While I have never heard the U.N. Convention on the Law of the Sea referred to as "LOST", FOX reports that the Senate may finally ratify the treaty, nearly 30 years after it was finalized.

In the past, some Senator from the South always stopped the treaty's ratification, so proponents should remain cautiously optimistic.

Hat tip to Steven M.

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.