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OP-ED: PMSA v. CARB Vessel Fuel Rule

By MarEx 2012-05-30 09:18:55

Do State Governments have the Power to Regulate Oceangoing Vessels Outside their Waters by Treating the Regulations as a “Condition for Entry” into their Ports?

Written by: Craig H. Allen Sr.

On Friday, May 25th, the U.S. Solicitor General filed the long-awaited Department of Justice (DOJ) legal brief setting out the position of the Obama Administration in the litigation between the Pacific Maritime Shipping Association (PMSA) and the California Air Resources Board (CARB) over California’s vessel fuel rules.  The 20-page DOJ brief recommends that the Supreme Court deny PMSA’s petition for review of the Ninth Circuit Court of Appeals decision upholding CARB’s position. The position taken by DOJ makes it far less likely the Supreme Court will hear the case, at least not in its present procedural posture.

The DOJ brief avoided taking a position on a critical legal rationale relied upon by California, which asserts that individual state governments can exercise the power of nation-states under international law to impose conditions of entry into the nation’s ports and internal waters, even if the state’s regulatory standards extend to activities taking place well beyond the state’s territory. If that is true, the power of state governments to regulate maritime transportation activities beyond their borders is truly far reaching.

The starting point for understanding “conditions of entry” is a 1903 decision by the U.S. Supreme Court involving a challenge to the application of a federal seamen’s wage statute to a foreign flag vessel in a U.S. port (Patterson v. The Bark Eudora). After acknowledging the principle established by the Court in 1812 (The Schooner Exchange v. McFaddon), which holds that a foreign vessel’s entry into a U.S. port is based not on a right of entry, but rather on express or implied consent, the Court went on to explain that the implied consent to permit a foreign vessel to enter U.S. harbors “may be withdrawn, and if this implied consent may be wholly withdrawn, it may be extended upon such terms and conditions as the government sees fit to impose.”  That general rule may be modified by treaty, however. For example, in the famous Wildenhus' Case (1887) involving an inter-crew homicide on board the Belgian-flag steamship Noordland while berthed in Jersey City, NJ, the Supreme Court explained: “It is part of the law of civilized nations that, when a merchant vessel of one country enters the ports of another for the purposes of trade, it subjects itself to the law of the place to which it goes unless, by treaty or otherwise, the two countries have come to some different understanding or agreement”. Thus, treaties of friendship, commerce and navigation (FCN treaties) or consular relations treaties might provide a treaty-based right of port entry and/or limit the port nation’s jurisdiction over vessels flying the flag of the other treaty party.

The 1982 Law of the Sea Convention carefully allocates jurisdiction by zones extending seaward from the baseline. The coastal nation’s jurisdiction varies across the four zones, beginning with the territorial sea and extending to the contiguous zone, EEZ and high seas. Generally, the coastal nation may not “supplement” its zonal jurisdiction over foreign vessels based on a claim that their activities outside the relevant zone have an “effect” within the nation’s territory.  It may, however, impose conditions for entry into its ports.  The LOS Convention briefly adverts to port entry conditions in two articles. Article 25, which addresses the “rights of protection” of the coastal nation with respect to foreign vessels in innocent passage through its territorial sea, provides that:

  • In the case of ships proceeding to internal waters or a call at a port facility outside internal waters, the coastal State also has the right to take the necessary steps to prevent any breach of the conditions to which admission of those ships to internal waters or such a call is subject.

Similarly, Article 211, which addresses the prevention and control of pollution from vessels, refers to requirements by port nations “for the prevention, reduction and control of pollution of the marine environment as a condition for the entry of foreign vessels into their ports or internal waters, or for a call at their off-shore terminals.” International law is largely indifferent as to whether those conditions are imposed by the national government or one of its state or local components. In either case, the measures are generally attributable to the nation-state.  By contrast, the U.S. Constitution and other laws that define the contours of maritime federalism in the United States do distinguish between the regulatory competency of the federal government and that of the states.

How far does the power to attach conditions of entry go?  It has long been extended to pilotage requirements, a subject largely delegated to the states by the early Congress.  Professor Bernie Oxman, one of the foremost U.S. law of the sea experts, reads the condition for entry powers broadly, concluding that the LOS Convention contains “no restriction” on the right of a nation to establish port entry requirements, “including those regarding the construction, manning, equipment, or design of ships.”  While that is true of the LOS Convention, other treaties, such as SOLAS, MARPOL and STCW, do set limits on port nation prescriptive and enforcement jurisdiction. FCN treaties and trade agreements extending most favored nation or national treatment status to selected nations might also be relevant.

