the anticipated discharged will not violate state water quality standards.

And if the non-preemption clause of the Water Quality Improvement Act is to have any meaning as a Congress intended, surely it should permit the State as Florida has done to allow private claimants in the state itself to recover under strict liability principles rather than the Fault Concept of Maritime Law and they speak of uniformity.

Certainly, uniformity would be something that the maritime attorneys would desire and perhaps the insurers would desire uniformity but the Solicitor General in his brief agrees and concedes that although the application of Florida standard of liability absolute might create a lack of uniformity that this is not a subject requiring uniform federal regulation, that there has been no preemption and even if negligence is considered to be the standard, there is no policy of Maritime Law opposed to liability without call for damages caused by oil spill from ships that Florida has a legitimate right and interest to legislate and to apply the standards of liability and view of the potential impact of oil spills on Florida’s environment and economy and that the Solicitor General in other words contends that this is an area of concurrent jurisdiction.

Now, the lower court apparently felt that each course was dictated by a series of earlier cases Jensen, Knickerbocker, Dawson and these cases have been mentioned by Mr. Dearing.

However, these cases are more than 48 years old.

There are dubious logic this Court has severely limited their application and it is hope that this precepts will not be perpetuated simply by the inertia of the rule of President because if this Court affirms the District Court --

Unknown Speaker: Well, are you suggesting we overrule Jensen or that we --

Mr. Robert L. Shevin: Well Jensen, I am suggesting that Jensen has already been severely limited and as a result of the limitation.

Unknown Speaker: I have said earlier it’s limited them largely to conflicts on personal entry case?

Mr. Robert L. Shevin: Yes, on workman’s compensation.

Unknown Speaker: And that’s the way you want to leave it?

Mr. Robert L. Shevin: Yes, sir.

We contend that that’s the way that you are to believe it.

Unknown Speaker: Does Jensen have to do with the sewage cited against (Inaudible) isn’t it?

Mr. Robert L. Shevin: Yes, it is.

Unknown Speaker: Doesn’t it have anything to do with shoreside damage?

Mr. Robert L. Shevin: That’s correct, it has absolutely nothing --

Unknown Speaker: What do you need to modify that at all?

Mr. Robert L. Shevin: Well, I’m contending Your Honor, that the lower court based its decision basically are Jensen, Knickerbocker, and Dawson which we think is inapplicable.

Unknown Speaker: As a general principle that anywhere there’s admiralty it’s exclusive?

Mr. Robert L. Shevin: That’s correct, that’s was the basis of the lower court’s decision.

Your Honors, we contend that if this Court affirms the District Court that will be tantamount to affirming 200 years of law but no justice.

Thank you.

Chief Justice Warren E. Burger: Mr. Healy.

Argument of Nicholas J. Healy

Mr. Nicholas J. Healy: Mr. Chief Justice and may it please the Court.

The subject of this appeal if Your Honors please is not water and the need to conserve it as the state contends.

There is no issue whatever between the appellants and any of the appellees concerning the absolute necessity of maintaining a clean environment particularly in the marine area.

There’s only one genuine issue in our submission which is presented here and that is whether as the court below decided, the subject of marine oil pollution like other subjects of maritime law should remain within the federal domain within the domain of the Congress and this Court and the other Federal Courts or whether to borrow a phrase from Mr. Justice Frankfurter’s concurring opinion in the Wilburn Boat case.

It should be left to the crazy-quilt regulation of the different states.

In this connection, we respectfully call the Court’s attention to Table B annexed to the brief of appellees American Institute of Merchant Shipping and others which contains a sampling of the various state laws in this new field.

This shows that the clients, if Your Honors please that there is a great deal of difference among the various States in their handling of the pollution problem.

Chief Justice Warren E. Burger: Mr. Healy, historically about when did the oil spill problem become a serious problem in navigation?

Mr. Nicholas J. Healy: I would say, Your Honor about 1924 or a little before.

The 1899 Refuse Act makes no mention of oil allow although, I’m sure you are aware sir the courts have been applying the 1899 Act to include discharges of oil and have been finding ship owners for causing discharges of oil.

