Slip Op. 99-91

UNITED STATES COURT OF INTERNATIONAL TRADE

___________________________________

:

AMOCO OIL COMPANY, : Court No. 95-07-00971 

:

Plaintiff, :

:

v. :

:

THE UNITED STATES, :

:

Defendant. :

___________________________________:

[Defendant’s motion to dismiss granted]

Dated: September 1, 1999

Barnes, Richardson, & Colburn (Robert E. Burke, Lawrence M.

Friedman, Christopher E. Pey, Melissa Miller, Aaron Gothelf) for

plaintiffs.

David W. Ogden, Acting Assistant Attorney General, David M.

Cohen, Director, Commercial Litigation Branch, Civil Division,

United States Department of Justice (Jeanne E. Davidson, Todd M.

Hughes and Lara Levinson), Richard McManus, Office of the Chief

Counsel, United States Customs Service, of counsel, for

defendant.

OPINION

RESTANI, Judge: This matter is before the court on

Defendant’s Motion to Dismiss for Failure to State a Claim Upon

Which Relief Can Be Granted pursuant to USCIT R. 12(b)(5). In

this action, Plaintiff challenges the constitutionality of the

Harbor Maintenance Tax (“HMT”), established by 26 U.S.C. §§ 4461,

4462 (1994), on its imports into the United States.
COURT NO. 95-07-00971 PAGE 2

1 Amoco claims 28 U.S.C. § 1581(i) jurisdiction for its few

entries of imports into a foreign trade zone. This issue was not

adequately briefed by the parties. The Government, however, does

not challenge that jursidiction is proper under § 1581. As the

court is denying relief on the merits, it does not resolve which

subsection of § 1581 applies to such entries. 

2

 Harbor Maintenance Revenue Act of 1986 (“HMRA”), P.L. 99-

662, Title XIV, § 1402(a), 100 Stat. 4266 (1986).

I. JURISDICTION

This court has jurisdiction pursuant to 28 U.S.C. §

1581(a).1 See Thomson Consumer Elecs. v. United States, No. 95-

03-00277-S, slip op. 99-84, at 4-5 (Ct. Int’l Trade Aug. 17,

1999).

II. STANDARD OF REVIEW

On a motion to dismiss for failure to state a claim, factual

allegations made in the complaint are assumed to be true and all

inferences are drawn in favor of the plaintiff. See, e.g.,

Mitchell Arms, Inc. v. United States, 7 F.3d 212, 215 (Fed. Cir.

1993). Dismissal is proper only “where it appears beyond doubt

that plaintiff can prove no set of facts which would entitle him

to relief.” Constant v. Advanced Micro-Devices, Inc., 848 F.2d

1560, 1565 (Fed. Cir. 1988). 

III. BACKGROUND

The HMT is an ad valorem tax on commercial cargo involved in

“any port use,” including imports. See 26 U.S.C. § 4461(a)

(1996). The HMT is contained in Title XIV2 of the Water 
COURT NO. 95-07-00971 PAGE 3

3 Amoco suggests that the Supreme Court, in United States v.

U.S. Shoe Corp., 523 U.S. 360 (1998), held that the HMT is a

general revenue-raising tax, not a fee for port maintenance. 

This contention is misplaced. That the HMT does not meet the

strict requirement for a “user fee” pursuant to Export Clause

jurisprudence does not alter the purpose or the function of the

HMT in general. The HMT has been and continues to be a funding

mechanism for harbor maintenance.

Resources Development Act of 1986 (“WRDA” or “Act”), Pub.L. No.

99-662, 100 Stat. 4082 (1986). The HMT was intended to finance

the general maintenance of U.S. ports.3 S. Rep. No. 99-126, at

9-10 (1985), reprinted in 1986 U.S.C.C.A.N. 6639, 6646-47.

Plaintiff Amoco Oil Company (“Amoco”) imports goods by sea

and alleges that, between 1993 and 1995, it made HMT payments

upon imports in excess of $1,000,000. Amoco claims that the HMT

on imports, 26 U.S.C. § 4461(c)(1)(A), is unconstitutional in

light of the Supreme Court’s decision in United States v. U.S.

