Florida Oil Spill Prevention and Pollution Control Act,
providing for the State's recovery of cleanup costs and imposing
strict, no-fault liability on waterfront oil-handling facilities
and ships destined for or leaving such facilities for any oil-spill
damage to the State or private persons, does not, in the context of
this action by shipping interests to enjoin application of the
Florida statute, invade a regulatory area preempted by the federal
Water Quality Improvement Act, which is concerned solely with
recovery of actual cleanup costs incurred by the Federal
Government, and presupposes a coordinated federal-state effort to
deal with coastal oil pollution. Nor is the State's police power
over sea-to-shore pollution preempted by the Admiralty Extension
Act, which does not purport to supply an exclusive remedy in this
admiralty-related situation.
Southern Pacific Co. v.
Jewsen, 244 U. S. 205, and
Knickerbocker Ice Co. v. Stewart, 253 U.
S. 149, distinguished. Pp.
411 U. S.
329-344.
335
F. Supp. 1241, reversed.
DOUGLAS, J., delivered the opinion for a unanimous Court.
Page 411 U. S. 327
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This action was brought by merchant shipowners and operators,
world shipping associations, members of the Florida coastal barge
and towing industry, and owners and operators of oil terminal
facilities and heavy industries located in Florida, to enjoin
application of the Florida Oil Spill Prevention and Pollution
Control Act, Fla.Laws 1970, C. 70-244, Fla.Stat.Ann. § 376.011
et seq. (Supp. 1973) (hereinafter referred to as the
Florida Act). Officials responsible for enforcing the Florida Act
were named as defendants, but the State of Florida intervened as a
party defendant, asserting that its interests were much broader
than those of the named defendants. A three-judge court was
convened pursuant to 28 U.S.C. § 2281.
The Florida Act imposes strict liability for any damage incurred
by the State or private persons as a result of an oil spill in the
State's territorial waters from any waterfront facility used for
drilling for oil or handling the transfer or storage of oil
(terminal facility) and from any ship destined for or leaving such
facility. Each owner or operator of a terminal facility or ship
subject to the Act must establish evidence of financial
responsibility by insurance or a surety bond. [
Footnote 1] In addition, the Florida Act provides
for regulation by the State Department of Natural Resources with
respect to containment
Page 411 U. S. 328
gear and other equipment which must be maintained by ships and
terminal facilities for the prevention of oil spills.
Several months prior to the enactment of the Florida Act,
Congress enacted the Water Quality Improvement Act of 1970, 84
Stat. 91, 33 U.S.C. § 1161
et seq. (hereinafter referred
to as the Federal Act). [
Footnote 1a] This Act subjects shipowners and terminal
facilities to liability without fault up to $14,000,000 and
$8,000,000, respectively, for cleanup costs incurred by the Federal
Government as a result of oil spills. It also authorizes the
President to promulgate regulations requiring ships and terminal
facilities to maintain equipment for the prevention of oil spills.
It is around that Act and the federally protected tenets of
maritime law evidenced by
Southern Pacific Co. v. Jensen,
244 U. S. 205, and
its progeny that the controversy turns. The District Court held
that the Florida Act is an unconstitutional intrusion into the
federal maritime domain. It declared the Florida Act null and void,
and enjoined its enforcement.
335 F.
Supp. 1241.
The case is here on direct appeal. We reverse. We find no
constitutional or statutory impediment to permitting Florida, in
the present setting of this case, to establish any "requirement or
liability" concerning the impact of oil spillages on Florida's
interests or concerns. To rule as the District Court has done is to
allow federal admiralty jurisdiction to swallow most of the police
power of the States over oil spillage -- an insidious form of
pollution of vast concern to every coastal city or port
Page 411 U. S. 329
and to all the estuaries on which the life of the ocean and the
lives of the coastal people are greatly dependent.
