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Charles M. Davis March 7, 2000

  1. The Cooley Compromise: Where Federal and State Legislation Do Not Conflict
  2. The Jensen Rule: States Cannot Legislate Maritime Matters Which Require
  3. Application of State Law to Enforceability of Maritime Contracts
  4. The Evolved Doctrine - Erosion of Doctrine of National Uniformity
  5. Balancing of State and Federal Interests
  6. Recent Decisions on Federal Preemption of Matters Involving ACharacteristic Features@ of Federal Maritime Law
  7. Preemption of "Commerce Clause" Federal Regulation
  8. Examples of AField Preemption@ of Federal Law
  9. Preemption by Federal Personal Injury and Wrongful Death Remedies Relative to ASeafarers@
  10. United States v. Lock - Intertanko Affirms Traditional Rules of Federal Preemption

The issue of validity of state regulation of maritime activities is complex both in concept and application. The authority of the federal government to regulate maritime law is established in the Constitution. See Interstate and Foreign Commerce clause of the Constitution, and the Admiralty Clause of the Constitution, Article 3,'2. Historically, courts have considered preemption issues under maritime law as differing than those under the Commerce Clause: see, e.g., American Dredging Co. v. Miller, 510 U.S. 443, 446, 1994 AMC 913, 927 (1994); Stier v. Reading & Bates Corp., 1999 AMC 1656 (Tx. S. Ct. 1999). The inherent conflict between state regulation of activities within admiralty jurisdiction and supersession of such regulation by federal maritime law is a frequent and often misunderstood concept: courts often apply non-admiralty principles to cases within admiralty jurisdiction, when the Admiralty Clause should require different standards for determining federal preemption and supersession of state regulation.

Recent case law as defined three types of preemption of federal law in non-admiralty cases: (1) conflict preemption; (2) field preemption, and (3) express preemption. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992); The International Association of Independent Tanker Owners (Intertanko) v. Locke, 148 F.3d 1053, 1998 AMC 2113, amended 1998 AMC 2762 (9th Cir. 1998), sub nom United States v. Locke, _____ U.S. _____ (2000). The Ninth Circuit, in Intertanko, described each type:

Conflict preemption occurs when compliance with both state and federal law is impossible, or when the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. @

quoting California v. ARC America Corp., 490 U.S. 93, 100-01 (1989).

Field preemption exists when federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it.

Id., quoting Fidelity Fed. Sav.& Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153 (1982).

Finally, express preemption exists when Congress explicitly states its intent to displace state law in the statute's language.

Id. Other cases have found impermissible conflict in matters within admiralty jurisdiction where state law (1) actually conflicts with federal legislation and court-created general maritime law, (2) interferes with requirements for national uniformity of law, (3) regulates a characteristic feature of maritime law, (4) Congress has stated its intention that federal regulation of a field be exclusive of state regulation, or (5) federal regulation of a field is so pervasive as to indicate an intent to exclusively occupy the field. A presumption against federal preemption is recognized as to conflicts between state law and federal regulation where federal regulatory powers are based on the Commerce Clause of the Constitution (Art. 4).

Though commentators have urged that a different standard be applied to conflicts between state law and federal maritime law (whether the general maritime law or federal legislation) due to the historical difference between federal admiralty powers, Intertanko did not apply a different standard. Preemption by federal maritime law of matters within admiralty jurisdiction has a different Constitutional basis that preemption arising under the Commerce Clause. Peltz, The Myth of Uniformity in Maritime Law, 21 Tul. Mar. L.J. 103, 129-30 (1996), advances the proposition that there should be a presumption in favor of preemption for those matters falling within admiralty jurisdiction. Stier v. Reading & Bates Corp., 1999 AMC 1656 (Tx. S. Ct. 1999), reexamined the concept that a different test should be applied to preemption of state regulation of activities within admiralty jurisdiction, especially matters involving a characteristic feature of admiralty or a doctrine whose uniform application is necessary to maintain the proper harmony of maritime law. 1999 AMC at 1664, quoting American Dredging Co. v. Miller, 510 U.S. at 447, 1994 AMC at 916 (1994).

The issues of preemption of state law applicable to matters within admiralty jurisdiction by federal maritime law have been confused by courts and commentators because federal legislation under the Interstate and Foreign Commerce clause of the Constitution is subject to one test, and general maritime law and federal maritime statutory law created under the Admiralty Clause should be subject to another test which is more favorable to preemption of state regulation by federal maritime law. The argument is that the Admiralty Clause of the Constitution, Article 3, 2, which extends judicial power of the federal government to all cases of admiralty and maritime jurisdiction, in conjunction with the Supremacy Clause, Art. VI, 2, which makes the Constitution and constitutional acts of Congress the supreme law of the land, and Art. 1 8, which confers upon Congress to power to make all laws which may be necessary and proper for the government of the United States, gives Congress the paramount power to fix and determine maritime law. Absent intervention by Congress, the general maritime law is supreme. If Congress has acted with respect to a subject matter, federal legislation is supreme. In comparison, states have concurrent jurisdiction with the federal government relative to regulation of interstate and foreign commerce under the Commerce Clause. Though federal Commerce Clause authority is limited to interstate matters, federal authority under the Admiralty clause is not. Thus, a different standard for determining supremacy of federal maritime law (general maritime law and federal legislation under the Admiralty Clause) should be required, relative to the lower standards applied to conflicts between state legislation and Commerce Clause federal legislation.


