
USCA1 Opinion

	




          August 23, 1994   UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1059                        IN RE BALLARD SHIPPING COMPANY, ETC.,                                 Plaintiff, Appellee,                                          v.                               BEACH SHELLFISH, ET AL.,                                Claimants, Appellants.                                 ____________________                                     ERRATA SHEET               Block  quote on  page 5:   line  3, change  "tort-feasor" to          "tortfeasor".    On  line 5,  add  a  comma  between "other"  and          "unknown".               Page 5, 3 lines below block quote:  "MT Fadi B" should be MT                                                    _________            __          FADI B".          ______               Page 8, lines 2  and 3 down:  change cite to  "See R.I. Gen.                                                              ___          Laws    46-12.3-2, 46-12.3-3."               Page 13, 5th line down:  change  cite to "State of Louisiana                                                         __________________          ex rel.  Guste v. M/V  Testbank, 752  F.2d 1019,  1022 (5th  Cir.          ______________    _____________          1985) (en banc), cert. denied, 477 U.S. 903 (1986)."                           ____________               Page  16, second to last  line of second  paragraph:  change          "Id." to "Id."           __       ___               Page  18,  footnote 5,  5th line  up:   change  period after          "Fireman's Fund Ins. Co.." to a comma.           _______________________               Page  20, footnote 20, second  to last line:   "Rule" should          not be underlined.                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1059                        IN RE BALLARD SHIPPING COMPANY, ETC.,                                 Plaintiff, Appellee,                                          v.                               BEACH SHELLFISH, ET AL.,                                Claimants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Thomas  M. Bond  with whom  David  B.  Kaplan and  The Kaplan/Bond            _______________             _________________      _______________        Group were on brief for appellants.        _____            John J. Finn with whom Thomas H. Walsh, Jr., Marianne Meacham and            ____________           ____________________  ________________        Bingham, Dana & Gould were on brief for appellee.        _____________________                                 ____________________                                   August 18, 1994                                 ____________________                 BOUDIN,  Circuit  Judge.    This   appeal  presents  the                          ______________            question  whether federal maritime  law preempts Rhode Island            legislation  affording expanded  state-law  remedies for  oil            pollution  damage.   In an able  opinion, the  district court            held that the remedies were preempted.  Discerning the law in            this area is far from easy;  one might tack a sailboat into a            fog bank  with more  confidence.  Yet  guided in  part by  an            important Supreme Court decision rendered  after the district            court's decision, we are  constrained to reverse in part  and            to remand for further proceedings.                 The basic facts of the case are not in dispute.  On June            23,  1989,  the M/V  World Prodigy,  an  oil tanker  owned by            Ballard Shipping Co., ran  aground in Narragansett Bay, Rhode            Island, spilling over 300,000 gallons of heating oil into the            bay.    The wreck  occurred when  the  ship strayed  from the            designated  shipping channel  and collided  with a  rock near            Brenton Reef, about a  mile south of Newport at the  mouth of            the bay.  The oil slick prompted the State of Rhode Island to            close Narragansett  Bay to all shellfishing  activities for a            period of two weeks during and after cleanup operations.                 State authorities  charged the captain of  the ship with            entering  the bay without a local pilot on board in violation            of  state law.   Both  the captain  and Ballard  also pleaded            guilty to criminal violations  of the Federal Water Pollution            Control Act, see 33 U.S.C.    1319(c).  The captain and owner                         ___                                         -2-                                         -2-            were fined a total of $30,500 and $500,000, respectively.  In            addition, Ballard agreed to  pay $3.9 million in compensation            for  federal cleanup  costs, $4.7  million for  state cleanup            costs and damage to natural resources, $500,000 of which  was            to be  available to  compensate individuals, and  $550,000 to            settle claims for lost wages by local shellfishermen.                 A  number of  claimants  filed suit  against Ballard  in            Rhode  Island.  Ballard  responded on  December 22,  1989, by            bringing  a   petition   in  admiralty   for  limitation   or            exoneration from liability.   46 U.S.C.   185.   "[T]he court            of  admiralty  in  [a  limitation  of  liability]  proceeding            acquires the right to marshal all claims, whether of strictly            admiralty origin  or not, and to  give effect to  them by the            apportionment of the res and  by judgment in personam against                                 ___                  ___________            the owner, so far as the court may decree." Just v. Chambers,                                                        ____    ________            312  U.S.  383, 386  (1941).   In  the present  case, several            claimants reasserted their claims in the admiralty action.                 The  claimants in  the  present appeal  are  a group  of            shellfish dealers who allege  severe economic losses  arising            from the  two-week hiatus  in shellfishing  activities, which            suspended  their operations  during the  busiest time  of the            shellfishing  season.    They  alleged negligence  under  the            general maritime law and  the common law of Rhode  Island, as            well as a  claim for  economic losses pursuant  to the  Rhode            Island  Environmental Injury Compensation Act, R.I. Gen. Laws                                         -3-                                         -3-            ch. 46-12.3 et seq. ("the Compensation Act").                        _______                 On June 17, 1992, Ballard moved to dismiss the shellfish            dealers' claims on the basis  of the Supreme Court's decision            in  Robins  Dry Dock  &  Repair Co.  v.  Flint, 275  U.S. 303                _______________________________      _____            (1927),  which  held  that compensation  for  economic losses            standing  alone  is  unavailable  in admiralty  cases.    The            district  court  granted  the  motion,  holding  that  Robins                                                                   ______            preempted the contrary provisions of the state's Compensation            Act, which expressly provides for recovery of purely economic            losses arising from an oil spill.  In re Complaint of Ballard                                               __________________________            Shipping  Co., 810 F. Supp.  359 (D.R.I. 1993).   The dealers            _____________            now appeal from that dismissal.                 We first  address the  federal claims brought  under the            general maritime  law.   The Constitution grants  the federal            courts authority to hear "all Cases of admiralty and maritime            Jurisdiction."  U.S. Const. Art. III,   2.  The parties agree            that  the  dealers' federal  claims  fall  within this  group            because the  spill occurred on navigable waters and arose out            of  traditional  maritime  activity.     See  Executive   Jet                                                     ___  _______________            Aviation, Inc.  v. City  of Cleveland, 409  U.S. 249  (1972).            ______________     __________________            Admiralty  jurisdiction  brings with  it  a  body of  federal            jurisprudence, largely uncodified,   known  as maritime  law.            See East River  S.S. Corp. v. Transamerica  Delaval, 476 U.S.            ___ ______________________    _____________________            858, 864 (1985).                 The  dealers assert  that their businesses  were injured                                         -4-                                         -4-            when the  World Prodigy spill prevented  local fishermen from            harvesting   shellfish  in   Narragansett  Bay   and  thereby            precluded  the  dealers  from  purchasing  the  shellfish and            reselling them to restaurants and other buyers.  The dealers'            maritime-law  claims  are  thus purely  for  economic losses,            unaccompanied  by any  physical injury  to their  property or            person.  Those  federal claims, as  the district court  held,            are  squarely foreclosed by Robins  Dry Dock &  Repair Co. v.                                        ______________________________            Flint, 275 U.S. 303 (1927).            _____                 In  Robins,  the charterer  of  a vessel  sued  a repair                     ______            company that negligently  damaged the vessel while it  was in            dry  dock,  alleging  that  the resulting  delay  caused  the            charterer  to  lose  profits  that it  would  have  otherwise            derived from the  use of the ship.  Justice  Holmes wrote for            the Court in holding that the suit could not be maintained:                 [N]o authority  need be  cited to  show that, as  a                 general rule,  at least,  a tort  to the  person or                 property of  one man  does not make  the tortfeasor                 liable to another merely because the injured person                 was under  a contract  with that other,  unknown to                 the doer  of the wrong.  . .  .  The  law does  not                 spread its protection so far.            275 U.S. at 309.                 Justice  Holmes's  pronouncement  could have  been  read            merely  as negating  a claim  of negligent  interference with            contract.  See Getty Refining and Marketing Co. v. MT FADI B,                       ___ ________________________________    _________            766 F.2d 829,  831-32 (3d  Cir. 1985).   Instead, Robins  has                                                              ______            generally  been  taken to  establish  the  broader rule  that                                         -5-                                         -5-            purely economic losses arising from a tort, but unaccompanied            by physical injury to  anything in which the plaintiff  has a            proprietary  interest,  are  not  compensable  under  federal            maritime law.  See, e.g., State of Louisiana ex rel. Guste v.                           _________  ________________________________            M/V  Testbank, 752 F.2d 1019, 1022 (5th Cir. 1985) (en banc),            _____________            cert.  denied, 477 U.S. 903 (1986).  Our circuit adopted this            _____________            broader  reading in Barber Lines  A/S v. M/V  Donau Maru, 764                                _________________    _______________            F.2d  50, 51-52  (1st  Cir. 1985),  and,  in any  event,  the            secondary nature  of the economic injury  here--which is akin            to interference  with contract--would likely  bring this case            within even a narrow reading of Robins.                                            ______                 Several courts have recognized exceptions to Robins, but                                                              ______            none  of  the familiar  examples apply  in  this case.1   The            district court so held, and the dealers do not challenge that            conclusion on appeal.  Accordingly, we agree that plaintiffs'            federal claims  for purely economic losses  under the general            maritime  law are  barred.   The appeal  thus turns  upon the            extent to  which Robins  bars the  states  from permitting  a                             ______            different result under state law pursuant  to the exercise of                                   _____            the state's police powers.                 Although  the Judiciary  Act of  1789 vested  "exclusive                                            ____________________                 1The  classic  exceptions   include  claims  brought  by            fishermen as "favorites  of admiralty," see Union  Oil Co. v.                                                    ___ ______________            Oppen,  501 F.2d 558 (9th Cir. 1974), and claims for economic            _____            losses that are intentionally  caused, see Dick Meyers Towing                                                   ___ __________________            Service, Inc. v. United States, 577 F.2d 1023, 1025 (5th Cir.            _____________    _____________            1978), cert. denied, 440 U.S. 908 (1979).                   ____________                                         -6-                                         -6-            original  cognizance of  all  civil causes  of admiralty  and            maritime jurisdiction" in the federal courts, the act added a            provision  "saving to suitors, in  all cases, the  right of a            common  law remedy, where the common law is competent to give            it." 1 Stat.  76-77.  The modern version of the statute saves            "all  other   remedies  to  which  [suitors]   are  otherwise            entitled." 28 U.S.C.    1333.  The upshot  is that an injured            party  may have claims  arising from  a single  accident both            under  federal  maritime law  and  under  state law,  whether            legislation or common law.   See G. Gilmore &  C. Black, Jr.,                                         ___            The Law  of Admiralty    1-13, at  37 (2d ed.  1975).   State            _____________________            remedies under the  savings to suitors clause  may be pursued            in  state  court  or, where  there  is  a  basis for  federal            jurisdiction, in federal court.                 Whether a state claim is litigated in a federal court or            a state forum, "the extent to which state law may  be used to            remedy  maritime  injuries  is  constrained  by  a  so-called            `reverse-Erie' doctrine  which requires that  the substantive                     ____            remedies afforded by the  States conform to governing federal            maritime standards." Offshore Logistics, Inc.  v. Tallentire,                                 ________________________     __________            477 U.S. 207, 223  (1986) (citations omitted).  How  far this            conformity requirement extends,  and whether it preempts  the            dealers'  state-law claims,  are the  central issues  in this            case.                 On appeal, the dealers  mainly stress their claims under                                         -7-                                         -7-            Rhode  Island's  Compensation  Act.    The  Compensation  Act            provides  generally  that  owners  or  operators of  seagoing            vessels may be held liable  for harms arising from negligence            of the owner,  operator or  agents or from  the violation  of            Rhode Island pilotage and water pollution laws. See R.I. Gen.                                                            ___            Laws    46-12.3-2, 46-12.3-3.  The statute also  contains the            following specific provisions regarding economic loss:                 (a)  A  person  shall be  entitled  to  recover for                      economic  loss  .  .   .  if  the  person  can                      demonstrate the  loss of income  or diminution                      of profit to a person  or business as a result                      of  damage to  the  natural resources  of  the                      state of Rhode Island  caused by the violation                      of any  provision [of  the  piloting or  water                      pollution laws] by the owner or operator . . .                      of the  seagoing vessel  and/or caused by  the                      negligence of the owner or  operator . . .  of                      the seagoing vessel.                 (b)  In any  suit brought to recover  economic loss                      it shall  not be  necessary to prove  that the                      loss  was  sustained as  a result  of physical                      injury to the  person or damage to his  or her                      property,  nor shall  it be  a defense  to any                      claim that the defendant  owed no special duty                      to  the plaintiff  or  that the  loss was  the                      result   of   governmental  action   taken  in                      response to the violation and/or negligence of                      the defendant.                 (c)  Without   limiting   the  generality   of  the                      foregoing,   persons  engaged   in  commercial                      fishing or shellfishing and/or  the processors                      of fish or shellfish, who can demonstrate that                      they have sustained a loss of income or profit                      as  a  result  of  damage to  the  environment                      resulting   from   [violations   of   law   or                      negligence] . . . shall have a cause of action                      for economic  loss.   Persons employed  by, or                      who operate  businesses, who have  sustained a                      loss  of income  or profit  as  a result  of a                      decrease in the  volume of business  caused by                      the damage to  the environment  shall also  be                                         -8-                                         -8-                      entitled  to maintain  an action  for economic                      loss.            R.I. Gen. Laws   46-12.3-4.                 For the  purposes of this appeal  only, Ballard concedes            that the dealers  would have  a valid cause  of action  under            this  statute, and  that the  Compensation Act,  which became            effective on September 30, 1990, may be applied retroactively            to cover  the 1989 M/V World  Prodigy spill.2   We think that            the  statutory claims  effectively subsume  state  common law            claims  since the Compensation Act  appears to go  as far and            further than common law  in departing from Robins.   Thus, we                                                       ______            focus upon the statute.                 The shipowner and captain insist, and the district court            agreed,  that  the  state  claims  are  preempted  under  the            doctrine  of  Southern Pacific  Co. v.  Jensen, 244  U.S. 205                          _____________________     ______            (1917).  