But the first time oil was at the mentioned as such in a federal statute was in 1924 Oil Pollution Act which was amended in 1966 and was repealed by the Water Quality Improvement Act of 1970.

Chief Justice Warren E. Burger: But historically is there some correlation between the development of the very, very large tankers and greater incidents of oil spills?

Mr. Nicholas J. Healy: I don’t believe the size of the tankers has had much to do with it because there had been very few incidents of spills of large quantities of oil from large tankers.

The Torrey Canyon of course is the most notable but there is no doubt that the increased need for oil in the more developed countries and also now in the developing countries has greatly increased the need for ocean tonnage in the tanker area.

And many, many times more oil is being carried today by sea than it was carried just a few years ago.

Another development, Your Honor is the tendency to refine or at destination rather than at the source.

Now this increases the potential for pollution damage but on the other hand it minimizes the number, the tragedies that resulted from explosions and fires on the vessels carrying gasoline and so on.

The admiralty clause if the Court pleases is not merely a constitutional grant of judicial power.

It’s perfectly true that its couched in terms of judicial power but when read conjunction with necessary and proper clause, this Court has repeatedly held that it grants to Congress the paramount power to legislate in the maritime field and where Congress has not acted then it is for this Court and the lower federal courts to define the General Maritime Law which is to prevail throughout the whole country and not just in one area.

Unknown Speaker: Did Congress purport to say what authority was being exercised with the Water Pollution Act?

Mr. Nicholas J. Healy: To the best of my recollection no, Your Honor.

There is no mention of the constitutional clause under which it was acting but is seems to me clear, if Your Honor please, that it must have been the admiralty clause rather than the commerce clause because otherwise what possible right would Congress have to pass legislation which would relate not only to vessels engaged in interstate commerce but even to local barges that may never leave the waters of the single State and which may cause damage only to the waters of that State and to the shoreline of that State.

Unknown Speaker: What’s the consequence if it was the admiralty power, Mr. Healy?

Mr. Nicholas J. Healy: If it was the admiralty power then it doesn’t make any difference whether the vessel concern was engaged and in interstate or foreign commerce.

It would apply to a barge on a river which never left the confines of the particular State if it was the --

Unknown Speaker: But does it make any difference with respect to the issues of this case?

Mr. Nicholas J. Healy: In this case it does, if Your Honor please, because of the innumerable decisions of this Court holding that uniformity in the maritime law --

Unknown Speaker: Well, does this go so far -- as essential suggest that if its admiralty then there’s absolutely no power of any kind in the States?

Mr. Nicholas J. Healy: There is one exception, if Your Honor please, and that is the local concern doctrine.

If the matter is purely one of local concern and it’s a matter concerning which Congress has not acted then the States --

Unknown Speaker: And whether it’s personally to use anything else?

Mr. Nicholas J. Healy: That is right sir.

Now it’s proved that the Jensen case has been criticized severely as the attorney --

Unknown Speaker: That’s none of the statement, I suppose is it?

Mr. Nicholas J. Healy: But I’m wondering, if Your Honor please, whether the criticism of Jensen hasn’t been focused in the wrong directions.

I can certainly sympathize with those who feel that the court in the Jensen case could if it had wished have decided that workmen’s compensation laws of a particular state applied to shoreside workers when on board a vessel loading or discharging in the particular state, should have been considered as a matter of local concern.

I think that’s the advice of the Jensen case if there is any.

But I think the philosophy behind the Jensen case is the best thing that has ever happened to the steamship industry and the people who depend on it for their profits because --

Unknown Speaker: Does Harbor Workers’ -- does a Harbor Workers’ Act preempt State Compensation Act?

Mr. Nicholas J. Healy: Yes, Your Honor.

Unknown Speaker: With respect to everyone whose covered by?

Mr. Nicholas J. Healy: Yes, Your Honor, the Harbor Workers’ Compensation Act of course was passed in order to remedy the situation left by the Jensen Case and it applies to all workers when may all maritime workers engaged in maritime appointment when they’re on board the ships.

