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California Sonar Case - SETTLED

News reports suggest, and court pleadings confirm, that the California Sonar Case, a.k.a. Winter v. NRDC, has settled.

The NRDC news release sets forth the settlement terms:

1. It sets out a schedule for environmental compliance pursuant to which the Navy will prepare and issue environmental statements for sonar exercises and ranges around the world.

2. It requires public disclosure of previously classified information on sonar, including information that had been covered by protective order in NRDC v Winter. The Navy also agrees to provide plaintiffs a series of briefings on sonar compliance and mitigation-related issues.

3. The Navy agrees to fund $14.75 million dollars in new marine mammal research.

4. The settlement establishes a cooling off period to permit negotiation between plaintiffs and the Navy when future sonar disagreements arise.

5. The Navy agrees to pay $1.1 million dollars in attorney's fees for settling both the 2005 lawsuit and a 2006 lawsuit regarding sonar use around Hawaii.

The dismissal pleadings are available here  and here.

My Resource Page for this case is here.

Coast Guard and NTSB Agree (or Not) on Marine Casualty Investigations

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.

Electrified Fence in Water? Coast Guard "Approves" Invasive Species Barrier

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. 

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.

Somali Pirates - Laws of the United States

In dealing with Somali pirates, from a U.S. law perspective, the pirates can be prosecuted in American courts.

The SUA Treaty is a start. In the wake of the Achille Lauro murders, many countries signed and ratified the Suppression of Unlawful Acts (or SUA) Treaty (a.k.a. Rome Treaty). The Commandant of the Coast Guard’s blog has some good insight into the geo-political issues, vis a vis, the Rome Treaty (a.k.a. SUA) The SUA treaty required signatories to enact domestic legislation to fulfill its aims.

The United States adopted such legislation at 18 U.S.C. 2280, which provides:

Sec. 2280. Violence against maritime navigation

(a) Offenses. -

    (1) In general. - A person who unlawfully and intentionally -

        (A) seizes or exercises control over a ship by force or threat thereof or any other form of intimidation;

         (B) performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship;

        (C) destroys a ship or causes damage to a ship or to its cargo which is likely to endanger the safe navigation of that ship;

        (D) places or causes to be placed on a ship, by any means whatsoever, a device or substance which is likely to destroy that ship, or cause damage to that ship or its cargo which endangers or is likely to endanger the safe navigation of that ship;

        (E) destroys or seriously damages maritime navigational facilities or seriously interferes with their operation, if such act is likely to endanger the safe navigation of a ship;

        (F) communicates information, knowing the information to be false and under circumstances in which such information may reasonably be believed, thereby endangering the safe navigation of a ship;

        (G) injures or kills any person in connection with the commission or the attempted commission of any of the offenses set forth in subparagraphs (A) through (F); or

        (H) attempts or conspires to do any act prohibited under subparagraphs (A) through (G), shall be fined under this title, imprisoned not more than 20 years, or both; and if the death of any person results from conduct prohibited by this paragraph, shall be punished by death or imprisoned for any term of years or for life.

    (2) Threat to navigation. - A person who threatens to do any act prohibited under paragraph (1)(B), (C) or (E), with apparent determination and will to carry the threat into execution, if the threatened act is likely to endanger the safe navigation of the ship in question, shall be fined under this title, imprisoned not more than 5 years, or both.

    (b) Jurisdiction. - There is jurisdiction over the activity prohibited in subsection (a) - (1) in the case of a covered ship, if -

        (A) such activity is committed -

            (i) against or on board a ship flying the flag of the United States at the time the prohibited activity is committed;

            (ii) in the United States; or

            (iii) by a national of the United States or by a stateless person whose habitual residence is in the United States;

        (B) during the commission of such activity, a national of the United States is seized, threatened, injured or killed; or

        (C) the offender is later found in the United States after such activity is committed;

    (2) in the case of a ship navigating or scheduled to navigate solely within the territorial sea or internal waters of a country other than the United States, if the offender is later found in the United States after such activity is committed; and

    (3) in the case of any vessel, if such activity is committed in an attempt to compel the United States to do or abstain from doing any act.

