On March 6, 2000 the United States Supreme Court rendered
its decision in U.S. v. Locke, 2000 LEXIS 1895, a case in which
Intertanko had challenged the validity of certain Washington State
tanker regulations. The District Court had previously rejected
Intertanko's challenge and the Court of Appeals for the 9 th Circuit
had rejected only one of the Washington State regulations which
had required vessels to install certain navigation and towing
equipment. The Supreme Court reversed and specifically struck
down four of the state regulations and remanded the balance of
the case to the lower courts for further analysis of the validity
of the remaining regulations in light of its opinion.
The essential issue raised was whether the State of Washington
was able to pass its own state laws dealing with tanker safety
and navigation issues of whether, instead, the State of Washington
was foreclosed from doing this on the grounds that federal legislation
"preempted" any state legislation in this area. The
United States intervened in the case on the side of Intertanko
beginning at the appellate level and 13 countries filed diplomatic
notes at the district court level, also in opposition to the Washington
State regulations. The Court began its analysis by observing that
federal legislation had long occupied the field of vessel safety
and navigation and noted that the need for nationwide laws in
this area had been discussed in the Federalist Papers (due to
possible "difficulties with foreign nations"). It then
outlined the history of federal legislation dealing with the subject
matter, including The Tank Vessel Act of 1936, The Ports and Waterways
Safety Act of 1972 and the Oil Pollution Act of 1990.
The Tank Vessel Act of 1936 had provided that "in order to
secure effective provisions against the hazards of life and property"
federal rules could be adopted with respect to "design and
construction, alteration, or repair" of vessels, the "operations"
of vessels and the "requirements of manning" vessels
and the "duties and qualifications of the officers and crews
thereof." This Act was the primary source for regulating
tankers for over 30 years when the Torrey Canyon spill rekindled
Congressional interest in further legislation in the area. In
1972, the U.S. Congress passed the Ports and Waterways Safety
Act ("PWSA"). Title I of PWSA provided that the U.S.
Coast Guard may enact measures for controlling vessel traffic
or for protecting navigation and the marine environment, but did
not require this. Title II, however, required the Coast Guard
to issue regulations addressing the "design, construction,
alteration, repair, maintenance, operation, equipping, personnel
qualifications, and manning" of vessels.
Interest in further legislation developed with the Exxon Valdez
oil spill, resulting in the Oil Pollution Act of 1990 ("OPA").
Title I of this Act contains liability provisions for parties
responsible for an oil spill. This title also contains a "savings"
clause, reserving to the states the authority to impose "any
additional liability or requirements with respect to -- . . .
the discharge of oil." Other Titles in OPA address other
issues including Coast Guard regulations regarding the escorting
of vessels and requirements for reporting marine casualties. In
addition to this legislation, the Court noted a series of international
treaties to which the United States is a signatory, including
the Safety of Life at Sea Convention and the Convention on the
Standards of Training, Certification and Watchkeeping for Seafarers.
While such treaties are the "supreme law of the land"
and carry super-preemptive weight, the Court did not find it necessary
in its analysis to rely on them. The issue, as framed by the Court,
was whether this federal legislation "preempted" any
state regulations from being enacted in the area. A particular
issue raised was whether OPA, including its "savings"
provision, was evidence of Congressional intent to permit the
states to enact laws dealing with tanker safety and navigation.
The Court found that this "savings" provision did not
give the states the authority to legislate in the area of tanker
safety and navigation. Instead, the Court made two rulings.
First, the Court ruled that the "savings" provision
found in Title I of OPA was limited to those matters addressed
in Title I, i.e., provisions setting forth liability for and defenses
to an oil spill. In essence, by this savings provision, the states
are free to enact legislation that imposes liability for oil pollution.
This is to be distinguished from other provisions, found outside
Title I of OPA, dealing with navigation, equipment, manning, repair,
etc. The Court hastened to point out, however, that even though
the states may enter the "field" of imposing liability
for oil pollution, state legislation may not "conflict"
with federal liability regimes (and hence the phrase "conflict
preemption"). Second, the "savings" clause in Title
I of OPA certainly does not save anything for the states in areas
addressed by PWSA which, as noted above, includes in its Title
II, the "design, construction, alteration, repair, maintenance,
operation, equipping, personnel qualifications and manning of
vessels." In its prior decision in Ray v. Atlantic Richfield
Co., 435 U.S. 151, the Court had found that the states had been
preempted from legislation in these "fields" by virtue
of the federal legislation in these fields in Title II of PWSA
(and hence the name, "field preemption"). The Court,
in Locke, reaffirmed Ray and specifically found that there was
nothing in the savings provision in OPA to permit the states to
enact legislation in areas of "design, construction, alteration,
repair . . .," etc. and that the states remain preempted
from legislation in this area (except for matters of purely local
concern). The Court further found that four of the Washington
State regulations under attack by Intertanko in Locke violated
the principles of "field preemption" discussed in Ray
and reaffirmed in Locke. The Court therefore struck down four
Washington state regulations that had attempted to regulate the
following areas:
1. "Comprehensive training programs" approved
by the State of Washington in shipboard management, bridge resource
management, automated radar plotting and other general navigational
skills not unique to navigating in Washington state waters. 2. English language proficiency requirement for certain
crew members. 3. Navigation watch requirements. 4. Marine casualty reporting requirement.
In all four cases, federal legislation existed in these areas.
The Court remanded the balance of the case to the lower court
for determining, in light of its opinion, whether the remaining
Washington State regulations should be stricken as being preempted,
either or the basis of "field preemption" or "conflict
preemption". "Armand M. Paré, Jr. is a partner
with Nourse & Bowles, LLP.
This article has been previously published as part of the firm's
monthly submission to the Maritime Law Brief section of Lloyd's
of London Press' web site, www.llplimited.com.
