matters not specifically mentioned therein such as requirements of containment gear or the like or authority to board and inspect vessels. § 3-533 (209), (210). Liability for Removal Costs (and Exceptions) §§ 11 (f) (1): If the state removes the discharge, the watercraft and its owner or operator are liable for all costs of removal. No exceptions stated. § 3-533 (207) (2). Limitation of Liability for Removal Costs § 11(f) (1) : No limitation of liability. § 3-533 (207) (2). Liability for Damages to Third Parties § 11(o) (1): No provision. Liability of "Third Parties" Who Cause a Spill from Another's Vessel § 11 (g): No provision. Evidence of Financial Responsibility § 11 (p) (1): No provision. CALIFORNIA (1968, 1970) Discharges Prohibited § 11(b) (2) (3) : Any intentional or negligent discharge of oil except for discharges of sewage and industrial waste permitted by Water Code Chapter 4, Division 7, Harbors and Navigation Code § 151. Penalty for Discharge § 11(b) (5): Civil penalty up to $6,000. Harbors and Navigation Code § 151. Administrative Powers, § 11(b) (5), §11(d), § 11(e), §11(n): No provision. Notice of Discharge § 11 (b) (4): No provision. Procedures for Removal of Discharged Oil § 11(c) (d), § 11(j): State Fish and Game Department authorized to clean up the effects of a discharge of petroleum or petroleum products. Fish and Game Code § 5655. Liability for Removal Costs (and Exceptions) §§ 11(f) (1): Fish and Game Department to recover reasonable costs of clean-up or abatement from one who has discharged oil intentionally or negligently. Fish and Game Code § 5655; Harbors and Navigation Code § 151. Limitation of Liability for Removal Costs § 11(f) (1): No limitation of liability. Harbors and Navigation Code § 151. Liability for Damages to Third Parties § 11(o) (1): In addition to liability for costs of clean-up or abatement, one who discharges oil intentionally or negligently is liable to the Fish and Game Department, for all "actual damages," without limit. "Actual damages" is not defined and the statute is unclear whether this applies damages to private parties. Harbors and Navigation Code § 151. Liability of "Third Parties" Who Cause a Spill from Another's Vessel § 11(g): No provision. Evidence of Financial Responsibility § 11 (p) (1): No provision. WASHINGTON, BCW 90.48.315 ET SEQ. (1969, 1970) Discharges Prohibited § 11(b) (2) (3) : Any discharge of oil not otherwise permitted by state law except discharges caused by an act of God or war or by a negligent act of the state or the United States. § 90.48.320. Penalty for Discharge § 11(b) (5): If the discharge is intentional or negligent, the discharging party is liable for a penalty of up to $20,000 per violation. § 90.48.350. Administrative Powers, § 11(b) (5), § 11 (d), § 11(e), § 11(n): State Water Pollution Control Commission may board vessels to investigate violations of the statute. § 90.48.355. Notice of Discharge § 11(b) (4): The person discharging must notify the state Water Pollution Control Commission immediately. § 90.48.360. Procedures for Removal of Discharged Oil § 11 (c) (d), § 11(j): The discharging party must remove the oil. If removal is not possible, he must contain, treat, or dispose of it. The state can prohibit or restrict the use of chemical or other dispersants if it appears that their use would be detrimental to the public interest. § 90.48.325. The state is given express authority to investigate a discharge and to remove and contain it. § 90.48.330. Liability for Removal Costs (and Exceptions) §§ 11 (f) (1): If the Water Pollution Control Commission removes a prohibited discharge because the "responsible" party failed to do so, that party is liable for the State's expenses in removal or containment. § 90.48.335, 340. Limitation of Liability for Removal Costs § 11(f) (1) : No limitation of liability. § 90.48.335, 340. Liability for Damages to Third Parties § 11(o) (1): Liability without regard to fault for damages to public or private persons or property resulting from any discharge not caused by an act of God or war or a negligent act of the state or United States. No limitation of liability. § 90.48—(§ 6 of 1970 Act). Liability of "Third Parties" Who Cause a Spill from Another's Vessel § 11(g): Any person not an owner or operator responsible for a prohibited discharge is liable for clean-up expenses undertaken by the state or any other party. No limitation of liability. § 90.48—(§ 7 of 1970 Act). Evidence of Financial Responsibility § 11 (p) (1): No provision. Other: Permits required prior to any discharge of oil. § 90.48—( § 8 of 1970 Act). ALASKA, STATUTES TITLE 46, CHAPTER 05 (1968, 1970) Discharges Prohibited § 11 (b) (2) (3) : Any discharge of petroleum or its residuary products, coal tar, asphalt, and the like, which violates state water standards is expressly prohibited, unless caused by an act of God or by circumstances beyond the control of the discharging party. § 46.05.170(b). Any discharge of ballast water, tank-cleaning waste water, or other waste containing oil in excess of 100 parts per million of oily residue by vessels over 300 tons. § 46.05.173 (a). Penalty for Discharge § 11(b) (5): Fine of up to $25,000 and/or imprisonment for 30 days to 1 year. § 46.05.210(a). Administrative Powers, § 11(b) (5), § 11(d), §11(e), §11(n): State Attorney General may bring injunctive action to prevent a violation of these statutes. $46.05.200. Vessel may be detained as security for damages for