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Interagency Ocean Policy Task Force Meeting - Live Tweet

This afternoon, the Interagency Ocean Policy Task Force will hold a regional meeting in Honolulu at 1:30.  I will attend and will live-tweet at twitter.com/hawaiioceanlaw.

Per the Council of Environmental Quality, the Task Force's purpose is:

To engage the public in and take public comment on the work of the Ocean Policy Task Force. On June 12th, President Obama charged the Task Force with developing a recommended national policy that ensures protection, maintenance, and restoration of oceans, our coasts, and the Great Lakes as well as a recommend framework for improved stewardship, within 90 days. On September 17th, the Task Force released its interim report on this phase of its work and released it 30-days of public comment. Comments may be posted at www.whitehouse.gov/oceans.

The President also asked the Task Force to develop a framework for effective coastal and marine spatial planning within the next 90 days. As the Task Force is now focusing its work on marine and coastal spatial planning and it would especially benefit from comments relating to that issue.

TASK FORCE MEMBERS EXPECTED TO ATTEND:

Chair Nancy Sutley, White House Council on Environmental Quality (via satellite) 

Dr. Jane Lubchenco, Administrator, National Oceanic and Atmospheric Administration 

Adm. Thad Allen, U.S. Coast Guard Commandant (via satellite)

Dr. Wendy Wiltse, Pacific Island Office, EPA Region 9

Rear Adm. Manson Brown, Commander, Coast Guard Fourteenth District

Ms. Eileen Sobeck, Deputy Assistant Secretary for Fish, Wildlife and Parks (via satellite)

Rear Admiral Michael A. Giorgione, Civil Engineer Corps, United States Navy Commander, Naval Facilities Engineering Command Pacific and Pacific Fleet Civil Engineer

PRELIMINARY AGENDA:

• Chair Nancy Sutley, White House Council on Environmental Quality
• Welcome from Local Representative (TBD)
• Background of Interagency Ocean Policy Task Force, Agenda for Public Meeting, Introduction of Task Force Members (10 minutes)
• Task Force members

EXPERT PANELS (45 minutes)

• Indigenous Perspectives on Science and Conservation: Kahu M. Kalani Souza, Executive Director, Olohana Foundation
• Partnerships and Governance: Lelei Peau, Deputy Director, American Samoa Dept. of Commerce
• Water Quality and Marine Debris: Marvin Heskett, Director, TestAmerica; former co-chair, Surfrider Foundation
• Preservation and Conservation of Marine Resources: Dr. Charles Birkeland, Adjunct Associate Professor, Department of Zoology, University of Hawaii
• Transportation and Tourism: Glenn Hong, CEO, Young Brothers Barges
• Sustainable Fisheries and Aquaculture: Randy Cates, President/CEO, Cates International
• Climate and Hazard Resilience: Dr. Katherine Courtney, Tetra Tech EMI
• Research and Environmental Biology: Dr. Jo-Ann Leong, Director, Hawaii Institute of Marine Biology

PUBLIC COMMENT (2 hours)

• Sam Pooley, Director, NOAA Pacific Islands Fisheries Science Center Director, will moderate

Members of the public can access the meeting in three ways: by attending in person at one of the sites listed below; by calling into the listen only phone line (888-324-8128/International: 630-395-0060; participant code: 5752428); or via live webstream at http://www.tipg.net/noaa/.

The task force interim policy is available here.

Movie Review - Barbarian Princess

Please excuse a departure from my regular blog topics for this post. 

Last February, I was fortunate to attend a private screening of an upcoming film entitled, Barbarian Princess.  The movie was so well done, I feel compelled to publish my praise for the cinematic achievement.

My general comments:  this movie is a rare treat.  This is a classic story of young love, complicated by class, race, geography and a revolution.  The story is set in the late 1890's and follows Princess Kaiulani as she witnesses the beginnings of revolution in Hawaii, and follows her to England, where her father esconces her with a friend for safekeeping.  Kaiulani is educated in England, falls in love with her father's friend's son, and is generally uninformed about the state of affairs back in the Kingdom of Hawaii.  Her father finally returns for her and together they travel to the United States to lobby the government for assistance in restoring the monarchy after the revolution.  Kaiulani eventually returns home to Hawaii where she actively works to provide suffrage to native Hawaiians after eventual annexation by the United States.