I
It is clear at the outset that the Federal Act does not
preclude, but in fact allows, state regulation. Section
1161(
o) provides that:
"(1) Nothing in this section shall affect or modify in any way
the obligations of any owner or operator of any vessel, or of any
owner or operator of any onshore facility or offshore facility to
any person or agency
under any provision of law for damages to
any publicly owned or privately owned property resulting from
a discharge of any oil or from the removal of any such oil."
"(2) Nothing in this section shall be construed as preempting
any State or political subdivision thereof from imposing
any
requirement or liability with respect to the discharge of oil
into any waters within such State."
"(3) Nothing in this section shall be construed . . . to affect
any State or local law not in conflict with this section."
(Emphasis added.) According to the Conference Report,
"any State would be free to provide requirements and penalties
similar to those imposed by this section or
additional
requirements and penalties. These, however, would be separate
and independent from those imposed by this section, and would be
enforced by the States through its courts. [
Footnote 2]"
(Emphasis added.) The Florida Act covers a wide range of
"pollutants," § 3(7), and a restricted definition of pollution. §
3(8). We have here, however, no question concerning any pollutant
except oil.
Page 411 U. S. 330
The Federal Act, to be sure, contains a pervasive system of
federal control over discharges of oil "into or upon the navigable
waters of the United States, adjoining shorelines, or into or upon
the waters of the contiguous zone." § 1161(b)(1). So far as
liability is concerned, an owner or operator of a vessel is liable
to the United States for actual costs incurred for the removal of
oil discharged in violation of § 1161(b)(2) in an amount "not to
exceed $100 per gross ton of such vessel or $14,000,000, whichever
is lesser," § 1161(f)(1), except for discharges caused solely by an
act of God, act of war, negligence of the United States, or act or
omission of another party. With like exceptions, the owner or
operator of an onshore or offshore facility is liable to the United
States for the actual costs incurred by the United States in an
amount not to exceed $8,000,000. § 1161(f)(2)-(3). But, in each
case, the owner or operator is liable to the United States for the
full amount of the costs where the United States can show that the
discharge of oil was "the result of willful negligence or willful
misconduct within the privity and knowledge of the owner."
Comparable provisions of liability spell out the obligations of "a
third party" to the United States for its actual costs incurred in
the removal of the oil. § 1161(g).
So far as vessels are concerned, the federal Limited Liability
Act, 46 U.S.C. §§ 181-189, extends to damages caused by oil spills
even where the injury is to the shore.
Richardson v.
Harmon, 222 U. S. 96,
222 U. S. 106.
That Act limits the liabilities of the owners of vessels to the
"value of such vessels and freight pending." 46 U.S.C. § 189.
Section 12 of the Florida Act makes all licensees [
Footnote 3] of
Page 411 U. S. 331
terminal facilities "liable to the state for all costs of
cleanup or other damage incurred by the state and for damages
resulting from injury to others," it not being necessary for the
State to plead or prove negligence. [
Footnote 4] There is no conflict between § 12 of the
Florida Act and § 1161 of the Federal Act when it comes to damages
to property interests, for the Federal Act reaches only costs of
cleaning up. As respects damages, § 14 of the Florida Act requires
evidence of financial responsibility of a terminal facility or
vessel -- a provision which does not conflict with the Federal
Act.
The Solicitor General says that, while the Limited Liability
Act,
so far as vessels are concerned, would override § 12
of the Florida Act by reason of the Supremacy Clause, the Limited
Liability Act has no bearing on "facilities" regulated by the
Florida Act. Moreover, § 12 has not yet been construed by the
Florida courts, and it is susceptible of an interpretation so far
as vessels are concerned which would be in harmony with the Federal
Act. Section 12 does not, in terms, provide for unlimited
liability.
