Hawaiioceanlaw.com

Hawaii Business Magazine Quote - Working to Balance

Hawaii Business magazine published a quote of mine on balancing work, home and families in their June 2009 issue (p.97).  It is available here.

My quotes were:

On prioritizing:  "My priorities, in order, are: husband, father, attorney, Coast Guard Reserve Officer."

On success:  "Success at work means nothing if you are unsuccessful at home."

On work hours:  "Set and keep strict work hours... Keep your weekends for family, develop routine - mine is bed and bath time for my children - even if you have to go back to work later.  If you expect a busy day, go to work earlier.  Family needs you more at night."

Ironically, I'm writing this at night, after the nightly routine.  I would add:  use the internet to market 24/7.  As my partner, and fellow blogger Robert Thomas noted in his post (here), Web 2.0 (blogs, linkedin, twitter) is THE way to market in 2009.

Venezuela Seizes Boat Fleet - Actionable Claims in U.S. Courts?

A former shipmate of mine asked me for my thoughts on the recourse an American company would have after a fleet of its boats were seized by a foreign government.  Per this Marinelog.com post, Venezuela has apparently seized/nationalized an American company's vessel fleet in Lake Maracaibo. 

 

My shipmate's question is a very complicated one worthy of several books, cases and law reviews (many exist), but in the interest of brevity and overview, here goes:

The "nationalization" or expropriation of assets is not a new happening on the world stage.  From a legal perspective, a country's seizure of property within its borders was not viewed upon as actionable under U.S. law.  See Banco Nacional de Cuba v. Sabatino, 376 U.S. 298 (1964)(adopting the act of state doctrine to exempt such seizures from review in U.S. courts).

In the wake of the Cuba expropriations and the Supreme Court's Banco decision, Congress adopted federal law that superceded the decision.  This law, 22. U.S.C. 2370 provides:

(e) Nationalization, expropriation or seizure of property of United States citizens, or taxation or other exaction having same effect; failure to compensate or to provide relief from taxes, exactions, or conditions; report on full value of property by Foreign Claims Settlement Commission; act of state doctrine.
   (1) The President shall suspend assistance to the government of any country to which assistance is provided under this or any other Act when the government of such country or any government agency or subdivision within such country on or after January 1, 1962--
      (A) has nationalized or expropriated or seized ownership or control of property owned by any United States citizen or by any corporation, partnership or association not less than 50 per centum beneficially owned by United States citizens, or
      (B) has taken steps to repudiate or nullify existing contracts or agreements with any United States citizen or any corporation, partnership, or association not less than 50 per centum beneficially owned by United States citizens, or
      (C) has imposed or enforced discriminatory taxes or other exactions, or restrictive maintenance or operational conditions, or has taken other actions, which have the effect of nationalizing, expropriating, or otherwise seizing ownership or control of property so owned, and such country, government agency, or government subdivision fails within a reasonable time (not more than six months after such action, or, in the event of a referral to the Foreign Claims Settlement Commission of the United States within such period as provided herein, not more than twenty days after the report of the Commission is received) to take appropriate steps, which may include arbitration, to discharge its obligations under international law toward such citizen or entity, including speedy compensation for such property in convertible foreign exchange, equivalent to the full value thereof, as required by international law, or fails to take steps designed to provide relief from such taxes, exactions, or conditions, as the case may be; and such suspension shall continue until the President is satisfied that appropriate steps are being taken, and the provisions of this subsection shall not be waived with respect to any country unless the President determines and certifies that such a waiver is important to the national interests of the United States. Such certification shall be reported immediately to Congress.
   Upon request of the President (within seventy days after such action referred to in subparagraphs (A), (B), or (C) of paragraph (1)), the Foreign Claims Settlement Commission of the United States (established pursuant to Reorganization Plan No. 1 of 1954, 68 Stat. 1279 note]) is hereby authorized to evaluate expropriated property, determining the full value of any property nationalized, expropriated, or seized, or subjected to discriminatory or other actions as aforesaid, for purposes of this subsection and to render an advisory report to the President within ninety days after such request. Unless authorized by the President, the Commission shall not publish its advisory report except to the citizen or entity owning such property. There is hereby authorized to be appropriated such amount, to remain available until expended, as may be necessary from time to time to enable the Commission to carry out expeditiously its functions under this subsection.
   (2) Notwithstanding any other provision of law, no court in the United States shall decline on the ground of the federal act of state doctrine to make a determination on the merits giving effect to the principles of international law in a case in which a claim of title or other right to property is asserted by any party including a foreign state (or a party claiming through such state) based upon (or traced through) a confiscation or other taking after January 1, 1959, by an act of that state in violation of the principles of international law, including the principles of compensation and the other standards set out in this subsection: Provided, That this subparagraph shall not be applicable (1) in any case in which an act of a foreign state is not contrary to international law or with respect to a claim of title or other right to property acquired pursuant to an irrevocable letter of credit of not more than 180 days duration issued in good faith prior to the time of the confiscation or other taking, or (2) in any case with respect to which the President determines that application of the act of state doctrine is required in that particular case by the foreign policy interests of the United States and a suggestion to this effect is filed on his behalf in that case with the court.