The movie is very well researched by screenwriter, director, and executive producer Marc Forby.  Marc's wife, Leilani, was also an executive producer and got screen time as well.  It is a rare treat to hear the Hawaiian language spoken and Marc Forby went to great lengths to ensure linguistic fidelity.  The costumes are amazing and the use of Iolani Palace and Moanalua Gardens take viewers right back to the 1800's.

While some have criticized the name (and I believe that once you see the movie, you'll know why the name fits), this movie is a story that should be told.  It isn't a documentary, nor is it held out as one.  While we all may debate the merits or demerits of annexation, the overthrow or statehood, we should agree that Hawaii's rich history and culture provides a shining example for the world.  And, what better place to start than this account of the young princess who tried to make her people's lives a little better. 

It opens at the Hawaii International Film Festival in October and will certainly be one to watch. 

Trailer:

Ocean Policy Task Force - Meeting in Honolulu, September 29, 2009

The Ocean Policy Task Force will hold a meeting in Honolulu on September 29, 2009.  The Coast Guard flyer has specifics.

Obama Administration officials will hold an Ocean Policy Task Force PublicMeeting in the Pacific Islands on Tuesday, September 29, 2009.

The Interagency Ocean Policy Task Force, led by White House Council on Environmental Quality Chair Nancy Sutley, consists of senior-level officials from Administration agencies, departments, and offices. The Task Force, established by President Obama via presidential memorandum on June 12, is charged with developing a recommendation for a national policy that ensures protection, maintenance, and restoration of oceans, our coasts and the Great Lakes. It will also recommend a framework for improved stewardship, and effective coastal and marine spatial planning. The meeting in the Pacific Islands will be the fourth regional public meeting held since the Task Force was created. The public is encouraged to attend and an opportunity for public comment will be provided.

Members of the public can access the meeting in three ways: by attending in person at one of the sites listed below; by calling into the listen only phone line (888-324-8128/International: 630-395-0060; participant code: 5752428); or via live webstream at http://www.tipg.net/noaa/.

The task force interim policy is available here.

New 9th Circuit Admiralty/COGSA case - "Shippers," Indemnities & Foreign Law

The Ninth Circuit just issued a decision interpreting a bill of lading in light of the Carriage of Goods at Sea Act (COGSA).  The decision is in the APL Co. Pte. Ltd. v. U.G. Co., Inc. case which can be downloaded here.  The facts are a bit convoluted, but not surprising in the global maritime trade. 

U.G. is a California company that bought hair spray and mousse from UK Aerosols, an English company; via Kamdar, an Illinois purchasing agent.  UK requested APL, a Singapore company, to ship the cargo from Turkey to Long Beach.  APL issued a bill of lading listing APL as carrier, UK Aerosols as shipper and Kamdar and U.G. as "notify party."  The bill of lading had a provision that required the "merchant" to indemnify APL from losses caused by the manner in which the goods were packed.  The "merchant" was defined as the shipper, holder of the bill of lading and owner of the cargo.  The bill also required indemnity related to hazardous nature of any cargo.  Finally, the bill required that any matter not included in the bill be resolved by Singapore law.

The goods arrived in Long Beach in a "leaking, dangerous and hazardous" condition and APL spent $700,000 cleaning and disposing of the shipment.

The first issue decided relates to the definition of "shipper" under COGSA.  COGSA provides that "the [s]hipper shall not be responsible for loss or damage sustained by the carrier or the ship arising or resulting from any cause without the act, fault, or neglect of the shipper, his agents, or his servants."  So, the issue is were U.G. and Kampar "shippers" under COGSA such that they would be immune from liability for APL's cleanup expenditures.

The court said no, U.G. and Kampar were not shippers under COGSA.  The court, relying on the context of the statutory scheme (in the absence of an express definition), found that COGSA immunity was limited to parties listed as "shippers" on the bill of lading.  Because U.G. and Kampar were not so noted, they were not immune under COGSA.