(c) Bar To Prosecution. - It is a bar to Federal prosecution under subsection (a) for conduct that occurred within the United States that the conduct involved was during or in relation to a labor dispute, and such conduct is prohibited as a felony under the law of the State in which it was committed. For purposes of this section, the term "labor dispute" has the meaning set forth in section 2(c) (!1) of the Norris-LaGuardia Act, as amended (29 U.S.C. 113(c)).

(d) Delivery of Suspected Offender. - The master of a covered ship flying the flag of the United States who has reasonable grounds to believe that there is on board that ship any person who has committed an offense under Article 3 of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation may deliver such person to the authorities of a State Party to that Convention. Before delivering such person to the authorities of another country, the master shall notify in an appropriate manner the Attorney General of the United States of the alleged offense and await instructions from the Attorney General as to what action to take. When delivering the person to a country which is a State Party to the Convention, the master shall, whenever practicable, and if possible before entering the territorial sea of such country, notify the authorities of such country of the master's intention to deliver such person and the reasons therefor. If the master delivers such person, the master shall furnish to the authorities of such country the evidence in the master's possession that pertains to the alleged offense.

(e) Definitions. - In this section -

    "covered ship" means a ship that is navigating or is scheduled to navigate into, through or from waters beyond the outer limit of the territorial sea of a single country or a lateral limit of that country's territorial sea with an adjacent country.

    "national of the United States" has the meaning stated in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22)).

    "territorial sea of the United States" means all waters extending seaward to 12 nautical miles from the baselines of the United States determined in accordance with international law.

    "ship" means a vessel of any type whatsoever not permanentlyattached to the sea-bed, including dynamically supported craft, submersibles or any other floating craft, but does not include a warship, a ship owned or operated by a government when being used as a naval auxiliary or for customs or police purposes, or a ship which has been withdrawn from navigation or laid up.

    "United States", when used in a geographical sense, includes the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands and all territories and possessions of the United States.

The U.S. criminal code further provides: Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the shall be imprisoned for life. 18 U.S.C. 1651.

Somali Pirates - More on the Legal and Policy Issues Involved

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, here; the the socio-economic historical perspective, here; and the naval professional perspective,  here;

Supreme Court to Hear Alaska Vessel Tax Case

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.

Unusual Negotiations for London Attorneys - Somalia Ransom Talks

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.

Duty of Tonnage - Will Supreme Court Review Alaska City's Tax on Vessels?

This month, the U.S. Supreme Court will decide whether to hear a case involving a tax on vessels imposed by the city of Valdez.

At issue is the City of Valdez, Alaska's tax on personal property.  Apparently, Valdez exempted personal  property from taxation, then carved out an exception to the exemption for "boats and vessels of at least 95 feet in length" that are not used "primarily in some aspect of commercial fishing" and that dock at privately owned docks in the City.

The U.S. Constitution, art. I., s. 10, cl. 3 provides: No State shall, without the Consent of Congress, lay any Duty of Tonnage.  Simply put, the State's have no power to impose taxes based on weight of cargo.

The question presented to the U.S. Supreme Court 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.

Decision by the Alaska Supreme Court here.  Polar Tankers cert petition here, Valdez' brief in opposition here, Polar Tanker reply here  [Hat tip to scotusblog for posting the petition phase briefs].

The City of Valdez brief to the Alaska Supreme Court is here,   Polar Tanker's Opposition here, City's Reply here.  [Hat tip to Polar Tanker attorney Leon Vance of Juneau for the briefs].

Valdez' law is argued to be a de facto duty of tonnage.  Hawaii's invasive species assessment fee law seems to be a de jure one. 

Sixth Circuit Allows Michigan to Regulate International Maritime Comerce

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.