Amicus Curiae Brief — Tidewater Marine Service, Inc. v. Aubry

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No. 91-142

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1991

TIDEWATER MARINE SERVICES, INC. and WESTERN

BOAT OPERATORS, INC.,

Petitioners,

VS.

LLOYD W. ATIBRY, JR., STATE OF CALIFORNIA LABOR

COMMISSIONER, and DIVISION OF LABOR STANDARDS

ENFORCEMENT, STATE OF CALIFORNIA DEPARTMENT

OF INDUSTRIAL REL. TIONS,

Respondents.

On Petition for a Writ of Certiorari to the United States Court

of Appeals for the Ninth Circuit

MOTION BY THE MARITIME LAW ASSOCIATION OF

THE UNITED STATES TO FILE AMICUS CURIAE BRIEF

AND BRIEF IN SUPPORT OF A PETITION FOR A WRIT

OF CERTIORARI

JEROME C. SCOWCROFT

Counsel of Record

Kenneth H. Volk

Paul N. Daigle

1420 5th Avenue, Suite 2600

Seattle, WA 98101

(206) 621-9168

Attorneys for the Maritime Law

Association of the United States,

Application for Leave to File a

Brief as Amicus Curiae

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TABLE OF CONTENTS

Pr I Sn gd eae gel a eee. 6 4. 8. 3 ili

Motion By The Maritime Law Association of the |

United States to File Amicus Curiae Brief ........... I

Nature of Applicant's Interest ................. I]

The MLA Can Make a Unique Contribution on

RISE Ee ee VII

Brief in Support of a Petition for a Writ of

es ET ll

Question of Law Presented ...................

| ere

Summary of Reasons for Granting the Writ ........

Reasons for Granting the Writ.................

I. The Application of California Overtime

Compensation Laws to Maritime Employees

Violates the Constitutional Mandate of Uniformity .. 3

A. Contracts Between Seamen and Their Employers

Should Be Enforced Uniformly Throughout the

United States Regardless of Where the Contract

Is Made or the Work Is Performed ......... 3

B. The Decision of the Ninth Circuit Court of

Appeals Would Be Extremely Detrimental to

WwWwNN NO —

a 4

C. The Ninth Circuit’s Decision Would Also Be

Harmful to the Interests of the States ........ 8

D. The Localized Nature of Individual Workers’

Employment Has Never Justified a Departure

from the Mandate of Uniformity ........... 9

E. The Mandate of Uniformity Is a Long-Standing

Requirement That Pervades Every Aspect of

Maritime Employment ................. 12

II. Application of State Law to Seamen’s Employment

Agreements Is Preempted by Extensive Federal

WR 6 6s a 6 Oe eee

Conclusion

$ € 2 €¢ 2 28 2 € & S26 “OS S862 6 8 2. et 2.2 ee eS ee

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TABLE OF AUTHORITIES

Cases: Page

Askew v. American Waterways Operators, Inc., 411 U.S.

dS ges, ee er V

Bethlehem Steel Co. v. New York State Labor Relations

oe i | 15

Chelentis v. Luckenbach S.S. Co., Inc., 247 U.S. 372,

os sy Se oe 0 6 0 8 9 8's 10,11

Chick Kam Choo v. Exxon Corp., 486 U.S. 140 (1988) . V

Gillespie v. United States Steel Corp., 379 U.S. 148,

Ee ere eee ee 13

Kermarec v. Compagnie Generale Transatlantique, 358 U.S.

eS 1]

Kossick v. United Fruit Company, 365 U.S. 731, 81 S. Ct.

886 (1961), reh. denied, 366 U.S. 941, 81 S. Ct.

re hie ow ge Gd ee ak Sees 3,4

Lindgren v. United States, 281 U.S. 38, 50 S. Ct. 207

gh ay gt Es Sa a 13

Lloyd v. Goodall, 102 U.S. 541 (1881) ........... 12

London Co. v. Industrial Commission, 279 U.S. 109

ans vw wa kp oes ses 12

Matter of S/S Helena, 529 F.2d 744 (Sth Cir. 1976) ... 14

Miles v. Apex Marine Corporation, _US. ___,

EE Ee a 14,15,16

Moragne v. States Marine Lines, 398 U.S. 375,

ee 13,14

Napier v. Atlantic Coast Line, 272 U.S. 605 (1926) .... 15

Nelson v. United States, 639 F.2d 469 (9th Cir. 1980) .. 14

Norfolk & Western Ry. v. Public Utilities Comm. ,

926 F.2d 567 (6th Cir. 1991) ................ 15

iv

Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 106 S. Ct.