Shoe Corp., 523 U.S. 360 (1998), aff’g 114 F.3d 1564 (Fed. Cir.

1997), aff’g 19 CIT 1284, 907 F. Supp. 408 (1995). In U.S. Shoe,

523 U.S. at 370, the Supreme Court held that the export provision

of the HMT, 26 U.S.C. § 4461(c)(1)(B), violates the Export Clause

of the Constitution. U.S. Const. art. I, § 10, cl. 2.

Amoco argues that the HMT on imports should be declared

invalid because it is not severable from the unconstitutional HMT

on exports. Defendant, United States Customs Service

(“Customs”), argues that this court, in Carnival Cruise Lines v.

United States, 20 CIT 704, 706-11, 929 F. Supp. 1570, 1572-77 
COURT NO. 95-07-00971 PAGE 4

4 Defendant does not dispute that Amoco has standing to raise

a constitutional claim under both clauses. As relief is not

granted, it is not necessary to explore this issue further.

(1996), already held that the HMT on exports is severable, and

therefore, Plaintiff’s complaint fails to state a claim upon

which relief can be granted.

Amoco also argues the HMT violates the Uniformity Clause,

U.S. Constitution, art.1, § 8, cl. 1., and the Port Preference

Clause, U.S. Constitution, art. 1, § 9, cl. 6.4

IV. DISCUSSION

A. Severability

It is well-established that unconstitutional provisions of a

statute are severable if: (1) the remaining provisions of the

statute are independently operative as law, and (2) the remaining

statute will function in a manner consistent with the intent of

Congress. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684-

85 (1987); INS v. Chadha, 462 U.S. 919, 931-35 (1983); Buckley v.

Valeo, 424 U.S. 1, 108-09 (1976); United States v. Jackson, 390

U.S. 570, 585-91 (1968); Champlin Refining Company v. Corporation

Commission of Oklahoma, 286 U.S. 210, 234 (1932) (“Unless it is

evident that the Legislature would not have enacted those

provisions which are within its power, independently of that

which is not, the invalid part may be dropped if what is left is

fully operative as a law.”). Cf. Minnesota v. Mille Lacs Band of 
COURT NO. 95-07-00971 PAGE 5

5

 The court has since determined that the HMT on passenger

services is unconstitutional, see Carnival Cruise Lines, Inc. v.

United States, No. 93-10-00691, 1998 WL 299348, at *3 (Ct. Int’l

Trade June 2, 1998) (appeal pending); however, the basic premise

that the HMT on exports is severable from the remaining

provisions of the HMT is unchanged.

Chippewa Indians, 119 S.Ct. 1187, 1198-99 (1999) (applying twopart test in context of Executive Order).

In Carnival Cruise Lines, the court held that the

unconstitutional HMT on exports is severable from “the remainder

of the HMT, in particular those portions of the statute that

involve [Carnival’s] operations as shippers providing passenger

services.” 20 CIT at 712, 929 F. Supp. at 1577.5 The court

determined that the HMT on exports was severable because (1) the

HMT statute still functioned absent the export provision, see 20

CIT at 706-07, 929 F. Supp. at 1572-73, and (2) plaintiffs failed

to provide “strong evidence” that Congress did not intend the

export provision to be severable, particularly in light of the

WRDA’s severability clause. 20 CIT at 709, 929 F. Supp. at 1575.

Amoco argues that Carnival Cruise Lines is not dispositive

because the court did not address Congressional concerns

regarding potential violations of international obligations under

the General Agreement on Tariffs and Trade (“GATT”). As the

extent to which the court should apply stare decisis principles

is unclear, and as this is a new argument, the court will

consider the issue of severability.
COURT NO. 95-07-00971 PAGE 6

6

 The severability clause of the WRDA provides: “If any

provision of this Act, or the application of such provision of

this Act to any person or circumstance, is held invalid, the

application of such provision to other persons or circumstances,

and the remainder of this Act, shall not be affected thereby.” 