Moreover, while the Federal Act determines damages measured by
the cost to the United States for cleaning up oil spills, the
damages specified in the Florida Act relate in part to the cost to
the State of Florida in cleaning up the spillage. Those two
sections are harmonious parts of an integrated whole. Section
1161(c)(2) directs the President to prepare a National
Contingency
Page 411 U. S. 332
Plan for the containment, dispersal, and removal of oil. The
plan must provide that federal agencies "shall" act "in
coordination with State and local agencies." Cooperative action
with the States is also contemplated by § 1161(e), which provides
that, "[i]n addition to any other action taken by a State or local
government," the President may, when there is an imminent and
substantial threat to the public health or welfare, direct the
United States Attorney of the district in question to bring suit to
abate the threat. The reason for the provision in §
1161(
o)(2), stating that nothing in § 1161 preempts any
State "from imposing any requirement or liability with respect to
the discharge of oil into any waters within such State," is that
the scheme of the Act is one which allows -- though it does not
require -- cooperation of the federal regime with a state
regime.
If Florida wants to take the lead in cleaning up oil spillage in
her waters, she can use § 12 of the Florida Act and recoup her
costs from those who did the damage. Whether the amount of costs
she could recover from a wrongdoer is limited to those specified in
the Federal Act and whether, in turn, this new Federal Act removes
the preexisting limitations of liability in the Limited Liability
Act are questions we need not reach here. Any opinion on them is
premature. It is sufficient for this day to hold that there is room
for state action in cleaning up the waters of a State and
recouping, at least within federal limits, so far as vessels are
concerned, her costs.
Beyond that is the potential claim under § 12 of the Florida Act
for "other damage incurred by the state and for damages resulting
from injury to others." The Federal Act in no way touches those
areas. A State may
Page 411 U. S. 333
have public beaches ruined by oil spills. Shrimp may be
destroyed, and clam, oyster, and scallop beds ruined and the
livelihood of fishermen imperiled. [
Footnote 5] The Federal
Page 411 U. S. 334
Act takes no cognizance of those claims, but only of costs to
the Federal Government, if it does the cleaning up.
We held in
Skiriotes v. Florida, 313 U. S.
69, that, while Congress had regulated the size of
commercial sponges taken in Florida waters, it had not dealt with
any diving apparatus that might be used. Florida had such a law,
and was allowed to enforce it against one of its citizens. Mr.
Chief Justice Hughes, speaking for the Court, said:
"It is also clear that Florida has an interest in the proper
maintenance of the sponge fishery, and that the statute, so far as
applied to conduct within the territorial waters of Florida, in the
absence of conflicting federal legislation, is within the police
power of the State."
Id. at
313 U. S.
75.
Similarly, in
Manchester v. Massachusetts, 139 U.
S. 240,
139 U. S. 266, we
stated that, if Congress fails to assume control of fisheries in a
bay, "the right to control such fisheries must remain with the
State which contains such bays."
Florida, in her brief, accurately states that no remedy under
the Federal Act exists for state or private property owners damaged
by a massive oil slick such as hit England and France in 1967 in
the
Torrey Canyon disaster. The
Torrey Canyon
carried 880,000 barrels
Page 411 U. S. 335
of crude oil. [
Footnote 6]
Today, not only is more oil being moved by sea each year, but the
tankers are much larger.
"The average tanker used during World War II had a capacity of
16,000 tons, but, by 1965, that average had risen to 27,000 tons,
and new tankers delivered in 1966 averaged about 76,000 tons. A
Japanese company has launched a 276,000-ton tanker, and other
Japanese yards have orders for tankers as large as 312,000 tons.
More than sixty tankers of 150,000 tons or more are on order
throughout the world, tankers of 500,000 to 800,000 tons are on the
drawing boards, and those of more than one million tons are thought
to be feasible. On the new 1,010 foot British tanker 'Esso Mercia,'
two officers have been issued bicycles to help patrol the decks of
the 166,890 ton vessel."