Unknown Speaker: Jensen, wouldn’t have kept the State from giving a workmen’s compensation remedy to people who are injured on shore?

Mr. Nicholas J. Healy: No, sir this Court so held --

Unknown Speaker: But the Harbor Workers’ Act provides the remedy for them if they’re in maritime pursuits, doesn’t it?

Mr. Nicholas J. Healy: No sir, not if they injured to shore.

Unknown Speaker: So it’s just in -- just on ship?

Mr. Nicholas J. Healy: That is right sir, the employer must carry.

Unknown Speaker: Could it have that done so?

Congress?

Could have coverage shoreside Harbor Worker injuries?

Mr. Nicholas J. Healy: I believe it could under the extension -- the Act of Extension of Admiralty jurisdiction.

Unknown Speaker: But it wouldn’t necessary have to been exclusive?

Mr. Nicholas J. Healy: It would seem to me that if the Congress once chose to act it would have to --

Unknown Speaker: You have to say that, don’t you, on your brief please.[Laughter]

Mr. Nicholas J. Healy: I think so but it seems to me that if Congress once chooses to Act, it occupies the field and there is no room for state action.

Unknown Speaker: There’s no independent congressional intent or is it just a question of fact that the judiciary addresses itself to as where there’s been preemption.

Meaning your Water Quality Improvement, you had this expressed negation of preemption.

Mr. Nicholas J. Healy: Well the, if Your Honor please the Act simply says that nothing in this Section shall be deemed to prevent any state from enacting water pollution legislation or words to that effect.

It doesn’t say that -- it doesn’t state in a positive way, it’s more in --

Unknown Speaker: Well suppose that it said is some areas but defining them, this Act does preclude concurrent exercise of power by the States.

Would be any different?

Mr. Nicholas J. Healy: I don’t think that Congress could consistently with the decisions of this Court --

Unknown Speaker: I guess you have to say that don’t you?

Mr. Nicholas J. Healy: I suppose I do but I believe it.

The Knickerbocker Ice Company has so held and as far as I’m aware there’s never been any decision to the contrary.

Unknown Speaker: The Knickerbocker Ice and the rest have a personal entry cases.

Mr. Nicholas J. Healy: Well, that’s right.

Justice William H. Rehnquist: And that wouldn’t be true if these were they’re just a commerce power on land, whether Congress wants to say the states can have concurrent jurisdiction.

There is no principle of law that prevents the States from having concurrent jurisdiction.

So your depending basically in the admiralty approached to it?

Mr. Nicholas J. Healy: That is right sir.

The line of cases has been quite different and of course, I suppose it’s largely historical when the Constitution has adopted the only interstate and foreign commerce of any account at all in this country was by water.

We have no railroads or airplanes or trucks.

Unknown Speaker: Well I suppose you would still be here even if there were no federal water improvement legislation at all would you?

Mr. Nicholas J. Healy: Absolutely, Your Honor.

Unknown Speaker: Just for the claim that Florida was without power to legislate in the area of admiralty?

Mr. Nicholas J. Healy: Absolutely.

We are not.

Unknown Speaker: And that was the basic decision of the District Court, was it not?

Mr. Nicholas J. Healy: Exactly sir.

We are not arguing that the Federal Act preempts the whole field.

It does not, the Federal Act applies only to U.S. Government clean-up costs and with reference to that, if Your Honors please, the Attorney General challenges these to explain how the poor hotelkeeper whose beaches were damaged could find relief in admiralty.

Well, I think the answer is that under the Federal Act Congress has appropriated huge sums of money and has charged the Federal Government with the obligation of cleaning up an oil spill and no distinction is made between Government-owned property and private property if the shoreline has damaged, the Government comes in and cleans it up if the owner doesn’t clean it up and if the Government doesn’t it then the Government is entitled to reimbursement subject to a limitation of a $100.00 per ton with sealing of $14 million and subject to a four defenses: act of God, act of war, negligence of the Government itself and act or omission of the third party.

Unknown Speaker: But the Government doesn’t quite -- doesn’t -- wouldn’t provide in a loss of profits --

Mr. Nicholas J. Healy: No, sir.