Second, the court addressed the merchant indemnity provision in the bill of lading.  U.G. and Kampar tried to argue that the term was void because it conflicted with COGSA.  Section 1303(8) of COGSA states, "any clause ...in a contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with the goods, arising from the negligence, fault, or failure in the duties and obligations provided in this section, or lessening such liability otherwise than as provided in this chapter, shall be null and void and of no effect."  The court found the provision not voided by COGSA because it does not impose strict liability on the shipper.  This clause of the bill of lading is triggered when a person other than the carrier is negligent.  Ergo, APL's liability was not lessened by this provision.

Finally, the court addressed an issue of foreign law and the availability of attorney's fees for the prosecution and defense of this dispute.  In U.S. federal law, under the "American Rule," litigants must pay their own attorney's fees.  This rule is obviated by numerous federal and state statutes and parties can contract around it, but it remains the default.  Singapore is apparently an "English Rule" jurisdiction which provides that prevailing parties are entitled to an award of their attorney's fees.  Because COGSA and the bill of lading were silent as to attorney's fees to prevailing party and because the bill of lading chose Singapore law to fill in the blanks, the court found that Singapore law had to be addressed and the trial court erred by not applying Singapore law and the "English Rule."

Random Youtube Video of the Day - Recognize that Blawger?

Checking my feeds and found a blast from the past.  Not sure who on earth would have had this video.

Summer 1989.  The Coast Guard's training ship, Barque Eagle, paid a first-ever port call to the city of Leningrad.  On the eve of the end of the Cold War, such port calls by military ships were rare.

The U.S. Coast Guard Band was on the pier, playing for the arrival of the ship.  The Eagle had a cadet band onboard.  If you look closely, you may see a familiar (albeit 20 years younger) blawger playing the alto saxophone (about 1:40, to the left of the conductor).

Walter Cronkite made the trip with us.  I was fortunate enough to have a chat with him.

Odd Lawsuit of the Month - Congress is Too Small

The Wall Street Journal's blog reports on a interesting new lawsuit filed in federal court in Mississippi. The complaint is here.

In the suit, five residents of different states challenge the current cap of Representatives in the House of Representatives at 435.  The suit alleges that by capping the number of Representatives at 435 since 1911, the representation is "grossly out of compliance with the requirement of Article I, Section 2 and Amendment XIV, Section 2 ...."

The suit notes that after the2000 census, apportionment led to the states of Wyoming, Rhode Island, Nebraska, Iowa and West Virginia to be over-represented in Congress and the states of Montana, Delaware, South Dakota, Utah and Mississippi to be under-represented.

The suit suggests that the only appropriate remedy to address the violation is to increase the House to either 1,761 members or 932 members.  

Stopped by the Capitol last July when I was in D.C. for a national security class.  They'll need a few more office buildings if this lawsuit is successful. 

Shark Tour Operations Ban - First Maui County, now Honolulu

The City and County of Honolulu is considering a bill that would ban shark tour operations, at least the shoreside businesses related to such operations.  The text of the bill provides:

SECTION 1.  Findings and purpose.  The council finds that the oceans are used by city residents and visitors for numerous aquatic activities, including fishing, boating, swimming, surfing, canoe paddling, and snorkeling.  The council further finds that sharks have great cultural, historical, and spiritual significance for many Native Hawaiians.  The council believes that shark tours, the practice of charging residents and visitors to venture into ocean waters to view sharks attracted by fish feeding, raises public safety concerns for ocean users, is disrespectful of Hawaiian culture, alters the natural behavior and distribution of sharks, and may be disruptive of ocean ecology and the natural environment.  The purpose of this ordinance is to ban shark tour operations.

Chapter 40, Revised Ordinances of Honolulu 1990, ("Prohibited Activities in the City") is amended by adding a new article to be appropriately designated by the revisor of ordinances and to read as follows:

Article ___. Shark Tour Operations Sec. 40-__.1

Definitions

As used in this article:

"Fish feeding" means to introduce or attempt to introduce into the ocean water any food or other substance for consumption by fish.

