authorities and delegated them to the new Federal Government and directly affecting state pilotage was that contained in the Commerce Clause of the Constitution, which reads: "The Congress shall have the power-to regulate commerce with foreign nations and among the several States . . ." (Article 1, Sec. 8, Par. 3).

Any question or doubt as to whether pilotage legislation falls within the Commerce Clause of the Constitution has long since been resolved by the Supreme Court and recognized legal scholars. One of the basic textbooks on Admiralty Law states unreservedly: "Pilotage is embraced within the federal power to regulate commerce." (Robinson on Admiralty, p. 688).

It was in recognition of this fact that the First Congress of the United States moved quickly to leave undisturbed the pilotage systems of the several States. It enacted legislation expressly providing for the continuance and expansion of the state pilotage systems by an amendment to the Lighthouse Act of August 7, 1789. This amendment provided: "Until further provision is made by Congress all pilots in the bays, inlets, rivers, harbors and ports of the United States, shall continue to be regulated in conformity with the existing laws of the States respectively wherein such pilots may be, or with such laws as the States may respectively enact for the purpose until further legislative provision shall be made by Congress." (Act of August 7, 1789; 46 .US.C. 211).

Compulsory State pilotage has stood the test of time and has been recognized by state after state to be in its sovereign interest in providing a safe and efficient system of water commerce. The federal courts have also recognized the underlying rationale for compulsory pilotage in numerous cases such as The Framlington Court wherein it was observed that:

A pilot is employed because he is presumed to have knowledge of the tides and currents and their effects upon the ship and of all other dangers affecting the safety of the vessel due to local conditions. The master, however competent he might be to navigate his ship in the open waters of the ocean, would not be expected to have this knowledge. (69 F. 2d 300, 304 (5th Cir. 1934).

Compulsory State pilotage has historically provided the seaports of our states with dedicated, competent and highly skilled local pilots who are thoroughly familiar with the ports, channels, bars, shoals, reefs, tides, currents, prevailing winds, buoys, wharves, traffic and all other information pertinent to ship transit. Such data is obviously essential to the safety on incoming and outgoing vessels, their personnel and cargo and is only obtainable by daily experience in observing the characteristics of the specific port. Contrary to AIMS claim that employees of the vessel should be allowed to do their own piloting, it has been accepted upon proof of many years that it is impossible for a master calling at a port occassionally to safely act as his own pilot in good weather and bad without impeding the efficient flow of water commerce and endangering not only his employer's property, but also the property and lives of others using the port. The reasons why this causes unsafe conditions are numerous. For example, between calls at a port of an ocean vessel the channels may change, a buoy may be moved, lights altered, new debris may obstruct an old sealane, or an unchartered submerged object may be discovered or there may be a change in regulations or patterns for local vessel traffic systems. The recent dramatic increase in the size of vessels now transiting our pilotage waters requires considerable skill and local experience to insure safe maneuvering in the confined waters of our ports. A ships master or other members of a ship's company would not have any way of knowing and solving all of the probems that arise, but the local qualified pilots keep themselves fully aware of the ever altering circumstances and will direct the vessels in such a manner as to avoid these hazards to safety. As recently as December, 1975 the Sub-Committee on Standards of Training and Watchkeeping, in its Report to the Maritime Safety Committee of I.M.C.O. stated that it would not be practical to develop international standards of training and qualifications for maritime pilots since requirements for pilots in coastal, estuarial, river and port areas are greatly dependent upon local conditions.

In 1960, when the United States Congress passed the law providing for compulsory pilotage on the Great Lakes, the law followed a basic pattern similar to that of compulsory state pilotage systems by authorizing the formation of voluntary associations of the United States registered pilots to furnish the arrangements and facilities necessary for the efficient dispatching of vessels and the rendering of pilotage services required by the federal law. These associations, or pilot pools, are regulated by the federal government, which establishes, by regulations, fair and equitable rates, conditions and terms giving due considerration to public interest.