Unknown Speaker: -- which might be recovered in the private suit?

Mr. Nicholas J. Healy: No sir but in a private suit of course the hotelkeeper could sue and for his loss profits and if the spill were very bad one and the vessel were damaged so that you have very little value left, it’s true that the limitation of liability statute would be applicable.

Unknown Speaker: Now an absent of the Water Pollution Control Act and absent the Admiralty Extension Act, you wouldn’t be here would you?

Mr. Nicholas J. Healy: Yes, Your Honor because --

Unknown Speaker: Under the decisions of this Court prior to the Admiralty Extension Act?

Mr. Nicholas J. Healy: Yes, because we are dealing here with liability not only to shoreside property but to the water and to ships.

Unknown Speaker: I agree with you.

I should have limited the question to shoreside damage.

Mr. Nicholas J. Healy: As far as shoreside damage is concerned we will not be here.

Unknown Speaker: Absent of the Admiralty Extension Act.

Mr. Nicholas J. Healy: That is right, sir.

Unknown Speaker: Yes, thank you.

Mr. Nicholas J. Healy: With this reservation, if Your Honor please, the Florida Act of course applies to terminals as well as to vessels.

Unknown Speaker: Right.

Mr. Nicholas J. Healy: And if a terminal shoreside facility causes a spill and damages cause to another shoreside installation or shoreside property, there might be a question, a serious question of admiralty jurisdiction and federal substantive law the General Maritime Law applying but here the terminal is liable also for damage under the Florida Act for damage to another ship or for damage to the water and for the cost of cleaning up the water and thus, the Fifth Circuit -- the Court of Appeals said in a fairly recent case nothing is more maritime than the sea.

Therefore, I think is quite conceivable that even a statute which was limited to damage caused by shoreside installations to water and certainly to vessels would be unconstitutional.

Certainly, the damage to another vessel by shoreside installation is admiralty and was even before the 1948 Act.

My colleague Governor Collins will continue the argument.

Thank you.

Chief Justice Warren E. Burger: Governor Collins.

Argument of Leroy Collins

Mr. Leroy Collins: Mr. Chief Justice, may it please the Court.

I respect very highly Attorney General but I find that some of his statements here to be frankly incredible.

When he makes a flat statement that there is no conflict between the State Act and the federal laws, I think his badly wrong as I’d like to try to demonstrate.

In fact, the District Court after considering this case found that there were so much in conflict and so much wrong about the State Act that if it were stripped of all of its conflicts there would be no viable act left and that is the reason why we have not considered that there was any question of severability the remaining of course I don’t deny that this Court would have every opportunity he did ask to deal with the case in that way.

But the pilot himself in his brief acknowledges that there is no basis of severability here and we strongly make that contention too.

There was no question raised in the jurisdictional statement regarding severability and so we do not believed that question is properly before this Court on the initiative of the parties involved here.

The thing I would like first of all to emphasize is the fact that, what Florida really seeks to do here is to establish in the words of the Solicitor General, I comprehensive regulatory scheme.

It’s not just an Act dealing with these couple of matters of liability without thought and limitation of liability.

The State of Florida puts itself in the business of regulating, what is obviously, admiralty jurisdiction and it regulates it in a very comprehensive way.

This involves to control and regulation of ships as State Act does.

It involves terminals that exist for the purpose of servicing to those ships.

It involves navigation in the navigable water of the United States very importantly.

This total scheme is what the District Court invalidated and what we feel this Court should do.

Let me refer to just a few of the provisions of this law that haven’t been mentioned here at all.

The law provides of course for licensing of these terminals in the issuance of certificates of registration for them annually provided, the terminals demonstrate that they have certain equipment on hand and that they are disposed to cooperate completely with the State and in any program of prevention and correction of oil spills.

And it follows this language, the Department that’s the State Department shall adopt regulations to govern operating and inspection requirements for facilities, vessels, personnel and other matters related to licensee operations under this Act and specifically requiring that vessels, transporting pollutants within state waters shall maintain on board such containment gear as may be required by the Department that it is to state with a crew trained in the use of such gear.