The Cooley Compromise: Where Federal and State Legislation Do Not Conflict And Federal Uniformity Is Not Required, State Law May Be Applied

Cooley v. Board of Wardens of the Port of Philadelphia, 12 How. (U.S.) 299 (1851), recognized an important principle allowing state legislation of matters affecting maritime commerce, where the state regulation not only does not conflict with any federal legislation, but Congress expressly delegated legislative authority of the matter to the states. In the context of reviewing the constitutionality of a state law regulating local pilotage, where federal law expressly stated that the states may regulate pilotage, the Court reached a famous compromise of the two arguments (1) that regulation of maritime commerce was within the exclusive domain of Congress, and (2) that there is concurrent state jurisdiction over all commerce:

... the power to regulate commerce, embraces a vast field, containing not only many, but exceedingly various subjects, quite unlike in their nature; some imperatively demanding a singe rule, operating equally on the commerce of the United States in every port; and some like the subject now in question, as imperatively that diversity which alone can meet the local necessities of navigation.

Either absolutely to affirm, or deny, that the nature of this power requires exclusive legislation by Congress, is to lose sight of the nature of the subjects of this power, and to assert concerning all of them, what is really applicable but to a part. Whatever subjects of this power are in their nature national, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress. That this cannot be affirmed of laws for the regulation of pilots and pilotage is plain. The [federal pilotage act delegating regulatory authority to the states] contains a clear and authoritative declaration by the first Congress, that the nature of the subject is such, that until Congress should find it necessary to exert its power, it should be left to the legislation of the States; that it is local and not national; that it is likely to be best provided for, not by one system, or plan of regulations, but by as many of the legislative discretion of the several states should deem applicable to the local peculiarities of the ports within their limits.

12 How (U.S.) at 319-20.


The Jensen Rule: States Cannot Legislate Maritime Matters Which Require National Uniformity or Contravene Characteristic Features of Maritime Law

Landmark cases on preemption of federal maritime law include with respect to matters requiring national uniformity or involve characteristic features of maritime law include Garrett v. Moore-McCormack Co., Inc., 317 U.S. 239, 1942 AMC 1645 (1942); Panama Ry. Co. v. Johnson, 264 U.S. 375, 1924 AMC 551 (1924); and Southern Pacific Co. v. Jensen, 244 U.S. 20, 1996 AMC 2076 [Retro] (1917). The Lottawana, 88 U.S. (21 Wall.) 558, 1996 AMC 2372 [Retro] (1874), held that the system of maritime law which existed at adoption of the Constitution is

... coextensive with, and operating uniformly in, the whole country. It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign states.

Jensen states:

And plainly, we think, no such [state] legislation is valid if it contravenes the essential purpose expressed by an Act of Congress or works a material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations. This limitation, at the least, is essential to the effective operation of the fundamental purposes for which such law was incorporated into our national laws by the Constitution itself.

2244 U.S. at 216, 1996 AMC at 2084. Oil Workers v. Mobile Oil Corp., 426 U.S. 407 (1976), considered whether Texas right-to-work laws could be applied to a ship on which its workers spent the majority of their working hours on the high seas, but 10% to 20% of work time within the territorial waters of Texas. Though the majority of the ship's crew were Texas residents and the crew was hired in Texas, the Court held that state laws cannot be applied to employment where the predominant job situs is on the high seas. The concurring opinion of Justice Powell stresses application of the preemption doctrine, on the ground that federal law consistently and traditionally controls every phase of maritime employment relationships were the principal job situs is on the high seas. The concepts of federal preemption on topics which require national uniformity have been reiterated in relatively-recent Supreme court decisions. Foremost Ins. Co. v. Richardson, 457 U.S. 668, 676, 1982 AMC 2253 (1982), stated that the smooth flow of maritime commerce is promoted when all vessel operators are subject to the same duties and liabilities, holding that federal maritime law preempts application of state law which imposes a greater sanction or liability on vessel owners than that imposed by federal law. The Court made clear national uniformity of rules of maritime conduct and liability still are an important considerations in Sisson v. Ruby, 497 U.S. 358, 1990 AMC 1801 (1990).


Application of State Law to Enforceability of Maritime Contracts

State statutes have been held to not apply relative to enforcement of maritime contracts:

If one State may declare such contracts void for one reason, another may do likewise for another. Thus the local law of a State may deprive one of relief in a case brought in a court of admiralty of the United States upon a maritime contract, and the uniformity of rules governing such contracts may be destroyed by perhaps conflicting rules of the States.

Union Fish Co. v. Erickson, 248 U.S. 308, 314 (1919).


The Evolved Doctrine - Erosion of Doctrine of National Uniformity

Though Jensen has never been expressly overruled, its rule of federal preemption on matters requiring national uniformity has been regarded as flexible: state law has been applied frequently to issues where there is no established federal rule of maritime law. A number of decisions have stated that the Jensen rule has been eroded with respect to the requirement of national uniformity of maritime law. Though lower courts have in some cases applied a balancing test of federal and local interests to determine whether local law can be applied to matters of federal maritime law, the general rule is that local law cannot directly regulate characteristic features of maritime law, and that any balancing test should be applied to issues of maritime law that are not part of its characteristic features.


