source: Caselaw Access Project

author: Mr. Justice Douglas

license: Public Domain

text:
    ASKEW, GOVERNOR OF FLORIDA, et al. v. AMERICAN WATERWAYS OPERATORS, INC., et al.
    No. 71-1082.
    Argued November 14, 1972
    Decided April 18, 1973
    Douglas, J., delivered the opinion for a unanimous Court.

      Robert L. Shevin, Attorney General of Florida, and Daniel S. Dearing argued the cause and filed briefs for appellants.

      LeRoy Collins and Nicholas J. Healy argued the cause for appellees. With Mr. Collins on the brief for appellees American Waterways Operators, Inc., et al. were Joseph C. Jacobs, John B. Chandler, Jr., and Stewart D. Allen. With Mr. Healy on the brief for appellees American Institute of Merchant Shipping et al. were Gordon W.

      Paulsen, Dewey B. Villareal, Jr., and Emil A. Kratovil, Jr. James F. Moseley filed a brief for appellees Suwannee Steamship Co. et al.

       Briefs of amici curiae urging reversal were filed by Evelle J. Younger, Attorney General, Jay L. Shavelson, Assistant Attorney General, and Carl Boronkay and Jeffrey C. Freedman, Deputy Attorneys General, for the State of California; by Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, and Alfred L. Evans, Jr., James B. Talley, and Courtney Wilder Stanton, Assistant Attorneys General, for the State of Georgia; by George Pai, Attorney General, and Nobuki Kamida and Alan M. Goda, Deputy Attorneys General, for the State of Hawaii; by Francis B. Burch, Attorney General, Henry B. Lord, Deputy Attorney General, and Warren K. Rich, Assistant Attorney General, for the State of Maryland; by Robert H. Quinn, Attorney General, and Walter H. Mayo III and Roger Tippy, Assistant Attorneys General, for the Commonwealth of Massachusetts; by Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Hugh B. Anderson and Charles S. Alpert, Assistant Attorneys General, for the State of Michigan; by Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Philip Weinberg and James P. Corcoran, Assistant Attorneys General, for the State of New York, joined by Robert K. Killian, Attorney General of Connecticut, and W. Laird Stabler, Jr., Attorney General of Delaware; by Robert Morgan, Attorney General, and Christine Y. Denson, Assistant Attorney General, for the State of North Carolina; by Crawford C. Martin, Attorney General, Nola White, First Assistant Attorney General, Alfred Walker, Executive Assistant Attorney General, and Houghton Brownlee, Jr., and John Milton Richardson, Assistant Attorneys General, for the State of Texas; by Andrew P. Miller, Attorney General, and C. Tabor Cronk, Assistant Attorney General, for the Commonwealth of Virginia; and by Slade Gorton, Attorney General, Charles B. Roe, Jr., Senior Assistant Attorney General, and Charles W. Lean, Assistant Attorney General, for the State of Washington.
      Briefs of amici curiae urging affirmance were filed by Robert G. McCreary, James J. Higgins, Warren A. Jackman, Sam L. Levinson, David R. Owen, John C. Shepherd, and Benjamin W. Yancey for the American Bar Association, and by John M. McHose for the Maritime Law Association of the United States.

        Solicitor General Griswold and Assistant Attorneys General Frizzell and Wood, filed a brief for the United States as amicus curiae.

   Mr. Justice Douglas

delivered the opinion of the Court.

This action was brought by merchant shipowners and operators, world shipping associations, members of the Florida coastal barge and towing industry, and owners and operators of oil terminal facilities and heavy industries located in Florida, to enjoin application of the Florida Oil Spill Prevention and Pollution Control Act, Fla. Laws 1970, c. 70-244, Fla. Stat. Ann. § 376.011 et seq. (Supp. 1973) (hereinafter referred to as the Florida Act). Officials responsible for enforcing the Florida Act were named as defendants, but the State of Florida intervened as a party defendant, asserting that its interests were much broader than those of the named defendants. A three-judge court was convened pursuant to 28 U. S. C. § 2281.

The Florida Act imposes strict liability for any damage incurred by the State or private persons as a result of an oil spill in the State’s territorial waters from any waterfront facility used for drilling for oil or handling the transfer or storage of oil (terminal facility) and from any ship destined for or leaving such facility. Each owner or operator of a terminal facility or ship subject to the Act must establish evidence of financial responsibility by insurance or a surety bond. In addition, the Florida Act provides for regulation by the State Department of Natural Resources with respect to containment gear and other equipment which must be maintained by ships and terminal facilities for the prevention of oil spills.

Several months prior to the enactment of the Florida Act, Congress enacted the Water Quality Improvement Act of 1970, 84 Stat. 91, 33 U. S. C. § 1161 et seq. (hereinafter referred to as the Federal Act). This Act subjects shipowners and terminal facilities to liability without fault up to $14,000,000 and $8,000,000, respectively, for cleanup costs incurred by the Federal Government as a result of oil spills. It also authorizes the President to promulgate regulations requiring ships and terminal facilities to maintain equipment for the prevention of oil spills. It is around that Act and the federally protected tenets of maritime law evidenced by Southern Pacific Co. v. Jensen, 244 U. S. 205, and its progeny that the controversy turns. The District Court held that the Florida Act is an unconstitutional intrusion into the federal maritime domain. It declared the Florida Act null and void and enjoined its enforcement. 335 F. Supp. 1241.

The case is here on direct appeal. We reverse. We find no constitutional or statutory impediment to permitting Florida, in the present setting of this case, to establish any “requirement or liability” concerning the impact of oil spillages on Florida’s interests or concerns. To rule as the District Court has done is to allow federal admiralty jurisdiction to swallow most of the police power of the States over oil spillage — an insidious form of pollution of vast concern to every coastal city or port and to all the estuaries on which the life of the ocean and the lives of the coastal people are greatly dependent.