Jensen,  in a  now famous passage,  held that  state                     ______            legislation  affecting maritime  commerce is  invalid "if  it            contravenes  the essential  purpose  expressed by  an act  of            Congress, or works  material prejudice to the  characteristic            features of the general maritime law, or interferes  with the            proper harmony  and uniformity  of that  law in its  interna-            tional and interstate relations."  Id. at 216.                                               ___                                            ____________________                 2See  1990 R.I. Pub. Laws  ch. 198,    2 (providing that                  ___            the  Compensation Act  shall apply  to all  causes of  action            pending on or  after September 30,  1990, regardless of  when            the  violation and/or act of negligence  occurred, as long as            suit  was   commenced  within  the   applicable  statute   of            limitations).                                         -9-                                         -9-                 Jensen,  however, was  by its  own terms  something less                 ______            than  a rule  of automatic  and  mechanical preemption.   "It            would be difficult,  if not impossible," said  the Court, "to            define with  exactness just how far the  general maritime law            may be  changed, modified, or affected  by state legislation.            That this may be done to  some extent cannot be denied."  244            _______________________________________________________            U.S. at 216 (emphasis added).   What is even  more telling is            that the Supreme Court after Jensen, without ever repudiating                                         ______            its language, upheld the application of state law in a number            of maritime-related  cases despite the existence  of a direct            conflict between maritime rules and state law.                 This  saga is  recounted in  Professor  Currie's classic            article,  aptly titled  "Federalism and  the Admiralty:  `The            Devil's  Own  Mess,'" 1960  Sup. Ct.  Rev.  158.   A familiar            example is Just v.  Chambers, 312 U.S. 383 (1941),  where the                       ____     ________            Court  permitted  a  state  law  claim  for  personal  injury            occurring  on board a ship against the estate of the vessel's            owner, despite  a contrary  maritime rule that  a shipowner's            liability does not survive his death.  This year, in American                                                                 ________            Dredging  Co. v.  Miller, 114  S. Ct.  981 (1994),  the Court            _____________     ______            upheld a  Louisiana open-forum statute, making  the forum non                                                                _________            conveniens doctrine unavailable in savings clause cases, even            __________            though forum  non conveniens  is a  part of  federal maritime                   _____________________            law.                 American Dredging assertedly  reaffirms Jensen's  three-                 _________________                       ______                                         -10-                                         -10-            prong  test for  preemption quoted  above.   Since no  act of            Congress   directly  governs  our   case,  the   first  prong            (contravention) is irrelevant  to our case.   The third prong            ("proper    harmony   and   uniformity")   we   reserve   for            consideration below.   What  is of  immediate concern  is the            second  ("material  prejudice")  prong;  and  here,  American                                                                 ________            Dredging  gave the  famous language  a twist  that  could not            ________            easily have been anticipated by the litigants in this case or            by the district court.                 Judged by the bare  language of Jensen, the Compensation                                                 ______            Act might  easily  seem  to  do  "material  prejudice"  to  a            "characteristic feature" of maritime law, since Robins is the                                                            ______            governing  maritime rule  and  the  Compensation Act  rejects            Robins in everything but name.  But the word "characteristic"            ______            has different  shadings, and American Dredging,  in its first                                         _________________            and  most  important   holding,  gives  the   "characteristic            feature" language a definitive meaning:  it  reads the phrase            to  apply--and apparently  only to  apply--to a  federal rule            that  either "originated  in  admiralty"  or  "has  exclusive            application there."  114 S. Ct. at 987.                   Indeed, Justice Scalia goes on  to say that the doctrine            at issue  in American  Dredging,  the doctrine  of forum  non                         ___________________                   __________            conveniens,  "is   and  has   been  a  doctrine   of  general            __________            application" and that "therefore" its disregard by  Louisiana            does  not prejudice "[a} characteristic featur[e]" of general                                         -11-                                         -11-            maritime law."  114 S. Ct. at 987.  Further, only so narrow a            reading of the characteristic  feature test comports with the            result in American Dredging.   Since the forum non conveniens            ______    _________________              ____________________            doctrine had  long and  widespread  application in  admiralty            cases,  id. at  986, a  broad reading  of the  characteristic                    ___            feature test would have resulted in preemption.                 Although  it  is easier  to  identify the  origins  of a            doctrine recognizing  liability than one denying  it, we have            found no  evidence that Robins' denial of recovery for purely                                    ______            economic losses  originated in admiralty.   Justice  Holmes's            opinion in Robins presents  the rule as a virtual  truism for                       ______            which  "no authority  need be  cited," 275  U.S. at  309, and            refers  the reader to three other opinions in which "[a] good            statement [of  the rule] will  be found." Id.  (citing Elliot                                                      ___          ______            Steam Tug Co., Ltd.  v. The Shipping Controller, 1  K.B. 127,            ___________________     _______________________            139, 140 (1922);  Byrd v. English, 117  Ga. 192, 43  S.E. 419                              ____    _______            (1903); and The Federal  No. 2, 21 F.2d 313 (2d  Cir. 1927)).                        __________________            Although  Elliot Steam  Tug and  The Federal  No. 2  are both                      _________________      __________________            maritime cases, Byrd involved a suit  against a defendant who                            ____            had  negligently   damaged  the  lines  supplying   power  to            plaintiff's  printing company.    Justice  Holmes also  cited            another  case, National  Savings Bank v.  Ward, 100  U.S. 195                           ______________________     ____            (1879), which involved a  suit by a plaintiff who  had relied            upon  a  certificate  of  title  prepared  by  the  defendant            attorney for a third party.                                         -12-                                         -12-                 The rule applied in  Robins is also sometimes  traced to                                      ______            Cattle  v. Stockton Waterworks Co., 10 Q.B. 453 (1875), which            ______     _______________________            concerned  liability  for   delays  suffered  by  plaintiff's            construction company caused by water leaking from defendant's            pipes.   The admiralty cases  thus reflect a  traditional, if            not  invariable,  "general  principle denying  liability  for            purely  economic loss  in the  law of  negligence."   Atiyah,            "Negligence  and Economic  Loss,"  83 L.Q.  Rev. 248,  248-51            (1967).   In  sum, "Robins  broke no  new ground  but instead                                ______            applied a principle, then  settled both in the  United States            and   England,   which   refused   recovery   for   negligent            interference with  `contractual rights.'"  Testbank, 752 F.2d                                                       ________            at 1022.                 Nor has the doctrine  forbidding recovery of such losses            had "exclusive" application in admiralty.  State of Louisiana                                                       __________________            ex rel. Guste v. M/V Testbank, 752 F.2nd 1019, 1022 (5th Cir.            _____________    ____________            1985)  (en banc), cert. denied, 477 U.S. 903 (1986).  Rather,                              ____________            courts have  denied liability for  purely economic harm  in a            variety  of  land-based  contexts.3   Such  cases  rest on  a                                            ____________________                 3See, e.g.,  Dundee Cement Co. v. Chemical Laboratories,                  _________   _________________    ______________________            Inc., 712  F.2d 1166  (7th Cir.  1983) (denying recovery  for            ____            lost  profits from  owner of  tanker truck  which overturned,            blocking  the only  entrance  to  plaintiff's cement  plant);            Nebraska Innkeepers, Inc. v. Pittsburgh-Des Moines Corp., 345            _________________________    ___________________________            N.W.2d  124  (Iowa 1984)  (holding that  businesses adversely            affected by closing of bridge in which cracks developed could            not recover for  economic losses against  the builder of  the            bridge);  Stevenson v. East Ohio Gas Co., 73 N.E.2d 200 (Ohio                      _________    _________________            Ct. App. 1946) (holding that plaintiff could not recover lost            wages   against  defendant,   whose  negligence   in  storing                                         -13-                                         -13-            concern about  extending the  scope of tort  liability beyond            the  generally  limited  class  of  individuals   who  suffer            physical  damage to  person or  property.   See Rabin,  "Tort                                                        ___            Recovery   for   Negligently  Inflicted   Economic   Loss:  A            Reassessment,"  37 Stan.  L. Rev.  1513, 1528  (1985).   This            concern  stretches landward quite as much  as seaward.  Thus,            we hold that  Rhode Island's decision  to depart from  Robins                                                                   ______            does not materially prejudice a rule that originated in or is            exclusive to general maritime law.                 Even  absent prejudice  to  a characteristic  feature of            admiralty,  state legislation is preempted if (under Jensen's                                                                 ______            third  test)  it  "interferes  with the  proper  harmony  and            uniformity" of maritime  law. Jensen,  244 U.S. at  216.   As                                          ______            Justice Scalia  observed in considering this  question, "[i]t            would be idle to pretend that the line separating permissible            from impermissible state regulation is readily discernible in            our  admiralty  jurisprudence,  or  indeed  is  even entirely            consistent  within  our  admiralty  jurisprudence."  American                                                                 ________            Dredging, 114 S. Ct. at 987.  He did not, however, articulate            ________            a  definitive test  of harmony  and uniformity,  holding only            that there is no  preemption where the relevant state  law is            procedural rather than substantive. Id. at 988.  In our case,                                                ___            the Rhode Island statute is indisputably substantive.                                            ____________________            explosives caused destruction of  plaintiff's nearby place of            employment);  Hart Eng'g Co. v. FMC Corp., 593 F. Supp. 1471,                          ______________    _________            1481-84 (D.R.I. 1984) (Selya, J.).                                          -14-                                         -14-                 Where  substantive law  is involved,  we think  that the            Supreme Court's past decisions yield no single, comprehensive            test as to where harmony is required and when uniformity must            be maintained.  Rather, the decisions however couched reflect            a balancing of the  state and federal interests in  any given            case. See, e.g., Kossick  v. United Fruit Co., 365  U.S. 731,                  _________  _______     ________________            738-42 (1961); Huron  Portland Cement Co. v. City of Detroit,                           __________________________    _______________            362  U.S. 440, 442-48  (1960).  Our  circuit has acknowledged            that  "the  Supreme  Court .  .  .  no  longer construes  the            Admiralty Clause  as requiring `rigid  national uniformity in            maritime legislation,'"  Carey v.  Bahama  Cruise Lines,  864                                     _____     ____________________            F.2d  201, 207 (1st Cir. 1988), and that the preemption issue            "ordinarily requires a delicate  accommodation of federal and            state  interests." Id.   As  Professor Currie  summed up  the                               ___            matter:                 The  maritime  nature  of  an  occurrence does  not                 deprive  a state  of  its  legitimate concern  over                 matters affecting  its residents or  the conduct of                 persons  within  its  borders;    but  the  federal                 admiralty  powers were  granted to  protect certain                 federal  interests  in   maritime  and   commercial                 affairs.  An  issue created by  such a conflict  of                 interests can  be  resolved only  by  reference  to                 those interests  and by an attempt  to maximize the                 effectuation of  the proper concerns  of both state                 and nation.            1960 Sup. Ct. Rev. at 169.                 In balancing the state  interest in regulation against a            potential overriding federal need for harmony or  uniformity,            we  start with  Rhode Island's  interest in  implementing its                                         -15-                                         -15-            Compensation Act.  No one can doubt that the state's interest            in  avoiding pollution  in its  navigable  waters and  on its            shores, and  in redressing injury  to its citizens  from such            pollution, is a weighty  one.  In Huron Portland  Cement, the                                              ______________________            Supreme Court described state air pollution laws as a classic            example  of police power, and continued:  "In the exercise of            that power,  the states  .  . .  may act,  in  many areas  of            interstate  commerce  and  maritime activities,  concurrently                                  ________________________            with the  federal government."   342  U.S.  at 442  (emphasis            added).                 In Askew v. American Waterways Operators, Inc., 411 U.S.                    _____    __________________________________            325  (1973), the  Court  sustained,  against  a  maritime-law            preemption challenge, a Florida statute that imposed no-fault            liability  on  vessel owners  and  operators  for damages  to            private parties  caused by oil spills  in territorial waters.            Justice Douglas described oil  spillage as "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            lives of the coastal  people are greatly dependent."   Id. at                                                                   ___            328-29.  See also id. at 332-43.                     ___ ____ ___                 Claimants in this case  argue flatly that Askew, without                                                           _____            more, sustains the Rhode Island statute; and perhaps it does.            The difficulty is that  Justice Douglas rejected the maritime            law preemption claim on the ground that Jensen had nothing to                                                    ______            do with "shoreside injury by ships on navigable waters."  411                                         -16-                                         -16-            U.S. at 344.   "Historically," said Justice Douglas, "damages            to  the shore or to  shore facilities were  not cognizable in            admiralty."   Id. at 240.   Although Congress  had by statute                          ___            extended  admiralty jurisdiction shoreword in 1948, the Court            said that this extension did not  carry Jensen with it.   Id.                                                    ______            ___            at 341.                 If  Justice  Douglas  meant   to  avoid  preemption  for            physical damage  to  the shore  or shore  facilities, as  his            words seem to suggest,  this might easily not embrace  damage            to bay  waters or the  beds beneath them.   If instead  Askew                                                                    _____            meant  to allow a state  remedy for any  intangible impact or            loss  ultimately felt on shore, it  is hard to see what would            be  left  of  preemptive  federal authority  since  the  most            traditional   of  admiralty   events--for  example,   a  ship            collision or  a seaman's death-- has  such intangible effects            ashore.  However the riddle of  Askew is solved, we think  it                                            _____            safest to take it here merely to  show, as it assuredly does,            the importance of the  state's interest in providing remedies            for vessel-caused oil pollution damage.                 The federal interest in limiting remedies is more subtle            but also not  without importance.  The  Compensation Act does            not regulate the out-of-court  behavior of ships or sailors--            what is sometimes called "primary conduct"; rather the act is            concerned  with the  liability  imposed for  conduct that  is            already unlawful.  State regulation of primary conduct in the                                         -17-                                         -17-            maritime realm  is not automatically forbidden,  e.g., Ray v.                                                             ____  ___            Atlantic Richfield Co., 435 U.S. 151, 179-80 (1978), but such            ______________________            regulation presents the most  direct risk of conflict between            federal and  state  commands,  or  of  inconsistency  between            various  state  regimes  to  which the  same  vessel  may  be            subject.4                 Instead,  the  question  here  is the  familiar  one  of            burden.  At some point, a regime of liability, or a diversity            of regimes,  could impose or  threaten such heavy  costs that            maritime  commerce may  itself be  impaired.   Initially such            costs  are borne  by shipowners  but in  the end  they affect            every business that  uses ships or receives  raw materials by            ship  and every citizen who, as a worker or consumer, depends            upon such  commerce.  A  regime may  also be so  difficult to            administer  as  to  prevent  the  efficient  and  predictable            resolution of maritime  disputes.  These  are not trivial  or            irrelevant concerns,  for  "the fundamental  interest  giving            rise to  maritime jurisdiction is the  protection of maritime            commerce."5                                             ____________________                 4O'Melveny & Myers v. Federal Deposit Ins. Corp., 114 S.                  _________________    __________________________            Ct.  2048, 2055  (1994) (suggesting  that uniformity  is most            important where  the rule at  issue is one  governing primary            conduct);  American Dredging,  114 S.  Ct. at  988-89 (noting                       _________________            that "forum non conveniens does not bear upon the substantive                  ____________________            right  to  recover, and  is not  a  rule upon  which maritime            actors rely in making decisions about primary conduct").                 5Exxon Corp.  v. Central Gulf  Lines, Inc.,  111 S.  Ct.                  ___________     _________________________            2071, 2074 (1991) (internal quotations omitted).  The Supreme            Court  has regularly  considered  such  burdens in  admiralty                                         -18-                                         -18-                 Indeed,   these  very   concerns--with  the   burden  of            liability and  of  administration--underpin the  Robins  rule                                                             ______            itself  and are discussed at length in Barber Lines, 754 F.2d                                                   ____________            at 54-55.  But  it is one thing to say that  a federal court,            largely responsible for shaping  the common law of admiralty,            should  follow  a longstanding  liability  rule  to govern  a            federal  cause of action.  It is  quite another to say that a            state remedy, presumptively  preserved under  the savings  to            suitors  clause,  is  potentially  so  disruptive  as  to  be            unconstitutional.  Where as here the state remedy is aimed at            a  matter of great and legitimate state concern, a court must            act with caution.                 The question,  then, is  whether absent the  Robins rule                                                              ______            there remain limitations  on the scope of  recovery under the            Compensation  Act adequate to limit the  burden it imposes on            maritime commerce.    The  Compensation Act  has  yet  to  be            construed by the Rhode Island courts.  We nevertheless assume            that  its extension of liability to cover all "loss of income            or diminution of profit  . . . as  a result of damage  to the                                           _______________                                            ____________________            preemption cases,  see, e.g., Ray v.  Atlantic Richfield Co.,                               _________  ___     ______________________            435 U.S. 151, 179-80 (1978);  Huron Portland Cement, 362 U.S.                                          _____________________            at 443-44, and has drawn explicit parallels between admiralty            preemption  and  Commerce  Clause  analysis.   See  Davis  v.                                                           ___  _____            Department of  Labor and  Industries of Washington,  317 U.S.            __________________________________________________            249, 257 (1942); Wilburn Boat Co. v. Fireman's Fund Ins. Co.,                             ________________    _______________________            348 U.S.  310, 323-24 (1955) (Frankfurter,  J., concurring in            the result).  This does not, however, mean that the admiralty            clause  simply duplicates  a commerce  clause analysis.   See                                                                      ___            American Dredging, 114 S. Ct. at 988 n.3.              _________________                                         -19-                                         -19-            natural  resources of the state of Rhode Island caused by the                                                            ______            violation of [Rhode Island pilotage or pollution laws]," R.I.            Gen. Laws    46-12.3-4 (emphasis  supplied), incorporates the            familiar  tort  limitations of  foreseeability  and proximate            cause.   These principles do in some measure limit the burden            imposed on maritime shipping.                 Foreseeability  may extend  some  distance,  cf.  Barber                                                              ___  ______            Lines, 764 F.2d at 52, and "remoteness" is scarcely a sharply            _____            defined concept.   Compare Petitions of  Kinsman Transit Co.,                               _______ _________________________________            388 F.2d 821 (2d  Cir. 1968) (rejecting Robins  but excluding                                                    ______            economic losses suffered  by the owner of a  vessel prevented            from unloading its cargo  above a bridge that collapsed  as a            result  of defendant's  negligence  as too  remote to  permit            recovery).   We cannot be  sure how Rhode  Island courts will            develop these concepts in the context of oil pollution cases.            Depending on Rhode Island's solutions, the burdens imposed by            the Compensation  Act, financial and  administrative, may  be            substantial  but they may also  be tolerable.   