33 U.S.C. § 2304.

With respect to the first inquiry, the court has held that

the HMT, as a whole, still functions without the HMT on exports. 

See Carnival Cruise Lines, 20 CIT at 707, 929 F. Supp. at 1573

(“[N]either of the ‘export’ provisions are essential to the

functioning of the [HMT] in relation to the remaining categories

of liability for port use.”). Plaintiff makes no argument to the

contrary. It is the second question, that of Congressional

intent, upon which Plaintiff’s claims primarily rely. With

respect to Congressional intent, the standard is clear: “the

unconstitutional provision must be severed unless the statute

created in its absence is legislation that Congress would not

have enacted.” Alaska Airlines, 480 U.S. at 685 (emphasis

added).

Where Congress has included a severability clause, the

objectionable provision must be severed unless there is “strong

evidence” that Congress intended otherwise. Alaska Airlines, 480

U.S. at 686. See also Chadha, 462 U.S. at 932; Champlin

Refining, 286 U.S. at 234-35. Thus, the enactment of a

severability provision within the WRDA, 33 U.S.C. § 2304,6

creates a presumption that Congress did not intend the validity 
COURT NO. 95-07-00971 PAGE 7

7 On the basis of this argument, Plaintiff Amoco requested

that the court allow a period of discovery before ruling on this

motion to dismiss. Because the issue of severability is a legal

(not factual) question of statutory construction and

Congressional intent, however, discovery beyond those public

records already available would not have aided Plaintiff’s case. 

Documents and individual thoughts not made public at the time of

passage do not establish the intent of Congress as a whole. The

court therefore denies Plaintiff’s request for discovery.

8 Article VIII provides, in relevant part:

All fees and charges of whatever character (other than

import and export duties and other than taxes within

the purview of Article III) imposed by contracting

parties on or in connexion with importation or

exportation shall be limited in amount to the

aproximate cost of services rendered and shall not

represent an indirect protection to domestic products

or a taxation of imports or exports for fiscal

purposes.

(continued...)

of the HMT as a whole to depend on the validity of

constitutionally-offensive provisions. In Carnival Cruise Lines,

the court found that the legislative history of the WRDA did not

provide sufficient evidence to rebut this presumption of

severability. 20 CIT at 708-11, 929 F. Supp. at 1574-77. Amoco

argues that proof of Congressional concerns regarding

international obligations would have provided the strong evidence

necessary to reject severability.7 According to Amoco, Article

VIII of the GATT requires signatory countries to reciprocate

“national treatment” by ensuring that taxes and other charges are

not applied to goods imported from member countries in a way that

protects a domestic industry.8

 The core of Amoco's argument, 
COURT NO. 95-07-00971 PAGE 8

8

(...continued)

GATT, Art. VIII(a).

9 With very limited exceptions, the tax is also required for

shipments between domestic ports by everyone, including domestic

shippers. See 26 U.S.C. § 4461(c)(1)(C).

therefore, is that Congress would not have passed the HMT on

imports without the HMT on exports because the result would be

inconsistent with United States obligations under GATT. 

Amoco's argument is based on the premise that an HMT on

imports alone violates the GATT because it would necessarily

protect the domestic industry (exporters), which is not required

to pay the tax.9

 Curiously, Amoco’s own Congressional excerpts

support the opposite: “While an import surcharge may not be GATT

illegal, it is true that most countries have been reluctant to

impose them due to possible adverse GATT implications.” The

Problems with Import Surcharges, 131 Cong. Rec. 3533, 3533 (Feb

26, 1985) (emphasis added).

Even if an HMT upon imports and not exports would violate

the GATT, it is entirely within Congress’ power to pass such a

tax. If a statute is inconsistent with international

obligations, “it is a matter for Congress and not [the] court to

decide and remedy.” Suramerica de Aleaciones Laminadas, C.A. v.

United States, 966 F.2d 660, 668 (Fed. Cir. 1992). See also

Federal-Mogul Corp. v. United States, 63 F.3d 1572, 1581 (Fed.