It is clear at the outset that the Federal Act does not preclude, but in fact allows, state regulation. Section 1161 (o) provides that:

“(1) Nothing in this section shall affect or modify in any way the obligations of any owner or operator of any vessel, or of any owner or operator of any onshore facility or offshore facility to any person or agency under any provision of law for damages to any publicly-owned or privately-owned property resulting from a discharge of any oil or from the removal of any such oil.
“(2) Nothing in this section shall be construe as preempting any State or political subdivisio thereof from imposing any requirement or liabilit with respect to the discharge of oil into any waters within such State.
“(3) Nothing in this section shall be co strued ... to affect any State or logal law not conflict with this section.” (Emphasis added.)

According to the Conference Report, “any State would be free to provide requirements and penalties similar to those imposed by this section or additional requirements and penalties. These, however, would be separate and independent from those imposed by this section and would be enforced by the States through its courts.” (Emphasis added.) The Florida Act covers a wide range of “pollutants,” § 3 (7), and a restricted definition of pollution. § 3 (8). We have here, however, no question concerning any pollutant except oil.

I

The Federal Act, to be sure, contains a pervasive system of federal control over discharges of oil “into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone.” §1161 (b)(1). So far as liability is concerned, an owner or operator of a vessel is liable to the United States for actual costs incurred for the removal of oil discharged in violation of § 1161 (b) (2) in an amount “not to exceed $100 per gross ton of such vessel or $14,000,000, whichever is lesser,” § 1161 (f)(1), except for discharges caused solely by an act of God, act of war, negligence of the United States, or act or omission of another party. With like exceptions the owner or operator of an onshore or offshore facility is liable to the United States for the actual costs incurred by the United States in an amount not to exceed $8,000,000. § 1161 (f)(2)-(3). But in each case the owner or operator is liable to the United States for the full amount of the costs where the United States can show that the discharge of oil was “the result of willful negligence or willful misconduct within the privity and knowledge of the owner.” Comparable provisions of liability spell out the obligations of “a third party” to the United States for its actual costs incurred in the removal of the oil. § 1161 (g).

So far as vessels are concerned the federal Limited Liability Act, 46 U. S. C. §§ 181-189, extends to damages caused by oil spills even where the injury is to the shore. Richardson v. Harmon, 222 U. S. 96, 106. That Act limits the liabilities of the owners of vessels to the “value of such vessels and freight pending.” 46 U. S. C. § 189.

Section 12 of the Florida Act makes all licensees of terminal facilities “liable to the state for all costs of cleanup or other damage incurred by the state and for damages resulting from injury to others,” it not being necessary for the State to plead or prove negligence. There is no conflict between § 12 of the Florida Act and § 1161 of the Federal Act when it comes to damages to property interests, for the Federal Act reaches only costs of cleaning up. As respects damages, § 14 of the Florida Act requires evidence of financial responsibility of a terminal facility or vessel — a provision which does not conflict with the Federal Act.

The Solicitor General says that while the Limited Liability Act, so far as vessels are concerned, would override § 12 of the Florida Act by reason of the Supremacy Clause, the Limited Liability Act has no bearing on “facilities” regulated by the Florida Act. Moreover, § 12 has not yet been construed by the Florida courts and it is susceptible of an interpretation so jar as vessels are concerned which would be in harmony with the Federal Act. Section 12 does not in terms provide for unlimited liability.

Moreover, while the Federal Act determines damages measured by the cost to the United States for cleaning up oil spills, the damages specified in the Florida Act relate in part to the cost to the State of Florida in cleaning up the spillage. Those two sections are harmonious parts of an integrated whole. Section 1161 (c) (2) directs the President to prepare a National Contingency Plan for the 'containment, dispersal, and removal of oil. The plan must provide that federal agencies “shall” act “in coordination with State and local agencies.” Cooperative action with the States is also contemplated by § 1161 (e), which provides that “[i]n addition to any other action taken by a State or local government” the President may, when there is an imminent and substantial threat to the public health or welfare, direct the United States Attorney of the district in question to bring suit to abate the threat. The reason for the provision in § 1161 (o)(2), stating that nothing in § 1161 pre-empts any State “from imposing any requirement or liability with respect to the discharge of oil into any waters within such State,” is that the scheme of the Act is one which allows — though it does not require — cooperation of the federal regime with a state regime.

If Florida wants to take the lead in cleaning up oil spillage in her waters, she can use § 12 of the Florida Act and recoup her costs from those who did the damage. Whether the amount of costs she could recover from a wrongdoer is limited to those specified in the Federal Act and whether in turn this new Federal Act removes the pre-existing limitations of liability in the Limited Liability Act are questions we need not reach here. Any opinion on them is premature. It is sufficient for this day to hold that there is room for state action in cleaning up the waters of a State and recouping, at least within federal limits, so far as vessels are concerned, her costs.

Beyond that is the potential claim under § 12 of the Florida Act for “other damage incurred by the state and for damages resulting from injury to others.” The Federal Act in no way touches those areas. A State may have public beaches ruined by oil spills. Shrimp may be destroyed, and clam, oyster, and scallop beds ruined and the livelihood of fishermen imperiled. The Federal Act takes no cognizance of those claims but only of costs to the Federal Government, if it does the cleaning up.

We held in Skiriotes v. Florida, 313 U. S. 69, that while Congress had regulated the size of commercial sponges taken in Florida waters, it had not dealt with any diving apparatus that might be used. Florida had such a law and was allowed „ to enforce it against one of its citizens. Mr. Chief Justice Hughes, speaking for the Court, said: “It is also clear that Florida has an interest in the proper maintenance of the sponge fishery and that the statute so far as applied to conduct within the territorial waters of Florida, in the absence of conflicting federal legislation, is within the police power of the State.” Id., at 75.

Similarly, in Manchester v. Massachusetts, 139 U. S. 240, 266, we stated that if Congress fails to assume control of fisheries in a bay, “the right to control such fisheries must remain with the State which contains such bays.”