Of course in 1972, the Congress of the United States reaffirmed the grant to the states to control pilotage on vessels engaged in foreign trades while also recognizing the need for pilotage when it passed the "Ports and Waterways Safety Act of 1972" (P.L. 92-340) which you are now reviewing. A provision in Title I of the Act reads: "the Secretary of the Department in which the Coast Guard is operating may-require pilots on self-propelled vessels engaged in the foreign trades in areas and under circumstances where a pilot is not otherwise required by State law to be on board until the State having jurisdiction of an area involved establishes a requirement for a pilot in that area or under the circumstances involved."

It is clear from the historical background set forth above that AIMS' contention that the Coast Guard can by "rulemaking" impose a uniform Federal system of pilotage and require all pilots serving foreing vessels and United States vessels operating in the foreign trades to possess a Federal pilots license issued by the Coast Guard as a condition of employment is fallacious. If the Federal government is going to remove the regulation of pilots and pilotage regarding foreign commerce from the States it could only be accomplished through legislative mandate such as occurred over 100 years ago with regard to U.S. flag vessels in the domestic or coastwise trade (See 46 U.S.C. 215).

AIMS rationale is apparently that if the Coast Guard is charged with the responsibility to establish and administer vessel traffic rules in our ports and harbors, it must also have the power to regulate all pilots by requiring a Federel license as a basic condition of their employment. As is apparent from Mr. Reynolds' testimony on H.R. 8140 in 1971 (transcript pp. 73–78), what AIMS proposes would be to impose a situation that would inexorably result in a complete disruption of the State pilotage system that has existed since 1789. It would also subject the pilots to possible dual penalties. The proposal would vest in the Federal government the right to allow the pilot to sail his ship or not, whereas since 1789 that authority was vested in the States by the Congress. The State systems has worked very satisfactorily over the years and AIMS has never produced any evidence to the contrary. Indeed, Mr. Reynolds acknowledges (p. 7 of his prepared testimony) that virtually all State pilots already possess Federal licenses and he even testified during the House hearing referred to above, that the industry recognized the overwhelming number of State pilots as being “responsible, competent individuals" (transcript p. 73). What AIMS proposes is an unprecedented invasion of the authority of the pilot and his legal right to be controlled by State laws as has been the case since 1789.

Replying to his thought that the Coast Guard must be accorded administrative, or legislative, disiplinary control over all pilots as well as masters, it should be noted that the Act itself in Title I, Section 101 provides for Coast Guard control over the pilot with respect to the regulations governing the various provisions of traffic control. Furthermore, the Coast Guard investigatory power under Section 103 and the civil and criminal penalties under Sections 106 and 107 apply to the pilot as well as the master. Thus, under the Act being reviewed by the Committee, the Coast Guard already has the same control over the pilot as over the master.

In summary, in preserving the long-established and successful State pilotage system, it must be remembered that pilotage is a local service which is rendered under local conditions and the State has a very definite interest in protecting the safety and property of its citizens and fostering the commerce of its ports. The local pilot commissions who are well acquainted with the conditions are best qualified to pass upon the qualifications of pilots. On the other hand, Coast Guard personnel, no matter how competent in their occupation, are transferred from place to place with regularity, and do not have the opportunity to develop the necessary familiarity with local pilotage waters. In view of the fact that pilotage is characterized by, and relates to, a particular place, not general or widespread, it would be exceedingly unwise to impose a uniform Federal system on this strictly local operation which has been proven to be successful over so many years. If AIMS's position were to be adopted (which it cannot be administratively) it would eliminate the State pilotage system as known today for no good purpose.

Thank you for affording me the opportunity to briefly respond on behalf of the A.P.A. to Mr. Reynolds' testimony for AIMS regarding the State pilotage system of the United States.

Very truly yours,

ERNEST A. CLOTHIER,

President.

[The following exhibits were referred to in Mr. Greenberg's prepared statement]

[EXHIBIT 1]

CENTER FOR LAW AND SOCIAL POLICY,
Washington, D.C., March 15, 1973.

