The Sky's the limit. Or so says Chief Justice Roberts who, in dissent, thought that injured rairoad workers should have to show that their injuries were proximately caused by their employers. The Supreme Court rejected that interpretation of the statute and held that proximate cause was not fairly read into the Federal Employer's Liability Act. So, in Roberts words, the Court abandoned a causation standard that is bounded in reason, in favor of one that knows no bounds.
The Supreme Court just handed down a decision interpreting the causation standard in the Federal Employer's Liability Act, 45 U.S.C. 51, et seq. or FELA. The case is CSX v. McBride, and the decision can be downloaded here. In short, the Supreme Court found that FELA does not have a proximate cause standard for causation but rather the applicable standard is that a defendant is liable if, "a defendant railroad caused or contributed to a plaintiff employee’s injury if the railroad’s negligence played any part in bringing about the injury."
This case is important to maritime injury practitioners because the Jones Act incorporates the provisions of FELA. Once again, "maritime" cases make for strange bedfellows with Justice Thomas providing the fifth vote, joining the Court's traditionally "liberal" justices. Chief Justice Roberts, writing in dissent, thought that the decision was boundless in its impact.
Facts: The injured employee was an engineer working for CSX. He suffered a hand injury while working and permanently lost function of the hand. He brought a FELA suit in federal court alleging that CSX was negligent in providing him unsafe working equipment and by failing to train him in operating the equipment. CSX sought a jury instruction that required a proximate cause, which would require direct showing of negligence to injury. The trial court refused and this appeal followed.
The Supreme Court, in a decision authored by Justice Ginsburg, noted that the railroad business is a hazardous one and FELA was enacted to shift the burden of the danger from the individual employees to the employers. In tort law, an injured party can only recover damages if the tortfeasor was the legal cause or proximate cause of the injury. This reflects the policy determination that only those injuries legally caused by another ought to be compensable. CSX argued that by not using a proximate cause standard, employers faced heightened exposure. In fact, in his dissent, Chief Justice Roberts called the causation standard upheld by the court to be a "boundless theory of liability." Despite the fact that the courts of appeal had upheld jury instructions like the one in the instant case, Chief Justice Roberts chided such a notion of Supreme Court review:
The Court is correct that the federal courts of appeals have read Rogers to support the adoption of instructions like the one given here. But we do not resolve questions such as the one before us by a show of hands.
Chief Justice Roberts found that there is a strong policy consideration requiring inclusion of proximate cause in the FELA regime. The chain of causation from negligent act to injury is to tenuous without an overlay of proximate or legal cause. For:
It is useful to ask whether the injury that resulted was within the scope of the risk created by thedefendant’s negligent act; whether the injury was a natural or probable consequence of the negligence; whether there was a superseding or intervening cause; whether the negligence was anything more than an antecedent event without which the harm would not have occurred.
Then, the CJ gets a little punchy:
Law has its limits. But no longer when it comes to the causal connection between negligence and a resulting injury covered by FELA. A new maxim has replaced the old: Caelum terminus est —the sky’s the limit.
Liberty. While liberty is a magical word for many a sailor and Coast Guardsman, today Justice Kennedy reminds us that liberty is a fundamental underpinning of the U.S. Constitution.
"If the constitutional structure of our Government that protects individual liberty is compromised, individuals who suffer otherwise justiciable injury may object."
I don't often blog about criminal cases or chemical weapons treaties, but this week, the Supreme Court handed down its decision in Bond v. United States, and the unanimous opinion, authored by Justice Kennedy, contains a three page primer on the principles of federalism underlaying the Constitution. And, since federalism is a crucial doctrine in understanding maritime law, it fits here.
Ms. Bond was convicted of violating a federal chemical weapons statute after she used chemical substances to assault her husband's lover. At trial, and on appeal, she argued that the statute was unconstitutionally beyond Congress' power to enact. The trial court and Third Circuit rejected the argument stating that Ms. Bond had no standing to challenge the constitutionality of the statute, finding that only a State could make that challenge.
She sought review by the Supreme Court. In an interesting turn, the United States shifted its position and supported her argument. The Supreme Court, then, appointed an attorney as amicus to argue the position that Ms. Bond lacked standing.
The Supreme Court found that Ms. Bond did have standing. More interesting, at least to me, was Justice Kennedy's discussion of federalism and the Tenth Amendment. I'll insert the text in its entirety for your edification:
The federal system rests on what might at first seem a counterintuitive insight, that “freedom is enhanced by the creation of two governments, not one.” Alden v. Maine, 527 U. S. 706, 758 (1999). The Framers concluded that allocation of powers between the National Government and the States enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers are derived.
Federalism has more than one dynamic. It is true that the federal structure serves to grant and delimit the prerogatives and responsibilities of the States and the National Government vis-à-vis one another. The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States. The federal balance is, in part, an end in itself, to ensure that States function as political entities in their own right.