non-ballast discharges. § 46.05.215. A vessel having discharged ballast at sea in violation of § 46.05.173 may not take on oil, petroleum products, or their by-products as cargo in Alaska. § 46.05.173 (b). State Department of Health and Welfare may order the immediate discontinuance of pollution of waters if it finds that an emergency exists. § 46.05.190. Notice of Discharge § 11(b) (4): Person in charge of vessel to notify State Department of Health and Welfare of any ballast discharge. § 46.05.173(d). Procedures for Removal of Discharged Oil § 11(c) (d), § 11(j) : No explicit provision. However, damage provision § 46.05.210(c), infra, assumes that state may have removed a discharge and restored the environment to its former state. Liability for Removal Costs (and Exceptions) § 11(f) (1): One who violates either § 46.05.170 or $ 46.05.173 is liable to the state for "liquidated damages," which term is not defined, at $5,000-$100,000. § 46.05.210(b). Limitation of Liability for Removal Costs § 11(f) (1): One who violates § 46.05.173 (discharge of ballast) is also liable for damages of $100 per ton of vessel or per $500 evaluation of facility or $14 million, whichever is less. If the violation was the result of willful negligence or willful misconduct, "damages" means cost of abatement, containment, and removal and of reasonable restoration of the environment to its former state. When violation not willful. "damages" is not defined. No limitation of liability if violation the result of willful negligence or willful misconduct. § 46.05.210 (c). Liability for Damages to Third Parties § 11 (o) (1): See immediately above. Liability of "Third Parties" Who Cause a Spill from Another's Vessel § 11(g): No provision. Evidence of Financial Responsibility § 11 (p) (1) : No provision. The scheme of regulation of section 11 is comprehensive in scope. It is also a carefully balanced scheme. Liability for the costs of oil clean-up is not absolute: a vessel owner is excused if a discharge from his vessel is caused, not by his act, but by an act of God, an act of war, negligence of the United States, or the act of a third party-and if a third party is the cause, that third party must pay clean-up costs. Congress carefully considered alternative standards of liability, including a standard that recognized no exception from liability in the case of an oil spill caused entirely by a third party. See S. 7 as reported to the Senate Public Works Committee by the Air and Water Pollution Subcommittee, 91st Cong., 1st Sess., Comm. Print No. 3, pp. 28-29. July 2, 1969. It rejected these alternatives, and decided that a vessel owner should not be liable if a discharge was wholly the result of factors he could not control. Similarly, unless a discharge is caused by a vessel owner's or operator's wilfulness or negligence, liability for oil clean-up costs is limited to $100 per ton of the vessel, up to $14 million. Congress considered imposing unlimited liability (see H.R. 14000, 90th Cong., 1st Sess., p. 7, as introduced on November 14, 1967). and decided against it. Evidence received in hearings on the 1970 Act indicated that insurance could not be purchased at levels substantially above $100 per ton, or for overall maximum liability much above the $10-12 million range, if oil clean-up liability were based on negligence (a standard often the same in effect as the standard finally adopted). If liability were made absolute, without regard to fault, insurance would be available only up to much lower levels, probably about $67 per ton/$5 million overall. See e.g., Hearings on S. 7 before the Subcommittee on Air and Water Pollution, Senate Public Works Committee, 91st Cong., 1st Sess.. ser. 91-2, pt. 4, at 1308-10 (1969). Congress weighed this evidence and adopted the principles of limited liability and liability that is not absolute. Liability was intended to be high enough to protect the public interest, "while at the same time not placing an unreasonable insurance burden on vessel owners." S. Rep. No. 351, 91st Cong., 1st Sess. 17 (1969). So long as there were exceptions to absolute liability for clean-up costs, "the figure of $100 per ton . . . should be insurable. . . . The figure [as a measure of required financial responsibility for cleanup costs] reflects an attempt by the committee to assure maximum protection to the U.S. Government while not requiring uninsurable evidence of financial responsibility." Id., p. 18. Unlimited absolute liability Exhibit B shows that in at least nine states (eight coastal states and Michigan) recently enacted oil pollution laws obliterate entirely the limits that Congress so carefully established. The states, and the relevant provisions of their laws on liabiity for oil clean-up costs, are the following: Maine. No limitation on liability. No exception to liability for discharge caused by third party. Massachusetts.-No limitation on liability. Law unclear whether liability based on fault. Connecticut.-No limitation on liability. Apparently absolute liability. Michigan.-No limitation of liability. Apparently absolute liability. I Washington.