Balancing of State and Federal Interests

Some recent cases have examined the balance of federal and state interests in determining whether state law of federal maritime law should be applied to what the court determined to be a matter of local interest, in the contexts of both preemption and supersession. Pacific Merchant Shipping Corp. v. Aubry, 918 F.2d 1409, 1991 AMC 2797 (9th Cir. 1990), stated that the issue whether state law unduly disrupts federal maritime harmony in violation of the Constitution depends on the balance of the federal and state interests involved. A recent example which discusses other precedents is CNA Insurance Co. v. Workers' Compensation Appeals Board, 58 Cal. App. 4th 211, 1998 AMC 534 (1997), which held that there was concurrent jurisdiction between state workers' compensation statutes and federal maritime law with respect to injury to what the court assumed was a Jones Act seaman for claims against her employer for injuries that occurred during employment on a ferry that operated between Los Angeles harbor and Catalina Island. Morgan v. Tyson Seafood Group Inc., 1998 AMC 1185 (W.D. Wa. 1997), held that a state has a great interest in applying its employment anti-discrimination legislation to shipowners headquartered in the state, application of state law would not compromise the uniformity of the admiralty system and there is no federal preemption unless the state law either actually conflicts with federal law or the federal law leaves no room for additional legislation. Kodiak Island Borough v. Exxon Corp., 1999 Alas. LEXIS 156 (1999), applied a modified balancing test to determine whether federal maritime law preempted a state law which would allow recovery of economic loss. The Alaska Supreme Court determined that the Robins Drydock rule barring recovery in tort of purely economic loss is not a characteristic feature of admiralty law, as it did not originate in admiralty or have exclusive application therein. The court then addressed the issue whether the Alaska statute in issue interferes with the proper harmony and uniformity of maritime law, and stated:

Courts apply a balancing test to decide issues of harmony and uniformity. One commentator concisely explains:

State law will not be preempted if the state has a strong interest in the subject matter and there is correspondingly little need for uniformity; if, however, there is a strong federal interest, state law will not be allowed to impair the essential uniformity of maritime law.

Quoting T. Schoenbaum, Admiralty and Maritime Law 4-5, at 147-48, (2nd ed. 1994).

On balance, we are convinced that Alaska's strong interest in protecting its waters and providing remedies for damages resulting from oil spills outweighs the diminishing federal interest in achieving interstate harmony through the uniform application of Robins. We conclude, therefore, that, in allowing recovery for purely economic damages, Alaska's hazardous substances statutes do not unduly interfere with the harmony or uniformity of federal maritime law.>

Footnotes omitted. Hoddevik v. Arctic Alaska Fisheries Corp., ____ Wn. App. _____ (1999), determined that federal substantive law does not conflict with state statutory remedies for sexual harassment: it stated that state law may burden the uniformity of federal maritime law while acknowledging the rule of Jensen that state legislation may be preempted if it directly conflicts with substantive maritime law or interferes with its proper harmony and uniformity. This author synthesizes the consistent precedents to hold that the balancing of state and federal interests applies only to the uniformity test: it does not properly apply to whether state legislation actually conflicts with federal law or conflicts with a characteristic feature of maritime law.


Recent Decisions on Federal Preemption of Matters Involving Characteristic Features of Federal Maritime Law

The balancing of federal and local interests should not apply to determining whether state regulation can vary any of the essential characteristics of federal maritime law. Continuing vitality of the Jensen rule recently was recognized in Miller v. American Dredging Co., 510 U.S. 443, 1994 AMC 913 (1994), with respect to what the Miller Court recognized as characteristic features of maritime law: e.g., those that either originated in or have exclusive application in admiralty. 510 U.S. 450, 1994 AMC 918. In re Amtrak Sunset Limited Crash, 121 F.3d 1421, 1997 AMC 2962 (11th Cir. 1997), cert. denied 118 S.Ct. 1041, reversed the trial court's application of state wrongful death law for the deaths of train passengers killed as a result of a commercial tug and its tow striking a rail bridge. In that case, Alabama law allowed punitive damages upon a showing of simple negligence (conflicting with federal maritime law that allows pecuniary damages and possible punitive damages on proof of wanton and willful misconduct), and Alabama law forbids apportionment of damages amount joint tortfeasors, whereas federal maritime law requires it. The Eleventh Circuit Court of Appeals interpreted Yamaha as recognizing the continued vitality of Jensen other than with respect to matters of strictly local concern such as claims arising in territorial waters arising from non-commercial but maritime activities such as recreational boating:

Thus, it is evident in Yamaha that the Court, while intent on protecting the state interests that were present in that particular case (a product liability action resulting from a recreational boating accident in territorial waters), was not concerned with overruling bedrock admiralty principles recognized in Southern Pacific Company v. Jensen, ... where the Court held that state law must yield if it works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations.Indeed, since the birth of the Jensen doctrine in the early part of this century, the goal of uniformity and harmony in admiralty have survived to the present. Yamaha, by emphasizing these principles yet again, has affirmed their continuing vitality.

Consequently, it would be wrong to assume, as it appears the district court did in this case, that the holding in Yamaha embodies an unspoken rule that state interests must always trump competing admiralty principles when the two collide in state territorial waters. It is plain from the language in Yamaha that more is at issue in these situations; conflicts of this type must be resolved with a healthy regard for the needs of a uniform maritime law.

1997 AMC at 2967. The Amtrak decision continues:

Thus, in a case like the present, where substantive admiralty principles are placed a risk by the potential application of state law, there is no leeway for variation or supplementation by state law,Yamaha, 516 U.S. at ____, 1996 AMC at 313 ... .

1997 AMC at 2970. In Green v. Vermilion Corp., 144 F.3d 332, 1998 AMC 2328 (5th Cir. 1998), the Fifth Circuit held that federal admiralty law overrides state law where the nature of the activity required national uniformity. Green involved injury to a cook/watchman of a duck hunting camp. He boarded a small vessel bringing supplies to the camp to assist in unloading, and was injured when he slipped on the vessels deck. It was held he was not a LHWCA employee, under the club/camp/recreational operation exception of 33 USC' 902(3)(B). Because he was not subject to the LHWCA but was performing duties traditionally performed by seamen, the Fifth Circuit held that he was a Sieracki seaman pro hac vice, entitled to a warranty of seaworthiness as well as a general maritime law negligence duty to protect his safety. See Seas Shipping Corp. v. Sieracki, 328 U.S. 85, 1946 AMC 698 (1948). Though he otherwise would have been subject to the state workers' compensation statutory exclusiveness of a workers' compensation remedy, the court found that Southern Pacific v. Jensen and its progeny unequivocally hold that state workers' compensation statutes can not preclude an employee from asserting a general maritime law negligence claim against his employer for injuries sustained on navigable waters during the course of his employment. State workers' compensation statutes can only apply where the maritime tort involved matters of local concern which had remote or no relation to navigation or maritime commerce. 1998 AMC at 2339. In reaching this conclusion, the Fifth Circuit rejected the rationale of Brockington v. Certified Elec., Inc., 903 F.2d 1523, 1991 AMC 586 (11th Cir. 1990).