"The size of the tanker fleet itself is growing at a rate that
rivals the growth in average size of new tankers. In 1955, the
world tanker fleet numbered about 2,500 vessels. By 1965, it had
increased to 3,500, and in 1968, it numbered some 4,300 ships. At
the present time, nearly one ship out of every five in the world
merchant fleet is engaged in transporting oil, and nearly the
entire fleet is powered by oil. [
Footnote 7]"
Our Coast Guard reports [
Footnote 8] that, while, in 1970, there were 3,711 oil
spills in our waters, in 1971, there were 8,736. The damage to
state interests already caused by oil spills, the increase in the
number of oil spills, and the risk of ever-increasing damage by
reason of the size of modern tankers underlie the concern of
coastal States.
While the Federal Act is concerned only with actual cleanup
costs incurred by the Federal Government, the
Page 411 U. S. 336
State of Florida is concerned with its own cleanup costs. Hence,
there need be no collision between the Federal Act and the Florida
Act, because, as noted, the Federal Act presupposes a coordinated
effort with the States, and any federal limitation of liability
runs to "vessels," not to shore "facilities." That is one of the
reasons why the Congress decided that the Federal Act does not
preempt the States from establishing either "
any requirement or
liability" respecting oil spills.
Moreover, since Congress dealt only with "cleanup" costs, it
left the States free to impose "liability" in damages for losses
suffered both by the States and by private interests. The Florida
Act imposes liability without fault. So far as liability without
fault for damages to state and private interests is concerned, the
police power has been held adequate for that purpose. State
statutes imposing absolute liability on railroads for all property
lost through fires caused by sparks emitted from locomotive engines
have been sustained.
St. Louis & San Francisco R. Co. v.
Mathews, 165 U. S. 1. The
Federal Act, however, while restricted to cleanup costs incurred by
the United States, imposes limited liability for those costs, and
provides certain exceptions, unless willfulness is established.
Where liability is imposed by §§ 1161(f)-(g), previously
summarized, the United States may recover the full amount of the
costs where the oil spillage was the result of "willful negligence
or willful misconduct." If the coordinated federal plan, in actual
operation, leaves the State of Florida to do the cleanup work,
there might be financial burdens imposed greater than would have
been imposed had the Federal Government done the cleanup work. But
it will be time to resolve any such conflict between federal and
state regimes when it arises.
Nor can we say at this point that regulations of the Florida
Department of Natural Resources requiring "containment
Page 411 U. S. 337
gear" pursuant to § 7(2)(a) of the Florida Act would be
per
se invalid because the subject to be regulated requires
uniform federal regulation.
Cf. Huron Cement Co. v.
Detroit, 362 U. S. 440.
Resolution of this question, as well as the question whether such
regulations will conflict with Coast Guard regulations promulgated
on December 21, 1972, pursuant to § 1161(j)(1) of the Federal Act,
37 Fed.Reg. 28250, should await a concrete dispute under applicable
Florida regulations. Finally, the provision of the Florida Act
requiring the licensing of terminal facilities, a traditional state
concern, creates no conflict
per se with federal
legislation. Section 1171(b)(1) of the Federal Act provides that
federal permits will not be issued to terminal facility operators
or owners unless the applicant first supplies a certificate from
the State that his operation "will be conducted in a manner which
will not violate applicable water quality standards." And Tit. I, §
102(b), of the recently enacted Ports and Waterways Safety Act of
1972, Pub.L. 92-340, 86 Stat. 426, 33 U.S.C. § 1222(b) (1970 ed.,
Supp. II), provides that the Act does not prevent
"a State or political subdivision thereof from prescribing for
structures only higher safety equipment requirements or safety
standards than those which may be prescribed pursuant to this
title."
II
And so, in the absence of federal preemption and any fatal
conflict between the statutory schemes, the issue comes down to
whether a State constitutionally may exercise its police power
respecting maritime activities concurrently with the Federal
Government.
The main barriers found by the District Court to the Florida Act
are
Southern Pacific Co. v. Jensen, 244 U.
S. 205, and its progeny.
Jensen held that a
maritime worker on a vessel in navigable waters could not
constitutionally receive an award under New York's workmen's
compensation
Page 411 U. S. 338
law, because the remedy in admiralty was exclusive. Later, in
Knickerbocker Ice Co. v. Stewart, 253 U.
