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.

According to news reports, here, the Coast Guard has "approved" the electrification of a waterborne fence to keep Asian Carp out of the Great Lakes.  A Congressional coalition had concerns over the delays in electrifying the fence:

Less than a week after a group of 29 U.S. senators and representatives wrote a letter demanding answers as to why an electric Asian carp barrier built in 2006 to keep the monstrous fish from invading the Great Lakes hadn’t been turned on, the Coast Guard has given it the green light.

The Coast Guard published some relevant documents, via their twitter feed.

Fact sheet, here.  Coast Guard white paper, here. 

Letter from Army Corps of Engineers to Coast Guard, here.  Army press release, here.

October 31, 2008 letter from Council of Governors, here.  Homeland Security's reponse, here.

Attempts to keep invasive species out of the Great Lakes frequently end up in litigation, with groups suing the federal government to prompt action and shippers suing State authorities when they invade on the province of the federal government. 

On Somali pirates, my perspective. It seems there are two practical options: first, identify a neighboring state that has the capacity and political will to try and imprison suspected pirates; or second, obtain the shipping nations agreement that they will try the suspected terrorist upon apprehension by the world’s naval powers. While some nations, like the U.S., have the capability to interdict and stop pirate attacks, any comprehensive strategy must involve the endgame.

From a geo-political standpoint, naval patrols, and even interdiction and arrest, are only a small part of the solution.  The Pentagon seems to agree, here.  For sure, a robust naval presence allows for individual ships to remain unmolested by violence, but what about  then?  Pursuit ashore? The Commander of the U.S. Navy’s Fifth Fleet, Vice Admiral William E. Gortney expressed qualms about pursuing suspected pirates ashore, here.

The U.S. Naval Institute’s Proceedings this month contains a timely, insightful bank of essays on this issue:  the JAG’s perspective, hereherehere

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 Wall Street Journal Law Blog posts an interesting article (here) about the role of private attorneys in the negotiation for the release of pirated vessels in Somalia.   According to the WSJ:

But there’s one job lawyers say they won’t handle. “We won’t get in that speedboat and deliver the suitcase of money,” says Stephens. “I don’t think anyone here agreed to do that when they signed on at the firm.”

My earlier post on Somalia piracy here.

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.