Florida in her brief accurately states that no remedy under the Federal Act exists for state or private property owners damaged by a massive oil slick such as hit England and France in 1967 in the Torrey Canyon disaster. The Torrey Canyon carried 880,000 barrels of crude oil. Today not only is more oil being moved by sea each year but the tankers are much larger.

“The average tanker used during World War II had a capacity of 16,000 tons, but by 1965 that average had risen to 27,000 tons, and new tankers delivered in 1966 averaged about 76,000 tons. A Japanese company has launched a 276,000-ton tanker, and other Japanese yards have orders for tankers as large as 312,000 tons. More than sixty tankers of 150,000 tons or more are on order throughout the world, tankers of 500,000 to 800,000 tons are on the drawing boards, and those of more than one million tons are thought to be feasible. On the new 1,010 foot British tanker 'Esso Mercia' two officers have been issued bicycles to help patrol the decks of the 166,890 ton vessel.

“The size of the tanker fleet itself is growing at a rate that rivals the growth in average size of new tankers. In 1955 the world tanker fleet numbered about 2,500 vessels. By 1965 it had increased to 3,500, and in 1968 it numbered some 4,300 ships. At the present time nearly one ship out of every five in the world merchant fleet is engaged in transporting oil, and nearly the entire fleet is powered by oil.''

Our Coast Guard reports that while in 1970 there were 3,711 oil spills in our waters, in 1971 there were 8,736. The damage to state interests already caused by oil spills, the increase in the number of oil spills, and the risk of ever-increasing damage by reason of the size of modern tankers underlie the concern of coastal States.

While the Federal Act is concerned only with actual cleanup costs incurred by the Federal Government, the State of Florida is concerned with its own cleanup costs. Hence there need be no collision between the Federal Act and the Florida Act because, as noted, the Federal Act presupposes a coordinated effort with the States, and any federal limitation of liability runs to “vessels,” not to shore “facilities.” That is one of the reasons why the Congress decided that the Federal Act does not pre-empt the States from establishing either “any requirement or liability” respecting oil spills.

Moreover, since Congress dealt only with “cleanup” costs, it left the States free to impose “liability” in damages for losses suffered both by the States and by private interests. The Florida Act imposes liability without fault. So far as liability without fault for damages to state and private interests is concerned, the police power has been held adequate for that purpose. State statutes imposing absolute liability on railroads for all property lost through fires caused by sparks emitted from locomotive engines have been sustained. St. Louis & San Francisco R. Co. v. Mathews, 165 U. S. 1. The Federal Act, however, while restricted to cleanup costs incurred by the United States, imposes limited liability for those costs and provides certain exceptions, unless willfulness is established. Where liability is imposed by §§ 1161 (f)-(g), previously summarized, the United States may recover the full amount of the costs where the oil spillage was the result of “willful negligence or willful misconduct.” If the coordinated federal plan in actual operation leaves the State of Florida to do the cleanup work, there might be financial burdens imposed greater than would have been imposed had the Federal Government done the cleanup work. But it will be time to resolve any such conflict between federal and state regimes when it arises.

Nor can we say at this point that regulations of the Florida Department of Natural Resources requiring “containment gear” pursuant to § 7 (2) (a) of the Florida Act would be per se invalid because the subject to be regulated requires uniform federal regulation. Cf. Huron Cement Co. v. Detroit, 362 U. S. 440. Resolution of this question, as well as the question whether such regulations will conflict with Coast Guard regulations promulgated on December 21, 1972, pursuant to § 1161 (j)(1) of the Federal Act, 37 Fed. Reg. 28250, should await a concrete dispute under applicable Florida regulations. Finally, the provision of the Florida Act requiring the licensing of terminal facilities, a traditional state concern, creates no conflict per se with federal legislation. Section 1171 (b)(1) of the Federal Act provides that federal permits will not be issued to terminal facility operators or owners unless the applicant first supplies a certificate from the State that his operation “will be conducted in a manner which will not violate applicable water quality standards.” And Tit. I, § 102 (b), of the recently enacted Ports and Waterways Safety Act of 1972, Pub. L. 92-340, 86 Stat. 426, 33 U. S. C. § 1222 (b) (1970 ed., Supp. II), provides that the Act does not prevent “a State or political subdivision thereof from prescribing for structures only higher safety equipment requirements or safety standards than those which may be prescribed pursuant to this title.”

II

And so, in the absence of federal pre-emption and any fatal conflict between the statutory schemes, the issue comes down to whether a State constitutionally may exercise its police power respecting maritime activities concurrently with the Federal Government.

The main barriers found by the District Court to the Florida Act are Southern Pacific Co. v. Jensen, 244 U. S. 205, and its progeny. Jensen held that a maritime worker on a vessel in navigable waters could not constitutionally receive an award under New York’s workmen’s compensation law, because the remedy in admiralty was exclusive. Later, in Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, after Congress expressly allowed the States in such cases to grant a remedy, the Court held that Congress had no such power.

But those decisions have been limited by subsequent holdings of this Court. As stated by Mr. Justice Frankfurter in Romero v. International Terminal Co., 358 U. S. 354, 373, Jensen and its progeny mark isolated instances where “state law must yield to the needs of a uniform federal maritime law when this Court finds inroads on a harmonious system.” Mr. Justice Frankfurter added, however: “But this limitation still leaves the States a wide scope. State-created liens are enforced in admiralty. State remedies for wrongful death and state statutes providing for the survival of actions, both historically absent from the relief offered by the admiralty, have been upheld when applied to maritime causes of action. Federal courts have enforced these statutes. State rules for the partition and sale of ships, state laws governing the specific performance of arbitration agreements, state laws regulating the effect of a breach of warranty under contracts of maritime insurance — all these laws and others have been accepted as rules of decision in admiralty cases, even, at times, when they conflicted with a rule of maritime law which did not require uniformity.” Id., at 373-374.