But that is not its exclusive sphere of operation. Federalism is more than an exercise in setting the boundary between different institutions of government for their ownintegrity. “State sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’” New York v. United States, 505 U. S. 144, 181 (1992) (quoting Coleman v. Thompson, 501 U. S. 722, 759 (1991) (Blackmun, J., dissenting)).
Some of these liberties are of a political character. The federal structure allows local policies “more sensitive to the diverse needs of a heterogeneous society,” permits“innovation and experimentation,” enables greater citizen “involvement in democratic processes,” and makes government “more responsive by putting the States in competition for a mobile citizenry.” Gregory v. Ashcroft, 501 U. S. 452, 458 (1991). Federalism secures the freedom of the individual. It allows States to respond, through theenactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power. True, of course, these objects cannot be vindicated by the Judiciary in the absence of a proper case or controversy; but the individual liberty secured by federalism is not simply derivative of the rights of the States.
Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. See ibid. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.
The limitations that federalism entails are not therefore a matter of rights belonging only to the States. States are not the sole intended beneficiaries of federalism. See New York, supra, at 181. An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States when the enforcement of those laws causes injury that is concrete, particular, and redressable. Fidelity to principles of federalism is not for the States alone to vindicate.
The recognition of an injured person’s standing to object to a violation of a constitutional principle that allocates power within government is illustrated, in an analogous context, by cases in which individuals sustain discrete, justiciable injury from actions that transgress separation-of-powers limitations. Separation-of-powers principles are intended, in part, to protect each branch of government from incursion by the others. Yet the dynamic between and among the branches is not the only object of the Constitution’s concern. The structural principles secured by the separation of powers protect the individual as well.
In the precedents of this Court, the claims of individuals—not of Government departments—have been the principal source of judicial decisions concerning separation of powers and checks and balances. For example, the requirement that a bill enacted by Congress be presented to the President for signature before it can become law gives the President a check over Congress’ exercise of legislative power. See U. S. Const., Art. I, §7. Yet individuals, too, are protected by the operations of separation of powers and checks and balances; and they are not disabled from relying on those principles in otherwise justiciable cases and controversies. In INS v. Chadha, 462 U. S. 919 (1983), it was an individual who successfully challenged the so-called legislative veto—a procedure that Congress used in an attempt to invalidate an executive determination without presenting the measure to the President. The procedure diminished the role of the Executive, but the challenger sought to protect not the prerogatives of the Presidency as such but rather his own right to avoid deportation under an invalid order.Chadha’s challenge was sustained. A cardinal principle of separation of powers was vindicated at the insistence of an individual, indeed one who was not a citizen of the United States but who still was a person whose liberty was at risk.
***
If the constitutional structure of our Government that protects individual liberty is compromised, individuals who suffer otherwise justiciable injury may object.
Con Law 101. Makes me want to go watch School House Rock.
A Federal Court in Miami has rejected a cruise line's assertion of a damage limitation from the Athens Convention as a defense to an allegation of rape by a passenger. The case pends, but the order in the case of Farraway v. Oceania Cruises, Inc. can be downloaded here.
Procedurally, the cruise line sought to amend its original Answer and assert a defense that the Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea, limited the assault victim's damages to 46.666 Special Drawing Rights or $65,000. The Convention did have an intentional or reckless acts exclusion which made the cruise line's proposed amendment of the Answer "futile" because the defense would be inapplicable.
The order doesn't denote whether the only counts asserted against the cruise line were intentional or reckless, but based on the ruling, it appears that those were the only ones asserted.
Per Cruise Law News, environmental groups filed a federal lawsuit seeking to require cruise ships to slow down in order to avoid whale strikes. Apparently, the suit seeks to compel the government to regulate ship speed in California's four national marine sanctuaries.
I'll post the complaint when it is available from the court.
The San Francisco Chronicle is reporting today about a new venture aiming to create a community 12 nautical miles off the coast of California. The community would include barges and towers and is billed as "Burning Man Meets Silicon Valley Meets the Water."
Of course, the maritime wonk in me has some questions. Presumably, they chose 12 nautical miles to get outside the U.S. territorial sea. Does that mean they intend to flag their vessels with a different country? If so, they should be mindful that they are still in the U.S. Exclusive Economic Zone and the U.S. can regulate (read: prohibit) activities affecting U.S. economic resources there (read: fishing). If they choose NO country, they should be mindful of the status of stateless vessels under the Law of the Sea (read: anyone can regulate stateless vessels). If the vessels are intended to be documented in the U.S. and carry passengers for hire, then they must be built or rebuilt in the U.S. and crewed by American citizens. Affixing towers to the continental shelf probably requires federal permission.
Interesting idea. Ideas are what make America great. Having navigated several ships in that area, my first concern was one of practicality. Big waves make for interesting living conditions.
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Mark M. Murakami is an attorney in private practice in Honolulu, Hawaii.
This blog is for informational purposes only. By reading it, you and I do not form an attorney-client relationship. If you want legal advice, retain an attorney licensed in your jurisdiction.
This blog is not sponsored by my firm, nor is it approved by my firm, or our clients. The opinions expressed here are my own.
