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Thursday, November 15, 2018

INTERTANKO vs the State of Washington

In July 1995 the State of Washington’s ‘Best Achievable Protection’ Regulations, governing tanker personnel, equipment and operational requirements, entered into effect. The International Association of Independent Tanker Owners (INTERTANKO) immediately commenced litigation against the State of Washington in the US District Count in Seattle, challenging the rights of states and localities to impose requirements such as these in derogation of US federal and international standards. INTERTANKO argued that, under US constitutional principles, matters relating to ship construction, design, repair, safety, equipment, personnel qualifications and training were subject to the mandatory and exclusive superintendence of the federal government and could not be subject to duplicative regulation by individual states or localities.

In defence of its BAP Regulations the State of Washington contended that the provisions of the Oil Pollution Act of 1990 (OPA 90) which grant states and localities authority to assert separate liability and compensation regimes also contemplate state action to regulate shipboard activities and equipment. The State of Washington pointed out that Section 1018 of OPA 90 explicitly covers efforts of the states to prevent substantial threats of discharge posed by oil tankers and argued that the BAP standards are necessary to protect the rich marine environment of the Puget Sound area. Furthermore, the non-preemption provision of Section 1018 applies across the range of OPA 90 requirements dealing with "prevention".

Speaking on 19th July, 1995, when the suit was filed, the then INTERTANKO Chairman Miles Kulukundis stated, "INTERTANKO has a major stake in the development of uniform and rational regulations which promote the safety of tanker operations. The State of Washington, by acting unilaterally without regard to the extensive body of federal and international law governing tanker design, equipment and operation, is compromising the orderly operation of such ships. INTERTANKO is primarily concerned that the safety of its members’ crews, their ships and the marine environment are not jeopardised by a patchwork of regulations developed in the individual coastal states of the United States."

When INTERTANKO initiated action against the State of Washington in July 1995, it did so on a unilateral basis, without support from any other organisation. However, the Association believes that the reasoning adopted by the US District Court in reaching its decision, with its broad reliance on Section 1018 of OPA 90, does little to ease the contentiousness of the issue. Most notably, it leaves US federal maritime safety rulemaking programmes, and hence industry, vulnerable. INTERTANKO has stated that no follow up action will be taken until its leadership has had an opportunity to analyse closely the content of the US District Court’s recent ruling. One option is an appeal to the Ninth Circuit Court. INTERTANKO believes that there will be considerable support for such a course of action from interested parties concerned about the precedent laid down by this decision.

The promotion and continuous improvement of maritime safety and environmental protection remain key goals of INTERTANKO. Although the Association believes that this court decision represents a setback in the ongoing drive to achieve these objectives, it will continue to champion strong and effective federal and international maritime safety regimes.