Preemption of "Commerce Clause" Federal Regulation

The Supremacy Clause of Article VI of the Constitution is interpreted as empowering Congress to preempt application of state law with respect to certain fields of law, such as interstate and foreign commerce, over which the Constitution confers on Congress legislative powers concurrent with those of the states. When Congress has legislated within these fields, federal law is found to preempt state law in three different instances: Congress may explicitly express its intent to preempt state law; Congress' intent to displace state law may be inferred, generally through the comprehensiveness or pervasiveness of the federal regulatory scheme; and, even where Congress has not entirely displaced state law, federal law will nevertheless preempt state law when state law conflicts with federal law, or when state law interferes with the accomplishment and execution of the congressional purpose. Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984); Kelly v. Washington, 302 U.S. 1, 1937 AMC 1490 (1937); Berridge v. Lewis, 939 F.2d 130, 1992 AMC 130 (9th Cir. 1991); Pacific Merchant Shipping Corp. v. Aubry, 918 F.2d 1409, 1991 AMC 2797 (9th Cir. 1990); Texas Employers' Insurance Association v. Jackson, 820 F.2d 1406, 1988 AMC 1202 (5th Cir. 1987); Inlandboatmen's Union of the Pacific v. Dept. of Transp., 119 Wn. 2d 697 (1992). In Commerce Clause cases, there is a strong presumption against preemption. See, e.g., Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985); Stevedoring Services of America, Inc. v. Eggert, 129 Wn.2d 17, 914 P.2d 737 (1996). See Ray v. Atlantic Richfield Co., 435 U.S. 151, 1978 AMC 527 (1978); and Norfolk Southern Corp. v. Oberly, 822 F.2d 388, 1987 AMC 2896 (3rd Cir. 1987), for discussions on how to divine Congressional intent to preempt or not to preempt a legislative field.


Examples of Field Preemption of Federal Law

In addition to the national uniformity and characteristic features preemption doctrine applicable matters within admiralty jurisdiction, federal law enacted under the Commerce Clause or Admiralty Clause will be deemed to preempt state legislation if there is a clear intent that federal legislation exclusively legislate a particular field. Lewis v. Brunswick Corp., 107 F.3d 1494, 1997 AMC 1921 (11th Cir. 1997), cert. granted ____ S.Ct. ____, settled before the Supreme Court announced its decision which may have clarified whether state legislation of a matter is valid where Congress has delegated regulation of the field to a federal agency and the agency has determined that regulation of a specific matter is not appropriate. The issue was whether state or local legislation requiring propeller guards or other safety equipment on recreational vessels is preempted by federal law has been frequently litigated. The Motorboat Act of 1940, 46 USC Appx ' 526, and the Federal Boat Safety Act, 46 USC ' 4301 et seq., have been held to preempt application of state statutory duties on operators of vessels upon navigable waters. See, e.g., St. Helaire Moye v. Henderson, 496 F.2d 973, 1974 AMC 2661 (8th Cir. 1974); Blevens v. Sfetku, 259 Cal. App. 2d 527 (1968). Carstensen v. Brunswick Corp., 49 F.3d 430, 1996 AMC 248 (8th Cir. 1995), held that the Coast Guard's decision not to issue a regulation requiring propeller guards does preempt local or state legislation requiring guards on vessels operating on navigable waters of the United States. Carstensen is based on the provisions of 46 USC' 4306, which prohibit a state or local government from establishing or enforcing a law or regulation relative to a recreational vehicle that is not identical to a federal regulation adopted by the Coast Guard under the Federal Boat Safety Act. See also Moss v. Outboard Marine Corp., 915 F.Supp. 183, 1996 AMC 1409 (E.D. Ca. 1996); Mowery v. Mercury Marine Division, 773 F.Supp. 1023 (N.D. Oh. 1991). Edwards v. Murray Chris-Craft Sport Boats, 873 F.Supp. 618, 1994 AMC 2385 (M.D. Fl. 1994), reached a similar decision on the Coast Guard's decision not to require boats of more than 20 feet in length to incorporate positive flotation. Stanley v. Bertram-Trojan, Inc., 855 F.Supp. 230 (S.D. N.Y. 1994), held that the Federal Boat Safety Act does not apply to a state law based claim relative to a pleasure boat's hatch, where there was no evidence that the Coast Guard considered and rejected a regulation relative to such equipment. Becker v. U.S. Marine Co., 88 Wn. App. 103 (1997), determined that state regulations can be applied to minimum safety standards for passenger seating on recreational boats were the Coast Guard has neither regulated seating nor explicitly declined to regulate such matters. On a different issue, Berridge v. Lewis, 939 F.2d 130, 1992 AMC 130 (9th Cir. 1991), examined the issue of federal preemption relative to a city ordinance forbidding anchorage of any vessel in a specified area of a harbor, and held that there was no preemption in that Congress did not implicitly occupy the field of regulation and that there was no actual conflict of the local ordinance with federal regulation.