Moreover, in Just v. Chambers, 312 U. S. 383, we gave our approval to The City of Norwalk, 55 F. 98, written by Judge Addison Brown, holding that a State may modify or supplement maritime law even by creating a liability which a court of admiralty would recognize and enforce, provided the state action is not hostile “to the characteristic features of the maritime law or inconsistent with federal legislation,” 312 U. S., at 388. Mr. Chief Justice Hughes after citing Steamboat Co. v. Chase, 16 Wall. 522, and Sherlock v. Alling, 93 U. S. 99, went on to hold that, while no suit for wrongful death would lie in the federal courts under general maritime law, state statutes giving damages in such cases were valid. He said, “The grounds of objection to the admiralty jurisdiction in enforcing liability for wrongful death were similar to those urged here; that is, that the Constitution presupposes a body of maritime law, that this law, as a matter of interstate and international concern, requires harmony in its administration and cannot be subject to defeat or impairment by the diverse legislation of the States, and hence that Congress alone can make any needed changes in the general rules of the maritime law. But these contentions proved unavailing and the principle was maintained that a State, in the exercise of its police power, may establish rules applicable on land and water within its limits, even though these rules incidentally affect maritime affairs, provided that the state action ‘does not contravene any acts of Congress, nor work any prejudice to the characteristic features of the maritime law, nor interfere with its proper harmony and uniformity in its international and interstate relations.’ It was decided that the state legislation encountered none of these objections. The many instances in which state action had created new rights, recognized and enforced in admiralty, were set forth in The City of Norwalk, and reference was also made to the numerous local regulations under state authority concerning the navigation of rivers and harbors. There was the further pertinent observation that the maritime law was not a complete and perfect system and that in all maritime countries there is a considerable body of municipal law that underlies the maritime law as the basis of its administration. These views find abundant support in the history of the maritime law and in the decisions of this Court.” 312 U. S., at 389-390.

Mr. Chief Justice Hughes added that our decisions as of 1941, the date of Just v. Chambers, gave broad “recognition of the authority of the States to create rights and liabilities with respect to conduct within their borders, when the state action does not run counter to federal laws or the essential features of an exclusive federal jurisdiction.” Id., at 391.

Historically, damages to the shore or to shore facilities were not cognizable in admiralty. See, e. g., The Plymouth, 3 Wall. 20; Martin v. West, 222 U. S. 191. Mr. Justice Story wrote in 1813, “In regard to torts I have always understood, that the jurisdiction of the admiralty is exclusively dependent upon the locality of the act. The admiralty has not, and never (I believe) deliberately claimed to have any jurisdiction over torts, except such as are maritime torts, that is, such as are committed on the high seas, or on waters within the ebb and flow of the tide.” Thomas v. Lane, 23 F. Cas. 957, 960 (No. 13,902) (CC Me.).

On June 19, 1948, Congress enacted the Admiralty Extension Act, 46 U. S. C. § 740. The Court considered the Act in Victory Carriers, Inc. v. Law, 404 U. S. 202. In that case, the Court held that the Admiralty Extension Act did not apply to a longshoreman performing loading and unloading services on the dock. The longshoreman was relegated to his remedy under the state workmen’s compensation law. Id., at 215. The Court said, “At least in the absence of explicit congressional authorization, we shall not extend the historic boundaries of the maritime law.” Id., at 214.

The Admiralty Extension Act has survived constitutional attack in the lower federal courts and was applied without question by this Court in Gutierrez v. Waterman S. S. Corp., 373 U. S. 206. The Court recognized in Victory Carriers, however, that the Act may “intrude on an area that has heretofore been reserved for state law.” Id., at 212. It cautioned that under these circumstances, “we should proceed with caution in construing constitutional and statutory provisions dealing with the jurisdiction of the federal courts.” Ibid. While Congress has extended admiralty jurisdiction beyond the boundaries contemplated by the Framers, it hardly follows from the constitutionality of that extension that we must sanctify the federal courts with exclusive jurisdiction to the exclusion of powers traditionally within the competence of the States. One can read the history of the Admiralty Extension Act without finding any clear indication that Congress intended that sea-to-shore injuries be exclusively triable in the federal courts.

Even though Congress has acted in the admiralty area, state regulation is permissible, absent a clear conflict with the federal law. Thus in Kelly v. Washington, 302 U. S. 1, it appeared that, while Congress had provided a comprehensive system of inspection of vessels on navigable waters, id., at 4, the State of Washington also had a comprehensive code of inspection. Some of those state standards conflicted with the federal requirements, id., at 14-15; but those provisions of the Washington law relating to safety and seaworthiness were not in conflict with the federal law. So the question was whether the absence of congressional action and the need for uniformity of regulation barred state action. Mr. Chief Justice Hughes, writing for the Court, ruled in the negative, saying:

“A vessel which is actually unsafe and unseaworthy in the primary and commonly understood sense is not within the protection of that principle. The State may treat it as it may treat a diseased animal or unwholesome food. In such a matter, the State may protect its people without waiting for federal action providing the state action does not come into conflict with federal rules. If, however, the State goes farther and attempts to impose particular standards as to structure, design, equipment and operation which in the judgment of its authorities may be desirable but pass beyond what is plainly essential to safety and seaworthiness, the State will encounter the principle that such requirements, if imposed at all, must be through the action of Congress which can establish a uniform rule. Whether the State in a particular matter goes too far must be left to be determined when the precise question arises.” Id., at 15.

That decision was rendered before the Admiralty Extension Act was passed.

Huron Cement Co. v. Detroit, 362 U. S. 440, however, arose after that Act became effective. Ships cruising navigable waters and inspected and licensed under federal acts were charged with violating Detroit’s Smoke Abatement Code. The company and its agents were, indeed, criminally charged with violating that Code. The Court in sustaining the state prosecution said:

“The ordinance was enacted for the manifest purpose of promoting the health and welfare of the city’s inhabitants. Legislation designed to free from pollution the very air that people breathe clearly falls within the exercise of even the most traditional concept of what is compendiously known as the police power. In the exercise of that power, the states and their instrumentalities may act, in many areas of interstate commerce and maritime activities, concurrently with the federal government.” Id., at 442.