Cir. 1995); Campbell Soup Co., Inc. v. United States, 18 CIT 440, 
COURT NO. 95-07-00971 PAGE 9

10 During public hearings before the House Committee on Ways

and Means concerning the HMT, Representative Gradison asked

representatives of the Department of the Army and Customs Service

whether the U.S. had considered imposing the tax only on imports. 

Richard Abbey, Chief Counsel of the Customs Service, replied that

“imposing [the HMT] only on imports would present significant

GATT problems, and for that reason alone it was decided to impose

the [tax] on both exports and imports and on movements on the

inland waterways.” Water Resources Conservation, Development,

and Infrastructure Improvement Act of 1985: Hearing Before the

House Committee on Ways and Means on H.R. 6, 99th Cong. 37

(1985).

453, 853 F. Supp. 1443, 1453 (1994). Therefore, the issue is not

whether an HMT on imports alone violates the GATT, but whether

Congress was so fearful of negative GATT implications that it

would not have enacted the HMT on imports without the HMT on

exports.

There is some evidence to support such an argument. A report

issued by the House Merchant Marine and Fisheries Committee

explicitly recognized the possibility of conflict with the United

States’ GATT obligations if the HMT were to be “construed [as] a

revenue-raising measure.” H.R. Rep. No. 99-251(IV), at 24

(1985). In testimony before the House Ways and Means Committee,

one witness even stated that the export provision had been

included for the sole of purpose of avoiding conflicts with the

GATT.10 See Water Resources Conservation, Development, and

Infrastructure Improvement Act of 1985: Hearing Before the House

Committee on Ways and Means on H.R. 6, 99th Cong. 37 (1985).

The inclusion of a general severability clause, however, 
COURT NO. 95-07-00971 PAGE 10

11 House bill H.R. 6 originally contained a severability

clause, Section 116, which provided for severability in the event

that the HMT on exports was held to be unconstitutional. Section

116 provided as follows:

[i]f section 110 of this title [the HMT] is held

invalid, all valid parts [of the Act] that are

severable from section 110 remain in effect. If

section 110 of this title is invalid in one or more of

its applications, section 110 remains in effect in all

valid applications that are severable from invalid

applications.

H.R. Rep. No. 99-251(IV), at 13 (emphasis added).

suggests that Congress did envision an Act without the HMT on

exports. See Alaska Airlines, 480 U.S. at 686. Indeed, a report

from the House Committee on Merchant Marine and Fisheries

recommending an HMT-specific severability clause11 confirms that

Congress contemplated the survival of the HMT should the export

provision be declared invalid:

The concern of the Committee and the subject of the

amendment was, for example, that the constitutional

arguments that have been made against imposing a tax on

exports might result in the legislation being declared

invalid and it was the desire of the Committee to

preserve all other provisions of the Act if that or a

similar provision be found invalid.

H.R. Rep. No. 99-251(IV), at 30 (emphasis added).

The court notes, however, the absence of the HMT-specific

severability clause in the final version of the WRDA. It is

unclear from the legislative history whether the omission

indicates that Congress believed the general severability clause,

33 U.S.C. § 2304, alone would sufficiently address HMT

severability concerns or that Congress intentionally removed 
COURT NO. 95-07-00971 PAGE 11

12 The court addressed plaintiff’s argument that the HMT was a

“freestanding” provision beyond the scope of the WRDA’s

severability clause as follows:

Plaintiffs in essence are contending that by the

structure of the WRDA, Congress did not intend the

severability clause to apply to a specific provision

(tax on exports), but to a larger more general

provision (the HMT), but not to a larger, even more

general provision (the HMRA (Title XIV of the WRDA)),

if it applies at all; and that by the history of the

WRDA, Congress was concerned that the tax on exports

would jeopardize the entire WRDA, so it included a

severability clause in the WRDA to ensure that the tax

on exports could be severed from the remaining

provisions of the statute, thereby taking those

remaining provisions of the WRDA out of jeopardy; but

that the severability clause is to be applied so that

the remaining valid provisions of the HMT would be

severed from the WRDA as well. The Court finds the

logic of these arguments untenable.