Preemption by Federal Personal Injury and Wrongful Death Remedies Relative to Seafarers

The Supreme Court recently confirmed in dictum that the Jensen rule still applies with respect to federal remedies for personal injury and death to seafarers in Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. ___, 1996 AMC 305 (1996):

When Congress has prescribed a comprehensive tort recovery regime to be uniformly applied, there is, we have generally recognized, no cause of enlargement of the damages statutorily provided,

citing to Miles v. Apex Marine, 498 U.S. 19, 1991 AMC 1 (1990); Offshore Logistics Corp. v. Tallentire, 477 U.S. 207, 1986 AMC 2113 (1986); and Mobile Oil Co. v. Higginbotham, 436 U.S. 618, 1978 AMC 1059 (1978), for the rule that the Jones Act and the Death on the High Seas Act supersede application of state law as to what the Court termed seafarers. Tallentire considered the issue of federal preemption of state wrongful death statutes in maritime deaths: [T]he power to pass laws on this subject is conferred on Congress by the Constitution, and whenever Congress acts I have no doubt it excludes the power on the part of the State to pass laws on the same subject. McDonald v. City of New York, 235 N.Y.S. 787, 1998 AMC 237 (N.Y. App. 1996), cites to Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 1959 AMC 597 (1959), for the rule that with respect to personal injuries, federal maritime law supersedes state substantive liability standards. Stier v. Reading & Bates Corp., 1999 AMC 1656 (Tx. S. Ct. 1999), determined that the combination of the Jones Act, Death on the High Seas Act, and the general maritime law constitutes a comprehensive tort recovery regime governing personal injury actions of seamen. 1999 AMC at 1666.

Trident Seafoods Corp. v. Murray, 2000 AMC 288 (Ak. Sup. Ct. 1999), held that a processor employee on a seafood processing vessel which normally did its processing while at anchor in Alaska waters was a seaman and, because of that status, application of the Alaska workers' compensation act to his injuries was superseded by federal seamen's remedies. The claimant initially had received workers' compensation benefits under the Alaska statute and then pursued his seaman's remedies in federal court through trial, which resulted in a determination that he was a Jones Act seaman and an award of damages. He subsequently applied to the workers' compensation board for an adjustment of his claim and the state agency concluded it had jurisdiction over the claim, concurrent with federal jurisdiction to provide seamen's remedies, under the maritime but loca exception. On appeal of the agency's decision, the superior court limited application of the maritime but local doctrine to non-seamen. Relying on Miles and Yamaha for the rule that the Jones Act establishes a uniform system of tort law and the interests of national uniformity required that seamen's remedies be uniformly applied, the court stated:

Based on historical precedent, together with recent opinions from the United States Supreme Court and statutory construction, state workers' compensation statutes cannot apply to the injury of a Jones Act seaman when that injury occurs within the worker's scope of employment as a seaman. This is true, even if the vessel is engaged in local trade or, as in the present case, where the vessel is anchored at various locations offshore for the purpose of fish processing. ...

Hill v. Workmen's Compensation Appeal Board, 1998 AMC 351 (Pa. Com. Ct. 1997); and Green v. The Industrial Commission, 1999 Ill App. LEXIS 583 (Il. App. 1999), held that states workers' compensation statutes cannot validly apply to crewmember of local-voyage vessels. In Hill, the vessel was a sightseeing boat; in Green, the plaintiff was a performer on dinner cruises that typically lasted less than three hours. Green concluded that the twilight zone doctrine of concurrent jurisdiction has no application to Jones Act seamen, and we conclude that where the employee is determined to be a seaman, the Jones Act preempts state law and constrains the seaman to its remedies. Cammon v. City of New York, 1999 N.Y. App. Div. LEXIS 12407 (1999), determined that state law provisions for strict liability do not directly conflict with maritime law principles of liability only for negligence of third parties, thus state law strict liability can be applied in the case of a third party action by a harbor worker subject to LHWCA jurisdiction.


United States v. Lock - Intertanko Affirms Traditional Rules of Federal Preemption

On March 6, 2000, the Supreme Court affirmed traditional doctrines of federal preemption of maritime law in the Intertanko case. Sub nom United States v. Locke, ____ U.S. ____ (2000), the Supreme Court reversed in an unanimous decision, remanding for the district court to determine the validity of some of the regulations in light of the principles of preemption set out in its opinion.

The State of Washington has enacted legislation in an area where the federal interest has been manifest since the beginning of our Republic and is now well established. The authority of Congress to regulate interstate navigation, without embarrassment from intervention of the separate States and resulting difficulties with foreign nations, was cited in the Federalist Papers as one of the reasons for adopting the Constitution. ... The importance of maritime trade and the emergence of maritime transport by steamship resulted in further federal licensing requirements enacted to promote trade and to enhance the safety of crew members and passengers. ... In 1871, Congress enacted a comprehensive scheme of regulation for steam powered vessels, including provisions for licensing captains, chief mates, engineers, and pilots. ...

The Court in Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, 12 How. 299 (1852), stated that there would be instances in which state regulation of maritime commerce is inappropriate even absent the exercise of federal authority, although in the case before it the Court found the challenged state regulations were permitted in light of local needs and conditions. Where Congress had acted, however, the Court had little difficulty in finding state vessel requirements were pre-empted by federal laws which governed the certification of vessels and standards of operation. Gibbons v. Ogden, 9 Wheat. 1 (1824), invalidated a New York law that attempted to grant a monopoly to operate steamboats on the ground it was inconsistent with the coasting license held by the vessel owner challenging the exclusive franchise. And in Sinnot v. Davenport, 22 How. 227 (1859), the Court decided that the federal license held by the vessel contained the only guards and restraints, which Congress has seen fit to annex to the privileges of ships and vessels engaged in the coasting trade. Id., at 241. The Court went on to explain that in such a circumstance, state laws on the subject must yield: In every such case, the act of Congress or treaty is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it.Id., at 243.

