E. I. Du Pont De Nemours & Co. v. Board of Standards and Appeals of City of New York

• Decision Date: 04 December 1956
• Parties: Application of E. I. DU PONT DE NEMOURS & COMPANY, Inc., Petitioner, v. The BOARD OF STANDARDS AND APPEALS OF the CITY OF NEW YORK, Harris H. Murdock, Edwin W. Kleinert, Sean P. Keating, P. Joseph Connolly, as members of the said Board of Standards and Appeals, and Edward F. Cavanaugh, Jr., as Fire Commissioner of The City of New York, Respondents.
• Court: New York Supreme Court

Page 456

158 N.Y.S.2d 456

5 Misc.2d 100

Application of E. I. DU PONT DE NEMOURS & COMPANY, Inc., Petitioner, v. The BOARD OF STANDARDS AND APPEALS OF the CITY OF NEW YORK, Harris H. Murdock, Edwin W. Kleinert, Sean P. Keating, P.

Joseph Connolly, as members of the said Board of Standards

and Appeals, and Edward F. Cavanaugh, Jr., as Fire

Commissioner of The City of New York, Respondents.

Supreme Court, Special Term, New York County, Part III.

Dec. 4, 1956.

Cravath, Swaine & Moore, New York City (Harold R. Medina, Jr., and John G. Williams, New York City, of counsel), for petitioner.

Peter Campbell Brown, Corp. Counsel, New York City (James Hurley and Milton Mollen, Asst. Corp. Counsel, New York City, of counsel), for respondents.

GREENBERG, Justice.

This is a certiorari proceeding to review a decision made by the Board of Standards and Appeals of the City of New York, which affirmed a determination of the Fire Commissioner that 'Nitramon,' a product manufactured and shipped by Du Pont, petitioner herein, was an explosive within the purview of the applicable provisions of the Administrative Code and subject to the restrictions there set forth.

It has been stipulated that all of the proposed shipments of 'Nitramon' to which the Commissioner's ruling has been applied were shipments in interstate or foreign commerce. (The effect of the entire stipulation between the parties is to reduce the dispute to a question of law.) The controversy has arisen because Du Pont, which manufactures 'Nitramon' in New Jersey, ships it to New York for loading onto vessels bound for foreign ports. The Commissioner's interpretation now under attack that 'Nitramon' is an explosive within the meaning of the Code provision brings into play the landing restrictions of section C19-32.0(d), that: 'It shall be unlawful to land or place explosives upon a dock, pier, bulkhead, or other landing place. * * * Explosives intended for shipment to points outside the city may be transferred from a vessel directly to another vessel lying at a city dock or pier designated by the commissioner, provided the amount so transferred does not exceed twenty-five hundred pounds. All such shipments, in excess of twenty-five hundred pounds and not exceeding five thousand pounds, must be transferred from vessel to vessel at a distance of not less than one thousand feet from any pier line.' Thus, Du Pont under this ruling would be entirely prohibited from loading 'Nitramon' from city piers onto vessels though intended for foreign shipment. In addition, the limited provision allowed for transhipment from one vessel to another is obviously of no practical value with regard to a product normally shipped in fairly large quantities.

The question here presented involves a consideration of the statutes and regulations of the federal government governing such shipment in interstate and foreign commerce as well as the provisions of the local law, keeping in mind the basic principle that in this field, if federal action has been taken, local law must be deemed inoperative if inconsistent or conflicting in any respect therewith. Federal regulation supersedes a local law on the same subject, even though it involves a matter of the police power of government, if the field of operation is under our constitution in the federal domain. Quaker Oats Co. v. City of New York, 295 N.Y. 527, 68 N.E.2d 593. The federal government, it should be observed, is no less zealous of the public interest than the local authorities.

Respondents concede all this, but urge that this local law occupies a field not covered or pre-empted by federal law, is not inconsistent with it, and does not violate the Commerce Clause of the Constitution, U.S.C.A.Const. art. 1, § 8, cl. 3 although it may incidentally affect a matter of interstate and foreign trade. They contend that the rule to be here applied is that whem Congress occupies only a limited field, local law in the proper exercise of the police power outside that limited field is not forbidden. Savage v. Jones, 225 U.S. 501, 32 S.Ct. 715, 56 L.Ed. 1182; Kelly v. State of Washington, ex rel. Foss, 302 U.S. 1, 58 S.Ct. 87, 82 L.Ed. 3; Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 786, 62 S.Ct. 491, 86 L.Ed. 754. Respondents' specific argument is that as to this matter 'federal law consists of a limited number of regulations regarding the packaging of nitro-carbonitrate [the product which Du Pont has trade-named 'Nitramon'] for transportation in interstate and foreign trade, while the local law merely incidentally regulates its handling as an explosive in the territorial limits of the City of New York.' We must therefore determine whether the federal regulations are so limited or whether, as claimed by petitioner, they cover the matter of loading as well as packaging and transportation of this article and must therefore be deemed to control that activity as well.

This principle of the separation of areas of control as between the federal and local authorities has actually been set forth in their respective laws on this subject of explosives when shipped in the course of interstate or foreign trade. The Administrative Code section dealing with explosives expressly disclaims any intention to infringe upon federal action by stating, § C19-4.0: 'Nothing contained herein shall be construed as applying to the transportation of any article or thing shipped in conformity with the regulations prescribed by the Interstate Commerce Commission.' And in Title 46 U.S.C., Chapter 7, 46 U.S.C.A. § 170 et seq., entitled 'Carriage Of Explosives Or Dangerous Substances,' it is provided in section 170, subd. (7)(d): 'Nothing contained in this section shall be construed as preventing the enforcement of reasonable local regulations now in effect or hereafter adopted, which are not inconsistent or in conflict with this section or the regulations of the Commandant of the Coast Guard established hereunder.' (The authorization to regulate with regard to explosives and other dangerous articles transported on the navigable waters of the United States had in 1941 been transferred to the Commandant of the Coast Guard.)

46 U.S.C. § 170, subd. 7(a), 46 U.S.C.A. § 170, subd. (7)(a), provides that 'in order to secure effective provisions against the hazards of health, life, limb, or property created by explosives or other dangerous articles or substances,' the Commandant of the Coast Guard shall by regulations define, describe, name and classify all explosives and other dangerous articles; also with respect to their marking, handling storage, stowage and use on board vessels; also any other regulations for their 'safe transportation, carriage, conveyance, storage, stowage, or use * * * on board such vessels as the Commandant of the Coast Guard shall deem necessary.' Subparagraph (b) provides that 'the transportation, carriage, conveyance, storage, stowage, or use of such explosives or other dangerous articles or substances shall be in accordance with the regulations so established, which shall * * * be...