Now this is what the state is seeking to do.

The States further makes provisions under this law for the designation of support managers and take a look at some of the duties and obligations and rights of these port managers.

They are to organize recover teams, that’s understandable although the federal law provides for what they call strike forces which is the same function really.

These port managers are authorize to board vessels that out there they are going to come into the port to inspect these vessels for the seaworthiness and of course that can include a great many things and to decide whether in their opinion the port manager, the State manages a few it is seaworthy and decide whether it has a proper gear on it and decide whether its crews have been trained suitably to allow to them to enter one of Florida’s level deep-water ports.

The port manager also has the right after he stops the ships out there to tell them that he must anchor, he can’t come in now because of whether conditions and if he does come in, he can tell him where to go and where to stop and other things at a purely operation and navigation limit completely covered by coast guard services and other federal services at the present time.

The law also provide for the preparation of a contingency claim.

Invite -- involving all the agencies of the State Government to help it enforce all of these provisions and to help provide remedies for spill if it occurs.

This of course is patterned directly after the Federal Government.

The 1970 Water Quality Improvement Act was passed to defense of this Act and obviously, the Federal Act was before the draft of this Act and was used as a model somewhat.

What the State was just trying to do is do all the federal governments going to do and do much more in conflict with some of the things the Federal Government provided.

Now, in doing all these things as port managers authorized to do, he runs squarely into the coast guard and its responsibilities.

This is a comprehensive federal contingency plan and there is a federal contingency plan responsibility for recovery spills and strike forces and all of these things are all provided under that Federal law and the coast guard, the federal authorities of course have authority to prevent ships from coming in and giving them directions at which the state is putting itself in business of doing so.

Here you have very specific conflicts but these conflicts are just the beginning.

This navigational management of conflicts because both state and the federal require showing the financial responsibility, the state makes no provision for accepting and showing that the Federal Government requires a financial responsibility.

This imposes its own making it a little tougher and there is a provision that and I don’t know just how this should be interpreted but in all these where the cost guard and the state teams move together while it’s a provision that the State shall act independently of the federal authorities.

Chief Justice Warren E. Burger: Well Governor, is it your position that the regulation of the State under the State Act is so pervasive that none of it can survive?

Mr. Leroy Collins: Yes sir, that’s absolutely sir.

And of course we go and that there are all these conflicts regarding the extent of liability limitation and non-limitation of liability, the State deprives people of rights and defenses in very harsh terms that are in conflict with the federal terms, and all of these other things that are mentioned herewith.

Now, and the State frankly insist that its law supersede those of the Federal Government in these respects.

And we say that it is a Congress’ responsibility to regulate in this field and it must be the Congress’ responsibility to regulate in this field.

We are proud about beaches and of course we want to protect them why therefore denying other States of the union who are equally proud of those that they have or may have and this is a matter that requiring uniformity of action and that action can only come through federal leadership and federal direction.

A room for the States to cooperate but this is not any way for the State to seek to cooperate with the Federal Government in its comprehensive plan to deal with this very difficult problem.

Now, I think the best of all the cases and very essentially that dealing with this matter of federal state relations and responsibilities in the admiralty field is Kelly against Washington.

And there you have read pervasive state statute that sought to provide inspection of boats and ships that were not provided to be inspected by the Federal Government and do all kinds of boats, some of them foreign commerce, some in the interstate commerce, some in intrastate commerce.

And the State Supreme Court there held that that Act was an improper innovation of the Federal Admiralty Domain though it did apply only to ships not subject to federal inspection.

And the case came up here and Justice Hughes wrote the opinion for the Court and he sets out very clearly the three governing rules that apply and I think applied right here.

First, he says is there a conflict with federal law?

He says if there’s a conflict with federal law, the federal law prevailed because it is paramount and the state law fails.

Secondly he says, if the subject is one demanding uniformity whether a conflict or not that the state action will not be permissible.

Well, we submit here we have a proposition that does require uniformity of dealing.