Against this background, Congress has enacted a series of statutes pertaining to maritime tanker transports and has ratified international agreements on the subject. We begin by referring to the principal statutes and international instruments discussed by the parties.

The Court set out a number of federal statutes and international conventions regulating design, construction and operations of oil tankers. It then went on to state:

Limiting the saving clauses as we have determined respects the established federal-state balance in matters of maritime commerce between the subjects as to which the States retain concurrent powers and those over which the federal authority displaces state control. We have upheld state laws imposing liability for pollution caused by oil spills. See Askew v. American Waterways Operators, Inc., 411 U.S., at 325. Our view of OPA's savings clauses preserves this important role for the States, which is unchallenged here. We think it quite unlikely that Congress would use a means so indirect as the savings clauses in Title I of OPA to upset the settled division of authority by allowing states to impose additional unique substantive regulation on the at-sea conduct of vessels. We decline to give broad effect to saving clauses where doing so would upset the careful regulatory scheme established by federal law. See, e.g., Morales v. Trans World Airlines, Inc., 504 U.S. 374, 385 (1992); American Telephone & Telegraph Co. v. Central Office Telephone, Inc., 524 U.S. 214, 227-28 (1998).

From the text of OPA and the long-established understanding of the appropriate balance between federal and state regulation of maritime commerce, we hold that the pre-emptive effect of the PWSA and regulations promulgated under it are not affected by OPA. We doubt Congress will be surprised by our conclusion, for the Conference Report on OPA shared our view that the statute does not disturb the Supreme Court's decision in Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978).H. R. Conf. Rep. No. 101-653, 101, p. 122 (1990). The holding in Ray also survives the enactment of OPA undiminished, and we turn to a detailed discussion of that case.

As we mentioned above, the Ray Court confronted a claim by the operator of a Puget Sound refinery that federal law precluded Washington from enforcing laws imposing certain substantive requirements on tankers. The Ray Court prefaced its analysis of the state regulations with the following observation:

The Court's prior cases indicate that when a State's exercise of its police power is challenged under the Supremacy Clause, we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). 435 U.S., at 157.


... To explain the full intent of the Rice quotation, it suffices to quote in full the sentence in question and two sentences preceding it. The Rice opinion stated: The question in each case is what the purpose of Congress was. Congress legislated here in a field which the States have traditionally occupied. So we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress. 331 U.S., at 230 (citations omitted).

The qualification given by the word so and by the preceding sentences in Rice are of considerable consequence. As Rice indicates, an assumption of nonpre-emption is not triggered when the State regulates in an area where there has been a history of significant federal presence. See also Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977) (assumption is triggered where the field which Congress is said to have pre-empted has been traditionally occupied by the States; Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (citing Rice in case involving medical negligence, a subject historically regulated by the States). In Ray, and in the case before us, Congress has legislated in the field from the earliest days of the Republic, creating an extensive federal statutory and regulatory scheme.

The state laws now in question bear upon national and international maritime commerce, and in this area there is no beginning assumption that concurrent regulation by the State is a valid exercise of its police powers. Rather, we must ask whether the local laws in question are consistent with the federal statutory structure, which has as one of its objectives a uniformity of regulation for maritime commerce. No artificial presumption aids us in determining the scope of appropriate local regulation under the PWSA, which, as we discuss below, does preserve, in Title I of that Act, the historic role of the States to regulate local ports and waters under appropriate circumstances. At the same time, as we also discuss below, uniform, national rules regarding general tanker design, operation, and seaworthiness have been mandated by Title II of the PWSA.

The Ray Court confirmed the important proposition that the subject and scope of Title I of the PWSA allows a State to regulate its ports and waterways, so long as the regulation is based on the peculiarities of local waters that call for special precautionary measures.435 U.S., at 171. Title I allows state rules directed to local circumstances and problems, such as water depth and narrowness, idiosyncratic to a particular port or waterway. Ibid. There is no pre-emption by operation of Title I itself if the state regulation is so directed and if the Coast Guard has not adopted regulations on the subject or determined that regulation is unnecessary or inappropriate. This principle is consistent with recognition of an important role for States and localities in the regulation of the Nation's waterways and ports. E.g., Cooley, 12 How., at 319 (recognizing state authority to adopt plans applicable to the local peculiarities of the ports within their limits). It is fundamental in our federal structure that states have vast residual powers. Those powers, unless constrained or displaced by the existence of federal authority or by proper federal enactments, are often exercised in concurrence with those of the national government. McCulloch v. Maryland, 4 Wheat. 316 (1819).

As Ray itself made apparent, the States may enforce rules governed by Title I of the PWSA unless they run counter to an exercise of federal authority. The analysis under Title I of the PWSA, then, is one of conflict pre-emption, which occurs when compliance with both state and federal law is impossible, or when the state law stands as an obstacle to the accomplishment and execution of the full purposes and objective of Congress.California v. ARC America Corp., 490 U.S. 93, 100-101 (1989) (citations omitted). In this context, Coast Guard regulations are to be given pre-emptive effect over conflicting state laws. City of New York v. FCC, 486 U.S. 57, 63 - 64 (1988) ([A] federal agency acting within the scope of its congressionally delegated authority may pre-empt state regulation and hence render unenforceable state or local laws that are otherwise not inconsistent with federal law). Ray defined the relevant inquiry for Title I pre-emption as whether the Coast Guard has promulgated its own requirement on the subject or has decided that no such requirement should be imposed at all. 435 U.S., at 171-172; see also, id., at 178 (where failure of federal officials affirmatively to exercise their full authority takes on the character of a ruling that no such regulation is appropriate or approved pursuant to the policy of the statute, States are not permitted to use their police power to enact such a regulation. Bethlehem Steel Co. v. New York State Labor Relations Board, 330 U. S 767, 774 (1947)). Ray also recognized that, even in the context of a regulation related to local waters, a federal official with an overview of all possible ramifications of a particular requirement might be in the best position to balance all the competing interests. Id., at 177.