S. 149, after Congress expressly allowed the States in
such cases to grant a remedy, the Court held that Congress had no
such power.
But those decisions have been limited by subsequent holdings of
this Court. As stated by Mr. Justice Frankfurter in
Romero v.
International Terminal Co., 358 U. S. 354,
358 U. S. 373,
Jensen and its progeny mark isolated instances where
"state law must yield to the needs of a uniform federal maritime
law when this Court finds inroads on a harmonious system." Mr.
Justice Frankfurter added, however:
"But this limitation still leaves the States a wide scope.
State-created liens are enforced in admiralty. State remedies for
wrongful death and state statutes providing for the survival of
actions, both historically absent from the relief offered by the
admiralty, have been upheld when applied to maritime causes of
action. Federal courts have enforced these statutes. State rules
for the partition and sale of ships, state laws governing the
specific performance of arbitration agreements, state laws
regulating the effect of a breach of warranty under contracts of
maritime insurance -- all these laws and others have been accepted
as rules of decision in admiralty cases, even, at times, when they
conflicted with a rule of maritime law which did not require
uniformity."
Id. at
358 U. S.
373-374.
Moreover, in
Just v. Chambers, 312 U.
S. 383, we gave our approval to
The City of
Norwalk, 55 F. 98, written by Judge Addison Brown, holding
that a State may modify or supplement maritime law even by creating
a liability which a court of admiralty would recognize and enforce,
provided the state action is not hostile "to the characteristic
features of the maritime law or inconsistent with federal
legislation," 312 U.S. at
312 U. S. 388.
Mr. Chief Justice Hughes after citing
Steamboat Co. v.
Chase, 16
Page 411 U. S. 339
Wall. 522, and
Sherlock v. Alling, 93 U. S.
99, went on to hold that, while no suit for wrongful
death would lie in the federal courts under general maritime law,
state statutes giving damages in such cases were valid. He
said,
"The grounds of objection to the admiralty jurisdiction in
enforcing liability for wrongful death were similar to those urged
here -- that is, that the Constitution presupposes a body of
maritime law, that this law, as a matter of interstate and
international concern, requires harmony in its administration, and
cannot be subject to defeat or impairment by the diverse
legislation of the States, and hence that Congress alone can make
any needed changes in the general rules of the maritime law. But
these contentions proved unavailing, and the principle was
maintained that a State, in the exercise of its police power, may
establish rules applicable on land and water within its limits,
even though these rules incidentally affect maritime affairs,
provided that the state action"
"does not contravene any acts of Congress, nor work any
prejudice to the characteristic features of the maritime law, nor
interfere with its proper harmony and uniformity in its
international and interstate relations."
"It was decided that the state legislation encountered none of
these objections. The many instances in which state action had
created new rights, recognized and enforced in admiralty, were set
forth in
The City of Norwalk, and reference was also made
to the numerous local regulations under state authority concerning
the navigation of rivers and harbors. There was the further
pertinent observation that the maritime law was not a complete and
perfect system, and that, in all maritime countries, there is a
considerable body of municipal law that underlies the maritime law
as the basis of its administration. These views find abundant
support in the history of the maritime law and in the decisions of
this Court."
312 U.S. at
312 U. S.
389-390.
Page 411 U. S. 340
Mr. Chief Justice Hughes added that our decisions as of 1941,
the date of
Just v. Chambers, gave broad
"recognition of the authority of the States to create rights and
liabilities with respect to conduct within their borders, when the
state action does not run counter to federal laws or the essential
features of an exclusive federal jurisdiction."
Id. at
312 U. S.
391.
Historically, damages to the shore or to shore facilities were
not cognizable in admiralty.
See, e.g., 70 U.
S. 3 Wall. 20;
Martin v. West,
222 U. S. 191. Mr.
Justice Story wrote in 1813,
"In regard to torts, I have always understood that the
jurisdiction of the admiralty is exclusively dependent upon the
locality of the act. The admiralty has not, and never (I believe)
deliberately claimed to have, any jurisdiction over torts except
such as are maritime torts, that is, such as are committed on the
high seas or on waters within the ebb and flow of the tide.