The Court reasoned that there was room for local control since federal inspection was “limited to affording protection from the perils of maritime navigation,” while the Detroit ordinance was aimed at “the elimination of air pollution to protect the health and enhance the cleanliness of the local community.” Id., at 445. The Court, in reviewing prior decisions, noted that a federally licensed vessel was not exempt (1) “from local pilotage laws”; (2) “local quarantine laws”; (3) “local safety inspections”; or (4) “local regulation of wharves and docks.” Id., at 447.

It follows, a fortiori, that sea-to-shore pollution — historically within the reach of the police power of the States — is not silently taken away from the States by the Admiralty Extension Act, which does not purport to supply the exclusive remedy.

As discussed above, we cannot say with certainty at this stage that the Florida Act conflicts with any federal Act. We have only the question whether the waiver of pre-emption by Congress in § 1161 (o) (2) concerning the imposition by a State of “any requirement or liability” is valid.

It is valid unless the rule of Jensen and Knickerbocker Ice is to engulf everything that Congress chose to call “admiralty,” pre-empting state action. Jensen and Knickerbocker Ice have been confined to their facts, viz., to suits relating to the relationship of vessels, plying the high seas and our navigable waters, and to their crews. The fact that a whole system of liabilities was established on the basis of those two cases, led us years ago to establish the “twilight zone” where state regulation was permissible. See Davis v. Department of Labor, 317 U. S. 249, 252-253. Where there was a hearing by a federal agency and a conclusion by that agency that the case fell within the federal jurisdiction, we made its findings final. Ibid. Where there were no such findings, we presumed state law, in terms applicable, was constitutional. Id., at 257-258. That is the way the “twilight zone” has been defined.

Jensen thus has vitality left. But we decline to move the Jensen line of cases shoreward to oust state law from situations involving shoreside injuries by ships on navigable waters. The Admiralty Extension Act does not pre-empt state law in those situations. See Nacirema Operating Co. v. Johnson, 396 U. S. 212.

The judgment below is

Reversed.

       At the hearing on plaintiffs-appellees’ application for a temporary restraining order, it was indicated that none of the plaintiffs had attempted to comply with the Florida Act. Shipowners and operators had threatened to divert their vessels from Florida ports.

       The Water Quality Improvement Act of 1970 was amended after this case was docketed by the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, 33 U. S. C. §§ 1251-1376. Since the sections of the 1970 Act cited in the opinion have not been substantially changed, references to the 1970 Act have been retained.

       H. R. Conf. Rep. No. 91-940, p. 42.

       Those required to obtain a license are those who operate a terminal facility. §6(1). But licenses to terminal facilities include “vessels used to transport oil, petroleum products, their by-products, and other pollutants between the facility and vessels within state waters.” § 6 (4).

       Section 12 also provides that the pilot or the master of any vessel or person in charge of any licensee’s terminal facility who fails “to give immediate notification of a discharge to the port manager and the nearest coast guard station” may be imprisoned for not more than two years or fined not more than $10,000.

       As to the damages of oil spills to ecological factors it was recently said in 10 Harv. Int’l L. J. 316, 321-323 (1969):
      “Some damage to marine life is obvious in the wake of a disaster such as the one which befell the ‘Torrey Canyon.’ Surface feeding fishes die when they swim into floating oil, and even slight, non-fatal contact may render their flesh inedible. Shellfish, among others, are also vulnerable to oil pollution. When the tanker ‘P. W. Thirtle’ grounded off Newport, Rhode Island, 31,000 gallons of heavy black oil were discharged from her tanks in an effort to refloat the ship; the result of this was the virtual destruction of the entire oyster fishery of Narragansett Bay. The most serious consequences of oil pollution, however, may not be those which are immediately obvious.
      “According to Dr. Erwin S. Iversen, a marine biologist:
      “ ‘The greatest problem may be the toxic effects on the intertidal animals that serve as food for the other more important fishes. . . . I don’t think the effect is merely that of killing large populations of commercial fishes. Worse than that, it interrupts the so-called food chain.’
      “There have been few specific studies of the effect that oil accumulation has on this food chain. One study, conducted by Dr. Paul Galtsoff of the United States Fish and Wildlife Service, found that the diatoms on which oysters feed will not grow where there is even a slight trace of oil on the water. The effect of oil on such microscopic marine plant life may be of great importance, because it is estimated that it takes as much as ten pounds of plant matter to produce one pound of fish.
      “Large scale oil pollution, such as that which occurred when the ‘Torrey Canyon’ ran into the Seven Stones Reef, results in huge losses of water birds. Aside from humane and aesthetic considerations, these birds play a vital role in the ecology of the seashore, a role which profoundly affects the fishing industry. The uncertainty as to the actual extent of the damage done to marine life by oil pollution makes it difficult to estimate the economic effect of such damage, but the importance of the fishing industry within the world’s economy is not in doubt and is steadily increasing. Between 1958 and 1963, for example, there was a 42% rise in the world catch. Because of the increasing importance of seafood protein, future damage to marine life will have progressively greater economic consequences.
      “Perhaps the most noticeable damage caused by oil pollution is the fouling of recreational beaches and shorefront property. One-half million tons of oil are washed ashore each year, rendering beaches unfit for swimming and filling the air with unpleasant odors. Besides the annoyance that this causes a vacationing public seeking relief from urban life, economic loss may be considerable. It is estimated, for example, that a serious oil spill off Long Island during the summer months would cost resort and beach operators thirty million dollars. Oil spills also create navigational and fire hazards in harbors, ports and marinas.” (Footnotes omitted.)

       Brief for Appellants 25.