While Ray explained that Congress, in Title I of the PWSA, preserved state authority to regulate the peculiarities of local waters if there was no conflict with federal regulatory determinations, the Court further held that Congress, in Title II of the PWSA, mandated federal rules on the subjects or matters there specified, demanding uniformity. Id., at 168 (Title II leaves no room for the States to impose different or stricter design requirements than those which Congress has enacted with the hope of having them internationally adopted or has accepted as the result of international accord. A state law in this area would frustrate the congressional desire of achieving uniform, international standards). Title II requires the Coast Guard to impose national regulations governing the general seaworthiness of tankers and their crews. Id., at 160. Under Ray's interpretation of the Title II PWSA provision now found at 46 U.S.C. ' 3703(a), only the Federal Government may regulate the design, construction, alteration, repair, maintenance, operation, equipping, personnel qualification, and manning of tanker vessels.

In Ray, this principle was applied to hold that Washington's tanker design and construction rules were pre-empted. Those requirements failed because they were within a field reserved for federal regulation under 46 U.S.C. ' 391a (1982 ed.), the predecessor to ' 3703(a). We reaffirm Ray's holding on this point. Contrary to the suggestion of the Court of Appeals, the field of pre-emption established by ' 3703(a) cannot be limited to tanker design and construction, terms which cannot be read in isolation from the other subjects found in that section. Title II of the PWSA covers design, construction, alteration, repair, maintenance, operation, equipping, personnel qualification, and manning of tanker vessels. Ibid. Congress has left no room for state regulation of these matters. See Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta, 458 U.S. 141 (1982) (explaining field pre-emption). As the Ray court stated: [T]he Supremacy Clause dictates that the federal judgment that a vessel is safe to navigate United States waters prevail over the contrary state judgment. Enforcement of the state requirements would at least frustrate what seems to us to be the evident congressional intention to establish a uniform federal regime controlling the design of oil tankers. 435 U.S., at 165.

The existence of some overlapping coverage between the two titles of the PWSA may make it difficult to determine whether a pre-emption question is controlled by conflict pre-emption principles, applicable generally to Title I, or by field pre-emption rules, applicable generally to Title II. The Ray Court acknowledged the difficulty, but declined to resolve every question by the greater pre-emptive force of Title II. We follow the same approach, and conflict pre-emption under Title I will be applicable in some, although not all, cases. We recognize that the terms used in ' 3703(a) are quite broad. In defining their scope, and the scope of the resulting field pre-emption, it will be useful to consider the type of regulations the Secretary has actually promulgated under the section, as well as the section's list of specific types of regulation that must be included. Useful inquiries include whether the rule is justified by conditions unique to a particular port or waterway. See id., at 175 (a Title I regulation is one based on water depth in Puget Sound or on other local peculiarities). Furthermore, a regulation within the States residual powers will often be of limited extraterritorial effect, not requiring the tanker to modify its primary conduct outside the specific body of water purported to justify the local rule. Limited extraterritorial effect explains why Ray upheld a state rule requiring a tug escort for certain vessels, id., at 171, and why state rules requiring a registered vessel (i.e., one involved in foreign trade) to take on a local pilot have historically been allowed, id., at 159 - 160. Local rules not pre-empted under Title II of the PWSA pose a minimal risk of innocent noncompliance, do not affect vessel operations outside the jurisdiction, do not require adjustment of systemic aspects of the vessel, and do not impose a substantial burden on the vessels operation within the local jurisdiction itself.

The field pre-emption rule surrounding Title II and 3703(a) and the superseding effect of additional federal statutes are illustrated by the pre-emption of four of Washington's tanker regulations. We address these because the attempted reach of the state rules is well demonstrated by the briefs and record before us; other parts of the state regulatory scheme can be addressed on remand.

First, Washington imposes a series of training requirements on a tanker's crew. WAC ' 317-21-230; see also Appendix, infra, at ___. A covered vessel is required to certify that its crew has complete[d] a comprehensive training program approved by the [State]. The State requires the vessel's master to be trained in shipboard management and licensed deck officers to be trained in bridge resource management, automated radar plotting aids, shiphandling, crude oil washing, inert gas systems, cargo handling, oil spill prevention and response, and shipboard fire fighting. The state law mandates a series of weekly, monthly, and quarterly drills.

This state requirement under WAC ' 317-21-230 does not address matters unique to the waters of Puget Sound. On the contrary, it imposes requirements that control the staffing, operation, and manning of a tanker outside of Washington's waters. The training and drill requirements pertain to operation and personnel qualifications and so are pre-empted by 46 U.S.C. ' 3703(a). Our conclusion that training is a field reserved to the Federal Government receives further confirmation from the circumstance that the STCW Convention addresses training and qualification requirements of the crew, Art. VI), and that the United States has enacted crew training requirements. E.g., 46 CFR Pts. 10, 12, 13, 15 (1999).

The second Washington rule we find pre-empted is WAC ' 317-21-250; see also, Appendix, infra, at ___. Washington imposes English language proficiency requirements on a tanker's crew. This requirement will dictate how a tanker operator staffs the vessel even from the outset of the voyage, when the vessel may be thousands of miles from Puget Sound. It is not limited to governing local traffic or local peculiarities. The States attempted rule is a personnel qualification pre-empted by ' 3703(a) of Title II. In addition, there is another federal statute, 33 U.S.C. ' 1228(a)(7), on the subject. It provides: [N]o vessel shall operate in the navigable waters of the United States , if such vessel while underway, does not have at least one licensed deck officer on the navigation bridge who is capable of clearly understanding English. The statute may not be supplemented by laws enacted by the States without compromising the uniformity the federal rule itself achieves.