[
Footnote 9]"
Thomas v. Lane, 23 F. Cas. 957, 960 (No. 13,902) (CC
Me.).
On June 19, 1948, Congress enacted the Admiralty Extension Act,
46 U.S.C. § 740. [
Footnote
10] The Court considered the Act in
Victory Carriers, Inc.
v. Law, 404 U. S. 202. In
that case, the Court held that the Admiralty Extension Act did not
apply to a longshoreman performing loading and unloading services
on the dock. The longshoreman was relegated to his remedy under the
state workmen's compensation law.
Id. at
404 U. S. 215.
The Court said,
"At least in the absence of explicit congressional
authorization,
Page 411 U. S. 341
we shall not extend the historic boundaries of the maritime
law."
Id. at
404 U. S. 214.
[
Footnote 11]
The Admiralty Extension Act has survived constitutional attack
in the lower federal courts, [
Footnote 12] and was applied without question by this
Court in
Gutierrez v. Waterman S.S. Corp., 373 U.
S. 206. The Court recognized in
Victory
Carriers, however, that the Act may "intrude on an area that
has heretofore been reserved for state law."
Id. at
373 U. S. 212.
It cautioned that, under these circumstances,
"we should proceed with caution in construing constitutional and
statutory provisions dealing with the jurisdiction of the federal
courts."
Ibid. While Congress has extended admiralty
jurisdiction beyond the boundaries contemplated by the Framers, it
hardly follows from the constitutionality of that extension that we
must sanctify the federal courts with exclusive jurisdiction to the
exclusion of powers traditionally within the competence of the
States. One can read the history of the Admiralty Extension Act
without finding any clear indication that Congress intended that
sea-to-shore injuries be exclusively triable in the federal courts.
[
Footnote 13]
Even though Congress has acted in the admiralty area, state
regulation is permissible, absent a clear conflict with the federal
law. Thus, in
Kelly v. Washington, 302 U. S.
1, it appeared that, while Congress had provided a
comprehensive system of inspection of vessels on navigable
Page 411 U. S. 342
waters,
id. at
302
U. S. 4, the State of Washington also had a
comprehensive code of inspection. Some of those state standards
conflicted with the federal requirements,
id. at
302 U. S. 14-15,
but those provisions of the Washington law relating to safety and
seaworthiness were not in conflict with the federal law. So the
question was whether the absence of congressional action and the
need for uniformity of regulation barred state action. Mr. Chief
Justice Hughes, writing for the Court, ruled in the negative,
saying:
"A vessel which is actually unsafe and unseaworthy in the
primary and commonly understood sense is not within the protection
of that principle. The State may treat it as it may treat a
diseased animal or unwholesome food. In such a matter, the State
may protect its people without waiting for federal action providing
the state action does not come into conflict with federal rules.
If, however, the State goes farther and attempts to impose
particular standards as to structure, design, equipment and
operation which, in the judgment of its authorities, may be
desirable but pass beyond what is plainly essential to safety and
seaworthiness, the State will encounter the principle that such
requirements, if imposed at all, must be through the action of
Congress which can establish a uniform rule. Whether the State in a
particular matter goes too far must be left to be determined when
the precise question arises."
Id. at
302 U. S. 15.
That decision was rendered before the Admiralty Extension Act
was passed.
Huron Cement Co. v. Detroit, 362 U.
S. 440, however, arose after that Act became effective.
Ships cruising navigable waters and inspected and licensed under
federal
Page 411 U. S. 343
acts were charged with violating Detroit's Smoke Abatement Code.
The company and its agents were, indeed, criminally charged with
violating that Code. The Court in sustaining the state prosecution
said:
"The ordinance was enacted for the manifest purpose of promoting
the health and welfare of the city's inhabitants. Legislation
designed to free from pollution the very air that people breathe
clearly falls within the exercise of even the most traditional
concept of what is compendiously known as the police power. In the
exercise of that power, the states and their instrumentalities may
act, in many areas of interstate commerce and maritime activities,
concurrently with the federal government."