       10 Harv. Int’l L. J., at 317-318 (footnotes omitted).

       Polluting Incidents In and Around U. S. Waters, Calendar Year 1971, Environmental Protection, Commandant U. S. Coast Guard.

       A statement we recently quoted with approval in Executive Jet Aviation, Inc. v. City of Cleveland, 409 U. S. 249, 253, and Victory Carriers, Inc. v. Law, 404 U. S. 202, 205.

       It provides in relevant part: “The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.”

       The Longshoremen’s and Harbor Workers’ Compensation Act, 33 U. S. C. § 901 et seq., recently was amended to cover employees working on shoreside areas customarily used by an employer in loading, unloading, repairing, or building a vessel. Longshoremen’s and Harbor Workers’ Compensation Act Amendments of 1972, Pub. L. 92-576, §2, 86 Stat. 1251.

       See Victory Carriers, supra, at 209 n. 9.

       See H. R. Rep. No. 1523, 80th Cong., 2d Sess.; S. Rep. No. 1593, 80th Cong., 2d Sess.


author: Mr. Justice Brennan Me. Justice Blackmun, Mr. Justice Rehnquist,

text:
    HENSLEY v. MUNICIPAL COURT, SAN JOSEMILPITAS JUDICIAL DISTRICT, SANTA CLARA COUNTY
    No. 71-1428.
    Argued January 15,1973
    Decided April 18,1973
    Brennan, J., delivered the opinion of the Court, in which Douglas, Stewart, White, and Marshall, JJ., joined. Blackmun, J., filed an opinion concurring in the result, post, p. 353. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and Powell, J., joined, post, p. 354.

      Stanley A. Bass argued the cause for petitioner. With him on the brief were Jack Greenberg and Peter R. Stromer.

      Dennis Alan Lempert argued the cause for respondent. With him on the brief was Louis P. Bergna.

   Mr. Justice Brennan

delivered the opinion of the Court.

This case requires us to determine whether a person released on his own recognizance is “in custody” within the meaning of the federal habeas corpus statute, 28 U. S. C. §§ 2241 (c)(3), 2254 (a). See Peyton v. Rowe, 391 U. S. 54 (1968); Carajas v. LaVallee, 391 U. S. 234 (1968); Jones v. Cunningham, 371 U. S. 236 (1963). Petitioner initiated this action in the United States District Court for the Northern District of California, challenging a state court conviction on First and Fourteenth Amendment grounds. The court denied relief, holding that since the petitioner was enlarged on his own recognizance pending execution of sentence, he was not yet “in custody” for purposes of the habeas corpus statute. The Court of Appeals for the Ninth Circuit agreed that release on one’s own recognizance is not sufficient custody to confer jurisdiction on the District Court, and affirmed the judgment. 453 F. 2d 1252 (1972). We granted certiorari, 409 U. S. 840 (1972), and we reverse.

Convicted of a misdemeanor in California Municipal Court for violation of § 29007 of the California Education Code, petitioner was sentenced to serve one year in jail and pay a fine of $625. He appealed his conviction unsuccessfully to the Appellate Department of the Superior Court, and his efforts to have the conviction set aside on state court collateral attack have proved equally unavailing. It appears that petitioner exhausted all available state court remedies prior to filing this petition for federal habeas corpus. See 28 U. S. C. §2254 (b).

At all times since his conviction petitioner has been enlarged on his own recognizance. While pursuing his state court remedies he remained at large under an order of the state trial court staying execution of his sentence. And the state trial court extended its stay, even after the Supreme Court of California declined to hear his application for postconviction relief, apparently to permit petitioner to remain at large while seeking habeas corpus in the United States District Court. Pending appeal from the District Court's denial of relief, an application for extension of the state court stay was granted by Mr. Justice Black, as Acting Circuit Justice, on August 12, 1970, and extended by Mr. Justice Douglas, as Circuit Justice, on August 20, 1970, and again on September 9, 1970. The Court of Appeals affirmed the denial of habeas corpus, but granted a 30-day stay of its mandate pending application for certiorari. That stay was extended by Mr. Justice Douglas, as Circuit Justice, on March 20, 1972, and it is pursuant to his order that petitioner remains at large at the present time.

The California Penal Code provides that any court that may release a defendant upon his giving bail may release him on his own recognizance, provided he agrees in writing that:

“(a) He will appear at all times and places as ordered by the court or magistrate releasing him and as ordered by any court in which, or any magistrate before whom, the charge is subsequently pending.
“(b) If he fails to so appear and is apprehended outside of the State of California, he waives extradition.
“(c) Any court or magistrate of competent jurisdiction may revoke the order of release and either return him to custody or require that he give bail or other assurance of his appearance . . . .” Cal. Penal Code § 1318.4.

A defendant is subject to re-arrest if he fails to appear as agreed, id., § 1318.8 (a), and a willful failure to appear is itself a criminal offense. Id., § 1319.6. We assume that these statutory conditions have been imposed on petitioner at all times since the state trial court stayed execution of his sentence.

The question presented for our decision is a narrow one: namely, whether the conditions imposed on petitioner as the price of his release constitute “custody” as that term is used in the habeas corpus statute. Respondent contends that the conditions imposed on petitioner are significantly less restrictive than those imposed on the petitioner in Jones v. Cunningham, 371 U. S. 236 (1963), where we held that a person released on parole is “in custody” for purposes of the district courts’ habeas corpus jurisdiction. It is true, of course, that the parolee is generally subject to greater restrictions on his liberty of movement than a person released on bail or his own recognizance. And some lower courts have reasoned that this difference precludes an extension of the writ in cases such as the one before us. On the other hand, a substantial number of courts, perhaps a majority, have concluded that a person released on bail or on his own recognizance may be “in custody” within the meaning of the statute. In view of the analysis, which led to a finding of custody in Jones v. Cunningham, supra, we conclude that this latter line of cases reflects the sounder view.