Carnival Cruise Lines, 20 CIT at 707, 929 F. Supp. at 1573-74.

severability from the HMT. The court in Carnival Cruise Lines

addressed, at length, its reasons for rejecting the latter

interpretation12 20 CIT at 707-11, 929 F. Supp at 1573-77. 

Without more support, this court, too, concludes it unwise to

speculate as to Congress’ intent in removing HMT-specific

severability. 

Assuming arguendo that two committee reports from the same

house evidence the collective legislative intent, Congress seems,

at best, conflicted. Combining the excerpts, it appears that

Congress was faced with the following dilemma in its search to

fund the WRDA: include the HMT on exports and risk the Act being

declared unconstitutional or exclude the provision and risk the 
COURT NO. 95-07-00971 PAGE 12

13 A determination that provisions within the HMT are not

severable would, obviously, require the court to strike down the

entire HMT. Such action would essentially destroy the WRDA by

eliminating its primary source of funding. 

Act violating the GATT. In response, Congress included the HMT

on exports and kept the general severability clause. This does

not indicate that Congress’ overriding concern was the potential

violation of GATT but that it was one of many concerns. On

balance, this is insufficient to rebut the strong presumption of

severability.

Federal courts are required to interpret statutes so as to

maintain, rather than destroy, their constitutionality. See

Robertson v. Seattle Audubon Soc’y, 503 U.S. 429, 441 (1992). 

“In exercising its power to review the constitutionality of a

legislative Act, a federal court should act cautiously. A ruling

of unconstitutionality frustrates the intent of the elected

representatives of the people. Therefore, a court should refrain

from invalidating more of the statute than is necessary.”

Regan v. Time, 468 U.S. 641, 652 (1984) (plurality decision).

Consequently, this court must err on the side of

severability, particularly when the invalidation of the provision

would effectively destroy the Act.13 See NLRB v. Jones &

Laughlin Steel Corp., 301 U.S. 1, 30 (1937) (“[A]s between two

possible interpretations of a statute, by one of which it would

be unconstitutional and by the other valid, our plain duty is to 
COURT NO. 95-07-00971 PAGE 13

adopt that which will save the act.”). In light of the

severability clause and consistent with our mandate to preserve

Congressional Acts where possible, the court holds that the HMT

on exports is severable from the remainder of the HMT.

B. Uniformity Clause

Amoco next argues that the HMT violates the Uniformity

Clause of the Constitution. The Uniformity Clause requires that

“all Duties, Imposts and Excises . . . be uniform throughout the

United States . . . .” U.S. Constitution, art.1, § 8, cl. 1. 

Amoco contends that the HMT violates the Uniformity Clause

because it is not equally assessed upon all ports or states. The

clause, however, “does not require Congress to devise a tax that

falls equally or proportionately on each State.” United States

v. Ptasynski, 462 U.S. 74, 82 (1983). It simply requires that

the tax operate “with the same force and effect in every place

where the subject of it is found.” Head Money Cases, 112 U.S.

580, 594 (1884)(upholding a tax upon seaport immigration but not

upon inland immigration).

The subject of the HMT is commercial cargo involved in “any

port use.” 26 U.S.C. § 4461 (a). The HMT contains exemptions

for certain domestic shipments Alaska and Hawaii, see 26 U.S.C. §

4462(b), as well as a “special rule” for certain ports in 
COURT NO. 95-07-00971 PAGE 14

14 Section 4462(a)(2)(C) of Title 26 provides that “[t]he term

‘port’ shall include the channels of the Columbia River in the

States of Oregon and Washington only up to the downstream side of

the Bonneville lock and dam.”

15 In requesting the exemption for Hawaii, Congressman Cec

Heftel stated:

Hawaii and the territories are unique because they

are islands. Virtually everything going in and out 

(continued...)

Washington and Oregon.14 26 U.S.C. § 4462(a)(2)(C). 

Consequently, Amoco contends that the HMT is not “uniform in its

operation in all ports of the United States . . . .” Head Money

Cases, 112 U.S. at 594. 