The seizure may implicate U.S. law and give rise to claims against Venezuela if the expropriation was done in violation of international law.  United Nations General Assembly Resolution 1803 may provide such violation if the seizure was done without compensation.  If the owner is compensated, then it may not have recourse. 

One mechanism used for other cases of expropriation is the Foreign Claims Settlement Commission.  It appears that most of its cases are not run-of-the-mill claims but post-war, post-terrorist incident type matters.

Interesting issue to watch in these uncertain economic times.

Pueblo Sailors Achieve Moral Victory Against North Korea

Ran across an interesting lawsuit brought by several sailors on the USS Pueblo against North Korea.  Several sailors (or their estates) obtained a judgment against North Korea for their maltreatment during eleven months of captivity.

The filings are posted below:

Complaint

Findings of Fact

Decision

Certainly, collecting on the judgment will be much harder than obtaining it.

ABA Announces Lawyer Recession Survey Results

Not related to Hawaii or the ocean, but this is a law blog, so bear with me.

The ABA posted the results of its survey of attorneys seeking opinions of the impact of the recession on the economy and the legal profession. 

Over 14,000 attorneys responded to the on-line survey.  Not surprisingly, 78% of respondents said that the recession would impact all lawyers, at least a little.  Most thought that the economy would not recover until 2010 and many thought that they would earn more in 2009 than in 2008.

Earlier post announcing the survey here.

ABA Journal Conducting Survey of Job Market for Attorneys

In service to the legal profession and as courtesy to the ABA, I've agreed to post this announcement:

The American Bar Association Journal is conducting an on-line survey on the job market for attorneys in light of the current state of the economy.

The survey can be taken here.

Damon Key Supreme Court Advocacy

 

Continuing the firm’s tradition of high-level appellate advocacy, Damon Key attorneys Robert H. Thomas, Mark M. Murakami and Christi-Anne H. Kudo Chock recently filed two friend-of-the-court briefs in the U.S. Supreme Court involving complex constitutional, maritime and environmental issues.

 

In the first case, Winter v. Natural Resources Defense Council, the Supreme Court struck down an injunction which restricted the Navy’s use of mid-frequency active (MFA) sonar in training exercises off the Southern California coast.

 

In August, Robert, Mark, and Christi-Anne filed a brief amicus curiae on behalf of several military service organizations including the Navy League, the Military Affairs Council of the Chamber of Commerce of Hawai‘i, and the Southwest Defense Alliance. The brief outlined the views of nine retired Admirals that the Navy’s judgment on how it trains its sonar operators should be respected. The brief highlighted the over 300 years of naval service by the Admirals, and their reasons why the injunction, poses a grave threat to national security and the men and women in the U.S. Navy. The Navy uses MFA sonar -- which transmits sound and listens for a reflection from the target -- to hunt for quiet diesel-electric submarines. These submarines are designed to avoid detection by other types of sonar, and are employed by Iran, North Korea, and China, among others. Several recent incidents illustrate the danger: in late 2006 near Okinawa, a Chinese diesel-electric attack submarine was not detected by the Kitty Hawk Carrier Strike Group until it surfaced within torpedo range. In November 2007, the same battle group was “shadowed” by a submarine in the Taiwan Strait prompting a confrontational standoff for twenty-eight hours.

 

MFA sonar unfortunately may injure marine mammals in some cases, even though there has not been a single document instance of such injury in the Southern California training area. After consultation with other federal agencies, the Navy concluded that the use of MFA sonar with certain self-imposed mitigation measures would not have a significant impact on the environment. The California federal court, however, restricted the Navy’s training with MFA sonar, until the Navy completed an Environmental Impact Statement because of the possible threat to marine mammals such as whales, dolphins, and seals. The injunction prevented the Navy from qualifying at least one Strike Group prior to deployment.

 

On November 12, the Supreme Court, in a 7-2 decision, agreed with the Navy and the brief filed by Damon Key that judges should not lightly second guess commanders’ judgment on how to train for deployment, and struck down the restrictions.

 

Closer to home, these same attorneys filed a brief on behalf the Ocean Tourism Coalition, a non-profit trade group in UFO Chuting, Inc. v. Smith, another case pending in the U.S. Supreme Court. That case involves the State of Hawai‘i’s attempt to ban parasailing in the waters off Maui for five months per year. A parasailing company sued the State in federal court, arguing the ban was unconstitutional because it interfered with federally-protected navigation. Although the court initially agreed and struck down the ban, the court reversed itself and dismissed the case after Hawaii’s congressional delegation attached a rider to an omnibus budget bill that seemed to allow the State to regulate in this area.

 

The Ocean Tourism Coalition’s amicus brief urges the Supreme Court to review the dismissal, and points out that states are prohibited under the Constitution’s commerce clause from enacting regulations that interfere with the free movement of commerce and navigation. The State of Hawai‘i’s and the federal government’s responses are due in early October, and the Supreme Court will decide whether to review the case in late 2008.