Attaching conditions of entry can prove controversial. Australia’s 2006 regulation (Marine Notice 8/2006) establishing a compulsory pilotage requirement for vessels transiting the Torres Strait—an environmentally vulnerable and navigationally challenging strait used for international navigation—is perhaps the most notorious example.  The 2006 regulation provoked a number of protests by other nations, including the U.S., who argued that the measure overstepped the limits prescribed by the LOS Convention on Australia’s regulatory power over vessels in transit through an international strait.  Australia subsequently issued a second Marine Notice (16/2006), which preserved the compulsory pilotage requirement, but stated that Australia would not “suspend, deny, hamper or impair transit passage and will not stop, arrest or board ships that do not take on a pilot.” The Notice went on, however, to warn that “the owner, master and/or operator of the ship may be prosecuted on the next entry into an Australian port, for both ships on voyages to Australian ports and ships transiting the Torres Strait en route to other destinations”.

In effect, Australia turned the compulsory pilotage requirement into a condition of port entry. The second Marine Notice raised two questions. The first was whether the LOS Convention’s strict limits on a coastal nation’s jurisdiction to regulate vessels in transit passage through an international strait can in fact be circumvented by recasting the regulation as a condition for entry into the nation’s internal waters or ports.  If the answer to that first question is yes, how far can the port nation go?  Could the owner or master of a vessel that transited the strait without taking a pilot during a 2010 voyage that did not include an entry into an Australian port be prosecuted for its 2010 “violation” upon arrival in an Australian port in 2015 after a voyage that did not include a pilot-less transit through the strait?  If in 2010 the vessel did not enter an Australian port how could it be in violation of a condition of port entry?  And if in 2015, while en route to an Australian port, it did not transit Torres Strait without a pilot, what port entry condition did it violate?

The U.S. Senate apparently takes port entry conditions seriously. When it provided its advice and consent to U.S. ratification of the 1997 Protocol to MARPOL, which added Annex VI (Regulations for the Prevention of Air Pollution from Ships), the Senate attached an “understanding” stating that, in the opinion of the U.S., the Protocol “does not, as a matter of international law, prohibit Parties [to the Protocol] from imposing, as a condition of entry into their ports or internal waters, more stringent emission standards or fuel oil requirements than those identified in the Protocol.  DOJ referred to the Senate understanding in its brief in the PMSA appeal, but was silent on whether, in the federal government’s view, the power to impose those conditions was exclusively federal or was instead shared with the 50 states and their subsidiary local governments and public port authorities, perhaps as an incident of the states’ residual sovereignty or their inherent police powers.

The California Air Resources Board’s reliance on the conditions of entry rationale to impose requirements on vessels up to 24 miles offshore presents the question squarely: do state and local governments in the U.S. have the power to exercise what is generally understood to be the nation-state’s power under international law to prescribe and enforce conditions for entry into its ports or internal waters and to extend them to activities taking place outside the state’s waters? Before answering, we should consider the Senate Foreign Relations Committee’s proposed “understanding” of the 1982 Law of the Sea Convention, written in 2007, which announces that:

  • The United States understands that the Convention recognizes and does not constrain the longstanding sovereign right of a State to impose and enforce conditions for the entry of foreign vessels into its ports, rivers, harbors, or offshore terminals, such as a requirement that ships exchange ballast water beyond 200 nautical miles from shore or a requirement that tank vessels carrying oil be constructed with double hulls.

Under the maritime federalism balance struck so far by the Ninth Circuit, to what extent may state and local governments exercise this “longstanding sovereign right”? Is the states’ power coextensive with that of the federal government?  Putting aside for now questions of express or implied preemption by federal statutes like the Ports and Waterways Safety Act, what is the legal test for determining whether a state or local government has the power to extend ballast water exchange, double-wall fuel tank construction, tug escort, fuel sulfur content or maximum speed regulations to vessels within 24 or even 200 miles of the state, as a condition for entering one of the state’s ports?

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The author is the Judson Falknor Professor of Law at the University of Washington.  For the 2011-2012 academic year he is serving as the Distinguished Visiting Professor of Maritime Studies at the U.S. Coast Guard Academy and a Resident Fellow in the Center for Maritime Policy and Strategy. 

The views expressed are the author’s alone.