The Uniformity Clause does not, however, prohibit Congress

from enacting geographically-specific taxes. See Ptasynski, 462

U.S. at 83-84 (citing Head Money Cases, 112 U.S. at 595). 

“[W]here Congress does choose to frame a tax in geographic terms,

[courts] will examine the classification closely to see if there

is actual geographic discrimination.” Id. at 85 (citing Regional

Rail Reorganization Act Cases, 419 U.S. 102, 160-61 (1974)). 

Courts must determine whether Congress intended to grant an undue

preference to certain ports at the expense of others. See id. at

85-86. 

The Alaska and Hawaii exemptions were enacted to prevent,

not encourage, geographic discrimination. Alaska and Hawaii are,

for obvious reasons, geographically unique. Both states rely

more heavily upon shipping networks than do mainland states.15
COURT NO. 95-07-00971 PAGE 15

(...continued)

must travel by ship. We have no choice. We cannot

truck commodities in. We cannot send them by rail. 

The cost of air freight is prohibitive . . . .

A port user fee, therefore, would be levied on

over 80% of all the state’s goods and materials. No

other state would be so severely affected . . . .

Another aspect of the issue worth considering in

the light of fairness is the fact that most ports on

the Mainland are distribution terminals for import

cargo and consolidation and shipping terminals for

export cargo. In our case, ports serve their immediate

area, not wide regions, and the cost of the user fees

cannot therefore be spread among many users as it can

in the other areas . . . .

A terminal port city like Honolulu can spread the

cost among only a few. Distibution [sic] centers like

Baltimore spread their cost among millions.

Water Resources Conservation, Development, and Infrastructure

Improvement Act of 1985: Hearing Before the House Committee on

Ways and Means on H.R. 6, 99th Cong. 30 (1985).

An ad valorem tax upon shipped goods affects citizens of those

states substantially more than those of mainland states. 

Recognizing the inequity, Congress carefully drafted

exemptions specifically to exclude domestic goods loaded or

unloaded in Hawaii and Alaska, but limited the exemptions to

goods for consumption. See 26 U.S.C. § 4462(b)(1)(A)-(C). By

exempting only consumption goods, Congress merely offset the

burden that Hawaii and Alaska alone would have had to bear,

without completely exempting either state from the tax. As such,

the court finds no geographic discrimination favoring Alaska and

Hawaii.

The special rule for Washington and Oregon appears equally 
COURT NO. 95-07-00971 PAGE 16

16 The seven lower ports include, in Oregon, Portland, St.

Helens, and Astoria; and, in Washington, Vancouver, Woodland,

Longview, and Kalama. See H.R. Rep. No. 106-106(I), at 146-47

(1999). “[The L]ower Columbia River Ports have been the primary

shipping point for West Coast grain and feed grain exports for

many years. More than 38 million tons of commerce valued at $9

billion were shipped to or from Lower Columbia River ports in

1995.” Id. at 147.

17 It should be noted that different portions of the same river

system will fall within title 5 [Inland Waterways Tax] and

title 6 [HMT]. For example, the Mississippi System as far

south as Baton Rouge, La., is considered a component of the

inland system; below Baton Rouge it would fall under the

provisions of this title [HMT]. That portion of the

Columbia River upstream of Bonneville Lock and Dam

(including the actual lock and dam) falls under title 5

[Inland Waterways Tax], while the navigational work

downstream from Bonneville Dam comes under this title [HMT].

(continued...)

benign. Section 4462(a)(2)(C) of Title 26 geographically

demarcates those channels of the Columbia River which are

considered “ports” for the purposes of the HMT. Amoco argues

that the special rule unduly benefits channels which may have

attributes of ports, but are not defined as such because they are

located above the Bonneville dam.

For the purposes of the WRDA, the Columbia River is divided

into two sections. The first section is subject to the HMT and

includes that part of the river below the Bonneville lock and

dam. See 26 U.S.C. § 4462(a)(2)(C). That portion includes the

river’s seven largest and most active ports.16 The remainder of

the river is governed by the Inland Waterways Tax. See 33 U.S.C.