While the “rhetoric celebrating habeas corpus has changed little over the centuries,” it is nevertheless true that the functions of the writ have undergone dramatic change. Our recent' decisions have reasoned from the premise that habeas corpus is not “a static, narrow, formalistic remedy,” Jones v. Cunningham, supra, at 243, but one which must retain the “ability to cut through barriers of form and procedural mazes.” Harris v. Nelson, 394 U. S. 286, 291 (1969). See Frank v. Mangum, 237 U. S. 309, 346 (1915) (Holmes, J., dissenting). “The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.” Harris v. Nelson, supra, at 291.

Thus, we have consistently rejected interpretations of the habeas corpus statute that would suffocate the writ in stifling formalisms or hobble its effectiveness with the manacles of arcane and scholastic procedural requirements. The demand for speed, flexibility, and simplicity is clearly evident in our decisions concerning the exhaustion doctrine, Fay v. Noia, 372 U. S. 391 (1963); Brown v. Allen, 344 U. S. 443 (1953); the criteria for relitigation of factual questions, Townsend v. Sain, 372 U. S. 293 (1963); the prematurity doctrine, Peyton v. Rowe, 391 U. S. 54 (1968); the choice of forum, Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973); Strait v. Laird, 406 U. S. 341 (1972); and the procedural requirements of a habeas corpus hearing, Harris v. Nelson, supra. That same theme has indelibly marked our construction of the statute’s custody requirement. See Strait v. Laird, supra; Peyton v. Rowe, supra; Carafas v. LaVallee, 391 U. S. 234 (1968); Walker v. Wainwright, 390 U. S. 335 (1968); Jones v. Cunningham, supra.

The custody requirement of the habeas corpus statute is designed to preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty. Since habeas corpus is an extraordinary remedy whose operation is to a large extent uninhibited by traditional rules of finality and federalism, its use has been limited to cases of special urgency, leaving more conventional remedies for cases in which the restraints on liberty are neither severe nor immediate. Applying that principle, we can only conclude that petitioner is in custody for purposes of the habeas corpus statute. First, he is subject to restraints “not shared by the public generally,” Jones v. Cunningham, supra, at 240: that is, the obligation to appear “at all times and places as ordered” by “[a]ny court or magistrate of competent jurisdiction.” Cal. Penal Code §§ 1318.4 (a), 1318.4(c). He cannot come and go as he pleases. His freedom of movement rests in the hands of state judicial officers, who may demand his presence at any time and without a moment’s notice. Disobedience is itself a criminal offense. The restraint on his liberty is surely no less severe than the conditions imposed on the unattached reserve officer whom we held to be “in custody” in Strait v. Laird, supra.

Second, petitioner remains at large only by the grace of a stay entered first by the state trial court and then extended by two Justices of this Court. The State has emphatically indicated its determination to put him behind bars, and the State has taken every possible step to secure that result. His incarceration is not, in other words, a speculative possibility that depends on a number of contingencies over which he has no control. This is not a case where the unfolding of events may render the entire controversy academic. The petitioner has been forced to fend off the state authorities by means of a stay, and those authorities retain the determination and the power to seize him as soon as the obstacle of the stay is removed. The need to keep the stay in force is itself an unusual and substantial impairment of his liberty.

Moreover, our conclusion that the petitioner is presently in custody does not interfere with any significant interest of the State. Indeed, even if we were to accept respondent’s argument that petitioner is not in custody, that result would do no more than postpone this habeas corpus action until petitioner had begun service of his sentence. It would still remain open to the District Court to order petitioner’s release pending consideration of his habeas corpus claim. In re Shuttlesworth, 369 U. S. 35 (1962). Even if petitioner remained in jail only long enough to have his petition filed in the District Court, his release by order of the District Court would not jeopardize his “custody” for purposes of a habeas corpus action. Carafas v. LaVallee, supra. Plainly, we would badly serve the purposes and the history of the writ to hold that under these circumstances the petitioner’s failure to spend even 10 minutes in jail is enough to deprive the District Court of power to hear his constitutional claim.

Finally, we emphasize that our decision does not open the doors of the district courts to the habeas corpus petitions of all persons released on bail or on their own recognizance. We are concerned here with a petitioner who has been convicted in state court and who has apparently exhausted all available state court opportunities to have that conviction set aside. Where a state defendant is released on bail or on his own recognizance pending trial or pending appeal, he must still contend with the requirements of the exhaustion doctrine if he seeks habeas corpus relief in the federal courts. Nothing in today’s opinion alters the application of that doctrine to such a defendant.

Since the Court of Appeals erroneously concluded that petitioner was not “in custody” at the time his petition was filed, its judgment is reversed and the case is remanded to the District Court to consider his petition for a writ of habeas corpus.

Reversed and remanded.

Me. Justice Blackmun,

concurring in the result.

I emphasize again, as I did in my separate concurrence in Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 501 (1973), that the Court has wandered a long way down the road in expanding traditional notions of habeas corpus. Indeed, the Court now concedes this. Ante, at 349. The present case is yet another step. Although recognizing that the custody requirement is designed to preserve the writ as a remedy for severe restraints on individual liberty, ante, at 351, the Court seems now to equate custody with almost any restraint, however tenuous. One wonders where the end is. Nevertheless, in the light of cases already decided by the Court, I feel compelled to go along and therefore concur in the result.

Mr. Justice Rehnquist,

with whom The Chief Justice and Mr. Justice Powell join,

dissenting.

The issue in this case is whether petitioner was in “custody,” within the meaning of 28 U. S. C. § 2241, entitling him to the benefit of the extraordinary writ of habeas corpus. The Court of Appeals for the Ninth Circuit unanimously held that he was neither in actual nor constructive custody. If there is any vestige left of the obvious and the original meaning of “custody” the court below was right and the majority opinion of this Court today has further stretched both the letter and the rationale of the statute.