Re construction requirement for tank ships-advance notice of proposed rulemaking CGS 72-245.

U.S. Coast Guard,

400 Seventh St., SW.,

Washington, D.C.

DEAR SIRS: We are writing in response to the Advance Notice of Proposed Rule Making (38 Fed. Reg. 2467 [January 26, 1973]) (the "Notice") on behalf of the Environmental Defense Fund ("EDF"), the Natural Resources Defense Council ("NRDC"), the National Parks and Conservation Association ("NPCA"), the Sierra Club, Friends of the Earth ("FOE"), the National Wildlife Federation ("NWF"), and The Wilderness Society to comment upon the tank ship construction standards which the Coast Guard is considering for proposal under Section 201 of the Ports and Waterways Safety Act of 1972, Pub. L. No. 92–340, 46 U.S.C. § 391a (the "Act"). We have acted as counsel for these groups on environmental matters in the past, and we have been asked by them to coordinate the presentation of their comments.

The environmental groups which we represent are all national, non-profit membership organizations deeply concerned about the preservation and protection of the marine and coastal environments. Their combined membership exceeds 2,300,000 persons throughout the United States and abroad.1 The membership of each organization includes a substantial number of persons who reside in coastal areas which are increasingly directly affected by oil pollution, as well as scientists who have conducted and intend to continue to engage in research in coastal and estuarine areas and the marine environment.

All of the environmental organizations have made substantial efforts to improve the quality of the marine and coastal environments by means of litigation, testimony, policy analysis, and educational programs. For example, in the litigation field, EDF, NRDC and NPCA recently achieved a settlement with the Commerce Department under which it agreed to prepare environmental impact statements in connection with its program to subsidize the construction of United States oil tankers. And The Wilderness Society, FOE and EDF are now engaged in litigation regarding the adequacy of the Department of Interior's environmental impact statement for the proposed trans-Alaskan oil pipeline and its related marine transportation systems. In the area of international regulation of marine pollution, EDF, NRDC and the Sierra Club have taken an active role in commenting upon the proposed 1973 Convention for the Prevention of Pollution from Ships. These groups have also been actively involved in presentation of testimony on this subject. Thus, during the last session of Congress, EDF and the Sierra Club submitted comments to the Senate Commerce Committee on the Act; and earlier this month the Sierra Club, EDF, NRDC, NPCA and FOE presented testimony on deep water port policy at hearings held by that Committee. We firmly support the proposed requirement for incorporation on oil carrying vessels trading in U.S. navigable waters of a segregated ballast capacity of not less than 45 percent of full load displacement, achieved in part through utilization of a double bottom of a minimum height of one-fifteenth of the beam. This proposal represents one of the most important efforts to date by any govern

1 EDF, whose principal place of business is 162 Old Town Road, East Setauket, New York 11733, has a membership of 32,000 persons and a 700 member Scientists' Advisory oCmmittee. NRDC, whose principal office is at 15 West 44th Street, New York, New York 10036, and has additional offices in Washington. D.C. and Palo Alto, California, has a membership of approximately 9,000 persons. NPCA, whose principal office is 1701 18th Street, N.W., Washington, D.C. 20009, has a membership of approximately 50,000 persons. The Sierra Club, whose principal place of business is at 200 Bush Street, San Francisco, California 94104, has a membership of approximately 140,000 persons. FOE, whose principal place of business is 529 Commercial Street, San Francisco, California 94111, has a membership of 27,000 persons. NWF, whose principal place of business is 1412-16th Street, N.W., Washinton, D.C. 20036, is composed of associate members and members of state affiliagte member organizations. comprising over 2,000,000 persons. The Wilderness Society, which has its principal office at 729-15th Street, N.W., Washington, D.C. 20005 and a field office in Denver, Colorado, has a membership of about 80,000 persons.