-No limitation on liability. No exception to liability for discharge caused by third party. Current enforcement Not all of these states have yet established the administrative machinery to put their laws into effect. The present situation in Florida, however, is a clear example of the serious limitations these laws may impose on the ability of vessels to go from state to state. Florida's regulations were scheduled to go into effect on March 1, 1971. It became clear, however, that many companies would have to forego oil carrying operations in that state once the regulations took effect. Companies cannot buy insurance policies for the unlimited clean-up liability that exists under Florida Jaw, and they are understandably reluctant to subject themselves to liabilities they cannot insure against. Many companies, furthermore, fear that they cannot provide the evidence of financial responsibility required by the regulations as a condition of entry into the ports of Florida. (Florida requires insurance or other evidence of financial responsibility up to only $100 per ton, but apparently requires evidence of absolute responsibility, without any exceptions and with defenses allowed to the insurance companies only at the discretion of the state. Insurance is not generally available on these conditions.) Faced with the likelihood that its regulations will have the effect of excluding many vessels from its ports. Florida has postponed full enforcement of its regulations until March 15. It is, however, at the present time issuing warnings to vessels in its waters that do not meet the requirements of the Florida law and regulations. There is no predicting what will happen after March 15. No public interest is served by laws that establish total liabilities with respect to oil spills that are greater than vessel owners can pay or can insure against. Although the law may provide that liability is unlimited, once a vessel owner's insurance and assets are exhausted, further loss must fall on the last claimant in line the state, the United States or an injured private property owner. An equitable and effective scheme of liability would recognize that the ability of a vessel owner to pay, out of insurance or out of his own assets, is limited. Criminal and civil penalties. Added to these liabilities for oil clean-up costs are various provisions for criminal penalties under the laws of six states, civil penalties in three (including one of $50,000 per day in Florida-another factor deterring entry into Florida waters), and miscellaneous provisions for "liquidated" or punitive damages (including in Massachusetts potential liability for double the damages caused to third parties). These penalties add still more potential financial liabilities on top of clean-up liabilities that are already so high as to be uninsurable. Furthermore, state penal provisions may produce the added consequence of real, if unintended, harassment of vessel owners. It is fundamentally unfair to put a vessel owner twice in jeopardy for a single act-to make him defend separate penal actions in state and federal courts for one oil spill. There may indeed be Constitutional questions with respect to state penalties for oil spills, not only the question of double jeopardy, but also the question of compelled self-incrimination. Both the federal law and the laws of six states require persons who discharge oil to report the discharges. The discharges may be criminal acts under the Federal Refuse Act, under the laws of three of the states that require notice, and under the laws of three additional states. Administration. Finally, there is the problem of overlapping state and federal administration of oil pollution control efforts. In the 1970 Act, Congress directed the establishment of a comprehensive federal plan to provide "efficient, coordinated, and effective action" to deal with oil discharges in the navigable waters of the United States, adjoining shorelines and the contiguous zone. Section 11(c) (2). This system has now been put into effect under a National Contingency Plan. 35 F.R. 8508 (June 2, 1970). The President was also directed to promulgate regulations (which have not yet been issued) establishing methods to prevent and remove oil discharges and establishing criteria for local and regional oil removal plans. What the Congress clearly intended is a unified system under the ultimate control of the Federal Government, a system that provides "some uniformity in dealing with oil spills." S. Rep. No. 351, 91st Cong., 1st Sess. 16 (1969). Not many state laws recognize this pre-eminent federal role. Maryland, for instance, duplicates the federal power to detain vessels for the payment of penalties. Virginia and Alaska duplicate the federal power to bring an action to abate a discharge. Florida, Washington and perhaps Maine duplicate the federal power to board and inspect vessels. Florida, Maine and perhaps Connecticut duplicate the federal authority to prescribe oil clean-up methods and equipment, and Florida seems to claim the right to exclude from its waters vessels that do not have oil-containment gear on board that meets Florida's specifications. It is not clear what happens if the various states and the Federal Government require different kinds of containment gear. The laws of at least 10 states appear to give state officials essentially the same powers that federal officials have under the federal law to clean up oil that the discharger does not clean up. If the Federal Government cleans up, federal law provides that the Federal Government is to recover from the vessel owner (unless one of the statutory exclusions applies), or, if the act of a third party was the sole cause of the discharge, from the third party. If the states clean up, many state laws provide that the states are to recover