 

Damon Key has a long history of high-stakes appellate litigation in the Hawai‘i courts of appeals, as well as in the federal Ninth Circuit and the U.S. Supreme Court. Perhaps the firm’s most famous appellate victory was in Kaiser Aetna v. United States, 444 U.S. 164 (1979), where Charlie Bocken and Diane Hastert won a Supreme Court case that protected the private nature of Hawai‘i Kai Marina, and overturned one hundred years of law giving the army Corps of Engineers nearly unfettered ability to take private waterways.

 

Land Use Seminar - Feb. 20, 2008

Along with several colleagues from my firm, I will be teaching at Lorman's upcoming seminar on Land Use and Advanced Zoning Law in Honolulu, Ala Moana Hotel on February 20, 2008.  Registration information is here.  Topics to be addressed are vacation rentals, impact fees, environmental issues, rockfall liability and a Supreme Court update.

Robert Thomas, Greg Kugle, Rob Harris and Noelle Catalan join me in presenting on some cutting edge issues.  Please introduce yourself if you attend.  Thanks!

Congress Calls for GAO Investigation Into WESPAC

The House Oversight Committee has called for a Government Accountability Office investigation into the Western Pacific Regional Fishery Management Council alleging inappropriate use of government funds and mismanagement.

Justice Breyer and Judicial Independence

I had the opportunity to listen to Justice Stephen Breyer of the U.S. Supreme Court lecture tonight on judicial independence.  He was in Hawaii (for his first time ever) as a Jurist-in-Residence at the University of Hawaii Law School.  His presentation was all-too brief but the lecture (held at the Hawaii Supreme Court) was quite engaging.

Justice Breyer began his talk noting that more and more countries are trying to emulate the American judiciary model with the fundamental aspect of the success of this system being: judicial independence.

So, what is judicial independence?  He said that every judge knows what it means, some lawyers do, and, for the most part, most people in the public had no idea.  So, is there a problem with judicial independence, he asked.

He thought there was.  The signs of a problem: 1) elected judges being forced to raise campaign funds to be re-elected; 2) state initiatives to punish judges for their decisions (citing South Dakota and Colorado); and 3) a disturbing trend in public opinion polls suggesting that more Americans believe judges make decisions, not based on what the law says, but what they personally want to do.

So, how then do you ensure judicial independence?  He thought that pay raises and tenure, while not the core of the solution, helped.  But, he said the essence of judicial independence is when judges decide based on their feeling that they won't be subject to external pressure.

To accomplish this feeling, the judiciary needed to mount a public relations campaign.  He asks "how do you get the support of the public who, for the most part, just does not know or care about this issue?"

He noted that the American judicial system does keep costs in the grocery store down, while ensuring a wide array of products (presumably by giving competing businesses fair tribunals to resolve their disputes).  He pointed out three cases which further demonstrated how the courts impact every American's life.  First, the Cherokee tribe case from the 1830's where the Supreme Court held that the State of Georgia had wrongfully taken land from the Cherokee tribe.  In response, Justice Breyer noted, President Andrew Jackson said, "[Chief Justice] Marshall made decision, he can enforce it."  Thereafter, Jackson sent in federal troops to evict the Cherokees and force march them to Oklahoma.

His second case:  One hundred and thirty years later, when the Supreme Court stated that integration in education was the law of the land, the courts were presumably facing the same problem for they had no troops, no budget, no way to compel compliance with the law.  But, President Eisenhower did not follow the Jackson model and sent the 101st Airborne Division to compel the integration of the schools.

For his final case, Justice Breyer said, "you pick one....Bush v. Gore, abortion, school prayer."  All were difficult cases and of course, judges aren't always right. BUT, he pointed out, we ALL still follow it and that is the protection that we Americans enjoy.  Americans, through two hundred years of independent judiciary, have a collective understanding of what the rule of law means. 

Justice Breyer concluded by saying that it wasn't enough that judges and attorneys understand judicial independence, but our challenge is to ensure that the next generation understands what it is and why it is important.

He took three questions.  The first was on Hawaii's mandatory retirement law for judges (at age 70).  He noted that the Supreme Court had too dealt with aged justices by self-policing.

The second question was about the role that the judicial confirmation process had on judicial independence.  Surprisingly, he responded that he thought it important for the American public to see judicial candidates going through the democratic process.  The confirmation procedure had popular elements for the Senators asked questions that the American public would ask.  He thought it the best way to ensure the American public confidence in judiciary.

The final question was on cameras in the courtroom, specifically the U.S. Supreme Court.  He was not against the idea, but had concerns:  1) oral arguments (which would be the only thing televised) are only about 5% of what the Supreme Court does, with the rest being written opinions; 2) how do you handle criminal cases; 3) what is the danger if the public reacts too much; 4) society likes to have its judges be relatively anonymous so that they can pronounce decisions and be the voice of the law.  He suggested that only after seeing a serious study of the sociological impacts of television cameras in courtrooms (noting that his concerns were the trial courtrooms of America) in states that had television cameras in the courtroom that he would be willing to decide the issue.