Id. at
362 U. S.
442.
The Court reasoned that there was room for local control, since
federal inspection was "limited to affording protection from the
perils of maritime navigation," while the Detroit ordinance was
aimed at "the elimination of air pollution to protect the health
and enhance the cleanliness of the local community."
Id.
at
362 U. S. 445.
The Court, in reviewing prior decisions, noted that a federally
licensed vessel was not exempt (1) "from local pilotage laws"; (2)
"local quarantine laws"; (3) "local safety inspections"; or (4)
"local regulation of wharves and docks."
Id. at
362 U. S.
447.
It follows,
a fortiori, that sea-to-shore pollution --
historically within the reach of the police power of the States --
is not silently taken away from the States by the Admiralty
Extension Act, which does not purport to supply the exclusive
remedy.
As discussed above, we cannot say with certainty at this stage
that the Florida Act conflicts with any federal Act. We have only
the question whether the waiver
Page 411 U. S. 344
of preemption by Congress in § 1161(
o)(2) concerning
the imposition by a State of "any requirement or liability" is
valid.
It is valid unless the rule of
Jensen and
Knickerbocker Ice is to engulf everything that Congress
chose to call "admiralty," preempting state action.
Jensen
and
Knickerbocker Ice have been confined to their facts,
viz., to suits relating to the relationship of vessels,
plying the high seas and our navigable waters, and to their crews.
The fact that a whole system of liabilities was established on the
basis of those two cases led us, years ago, to establish the
"twilight zone" where state regulation was permissible.
See
Davis v. Department of Labor, 317 U.
S. 249,
317 U. S.
252-253. Where there was a hearing by a federal agency
and a conclusion by that agency that the case fell within the
federal jurisdiction, we made its findings final.
Ibid.
Where there were no such findings, we presumed state law, in terms
applicable, was constitutional.
Id. at
317 U. S.
257-258. That is the way the "twilight zone" has been
defined.
Jensen thus has vitality left. But we decline to move
the
Jensen line of cases shoreward to oust state law from
situations involving shoreside injuries by ships on navigable
waters. The Admiralty Extension Act does not preempt state law in
those situations.
See Nacirema Operating Co. v. Johnson,
396 U. S. 212.
The judgment below is
Reversed.
[
Footnote 1]
At the hearing on plaintiffs appellees' application for a
temporary restraining order, it was indicated that none of the
plaintiffs had attempted to comply with the Florida Act. Shipowners
and operators had threatened to divert their vessels from Florida
ports.
[
Footnote 1a]
^1a. The Water Quality Improvement Act of 1970 was amended after
this case was docketed by the Federal Water Pollution Control Act
Amendments of 1972, 86 Stat. 16, 33 U.S.C. §§ 1251-1376. Since the
sections of the 1970 Act cited in the opinion have not been
substantially changed, references to the 1970 Act have been
retained.
[
Footnote 2]
H.R.Conf.Rep. No. 91-940, p. 42.
[
Footnote 3]
Those required to obtain a license are those who operate a
terminal facility. § 6(1). But licenses to terminal facilities
include
"vessels used to transport oil, petroleum products, their
by-products, and other pollutants between the facility and vessels
within state waters."
§ 6(4).
[
Footnote 4]
Section 12 also provides that the pilot or the master of any
vessel or person in charge of any licensee's terminal facility who
fails "to give immediate notification of a discharge to the port
manager and the nearest coast guard station" may be imprisoned for
not more than two years or fined not more than $10,000.
[
Footnote 5]
As to the damages of oil spills to ecological factors, it was
recently said in 10 Harv. Int'l L.J. 316, 321-323 (1969):
"Some damage to marine life is obvious in the wake of a disaster
such as the one which befell the 'Torrey Canyon.' Surface feeding
fishes die when they swim into floating oil, and even slight,
non-fatal contact may render their flesh inedible. Shellfish, among
others, are also vulnerable to oil pollution. When the tanker 'P.