Then he said that there was room for a state to deal with purely local exigencies when there was neither conflict nor a necessity for uniformity and some very limited action was allowed the State to act in this area pending action by the Federal Government.

Now, those are the -- that’s a modern rule for protecting the maritime, a jurisdiction and administration of this nation and it does belong to this country and if doesn’t belong to the several states because that has a countrywide responsibility and a nationwide responsibility and I submit that on all three of those considerations that this Act fails.

They argued that hereon which cited the Kelly against Washington Case.

The case of Michigan over there was a municipal coordinate dealing with smoke intensity and the Court allowed that to stand.

They claimed that that where there’s a -- was a departure from Kelly against Washington.

It was really an effort by the Court to adjust to that little local room there, a local exigency, the particular situation which provided the misdemeanor for a ship to be emitting smoke in the City limits of Detroit.

Unknown Speaker: As I remember Governor, there was no federal statute on that wasn’t it?

Mr. Leroy Collins: No sir, it was not.

Unknown Speaker: Federally license to the vessels [Voice Overlap] that if somehow was an impairment of the federal license to court.

Mr. Leroy Collins: Yes, it was claimed that federal inspections were required of this and this particular type of (Inaudible) met with federal inspections and there was a strong dissent in that case that my personal feeling would follow actually, that was by Justice Frankfurter and Mr. Justice Douglas.

But even so that’s just a tiny, tiny island there that that cannot be possibly be a base of foreign act that this is as far reaching this as this went years.

So we say it is up to the Congress to say what the (Inaudible) is and I would like to call the Court’s attention to the fact that the Congress had not been lax in its interest in this matter.

It is move very importantly over the last 25 years that to meet needs that arising in this matter of greater and greater demand for more and more shipping of oil to meet the greater and greater demand for electric power this country and that same thing is true all over the world.

This is a serious problem but it’s not one that the Congress is not aware of.

It’s not one that the Congress didn’t moving very specifically and very importantly to meet.

In our case, there is conflict, the United States is exercising its paramount power and the State is seeking in to supersede this.

In our case, there is a necessity for uniformity.

They argue about.

They can’t possibly say that this matter of controlling this kind of navigational operation and experienced is a local matter.

But we could have an oil spill at Pensacola that might not hurt Pensacola totally and might wind up in Mobile and it creates a problem in that state.

Now supposed to use a hypothetical case we had a spill up near New York and it got to go stream and started drifting up the New England Coast there.

Well, if they applied the law that the Attorney General is seeking to uphold here then you will have a New York State.

A team out there trying to deal with this matter and telling the master of the ship what to do with the ship and how to handle it and trying to manage a team and then when did this spill across the Stateline and you got into Connecticut while here’s another state out there with another team and whole regulations and more controlled and different ones and so it goes the main you’ve have the same sort of thing.

This is definitely an area which we require uniformity and requires the kind of action that the Federal Government is applied at the present time.

In the national conventions of a dealing with this subject and importantly and of course this would supersede any state regulation.

The ship as I represent do not seek to avoid regulation concerning oil spills.

On the contrary, they had worked with Congress and continued to do so in relation to oils spill legislation.

However, this ship was worked daily in the complexities of the federal admiralty scheme and they realized as a practical matter and impossible situation would exist if States were free to legislate within the area of oil spill control as Florida seeks to do.

There is a better way now.

There is a better way then for each state to try to outdo the Federal Government.

We’re all in this together, the State Act should be found invalid here at the District Court has.

And the interested state should then find ways to exhibit their effectiveness in the formulation support and execution of federal policy in this field and there is no lack of federal power, there is no disposition by our federal leadership not to move, there’s no lack of awareness of the States involved for Florida and all the sister states as well.

So we submit the case, the decision should be affirmed.

Thank you.

Chief Justice Warren E. Burger: Mr. Attorney General you have about four minutes left.

Rebuttal of Robert L. Shevin

Mr. Robert L. Shevin: Mr. Chief Justice, may it please the Court?

Governor Collins if that spill that you referred to ends up in Mobile then I would hope that the State of Alabama has a law similar to Florida’s because then they could take care of that spill.