Petitioner has been free on his own recognizance since his conviction and the imposition of sentence in the summer of 1969. The California statute authorizing his release imposes no territorial or supervisory limitations and he has been subject to none. He has not been required to post any security for his appearance. At the time of the filing of his federal habeas petition, the only conceivable restraint on him was that at the time of the expiration of the stay granted by the state court, petitioner would have had to surrender himself to the custody of the sheriff. The record shows that for the three and one-half years since his conviction, petitioner has utilized his freedom to travel both within and without the State of California for business purposes.

Petitioner was under no greater restriction than one who had been subpoenaed to testify in court as a witness.

This is simply not “custody” in any known sense of the word, and it surely is not what was meant by Congress when it enacted 28 U. S. C. § 2241. The Court apparently feels, like Faust, that it has in its previous decisions already made its bargain with the devil, and it does not shy from this final step in the rewriting of the statute. I cannot agree, and I therefore dissent.

       The Court of Appeals concluded that the question was controlled by a prior decision of the same court, Matysek v. United States, 339 F. 2d 389 (1964).

       Petitioner was convicted of awarding Doctor of Divinity degrees without obtaining the necessary accreditation. He defended the charge on the grounds that he is the chief presiding officer of a bona fide church, that his church has awarded honorary Doctor of Divinity certificates to persons who have completed a course of instruction in the church’s principles, and that state interference with this practice is an unconstitutional restraint on the free exercise of his religious beliefs.

       There is a substantial question whether petitioner has forfeited the right to raise his First and Fourteenth Amendment challenge to the state court conviction by deliberately bypassing an opportunity to raise the claim in the state courts. See Fay v. Noia, 372 U. S. 391 (1963). Respondent maintains that petitioner deliberately absented himself from trial following the close of the prosecution’s case, with full knowledge that the trial would continue in his absence. He thereby relinquished, respondent contends, the right to defend himself and present evidence on his behalf. Petitioner argues in response that trial counsel failed to advise him of the reopening of trial and failed to warn him that absence from trial would lead to conviction. Accordingly, he asserts that he should not be held to have knowingly and intelligently bypassed an available state procedure. The record on-this point is more than a little obscure, and we express no opinion on the question beyond noting that the issue was not considered, much less resolved, by either of the courts below, and it is not in any sense presented for our decision.

       In his Motion for Stay, filed in this Court on August 11, 1970, and addressed to the Circuit Justice of the Ninth Circuit, petitioner explained that the “Stay of Execution granted by the Trial Court is scheduled to expire on August 12, 1970, at which time petitioner has been ordered to surrender himself to the Sheriff of Santa Clara County for immediate incarceration.” Motion for Stay 2.

       See, e. g., United States ex rel. Meyer v. Weil, 458 F. 2d 1068 (CA7 1972); Allen v. United States, 349 F. 2d 362 (CA1 1965); Application of Jackson, 338 F. Supp. 1225 (WD Term. 1971); United States ex rel. Granello v. Krueger, 306 F. Supp. 1046 (EDNY 1969) ; Moss v. Maryland, 272 F. Supp. 371 (Md. 1967).

       See, e. g., Capler v. City of Greenville, 422 F. 2d 299, 301 (CA5 1970); Marden v. Purdy, 409 F. 2d 784, 785 (CA5 1969); Beck v. Winters, 407 F. 2d 125, 126-127 (CA8 1969); Burris v. Ryan, 397 F. 2d 553, 555 (CA7 1968); United States ex rel. Smith v. DiBella, 314 F. Supp. 446 (Conn. 1970); Ouletta v. Sarver, 307 F. Supp. 1099, 1101 n. 1 (ED Ark. 1970), aff’d, 428 F. 2d 804 (CA8 1970); Cantillon v. Superior Court, 305 F. Supp. 304, 306-307 (CD Cal. 1969); Matzner v. Davenport, 288 F. Supp. 636, 638 n. 1 (NJ 1968), aff’d, 410 F. 2d 1376 (CA3 1969); Nash v. Purdy, 283 F. Supp. 837, 838-839 (SD Fla. 1968); Duncombe v. New York, 267 F. Supp. 103, 109 n. 9 (SDNY 1967); Foster v. Gilbert, 264 F. Supp. 209, 211-212 (SD Fla. 1967). In addition, the Supreme Court of California has concluded that release on one’s own recognizance under the laws of that State imposes “sufficient constructive custody” to permit an application for writ of habeas corpus. In re Smiley, 66 Cal. 2d 606, 613, 427 P. 2d 179, 183 (1967).

       Note, Developments in the Law — Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1040 (1970).

       Insofar as former decisions, Stallings v. Splain, 253 U. S. 339 (1920); Johnson v. Hoy, 227 U. S. 245 (1913); Baker v. Grice, 169 U. S. 284 (1898); Wales v. Whitney, 114 U. S. 564 (1885), may indicate a narrower reading of the custody requirement, they may no longer be deemed controlling. In none of the decisions on which we today rely, Strait v. Laird, supra; Peyton v. Rowe, supra; Carafas v. LaVallee, supra; Jones v. Cunningham, supra, are these earlier cases even cited in the opinions of the Court.

       Similarly, in Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973), where the Commonwealth of Kentucky had lodged a detainer against a prisoner in an Alabama jail, we held that the petitioner was in the custody of Kentucky officials for purposes of his habeas corpus action.

       By contrast, a finding of no “custody” in Carafas v. LaVallee, supra, would not merely have postponed the exercise of habeas corpus jurisdiction, but would have barred it altogether. Similarly, if we had held in Jones v. Cunningham, supra, that a parolee is not in custody, then habeas corpus jurisdiction could not have been exercised until such time as release on parole was revoked. Cf. Peyton v. Rowe, supra.

       See United, States ex rel. Pon v. Esperdy, 296 F. Supp. 726 (SDNY 1969); Goldberg v. Hendrick, 254 F. Supp. 286, 288-289 (ED Pa. 1966).