W. Thirtle' grounded off Newport, Rhode Island, 31,000 gallons of
heavy black oil were discharged from her tanks in an effort to
refloat the ship; the result of this was the virtual destruction of
the entire oyster fishery of Narragansett Bay. The most serious
consequences of oil pollution, however, may not be those which are
immediately obvious."
"According to Dr. Erwin S. Iversen, a marine biologist: "
" The greatest problem may be the toxic effects on the
intertidal animals that serve as food for the other more important
fishes. . . . I don't think the effect is merely that of killing
large populations of commercial fishes. Worse than that, it
interrupts the so-called food chain. "
"There have been few specific studies of the effect that oil
accumulation has on this food chain. One study, conducted by Dr.
Paul Galtsoff of the United States Fish and Wildlife Service, found
that the diatoms on which oysters feed will not grow where there is
even a slight trace of oil on the water. The effect of oil on such
microscopic marine plant life may be of great importance, because
it is estimated that it takes as much as ten pounds of plant matter
to produce one pound of fish."
"Large scale oil pollution, such as that which occurred when the
'Torrey Canyon' ran into the Seven Stones Reef, results in huge
losses of water birds. Aside from humane and aesthetic
considerations, these birds play a vital role in the ecology of the
seashore, a role which profoundly affects the fishing industry. The
uncertainty as to the actual extent of the damage done to marine
life by oil pollution makes it difficult to estimate the economic
effect of such damage, but the importance of the fishing industry
within the world's economy is not in doubt, and is steadily
increasing. Between 1958 and 1963, for example, there was a 42%
rise in the world catch. Because of the increasing importance of
seafood protein, future damage to marine life will have
progressively greater economic consequences."
"Perhaps the most noticeable damage caused by oil pollution is
the fouling of recreational beaches and shorefront property.
One-half million tons of oil are washed ashore each year, rendering
beaches unfit for swimming and filling the air with unpleasant
odors. Besides the annoyance that this causes a vacationing public
seeking relief from urban life, economic loss may be considerable.
It is estimated, for example, that a serious oil spill off Long
Island during the summer months would cost resort and beach
operators thirty million dollars. Oil spills also create
navigational and fire hazards in harbors, ports and marinas."
(Footnotes omitted.)
[
Footnote 6]
Brief for Appellants 25.
[
Footnote 7]
10 Harv. Int'l L.J. at 317-318 (footnotes omitted).
[
Footnote 8]
Polluting Incidents In and Around U.S. Waters, Calendar Year
1971, Environmental Protection, Commandant, U.S. Coast Guard.
[
Footnote 9]
A statement we recently quoted with approval in
Executive
Jet Aviation, Inc. v. City of Cleveland, 409 U.
S. 249,
409 U. S. 253,
and
Victory Carriers, Inc. v. Law, 404 U.
S. 202,
404 U. S.
205.
[
Footnote 10]
It provides in relevant part:
"The admiralty and maritime jurisdiction of the United States
shall extend to and include all cases of damage or injury, to
person or property, caused by a vessel on navigable water,
notwithstanding that such damage or injury be done or consummated
on land."
[
Footnote 11]
The Longshoremen's and Harbor Workers' Compensation Act, 33
U.S.C. § 901
et seq., recently was amended to cover
employees working on shoreside areas customarily used by an
employer in loading, unloading, repairing, or building a vessel.
Longshoremen's and Harbor Workers' Compensation Act Amendments of
1972, Pub.L. 92-576, § 2, 86 Stat. 1251.
[
Footnote 12]
See Victory Carriers, supra, at
404 U. S. 209
n. 9.
[
Footnote 13]
See H.R.Rep. No. 1523, 80th Cong., 2d Sess.; S.Rep. No.
1593, 80th Cong., 2d Sess.