mental agency to deal constructively and forthrightly with the growing threat posed by marine transport of oil to coastal and marine ecosystems. These fundamental changes in tanker design are long overdue and constitute necessary first steps toward an environmentally sound marine transportation policy. Indeed, segregated ballast and double bottom requirements are absolutely essential if the United States is to achieve the goal to which it, other nations and the environmental organizations we represent are committed of eliminating all intentional discharges of oil into the marine environment and of reducing to the greatest extent possible the risk of accidental spills. We also believe such requirements are integral to fulfillment of the Congressional mandate to the Coast Guard embodied in the Act to establish design and construction standards for oil carrying vessels "to prevent or mitigate the hazards to life, property, and the marine environment" which they pose.

In addition to supporting the segregated ballast and double bottom requirements we favor the proposal to require all tank ships (new and existing) to have the capabiity of retaining all wastes, including tank cleaning residues, on board for shoreside disposal. We further believe that both the segregated ballastdouble bottom and waste retention capability requirements should be applied to tank barges.

However, we believe the proposals to limit the segregated ballast and double bottom requirements to large, future tankers and to tank barges of 300 feet or more, as well as to permit existing tankers to utilize load-on-top procedures in the face of environmentally preferable alternatives, will seriously undermine the pollution abatement objectives of the Act and should be abandoned.

I. THE ENVIRONMENTAL NECESSITY FOR SEGREGATED BALLAST AND DOUBLE BOTTOM REQUIREMENTS

There is no need to detail the increasing threat oil pollution from oil carrying vessels poses to the marine and coastal environments of this nation. Indeed, in Section 201 of the Act, Congress finds and declares: "That the carriage by vessels of certain cargoes [including oil] in bulk creates substantial hazards to life, property, the navigable waters of the United States (including the quality thereof) and the resources contained therein and of the adjoining land, including but not limited to fish, shellfish, and wildlife, marine and coastal ecosystems, and recreational and scenic values. . . ."

The significance of this threat is underscored by the recent findings of the National Oceanic and Atmospheric Administration that "oil globules . . in massive proportions infect nearly 700,000 square miles of blue water from Cape Cod to the Caribbean Sea." 3

Normal tanker operations-including discharge of cargo tank washings and oil ballast water-now account for almost 70 per cent of the total influx of oil into the oceans from oil carrying vessels while tanker accidents-including grounding and strandings-account for almost 20 per cent of tanker oil pollution.* If seaborne imports of oil to the United States increase, and if oil tanker numbers and traffic increase, as government and industry project, the environmental degradation from oil pollution resuting from such vessels and their operation will increase proportionately: "Not only with the probability of accidents increase . . . but pollution of the marine environment from normal tanker operations are [sic] also likely to increase." S. Rep. No. 92-841, 92d, 2d Sess. 22 (1972).

...

A requirement that oil carrying vessels possess the capability of carrying sufficient ballast for normal operations without recourse to cargo tanks such as the Coast Guard is considering is without doubt the most effective means for reducing damage to the marine environment from normal ballasting operations. The segregated ballast approach is effective because it eliminates the needs to mix oil and water, and to wash cargo tanks to hold ballast which may be clean enough to discharge at a loading port.

There can also be no question as to the environmental soundness of using a double bottom to achieve part of the required segregated ballast capacity. First,

2 At its last meeting on marine pollution in 1971, the Intergovernmental Maritime Consultative Organization ("IMCO") adopted as a goal "the achievement by 1975 if possible but certainly by the end of the decade of the complete elimination of the wilful and intentional pollution of the seas by oil . . . and the minimization of accidental spills."

3 Mar Map Red Flag Report (No. 1), Fish Larvae Found in Environment Contaminated with Oil and Plastic (January 18, 1973).

