hawaiioceanlaw.com

New Cert Petition from 9th Circuit - Submerged Lands Act - Pacific Merchant Shipping Association v. James Goldstene

Among the cases in my queue awaiting my analysis is Pacific Merchant Shipping Association v. Goldstene, which can be downloaded here.  It relates to the Submerged Lands Act and whether it preempts state regulation of marine fuels.  Not a simple topic to blog about, hence Apparently a Petition for a Writ of Certiorari was filed and it made SCOTUSBLOG's Petition of the Day.

What are the boundaries of State regulation?

This case involves the State of California's attempt to regulate the types of fuels ships use off the California coast.  There was an earlier iteration of the case, posted in 2008, here where California tried to regulate ship emissions offshore.  The Ninth Circuit found those regulations to be preempted by the Clean Air Act.

In response, in 2009, the California Air Resources Board passed regulations requiring ocean-going vessels to use cleaner marine fuels.  The requirement applied within 24 nautical miles of the state's shoreline. [My federalism alarm bell just started ringing.] The Pacific Merchant Shipping Association challenged the regulations and lost its motion for summary judgment and appealed.  The Ninth Circuit affirmed the denial of summary judgment and PMSA is now seeking Supreme Court review.

Acknowledging that when federal statutes collide with the overarching federalism and preemption principles embodied in the Constitution, it is a tough call:

This appeal presents the Court with a highly unusual and challenging set of circumstances. Given the circumstances, we do believe that the regulatory scheme at issue here pushes a state’s legal authority to its very limits, although the state had clear justifications for doing so. More generally, we must take into account such fundamental considerations as, on the one hand, the supremacy of federal law, the various limitations on state regulations arising out of the dormant Commerce Clause and general maritime law preemption doctrines, and the federal government’s unquestioned authority over this nation’s relations with foreign countries, and, on the other hand, the sovereign police powers retained by California allowing the state to adopt a wide range of laws in order to protect the health, safety, and welfare of its own residents.

I'll end now and digest this case more as the briefs come in.

Update: Environmental Groups Seek Regulations to Prevent Whale Strikes

In reference to my earlier post regarding the environmental lawsuit to stop whale strikes, here is the Petition compiled by several environmental groups to regulate ship speed off the coast of California to prevent whale strikes.

From the Petition:

Pursuant to the Administrative Procedure Act, 5 U.S.C. § 553(e), the Center for Biological Diversity, Environmental Defense Center, Friends of the Earth, and Pacific Environment (collectively “Petitioners”) hereby petition the Secretary of Commerce, through the National Oceanic and Atmospheric Administration, National Ocean Service, and Office of National Marine Sanctuaries (“ONMS”) (collectively, “NOAA”) to establish a 10-knot speed limit for large commercial vessels within the national marine sanctuaries off the California coast.

The purpose of this action is to reduce and avoid significant threats to sanctuary resources, including protected species, due to ship strikes, noise pollution, air pollution, and greenhouse gas emissions. Because NOAA manages the national marine sanctuaries and has jurisdiction over marine mammals, sea turtles, and other marine species in ocean waters under the National Marine Sanctuaries Act, Endangered Species Act, and Marine Mammal Protection Act, NOAA is the proper agency to process this petition.

We recognize the ONMS has undertaken significant research regarding ship traffic impacts to sanctuary resources, particularly with respect to ship strikes on blue whales and other species in and around the Channel Islands National Marine Sanctuary. We submit this petition with the goal of building upon and furthering these important efforts to protect sanctuary resources.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

New Jones Act Case from Fifth Circuit - Bonin v. Ryan Marine Services, Inc.

New Jones Act case from the Fifth Circuit Court of Appeals.  No major legal issues as the appeal was taken on factual/evidentiary grounds. 

Note to claimant's attorneys:  Fifth Circuit did not require expert testimony to establish the negligence of owner or Captain.  

The case is Bonin v. Ryan Marine Services, Inc., 2011 U.S. App. LEXIS 3227, and can be found here.

New Maritime Products Liability Case From Ninth Circuit - Curtis Oswalt v. Resolute Industries Inc.

New case involving products liability arising from a boat engine.  The case is Curtis Oswalt v. Resolute Industries Inc., 2011 U.S. App. LEXIS 12114 and can be downloaded here.

The case involved a repair gone awry, eventually leading to a fire.  The repairer was sued and brought a third party complaint against the manufacturer of the equipment that cause the blaze. 

Relying on general maritime tort law, as informed by the Restatement of Torts, the court dealt with two issues:  first, products liability based on inadequate warnings and second, products liability based on defective design.

The Ninth Circuit test for inadequate warnings, from the Restatement, is:

A product “is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings . . . and the omission of the instructions or warnings renders the product not reasonably safe.” Restatement § 2(c). In general, however, “a product seller is not subject to liability for failing to warn or instruct regarding risks and risk-avoidance measures that should be obvious to, or generally known by, foreseeable product users.

