Kelly v. State of Washington Foss Co

• Decision Date: 08 November 1937
• Docket Number: No. 2,2
• Citation: 58 S.Ct. 87,82 L.Ed. 3,302 U.S. 1
• Parties: KELLY, Director of Department of Labor and Industries of the State of Washington, et al., v. STATE OF WASHINGTON ex rel. FOSS CO., Inc. Re
• Court: U.S. Supreme Court

302 U.S. 1

58 S.Ct. 87

82 L.Ed. 3

KELLY, Director of Department of Labor and Industries of the State of Washington, et al.,

v STATE OF WASHINGTON ex rel. FOSS CO., Inc.

No. 2.

Reargued Oct. 11, 12, 1937.

Decided Nov. 8, 1937.

Messrs. E. P. Donnelly and Daniel Baker, both of Seattle, Wash., for petitioners.

Mr. Glenn J. Fairbrook, of Seattle, Wash., for respondent.

Mr. Golden W. Bell, Asst. Sol. Gen., of Washington, D.C., for the United States, as amicus curiae, by special leave of court.

Mr. Chief Justice HUGHES delivered the opinion of the Court.

Respondents, owners of motor-driven tugs, sought a writ of prohibition to prevent the enforcement of provi- sions of chapter 200, page 425 et seq. of the Washington Laws of 1907 (Rem.Rev.Stat., § 9843 et seq.) relating to the inspection and regulation of vessels. The Supreme Court of the state directed judgment for respondents, holding the statute invalid 'if applied to the navigable waters over which the federal government has control.' 186 Wash. 589, 596, 59 P.(2d) 373, 376. We granted certiorari. 299 U.S. 539, 57 S.Ct. 322, 81 L.Ed. 396. After hearing, we ordered reargument, and requested the Attorney General of the United States to present the views of the government upon the question whether the state act or the action of the officers of the state thereunder conflicts with the authority of the United States or with the action of its officers under the acts of Congress. The case has been reargued accordingly, and the views of the government have been presented both orally and upon brief in support of the decision of the state court.

The material facts, as set forth in the opinion of the state court, are that respondents own and operate 139 motor-driven tugs of which 111 are less than 65 feet in length. Some of these tugs are registered, and the remainder are enrolled and licensed under federal laws. For the most part these tugs are employed in intrastate commerce, but some tow to and from British Columbia ports or across the Columbia river or from other ports in Washington to ports in Oregon. Practically all these tugs are capable of engaging in interstate or foreign commerce, and will do so if and when opportunity offers. Some of the larger tugs have towed and will tow to California ports. The main business, however, of most of the tugs is confined to moving vessels engaged in interstate and foreign commerce and other work in and about the harbors where they are stationed. 186 Wash. 589, 590, 59 P.(2d) 373.

Respondents' complaint challenged the validity of a large number of requirements of the state act which it was alleged the state authorities sought to enforce (186 Wash. 589, 591, 59 P.(2d) 373), but these authorities by their answer and in the argument at bar disclaim an intention to enforce any of the state regulations which conflict with those established under the laws of the United States.

First. The first question is whether the state legislation as applied to respondents' motor-driven tugs is in all respects in conflict with express provisions of the federal laws and regulations. Wherever such conflict exists, the state legislation must fall. Gibbons v. Ogden, 9 Wheat. 1, 210, 6 L.Ed. 23.

Chapter 200 of the Washington Laws of 1907 is described by the state court as 'a comprehensive and complete code for the inspection and regulation of every vesse' operated by machinery which is not subject to inspection under the laws of the United States.' Rem.Rev.Stat. § 9844; 186 Wash. 589, 590, 59 P.(2d) 373, 374.

It cannot be doubted that the power of Congress over interstate and foreign commerce embraces the authority to make regulations for respondents' tugs. Foster v. Davenport, 22 How. 244, 16 L.Ed. 248; Moran v. New Orleans, 112 U.S. 69, 5 S.Ct. 38, 28 L.Ed. 653; Harman v. Chicago, 147 U.S. 396, 13 S.Ct. 306, 37 L.Ed. 216. Has Congress exercised that authority and, if so, to what extent?

The federal acts and regulations with respect to vessels on the navigable waters of the United States are elaborate. They were well described in the argument of the Assistant Solicitor General as a maze of regulation. Provisions with respect to steam vessels are extremely detailed. 46 U.S.C. c. 14, § 361 et seq. (46 U.S.C.A. § 361 et seq.). Provisions as to motor-driven vessels are far less comprehensive and establish only a limited regulation. By section 4426 of the Revised Statutes, as amended by the Act of March 3, 1905, c. 1457, § 4, 33 Stat. 1029, 1030, and by the Act of May 16, 1906, c. 2460, 34 Stat. 193, 194 (46 U.S.C.A. § 404), it was provided that all vessels 'above fifteen gross tons carrying freight or passengers for hire, but not engaged in fishing as a regular business, propelled by gas, fluid naptha, or electric motors,' should be subject to the provisions of the statute relating to the inspection of hulls and boilers and requiring engineers and pilots. These vessels were also required to carry life preservers for passengers and, while carrying passengers, to be in charge of a person duly licensed by the federal local board. 46 U.S.C. § 404 (46 U.S.C.A. § 404). It does not appear that respondents' motor-driven tugs are within the class of vessels which carry freight or passengers for hire.