If it ends up in Pensacola then I want to be certain that the State of Florida can cleanup that spill and at the people who are damaged by that spill have a right of recovery in a court of law and are not limited by high bound traditions which do not speak to the question of massive oil spills.

By the use of the words, any requirement or liability in the Water Quality Improvement Act, it is clear that the Congress fully intended to give broad latitude to the States to enact whatever requirements of liabilities and standards of the states deemed warranted in the exercise of their legislative powers to prevent and control and provide relief from oil pollution.

Congress was not only acquiescing in the enactment of state legislature they were actually inviting the States to act to pass its legislation and pursuant to this invitation Florida passed its law and this law was based on direct and compelling interest that the State has urgent interest for the protection of its economy and its environment.

It’s the proper exercise of the police power the State to protect our citizens and a such should be given the full weight despite the lack of uniformity which the Act -- which might result because of the Act.

Now, if it please the Court, the Federal Admiralty Extension Act we contend was improperly extended by the Congress beyond the constitutional jurisdiction of the admiralty court.

However, even if the extension Act were to apply and is upheld by this Court and even if the Water Quality Improvement Act was bottomed on admiralty rather than commerce there’s still would be room for state action.

This is not in exclusive domain, there is still room for state action, there’s still concurrent authority and the Solicitor General in his amicus briefs says uniformity and we agree must yield to the overriding need for the State to legislate for the interests of its citizens.

Florida has legislative within the traditional bounds of the State’s police power and to protect our citizens and to protect our environment.

Chief Justice Warren E. Burger: To have uniformity yield would mean overturning a long, long line of authority, would it not?

Mr. Robert L. Shevin: No, Your Honor, I think not because the Jensen, Knickerbocker, and Dawson cases have all been very severely limited and this Court has never dealt with this emerging law particularly with regard to massive oil spills and uniformity has yielded in the past where there’s been an overriding state interest to protect and I don’t think it requires the overriding of the long line of cases.

Chief Justice Warren E. Burger: Is it conceivable that all of the coastal states had Acts of one kind to another that it might pass your inspection in Florida wherein they put in to Miami if they put in there in Pensacola but that they might not pass it Mobile or they might not pass it to other parts.

Mr. Robert L. Shevin: Well I think Your Honor, Mr. Chief Justice you are now speaking to the argument that was raised as far as containment gear and inspection of the vessel or what type the gear it has on.

Chief Justice Warren E. Burger: Equipment, generally.

Mr. Robert L. Shevin: Well, let me speak to that because I think that would be the test.

There had been no Florida regulations promulgated as to what type of containment gear this vessel must have to be able to prevent the spill and take it up as soon as it occurs.

The coast guard has not yet promulgated regulations and to rule our Act or that Section invalid this Court must presume that Florida’s regulations will conflict with the federal coast guard regulations and we don’t think that this Court should presume that or speculate with regard to what the regulations will be.

We think it’s entirely consistent with the Florida Act which says this Act was designed to complement the Federal Water Quality Improvement Act that certainly as to questions of containment gear and this type of regulations that those regulations would be promulgated to be consistent with the regulations of the Federal Government.

If I may just end, Your Honor, I think my time is just about out.

We asked them -- we challenged them to show us how Florida and its citizens would be able to receive damages for cleanup.

And they said, well the Federal Government is coming and cleanup the beach but we don’t want to have to rely upon that.

We are not certain that’s going to occur, that’s not part of this record if the Torrey Canyon went down 16 miles off from Florida rather than 16 miles off of London there wouldn’t have been no recovery.

We have been limited to $50.00 salvage value and that’s why the Water Quality Improvement Act gives broad powers and directs the State to Act and why is they’re presently pending before the Senate of the United States a treaty which would be near to unlimited liability, $15 million and a contingency fund and absolute or strict liability, why is that treaty pending if existing federal law is enough to provide cleanup cost and damages?

Obviously, existing federal law is not enough.

The Water Quality Improvement Act seeks to speak in this field, directs the State Act.

The State has acted constitutionally.

We ask you to uphold this law.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.