March 2009

Last September, a Coast Guard helicopter crashed during a training mission near the Honolulu airport.  Tragically, four Coast Guardsmen were killed.  They were:  Captain Thomas Nelson (he was posthumously promoted), Lt. Commander Andrew Wischmeier, Aviation Survival Technician First Class David Skimin and Aviation Maintenance Technician 2nd Class Joshua Nichols.  Captain Nelson was four years ahead of…

U.S. policymakers are considering action to address concerns about illegal, unregulated and unreported fishing.  The vast expanses of the Pacific Ocean provide many opportunities for fishers who would flout the U.S. Exclusive Economic Zone and harvest ocean resources illegally.

Congress is considering H. R. 1080 (here) which aims to: “To strengthen enforcement mechanisms to stop illegal, unreported, and unregulated fishing, and for other purposes.”  Per the Congressional Research Service, the Act:

Amends specified Acts related to commercial fishing and marine resources, including the High Seas Driftnet Fishing Moratorium Protection Act, the Magnuson-Stevens Fishery Conservation and Management Act, the Pacific Salmon Treaty Act of 1985, the South Pacific Tuna Act of 1988, the High Seas Fishing Compliance Act of 1995, and the Antarctic Marine Living Resources Convention Act of 1984, to provide for increased interagency and international cooperation, as well as for increased penalties for violations of such acts and increased enforcement and inspection authorities relating to driftnet fishing, illegal, unreported, or unregulated fishing, and bycatch of a protected living marine resource.

Requires: (1) the development and publication of a list of vessels engaged in illegal, unreported, or unregulated fishing, including vessels identified by an international fishery management organization or an arrangement made pursuant to an international fishery agreement, whether or not the United States is a party to such organization or agreement; and (2) taking appropriate action against listed vessels.

Authorizes the Secretary of Commerce to establish an international cooperation and assistance program, including grants, to provide assistance for international fishing capacity building efforts.

Rear Admiral Brice-Ohara, Coast Guard Deputy Commandant for Operations, recently provided written testimony () on the bill, in which she stated:

IUU fishing activity is global in reach and adversely affects marine ecosystems by distorting competition and jeopardizing the economic survival of coastal communities that are reliant on local fisheries for their livelihood. IUU fishing negatively affects the marine resources and habitats in both domestic waters and on the high seas, and is conducted by all types of fishing vessels.  The environmental consequences of IUU fishing go well beyond direct damage done to fishing stocks, as IUU fishers are more inclined to disregard management efforts aimed at minimizing destructive fishing and illegal by-catch and discard practices which negatively affect other marine protected species and habitats. These abuses leave fish stocks and their habitats with a smaller margin of resilience to buffer the effects of climate change. The Coast Guard shares the view that deterring and controlling IUU fishing is vital to optimally managing and protecting vital living marine resources and their environments.  

The Coast Guard’s iCommandant blog post highlights some media coverage here.

Side note:  yet again, the Coast Guard noted its support for ratification (long overdue in my opinion) of the U.N. Convention on the Law of the Sea:

One of the fundamental building blocks of this system is the United Nations Law of the Sea Convention.  The United States is not yet a party to the Convention.  Acceding to the Convention is an important step to ensure that we can exercise the necessary leadership in international regime development across the full spectrum of concerns including international fisheries management and conservation. This action will strengthen the position of the United States when negotiating additional agreements and working in international forums to address IUU fishing.

The U.S. Supreme Court is considering an admiralty case involving the award of punitive damages in an admiralty personal injury case, Atlantic Sounding Co., Inc. v. Townsend on a writ of certiorari to the Court of Appeals for the Eleventh Circuit.  Oral argument was today, transcript here.  Decision below, here.  My earlier post here.

The Question Presented is: 

May a seaman recover punitive damages for the willful failure to pay maintenance and cure? The Eleventh Circuit’s decision below holds in the affirmative, but conflicts with the Second, Third, Fifth and Ninth Circuits as well as two state courts of last resort, the reasoning of Miles v. Apex Marine Corp., 498 U.S. 19 (1990), and Vaughan v. Atkinson, 369 U.S. 527 (1962).

Maintenance and cure is a cause of action for the medical treatment of seamen.  It is based in common law and as such, the Supreme Court is in a unique, perhaps uncomfortable role, as the highest common law court in the land.  This uncomfort with its role was vivid in last term’s case involving punitive damages related to the Exxon Valdez oil spill (posted here).

The oral argument contained an interesting dialogue about an amicus brief authored by Professor David Robertson of the University of Texas School of Law.  When discussing some of the 1800’s cases involving the damages in maintenance and cure cases Justice Breyer observed:

The — the problem here is it has pros and cons. I was quite moved by the brief -the citation that Professor Robertson made of all of those old cases until we looked them up. And — and then I found they seem to stand for a little bit less than I had the impression they stood for.

Ouch. 

This case is important to discern principles of punitive damages in federal courts.  The transcript revealed the attorneys’ experience litigating seaman injury cases and the quantity of cases or claims in this area do not seem to be so overwhelming as to require Supreme Court review now.  The Exxon case from last term split 4-4, so perhaps they are interested in getting Justice Alito’s take on puni’s in maritime cases (he recused himself from the Exxon case).

Merits Briefs

Petitioner (or employer) brief here.

Respondent (seaman) brief here.

Petitioner Reply here.

Amicus Briefs

Supporting Petitioner – Cruise Lines International Association here.

Supporting Respondent – American Association of Justice here.

Supporting Respondent – Port Ministries International here.

Supporting Respondent – Sailors’ Union of the Pacific here.

The Supreme Court will hear oral argument in the case involving the City of Valdez’ attempt to tax vessels in its ports.  The Court earlier granted the petition for a writ of certiorari to the Alaska Supreme Court (see my earlier post here).

The question presented is:

1. Whether a municipal personal property tax that falls exclusively on large vessels using the municipality’s harbor violates the Tonnage Clause of the Constitution, art. I, § 10, cl. 3.

2. Whether a municipal personal property tax that is apportioned to reach the value of property with an out-of-State domicile for periods when the property is on the high seas or otherwise outside the taxing jurisdiction of any State violates the Commerce and Due Process Clauses of the Constitution.

Polar Tankers, a vessel operator in Valdez, petitioned the Supreme Court to overturn the Alaska Supreme Court decision which found that Valdez’ tax did not constitute a violation of the tonnage clause of the U.S. Constitution.  It further challenged the tax as violative of the Due Process clause because it taxed out of state property.  Its opening brief is here.

The City of Valdez Answering Brief is here.

Several amici filed briefs supporting reversal, including, the Broadband Tax Institute (brief here)(supporting the out-of-state tax argument); the Council on State Taxation (brief here)(out-of-state tax argument); Tropical Shipping and Construction Company, Ltd. (brief here)(tonnage argument); World Shipping Council and Cruise Lines International Assn. (brief here)(tonnage argument); and the National Federation of Independent Business Small Business Legal Center (brief here)(out-of-state tax argument).  

Oral Argument is set for April 1, 2009.  Most tonnage clause precedent is from the 1800’s, so either the Supreme Court wants to breathe new life into that oft-forgotten sword of federalism or the Court wants to address concerns about out-of-state taxation.