In 1910, Congress enacted the Motor Boat Regulations Act, 36 Stat. 462 (46 U.S.C.A. § 511 et seq.). While this statute is applicable to respondents' tugs, so far as it goes, its scope is restricted. Section 1 defines the word 'motor boat' as including 'every vessel propelled by machinery and not more than sixty-five feet in length except tugboats and towboats propelled by steam.' There follows in that section a proviso that the engine, boiler, or other operating machinery shall be subject to inspection by the local inspectors of steam vessels, and to the approval of the design thereof, where the vessels 'are more than forty feet in length, and which are propelled by machinery driven by steam.' Section 2 divides the motor boats which are subject to the act into three classes: (1) Those less than 26 feet in length; (2) those 26 feet or over and less than 40 feet in length; (3) those 40 feet or over and not more than 65 feet in length. Section 3 then provides for the carrying of lights by motor boats of the respective classes. Section 4 relates to whistles, fog horns, and bells. Sections 5 and 6 provide that motor boats subject to the act, and also motor boats more than 65 feet in length, shall carry life preservers or life belts or similar devices, and fire extinguishing equipment. Section 5 requires that all motor boats carrying passengers for hire shall be in charge of a person duly licensed by the federal local board of inspectors, and has the proviso that motor boats shall not be required to carry licensed officers except as required by the Motor Boat Regulations Act. 46 U.S.C. §§ 511—516 (46 U.S.C.A. §§ 511—516). Under the federal regulations, motor boats are required to have on board two copies of the pilot rules to be observed by them, with copies of the departmental circular.

As documented vessels of the United States, motor boats must be marked in a specified manner with their names and home ports. 46 U.S.C. § 46 (46 U.S.C.A. § 46). All vessels, regardless of tonnage, size, or manner of propulsion, and whether or not carrying freight or passengers for hire (other than public vessels of the United States not engaged in commercial service), which have on board 'any inflammable or combustible liquid cargo in bulk,' are to be 'considered steam vessels,' and are made subject to the provisions of the statutes relating to such vessels. This provision does not apply to inflammable or combustible liquid for use as fuel or stores. Act of June 23, 1936, c. 729, 49 Stat. 1889, 46 U.S.C. § 391a (46 U.S.C.A. § 391a). Vessels transporting explosives or like dangerous cargo are subject to inspection to determine that such cargo may be carried with safety, and appropriate permit for that purpose is required. Act of August 26, 1935, c. 697, 49 Stat. 868, 46 U.S.C. § 178 (46 U.S.C.A. § 178). 'Load lines' are established for merchant vessels of 150 gross tons or over proceeding on a 'coastwise voyage by sea,' as defined; that is, outside the line dividing inland waters from the high seas. Act of August 27, 1935, c. 747, 49 Stat. 888, 46 U.S.C. § 88 (46 U.S.C.A. § 88). Compare International Load Line Convention of July 5, 1930, 47 Stat. 2229. It appears from statements in the record and in argument, which we do not understand to be challenged, that there are not more than three of respondents' motor tugs, here involved, which exceed 150 tons gross.

The limited application of the provisions of the federal laws and regulations to vessels propelled by internal-combustion engines was recently and definitely brought to the attention of Congress. The report of the Bureau of Navigation and Steamboat Inspection showed that there were many large vessels of this class.¹ The Committee on Merchant Marine and Fisheries of the House of Representatives found that this situation was due to the fact 'that when the steamboat inspection laws were passed, internal-combustion-engine laws were unknown, with the result that many of the existing laws apply to steam vessels and under the opinion of the law officers of the department, do not apply to vessels operated by machinery other than by steam.' The Committee added that 'it was very doubtful whether under existing law lifeboats could be required on these motor vessels.'² To meet that situation Congress has provided that existing laws covering the inspections of steam vessels shall be applicable 'to seagoing vessels of three hundred gross tons and over propelled in whole or in part by internal-combustion engines' to such extent as may be required by the regulations of the Board of Supervising Inspectors of Steam Vessels with the approval of the Secretary of Commerce. Act of June 20, 1936, c. 628, 49 Stat. 1544, 46 U.S.C. § 367 (46...