The panel found an issue of fact with the design defect claim and vacated the summary judgment obtained by the manufacturer.

Side issues:  the panel allowed an award of hotel charges for the prevailing party as a loss-of-use damage.  The court acknowledged some controversy about awarding loss of use damages for a recreational vessel.

Hat tip hidden in the FN:  one of the panelists, Judge Fisher, included a reference that his former co-clerk was an adviser to the American Law Institute that drafted the Restatement provision used by the court as authority.

USS Bowfin

Feds Hold Public Hearings for Critical Habitat Designation for Monk Seals

The National Marine Fisheries Service is holding a series of public meetings to discuss its proposed rule regarding Hawaiian Monk Seal critical habitat.  The proposed rule is here.  The rule's background is:

In the notice of the proposed rulemaking, we propose to revise the current critical habitat for the Hawaiian monk seal (Monachus schauinslandi) by extending the current designation in the Northwestern Hawaiian Islands (NWHI) out to the 500-meter (m) depth contour and including Sand Island at Midway Islands; and by designating six new areas in the main Hawaiian Islands (MHI), pursuant to section 4 of the Endangered Species Act (ESA). Specific areas proposed for the MHI include terrestrial and marine habitat from 5 m inland from the shoreline extending seaward to the 500-m depth contour around: Kaula Island, Niihau, Kauai, Oahu, Maui Nui (including Kahoolawe, Lanai, Maui, and Molokai), and Hawaii (except those areas that have been identified as not included in the designation). We propose to exclude the following areas from designation because the national security benefits of exclusion outweigh the benefits of inclusion, and exclusion will not result in extinction of the species: Kingfisher Underwater Training area in marine areas off the northeast coast of Niihau; Pacific Missile Range Facility Main Base at Barking Sands, Kauai; Pacific Missile Range Facility Offshore Areas in marine areas off the western coast of Kauai; the Naval Defensive Sea Area and Puuloa Underwater Training Range in marine areas outside Pearl Harbor, Oahu; and the Shallow Water Minefield Sonar Training Range off the western coast of Kahoolawe in the Maui Nui area. In addition we are soliciting comments on all aspects of the proposal, including information on the economic, national security, and other relevant impacts. We will consider additional information received prior to making a final decision on critical habitat designation.

The schedule for the hearings is:

Moloka’i
Monday, August 8 5:30-8 pm
Mitchell Pauole Center
90 Ainoa Street
Kaunakakai, HI 96748

Maui
Tuesday, August 9 5:30-8 pm
Kihei Community Center
303 E. Lipoa St.
Kihei, HI 96753

Kaua’i
Wednesday, August 10 5:30-8 pm
Kaua’i War Memorial Convention Hall
4191 Hardy St., Exhibit Hall B
Lihu’e, HI 96766

O’ahu
Thursday, August 11 5:30-8 pm
McCoy Pavilion at Ala Moana Park
1201 Ala Moana Blvd.
Honolulu, HI 96814

Hawai’i
Monday, August 15 5:30-8 pm
Mokupapapa Discovery Center
308 Kamehameha Ave., 109
Hilo, HI 96720

Tuesday, August 16 6:30-9 pm
Kahakai Elementary School
76-147 Royal Poinciana Drive
Kailua Kona, HI 96740

Written comments must be received before August 31, 2011 or you can submit them at www.regulations.gov. 

New Ninth Circuit Case on Arbitrability of Maritime Dispute - Cape Flattery, Ltd. v. Titan Maritime

This is a case about the applicability of the Federal Arbitration Act to a contract that specified the usage of English law.  Hold on, don't close the post, I'm posting because it arose out of the grounding of the M/V Cape Flattery, near Barbers Point, Oahu.  The salvage caused damage to the coral reef nearby and the United States asserted a natural resource damage claim of over $15 million.  The case is Cape Flattery, Ltd. v. Titan Maritime, LLC and can be downloaded here.

Facts:  Following the grounding and subsequent federal cleanup, the vessel owner contracted with Titan Maritime to salvage the vessel.  Either during the grounding or salvage, the coral reef was damaged.  The contract between the owner and salvage company had an arbitration clause:

Any dispute arising under this Agreement shall be settled by arbitration in London, England, in accordance with the English Arbitration Act 1996 and any amendments thereto, English law and practice to apply.

The owner filed suit in federal court in Honolulu seeking contribution and indemnity from the salvage company.  The salvage company sought to compel arbitration of the dispute, citing the contract provision.  The trial court denied the motion to compel arbitration and an interlocutory appeal followed.

Analysis:  Two issues on appeal were the choice of law clause of the arbitration provision and whether the arbitration provision was applicable to the dispute. 