these costs from the vessel owner, no matter what was the cause of the spill. Again, there is no apparent mechanism now in existence for resolving the inconsistencies. There is no way of knowing whether state or federal officials or both are to clean up an oil spill, and, if the vessel owner was not at fault, whether the vessel owner, a third party or nobody is liable for the costs of clean-up. There is even an overlap in the requirement of certificates of financial responsibility for oil clean-up costs. As of April 3, a federal certificate will be required for most oil carrying vessels using the ports or waters of the United States. Nevertheless, Massachusetts has its own certification requirement and may or may not be satisfied with the federal certificate. At this point, AWO is not certain how Massachusetts will apply this aspect of its law. Florida requires a certificate, will not accept the federal certificate, and apparently intends after March 15 to bar from its ports any vessel that does not have a Florida certificate. We recognize, of course, that Congress provided in section 11(o) (2) of the Water Pollution Control Act that "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." But it also provided in section 11(0) (3) that "Nothing in this section shall be construed . . . to affect any State or local law not in conflict with this section." (Emphasis added.) We now have a situation in which the laws of many states are in conflict, and in the most fundamental ways, with the federal law. The basic concepts of liability that is not absolute and liability limited to insurable amounts are undermined completely. Administration becomes a harassing federal-state competition. And the ability of vessels to engage in commerce between the states, which after all is one of the essential things the Federal Government was created to insure, is put in serious jeopardy. Needed: A uniform system To remedy this situation, we recommend a combination of Congressional action and action by the Executive under existing authority. 1. The Federal Government, presumably through the Environmental Protection Agency, should exercise the authority granted in section 11(j) of the Water Pollution Control Act to establish methods for preventing and cleaning up oil discharges and to establish criteria for local oil removal plans. States and localities should be permitted and encouraged to make and enforce rules for the prevention and clean-up of oil spills from vessels, but only to the extent that their rules and procedures are approved in advance by the EPA as consistent with federal law and regulations. In order to prevent overlapping and conflicting state and federal activities, EPA must exercise its overall power to direct and coordinate these activities. 2. The costs of cleaning up oil spills from vessels should be recoverable only by the Federal Government, with the following exception: if a state or locality incurs costs in cleaning up an oil spill pursuant to procedures approved by EPA, the party responsible for the spill should be liable to the state or locality for these costs to the same extent as it would have been liable to the United States if the United States had cleaned up the spill. The liability to all governments of the party responsible should not exceed the federally established limitation of liability for clean-up costs of $100 per ton/$14 million. 3. Except in the case of state regulations approved in advance by EPA as consistent with federal law, federal law should pre-empt state provisions for detention or removal of vessels, abatement proceedings, boarding and inspection, evidence of financial responsibility requirements and other enforcement provisions. 4. State laws permitting recovery of actual damages to the property of third parties should remain in force and not be pre-empted. State laws that pro vide criminal penalties, punitive damages, liquidated damages or double damages, in addition to recovery of actual damages, should be pre-empted by the federal provisions for penal liability. III. OVERLAP OF FEDERAL LAWS ON CONTROL OF POLLUTION FROM VESSELS Vessel owners and operators are now subject to both civil and criminal penalties for water pollution under a number of federal laws. These include the Federal Water Pollution Control Act, which imposes a civil penalty up to $10,000 per offense in the case of oil discharges, section 11(b) (5), and which requires one in charge of a vessel to give notice of a discharge or face criminal penalties, section 11(b) (4). In addition, the Refuge Act imposes a criminal penalty of up to one year in prison, a fine up to $2500 or both for refuse discharges, 33 U.S.C. §§ 407, 411, and a civil penalty (which applies in the case of vessels only) up to $2500, 33 U.S.C. § § 407, 411, 412. Statutes specifically relating to the harbors of Chicago, New York, Baltimore and Hampton Roads make it criminal to discharge refuse into any of those harbors. 33 U.S.C. §§ 421, 441, 451a. These statutes, like the Refuse Act, apply to the discharge of any polluting material, not just oil. Two problems arise from this overlap of federal law, one of which may be dealt with administratively, the other of which requires correction by legislation. The first problem is a lack of clarity as to the jurisdiction of various federal agencies to administer these federal laws. One federal agency should control all federal activities under these statutes-proceedings to assess pen |