General Maritime Law

Subscribe to General Maritime Law via RSS

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.

Hot off the Coast Guard Commandant's blog, the National Transportation Safety Board (NTSB) and the Coast Guard have updated their Memorandum of Understanding relating to marine casualty investigations.

No doubt prompted by the COSCO BUSAN incident in San Francisco Bay, the federal agencies agreed to a framework for the conduct of their separate investigations. 

The MOU is here. There must have been some ruffled feathers with respect to media outreach that the agreement aims to appease:

NTSB and USCG agree that regardless of which agency leads an investigation, the other agency may participate as an equal partner in gathering evidence and establishing facts, with due consideration to keeping their analysis and conclusions separate and independent. In those  cases where the public interest demands on-scene live media engagements or written press releases, the parties agree that the lead investigative agency will act as the sole spokesperson  for casualty investigation information and activity, and press conferences and press releases will identify the lead and supporting investigating agencies. Participation by the non-lead  investigative agency in any press conference is encouraged. Once the on-scene portion of the investigation is complete, both agencies may issue independent press releases and conduct any press conferences as necessary.

NTSB and USCG agree that an NTSB Board Member will not attend the scene of an investigation led by USCG and that NTSB may hold a public hearing on any casualty that it investigates.

NTSB and USCG agree that USCG may conduct a Marine Board of Investigation on any casualty it investigates, and will generally avoid convening the Marine Board until after NTSB has completed the on scene portion of any NTSB led investigation.

The U.S. Supreme Court granted the petition for a writ of certiorari in the City of Valdez tax case, posted earlier 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.

Thanks to Alaska counsel for Polar Tankers, Leon Vance, for the tip.

The U.S. Court of Appeals for the Sixth Circuit (Kentucky, Michigan, Ohio, Tennessee) recently upheld Michigan's statute asserting jurisdiction and regulatory powers over all vessels (including foreign flagged ones) in pursuit of Michigan's aim to protect its waters from aquatic invasive nuisance species.  Opinion in Fednav v. Chester, here.

Michigan, like California and Hawaii, has decided to not wait for federal government action to address invasive species.  Michigan's statute provides:

Beginning January 1, 2007, all oceangoing vessels engaging in port operations in this state shall obtain a permit from the department. The department shall issue a permit for an oceangoing vessel only if the applicant can demonstrate that the oceangoing vessel will not discharge aquatic nuisance species or if the oceangoing vessel discharges ballast water or other waste or waste effluent, that the operator of the vessel will utilize environmentally sound technology and methods, as determined by the [Michigan Department of Environmental Quality], that can be used to prevent the discharge of aquatic nuisance species.

Mich. Comp. Laws § 324.3112(6).

Several shipping companies brought suit against the State of Michigan to invalide the statute.  The shipping companies asserted that they had standing to assert claims of invalidity of Michigan's statute, that Michigan's statute was preempted by federal law, and that the statute was unconstitutional as violative of the U.S. Constitution's commerce clause.  The Court found no preemption, express or implied, nor any constitutional violation dismissing the argument that because the federal government has two statutes regarding shipboard ballast waters, Michigan's law could not stand.

The seminal case in this area is U.S. v. Locke, also known as the Intertanko decision.  The U.S. Supreme Court struck down Washington's regulations of oil tankers transiting its waters as being preempted by federal law.  The decision's clause by clause review of the federal statute seems to lead the Sixth Circuit to its conclusion:  Locke is limited to a rigid statutory analysis and not a "metaphysical one."

This case would be a good case for the U.S. Supreme Court to take on cert because the lower courts have grappled with the applicability of Locke and while the federal government has not expeditiously promulgated regulations to deal with these vexing environmental issues, several states have impinged on the federal government's constitutional turf to address the problems themselves.

On Wednesday, November 19 at noon, we will be hosting the Hawaii State Bar Association Admiralty Section's quarterly meeting at Damon Key.  All members of the Hawaii State Bar Association are welcome.

The topic for discussion will be vessel documentation, an area full of new developments.  The speaker will be Captain Fred Tucher, who recently retired…