Porricelli, Keith, and Storch, Tankers and the Ecology, paper presented at the annual meeting of the Society of Naval Architects and Marine Engineers (November 1971).

as the Notice points out: "double bottoms would provide . . . protection against accidental discharge caused by grounding incidents"—which are the most common kind of tanker casualty. Additionally, the redistribution of hull strength resulting from incorporation of a double bottom will reduce or at least delay breaking caused by stranding, thereby reducing the frequency of catastrophic oil spills. The double bottom is also likely to reduce operational pollution in at least two ways: (a) the smooth cargo tank bottom resulting from the double bottom design should eliminate sludge buildup and, thus, the need to clean cargo tanks to prevent this occurrence; (b) when tanks are cleaned to prepare for drydocking and overhaul, less wash water will be required for cleaning because of the elimination of structural members within the tanks. The United States, in urging IMCO to require segregated ballast systems including double bottoms, recently estimated the environmental benefits of double bottoms as follows:

"(1) Operational pollution reduced 95%; (2) Accidental pollution reduced 35%; and (3) Total pollution reduced 67%.'

II. THE CONGRESSIONAL MANDATE

The language of the Act and its legislative history make clear that Congress intended that the Coast Guard give full and serious consideration to requiring segregated ballast capacity achieved in part through a double bottom and fully support, if not mandate, the adoption of such design standards. In Section 201 (1) of the Act, Congress concluded that "existing standards for the design, construction, alteration, repair, maintenance and operation of . . . [oil carrying vessels] must be improved for adequate protection of the marine environment."

In reaching this conclusion, Congress implicitly rejected the prevailing single bottom design for tankers and the traditional practice of utilizing cargo tanks for ballast and discharging oily water into the sea. To remedy such environmentally unsound practices, Congress, in Section 201 (7) of the Act, directed the Coast Guard to establish standards "as soon as practicable . . . to improve vessel maneuvering and stopping ability and otherwise reduce the possibility of collision, grounding or other accidents, to reduce cargo loss following collision, grounding or other accidents, and to reduce damage to the marine environment by normal vessel operations, such as ballasting and de-ballasting, cargo handling and other activities."

Clearly, the most effective way to "reduce cargo loss following . . . grounding" is to have a double bottom on the vessel involved in the grounding. Similarly, the most effective way "to reduce damage to the marine environment by normal vessel operations such as ballasting and de-balasting" is to require the use of segregated ballast systems.7

The principal congressional report accompanying and the hearings on the Act reveal a clear recognition of the importance of these features. For example, the Senate Commerce Committee in discussing possible methods for dealing with pollution from tanker grounding, cited double bottoms as "[p]erhaps the clearest instance of a standard presented at the Committee's hearings that must be seriously considered . . .", Senate Report at 2897, and concluded that "double bottom construction would lessen the likelihood of serious damage to the environment in those instances where groundings do occur." Senate Report at 2894. As regards prevention of pollution from deballasting operations, the Committee rejected industry's response to this problem (the load-on-top procedure) as "not an adequate solution", Senate Report at 2899, and concluded that "there seems little doubt that the adoption of segregated ballast could contribute significantly to protection of the marine environment. . . ." Senate Report at 2900.

In addition, Congress clearly intended that such standards be established by the United States for all ships entering its navigable waters whether or not progress is made toward their adoption in the international forum, concluding

5 Segregated Ballast Tankers Employing Double Bottoms, supporting document to D. E. VIII/12 and M. P. XIV/3 (c) presented to the Intergovernmental Maritime Consultative Organization by the United States of America (November 1972).

See Kimon, Kiss, Porricelli, Segregated Ballast VLCCs. paper presented to the Chesaneake Section of the Society of Naval Architects and Marine Engineers (January 11, 1973) United States Coast Guard, Report on Part 2 of Study I, Segregated Ballast Aboard Product Tankers and Smaller Crude Carriers (February, 1973).

7 Id.

8 See S. Rep. No. 92-724, 92d Cong., 2d Sess., 1972 U.S. Code. Cong. & Ad. News 2886 (hereinafter cited as "Senate Report"): Hearings on S. 2074 before Sen. Comm. on Commerce, 92d Cong., 1st Sess. (September 22, 23, 24, 1971).