§ 1804(8). Such division is neither unique nor unusual.17 
COURT NO. 95-07-00971 PAGE 17

(...continued)

S. Rep. No. 99-126, at 52-53 (1985), reprinted in 1986

U.S.C.C.A.N. 6639, 6673-74.

18 In enacting the WRDA, Congress recognized that the Lower

Columbia River would increasingly be used as a port: “Increased

trade between the Pacific Northwest states and the Pacific Rim

nations has accentuated the need for a deepened navigation

channel in the Lower Columbia River, to accommodate larger,

deeper-draft vessels.” H.R. Rep. 106-106(I), at 147.

Thus, the rule seems less an exemption than a definition. The

rule is located, not with other acknowledged exemptions, but

within the subsection defining “port.” See 26 U.S.C. §

4462(a)(2). The HMT defines “port” as any channel or harbor in

the U.S. that is “not an inland waterway.” Id. (emphasis added). 

It seems clear that Congress intended the section of the Columbia

River that is more like a port to be defined as a port and the

portion of the river that is more like an inland waterway to be

defined as such.18 As both are taxed appropriately, the court

finds no geographic discrimination. 

Because the geographically-specific provisions of the HMT do

not result in discriminatory preference, the court holds that the

HMT does not violate the Uniformity Clause. 

C. Port Preference Clause

Finally, Amoco argues that the HMT is incompatible with the

Port Preference Clause, which requires that “[n]o Preference . .

. be given by any Regulation of Commerce or Revenue to the Ports

of one State over those of another . . . .” U.S. Constitution, 
COURT NO. 95-07-00971 PAGE 18

art. I, § 9, cl. 6. The Port Preference Clause was intended to

protect states, as opposed to individual ports or regions, from

Congressional regulation that intentionally discriminates against

one state’s ports to the advantage of another’s. See Armour

Packing Co. v. United States, 209 U.S. 56, 80 (1908); see also

Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. 421, 435

(1856) (“[W]hat is forbidden is, not discrimination between

individual ports within the same or different States, but

discrimination between States”). The clause has rarely been

invoked and has never been used to successfully invalidate a

Congressional Act. See Kansas v. United States, 16 F.3d 436, 439

(D.C. Cir. 1994) (“[The Port Preference Clause] has never been

relied on by the federal judiciary to hold an act of Congress

unconstitutional.”).

A violation of the Port Preference Clause requires that an

Act explicitly discriminate against the ports of a particular

state. See City of Milwaukee v. Yeutter, 877 F.2d 540, 546 (7th

Cir. 1989) (“For two hundred years courts have understood that

only explicit discrimination violates the Port Preference

Clause”). Amoco fails to allege that Congress explicitly

discriminated against particular states in enacting the HMT. 

Rather, Amoco argues that application of the HMT results in de

facto preferences that benefit certain states.

Congress may, however, enact laws that “greatly benefit 
COURT NO. 95-07-00971 PAGE 19

particular ports and which incidentally result to the

disadvantage of other ports in the same or neighboring states.” 

Louisiana Public Service Comm’n v. Texas & New Orleans R.R., 284

U.S. 125, 131 (1931). See also Armour Packing Co. v. United

States, 209 U.S. 56, 80 (1908) (“The fact that regulation, within

the acknowledged power of Congress to enact, may affect the ports

of one State more than those of another, cannot be construed as a

violation of [the Port Preference Clause].”).

The ultimate question, therefore, is not whether the Act

results in a preference, but whether Congress explicitly

discriminated against a particular state. Because Amoco failed

to identify any particular state against which Congress

intentionally discriminated, this court holds that the HMT does

not violate the Port Preference Clause.

The motion to dismiss is granted.

__________________________

Jane A. Restani

Judge

Dated: New York, New York

This 1st day of September, 1999.
ERRATA

Amoco Oil Co. v. United States, Court No. 95-07-00971, Slip

Op. 99-91, dated September 1, 1999.

At p. 13, line 21, insert the words “from and to” after

“domestic shipments”.

January 28, 2000.