The third Washington rule we find invalid under field pre-emption is a navigation watch requirement in WAC ' 317-21-200. Washington has different rules for navigation watch, depending on whether the tanker is operating in restricted visibility or not. We mention the restricted visibility rule below, but now evaluate the requirement which applies in general terms and reads: [T]he navigation watch shall consist of at least two licensed deck officers, a helmsman, and a lookout. The general watch requirement is not tied to the peculiarities of Puget Sound; it applies throughout Washington's waters and at all times. It is a general operating requirement and is pre-empted as an attempt to regulate a tanker's operation and manning under 33 U.S.C. ' 3703(a).

We have illustrated field pre-emption under ' 3703(a) by discussing three of Washington's rules which, under the current state of the record, we can determine cannot be enforced due to the assertion of federal authority found in that section. The parties discuss other federal statutory provisions and international agreements which also govern specific aspects of international maritime commerce. In appropriate circumstances, these also may have pre-emptive effect.

For example, the record before us reveals that a fourth state rule cannot stand in light of other sources of federal regulation of the same subject. Washington requires vessels that ultimately reach its waters to report certain marine casualties. WAC ' 317-21-130; see also Appendix, infra, at ___. The requirement applies to incidents (defined as a collision, allision, near-miss incident, marine casualty of listed kinds, accidental or intentional grounding, failure of the propulsion or primary steering systems, failure of a component or control system, fire, flood, or other incident that affects the vessel's seaworthiness, and spills of oil), regardless of where in the world they might have occurred. A vessel operator is required by the state regulation to make a detailed report to the State on each incident, listing the date, location, and weather conditions. The report must also list the government agencies to whom the event was reported and must contain a brief analysis of any known causes and a description of measures taken to prevent a reoccurrence. Ibid.

The State contends that its requirement is not pre-empted because it is similar to federal requirements. This is an incorrect statement of the law. It is not always a sufficient answer to a claim of pre-emption to say that state rules supplement, or even mirror, federal requirements. The Court observed this principle when Commerce Clause doctrine was beginning to take shape, holding in Sinnot v. Davenport, 22 How. 227 (1859), that Alabama could not require vessel owners to provide certain information as a condition of operating in state waters even though federal law also required the owner of the vessel to furnish, under oath all the information required by this State law. Id., at 242. The appropriate inquiry still remains whether the purposes and objectives of the federal statutes, including the intent to establish a workable, uniform system, are consistent with concurrent state regulation. On this point, Justice Holmes' later observation is relevant: [W]hen Congress has taken the particular subject matter in hand coincidence is as ineffective as opposition, and a state law is not to be declared a help because it attempts to go farther than Congress has seen fit to go. Charleston & Western Carolina R. Co. v. Varnville Furniture Co., 237 U.S. 597, 604 (1915).

We hold that Congress intended that the Coast Guard regulations be the sole source of a vessel's reporting obligations with respect to the matters covered by the challenged state statute. Under 46 U.S.C. ' 6101 the Coast Guard shall prescribe regulations on the marine casualties to be reported and the manner of reporting, and the statute lists the kinds of casualties that the regulations must cover. See also ' 3717(a)(4) (requiring the Secretary of Transportation to establish a marine safety information system). Congress did not intend its reporting obligations to be cumulative to those enacted by each political subdivision whose jurisdiction a vessel enters. The State's reporting requirement is a significant burden in terms of cost and the risk of innocent noncompliance. The Roanoke, 189 U.S. 185, 195 (1903) (the master of a vessel is in a position such that it is almost impossible for him to acquaint himself with the laws of each individual State he may visit). Furthermore, it affects a vessel operator's out-of-state obligations and conduct, where a State's jurisdiction and authority are most in doubt. The State reporting requirement under WAC ' 317-21-130 is pre-empted.

As to conflict pre-emption under Title I, Washington argues that certain of its regulations, such as its watch requirement in times of restricted visibility, are of limited extraterritorial effect and necessary to address the peculiarities of Puget Sound. On remand, the Court of Appeals or District Court should consider whether the remaining regulations are preempted under Title I conflict pre-emption or Title II field pre-emption, or are otherwise pre-empted by these Titles or under any other federal law or international agreement raised as possible sources of pre-emption.

We have determined that Washington's regulations regarding general navigation watch procedures, English language skills, training, and casualty reporting are pre-empted. Petitioners make substantial arguments that the remaining regulations are preempted as well. It is preferable that the remaining claims be considered by the Court of Appeals or by the District Court within the framework we have discussed. The United States did not participate in these cases until appeal. Resolution of these cases would benefit from the development of a full record by all interested parties.

We infer from the record that Washington is not now enforcing its regulations. If, pending adjudication of the case on remand, a threat of enforcement emerges, the Court of Appeals or the District Court would weigh any application for stay under the appropriate legal standards in light of the principles we have discussed and with recognition of the national interests at stake.

When one contemplates the weight and immense mass of oil ever in transit by tankers, the oil's proximity to coastal life, and its destructive power even if a spill occurs far upon the open sea, international, federal, and state regulation may be insufficient protection. Sufficiency, however, is not the question before us. The issue is not adequate regulation but political responsibility; and it is, in large measure, for Congress and the Coast Guard to confront whether their regulatory scheme, which demands a high degree of uniformity, is adequate. States, as well as environmental groups and local port authorities, will participate in the process. See 46 U.S.C. ' 3703(a) (requiring the Coast Guard to consider the views of officials of State and local governments, representative of port and harbor authorities, and representatives of environmental groups in arriving at national standards).