"Shark tour operations" means the maintenance of an office, the collection of a fee or other financial consideration, the distribution, marketing, or advertising of tickets for sale, or the conduct of any other business activity conducted by a person for the purpose of enabling customers to venture into ocean waters to view sharks attracted by fish feeding; provided that this term does not include educational or cultural expeditions or endeavors for which a fee is not required.

Prohibition. It is unlawful for any person to engage in shark tour operations.

Violation—Penalty. Any person who violates this article shall be fined not more than $1,000 or imprisoned not more than one year or both.”

This ordinance shall take effect upon its approval.

My earlier posts on Maui County's ban can be found here.

New 9th Cir. Admiralty Case - Pennsylvania Rule and Jones Act

The Ninth Circuit just published an opinion relating to the Jones Act and a worker injured while conducting a "free dive" incident to the employer's vessel operations.

The case is MacDonald v. Kahikolu, Ltd., No. 08-15239, download here.

In MacDonald, a vessel employee was injured while "free diving" to support anchoring of the vessel.  The U.S. Coast Guard does regulate diving from vessels, but such diving does not include "free diving." 

At issue in the appeal was to what extent the violation of Coast Guard safety regulations caused the injury to the plaintiff.  Supplementing that issue was to what extent do employers bear the burden of proof to establish causation.  The applicable precedent is The Pennsylvania, 86 U.S. (19 Wall.) 126 (1873).  The Pennsylvania Rule puts the burden of proof on ship owners to show that the violation of the regulation did not cause plaintiff's injury.

The Ninth Circuit noted that the origins of the Pennsylvania Rule were from vessel collision cases.  Simply put, if you are violating a navigation statute or regulation and a collision occurs, you bear the burden to prove that your conduct did not cause the plaintiff's injury.  In MacDonald, the ship owner was violating Coast Guard regulations by not having a diving supervisor onboard and not having an operations manual onboard the vessel.  But, the Court found that these regulatory violations did not cause the plaintiff's injuries.  While finding that the plaintiff did not even meet the threshold of proving that there was a causal connection between the violation and the injury, the court also declined to extend the Pennsylvania Rule to contexts outside of the collision one.

Florida Shoreline Case - Damon Key Attorneys Submit Amicus Brief to U.S. Supreme Court

Today, Robert Thomas, Tred Eyerly and I filed an amicus brief on behalf of the Owners' Counsel of America supporting the Petitioner in the Florida Shoreline Case. 

Our brief is here.

The Questions Presented to the U.S. Supreme Court is:

The Florida Supreme Court invoked "nonexistent rules of state substantive law" to reverse 100 years of uniform holdings that littoral rights are constitutionally protected. In doing so, did the Florida Court’s decision cause a "judicial taking" proscribed by the Fifth and Fourteenth Amendments to the United States Constitution?

Is the Florida Supreme Court’s approval of a legislative scheme that eliminates constitutional littoral rights and replaces them with statutory rights a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

Is the Florida Supreme Court’s approval of a legislative scheme that allows an executive agency to unilaterally modify a private landowner’s property boundary without a judicial hearing or the payment of just compensation a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

Our brief highlights three legal points:

First, the definition of "property," while largely left up to the states to craft, does include some universal normative principles which are protected by the federal Constitution.  Among these are the right to exclude others and, in this case, the right of littoral landowners to accreted land.

Second, when a state supreme court changes the definition of "property" to the owner's detriment, a "taking" of property can occur.  Absent the provision of just compensation, the remedy for such action should be the invalidation of the state supreme court's decision.

Finally, in the areas of shoreline boundaries, custom and public trust, state supreme courts have re-wrote the rules of property without compensating the landowners.  We provided our analysis of the Robinson litigation in Hawaii, the Sotomura litigation in Hawaii, the State ex rel. Thornton v. Hay case (462 P.2d 671 (Or. 1969)) from Oregon, the PASH case from Hawaii and the Matthews v. Bay Head Imp. Ass'n. (471 A.2d 355 (N.J. 1984))case from New Jersey.

One to watch.  Interesting issues of interplay between state laws and the federal Constitution.  This case is especially important in Hawaii where shoreline issues, in terms of ownership and access, are particularly thorny.