Choice of law - the parties disagreed about which law should govern the analysis: the Federal Arbitration Act or the English Arbitration Act.  After reviewing the relevant precedent, the court held that the parties COULD contract around the applicability of the Federal Arbitration Act, even if the issue was being decided in federal court.

Arbitrability of arbitrability question or who-gets-to-decide if a dispute gets arbitrated: judge or arbitrator?  the parties disagreed that the court had the power to decide if the dispute was arbitrable.  The court found that general choice of law provisions do not constitute an agreement that the arbitrator is to decide the arbitrability of a dispute.  They require courts to apply federal arbitration law absent "clear and unmistakable evidence" that the parties intended the applicability of another law.

Did this dispute "arise under" the contract?  Ah - the circuit split cometh.  Under Ninth Circuit case law, specifically, Mediterranean Enterprises, Inc. v. Ssangyong Construction Co., 708 F.2d 1458 (9th Cir. 1983) and Tracer Research Corp. v. National Environmental Services Co., 42 F.3d 1292 (9th Cir. 1994), the words "arising under" denote a narrow arbitration agreement.  This line of decisions conflicts with the Second Circuit, 6th, 3rd, 11th and 4th.  The court followed its earlier decisions and narrowly construed the "arising under" language in the arbitration provision.  Following the precedent, only those disputes "relating to the interpretation and performance of the contract itself" and not tort claims like those prosecuted by the owner were arbitrable.

New Clean Water Act Case From Court of Appeals for the D.C. - Lake Carriers' Association v. EPA

The Court of Appeals for the District of Columbia Circuit just handed down its decision in the case of Lake Carriers' Association v. EPA, 2011 U.S. App. LEXIS 14996 which can be found here.

Summary:  This case involved several maritime trade associations bringing a challenge to a nationwide permit for the discharge of pollutants under the Clean Water Act.  The associations asserted procedural challenges stemming from conditions sought by various States.  The court rejected the petition.

Facts:  The Clean Water Act prohibits discharges of pollutants without a NPDES permit.  For those discharges into the waters of a State, the Clean Water Act provides that the States to review such permit application before issuance.  Further, states can put conditions on the federal permit through the review process, also known as certification process.

When the Clean Water Act was first enacted, the EPA exempted gray water from the requirement to obtain a permit (and State certification).  Gray water is effluent from laundries, sinks, showers, etc.  The Ninth Circuit vacated the regulation in 2008, giving the EPA until 2009 to develop a means to implement the permit process.

EPA developed the process, promulgated the rule and received numerous comments. Several states commented that they sought differing standards to address unique, local environmental conditions.  Others sought a uniform standard.  EPA eventually passed the permit, with approximately 100 state specific conditions.

Various maritime trade associations brought suit under the Administrative Procedures Act.  They argued:

First, they contend that EPA erred in failing to provide notice and an opportunity for comment on the final [Vessel General Permit], which contained the state certification conditions.  Second, they charge that it was arbitrary and capricious for EPA to issue the permit without considering the possible ill-effects of the state certification conditions.  Finally, they allege that EPA failed to consider the costs of compliance with state conditions in assessing the impact of the permit on small businesses....

On the notice and opportunity to comment, the EPA did provide notice of the rule, but the Associations challenge the rule because the States conditions were not also disclosed.  EPA's chief response was that no notice was required, because EPA had no authority to reject the State's conditions.  The court rejected this argument as waived for not raising it before the EPA.

The court rejected the other arguments along similar lines.  The court did mention that the Associations could challenge the States' conditions in the relevant state court. 

New Admiralty Case From Fifth Circuit - Apache Corp. v. Global Santa Fe Drilling Co.

New admiralty case from the Fifth Circuit Court of Appeals.  In brief, the case involved an allision between a Mobile Offshore Drilling Unit (MODU) and an oil platform.  The issue in the case was whether the trial court mistakenly let an admiralty case go to a jury when admiralty cases are not tried by juries.  The court found the case governed by the civil procedure rules and not the admiralty rules. 

The case is Apache Corp. v. Global Santa Fe Drilling Co., 2011 U.S. App. LEXIS 14454 and can be found here.

New Law Review Article on Marine Spatial Planning and Ocean Governance

Marine spatial planning and ocean governance is a very hot issue these days.  Professor Robin Craig from Florida State University College of Law posted an upcoming law review article on the subject, entitled: Ocean Governance for the 21st Century:  Making Marine Zoning Climate Change Adaptable.  It is available on SSRN here.

More and more Americans are living near the coastline.  Those coastlines are prone to shifting boundaries, erosion and are susceptible to changes in the climate.  There are increasing uses of the oceans, both in terms of global trade and in terms of natural resource utilization.  As such, the United Nations and the federal government are interested in better governance mechanisms to manage those uses and resources.  One such effort is the President's Interagency Ocean Policy Task Force.

Professor Craig's article reviews both international and national level ocean governance trends and provides examples of marine spatial planning.  The well thought-out and in depth article is a must for policy makers.