One might say            that the case for  preemption at this stage is subject to the            Scotch verdict--not proven.                   Having said  all this, we think  one final consideration            tips the scales in favor of the Compensation Act's  validity.            Congress  has  recently enacted  the  Oil  Pollution Act,  33            U.S.C.    2701 et seq.,  which almost certainly  provides for                           _______                                         -20-                                         -20-            recovery  of purely  economic  damages in  oil spill  cases.6            Section 2702(b)(2)(E)  of  the act  provides that  "[d]amages            equal  to  the  loss  of profits  or  impairment  of  earning            capacity due  to the  injury,  destruction, or  loss of  real            property,  personal property,  or  natural resources,  . .  .            shall be recoverable by any claimant."  The  House Conference            Report makes clear that,  under section 2702(b)(2)(E), "[t]he            claimant need not  be the  owner of the  damaged property  or            resources to recover for lost profits or income".  H.R. Conf.            Rep.  No. 101-653, 101st Cong., 2d Sess. 103 (1990).  The act            also  expressly  provides  that  it does  not  preempt  state            imposition of additional liability requirements.  33 U.S.C.              2718(a).                 The  statute  contains  another  substantial   piece  of            evidence that  Congress means  to allow recovery  of economic            losses  from  injury to  natural  resources  even though  the            claimant's  own  property  was   not  damaged.    In  another            subsection  of the  damage  provision, there  is an  explicit            provision  for recovery  of "economic  losses  resulting from            destruction  of real or personal property" by a claimant "who                                            ____________________                 6We  say "almost" only because one court has held to the            contrary. See In re Petition of Cleveland  Tankers, Inc., 791                      ___ __________________________________________            F. Supp.  669, 678-79 (E.D. Mich. 1992).   Most commentators,            by contrast, have read  the new statute--as its language  and            legislative history  suggest--to override the Robins Dry Dock                                                          _______________            rule,  see  McCurdy,  "An  Overview  of   OPA  1990  and  Its                   ___            Relationship  to Other Laws," 5 U.S.F.  Mar. L.J. 423 (1993);            Gonynor, "The Robins  Dry Dock  Rule:  Is  the `Bright  Line'                          ________________            Fading?" 4 U.S.F. Mar. L.J. 85 (1992).                                         -21-                                         -21-            owns or leases  that property."   33 U.S.C.    2707(b)(2)(B).            If the "natural resources" injury provision in subsection (E)            were limited  to those  owned by  the claimant,  the recovery            thus provided would be already covered by subsection (B)  and            subsection (E)  would be  redundant.   United States  v. Ven-                                                   _____________     ____            Fuel, Inc.,  758 F.2d 741,  751-52 (1st Cir.  1985) (readings            __________            that create redundancies are not favored).                  The new federal statute  does not apply retroactively to            govern  the present case.   See Pub.  L. No.  101-380,   1020                                        ___            (providing  that  the statute  "shall  apply  to an  incident            occurring  after the date  the enactment of  this Act [August            18,  1990].").  But we  think that the  statute is compelling            evidence  that Congress  does  not view  either expansion  of            liability  to cover  purely economic  losses or  enactment of            comparable state oil pollution regimes as an excessive burden            on maritime  commerce.  Given the  Congress' superior ability            to weigh the very practical considerations relating to such a            judgment,  we give  Congress' conclusion  substantial weight.            For  this purpose,  the non-retroactivity  of the  statute is            irrelevant.                 We hold, then, that  the Rhode Island's Compensation Act            as reasonably  construed and applied is not  preempted by the            admiralty clause of the Constitution.  We express no judgment            on  whether claimants'  particular  injuries were  reasonably            foreseeable or proximately caused by the grounding of the M/V                                         -22-                                         -22-            World  Prodigy,  or whether  claimants' claims  are otherwise            viable under the Rhode Island statute.  That determination is            for the district court in the first instance or for the state            courts.  Robins Dry Dock remains the rule in this circuit for                     _______________            federal claims;   we simply hold that Rhode Island is free to            chart a different course.                 Because  of the Oil Pollution  Act, it may  well be that            the immediate problem with which  we have wrestled at  length            in  this case is  a transient one;  the legal  regime for oil            pollution accidents after August 18, 1990,  will largely be a            creature of  the new statute.   But the case before  us, like            all cases, is  important to the litigants,  and the governing            legal  standards have  application  elsewhere.   Applying  an            imprecise federal  preemption standard to a  little construed            state statute is  no easy  task.  For  the present,  assuming            that the  Rhode Island  statute is providently  construed and            applied, we think that it is not unconstitutional.                 The   decision   of   the  district   court   dismissing            plaintiffs'  federal claims  is affirmed;   the  dismissal of                                            ________            plaintiffs' state claims is reversed and the case is remanded                                        ________                 ________            for further proceedings consistent with this opinion.                                         -23-                                         -23-