I on Sr Soar gt Sion reer ges V,VI,12,13

Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S. Ct. 202

Ct et Serta eee Sia 5 11

Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978) . . .V,15,16

Southern Pacific Company v. Jensen, 244 U.S. 205,

Cg ee ee are et eer ae 9,10,11,14

The Harrisburg, 119 U.S. 199, 7S. Ct. 140 (1886) .... 13

The Osceola, 189 U.S. 158, 23 S. Ct. 483 (1903) ..... 16,13

The Tungus v. Skovgaard, 358 U.S. 588, 79 S. Ct. 503

CU od eb -y wo ae Oe we Oe eae ew Rs 13

U.S. Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351, 91 S. Ct.

| Mires Sah aero A, Pi Uttam a 15,16

Union Fish Co. v. Erickson, 248 U.S. 308 (1919) ..... 12

Statutes:

Po SS eee ee ee ee ee rere ce 16

Carriage of Goods By Sea Act,

Wes Oe EES oc sees OSS elas eee II

Death on the High Seas Act,

IE Fk ng a-n oe 4-0-4 eee ee Ga V,13,14

Fair Labor Standards Act,

Nahe ad cae ao 9 ¥ une k te eterno ee 16

Federal Arbitration Act,

ey og ae a a a ae ae II

Jones Act,

es I kk ce ee ee ee ee ee 13

Labor Management Relations Act,

po RE es ea ee ee eee 16

1972 Water Pollution Control Act Amendments,

CBR Fo GD er re re Ill

United States Inland Navigation Rules,

a ee tas ee ee ll

United States Code, Title 46,

Secs. 10301(b), 10303(e)-(i), 10501 (b),

PI yng cc a twine a ee ek os 16

United States Code, Title 46,

Ss I serra te Gn Ieee torte wh wr carne 16

52 Stat. 1067, Sec. 13(a)(3), c. 676 (1938) ......... 16

(-% ‘ye, Uh? 2 5). | Er ener ee mem 16

Conventions and Treaties:

Assistance and Salvage Convention (1910), 37 Stat.

1658 (1913), reprinted in 6 M.M. COHEN,

BENEDICT ON ADMIRALTY, Doc. No. 4-1

(7th rev'd ed. 1990) (“BENEDICT”) ........... IV

Civil Liability for Oil Pollution Damages Convention

(1969), U.N.T.S. 1409, reprinted in 6 BENEDICT,

NE 36-x dren ke SUSE roe ee eee ears IV

Collision Convention (1910), reprinted in 6 BENEDICT,

Pe ee yet oie Aan, Sig ERE, Aan A Nene ew IV

Limitation on Liability for Maritime Claims (1976),

reprinted in 6 BENEDICT, Doc. No. 5-4 ........ IV

Limitation on Liability of Owners of Sea-Going Ships

(1957), reprinted in 6 BENEDICT, Doc. No. 5-2... IV

Maritime Liens and Mortgages Convention (1967),

reprinted in 6A BENEDICT, Doc. No. 8-3 ....... IV

1972 Convention for Preventing Collisions at Sea, 28

U.S.T. 3459, T.1.A.S. 8587, U.N.T.S. 15824, as

amended, T.1.A.S. 10672, reprinted in 6 BENEDICT,

Se Te SO 6s oe 8 ee ee Se IT]

Ocean Bills of Lading Convention (The Hague Rules)

(1924), 120 L.N.T.S. 155, reprinted in 6

Oe er ee ee oe IV

vi

Regulations:

ae. DS PPO OG..g ow ve eS ee ees aa

MOU 9", 4 Coda ac gly os eco me ep a

Rules:

Rules of the Supreme Court of the United States,

ECNNEE |. 5 6 &.4.0.4-0 5s 4.5 ee

Textbooks, Articles and Treatises:

Friedell, Benedict on Admiralty, § 112, p. 7-37 ......

Miscellaneous:

Hearings on §. 2475 and H.R. 7200 Before the

Senate Comm. on Education and Labor and the

House Comm. on Labor, 75th Cong., Ist Sess.

ee rs ee re are

Hearings on S. 256, S. 879, S. 895 and Bills

Amending the FLSA Before the Subcomm. on Labor

of the Senate Comm. on Labor and Public Welfare,

87th Cong., Ist Sess. 376-379 (1961) ...........

S. Rep. No. 145, 87th Cong., Ist Sess. 32-33 (1961) ...

17

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15

17

17

17

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1991

No. 91-142

TIDEWATER MARINE SERVICES, INC. and WESTERN

BOAT OPERATORS, INC.,

Petitioners,

VS.

LLOYD W. AUBRY, JR., STATE OF CALIFORNIA LABOR

COMMISSIONER, and DIVISION OF LABOR STANDARDS

ENFORCEMENT, STATE OF CALIFORNIA DEPARTMENT

OF INDUSTRIAL RELATIONS,

Respondents.

On Petition for a Writ of Certiorari to the United States Court

of Appeals for the Ninth Circuit

MOTION BY THE MARITIME LAW ASSOCIATION OF

THE UNITED STATES TO FILE AMICUS CURIAE BRIEF

AND BRIEF IN SUPPORT OF A PETITION FOR A WRIT

OF CERTIORARI

Applicant, The Maritime Law Association of the United States

(“MLA”), moves the Court for permission to file an amicus curiae

brief in support of the Petition for Writ of Certiorari filed by

Tidewater Marine Services, Inc., and Western Boat Operators, Inc.

(collectively “Petitioners”). Petitioners have given consent to the

MLA to file an amicus brief, but Respondents have refused to

consent. Accordingly, leave to file must be sought pursuant to

Rule 37.2.

II

NATURE OF APPLICANT’S INTEREST

Applicant has a very strong interest in the disposition of this

case. The MLA is a nationwide bar association founded in 1899.

It has a membership of about 3600 attorneys, federal judges, law

professors and others interested in maritime law. It is affiliated

with the American Bar Association and is represented in that

Association’s House of Delegates.

The MLA’s attorney members, most of whom are specialists

in admiralty law, represent all maritime interests - shipowners,

charterers, cargo owners, shippers, forwarders, port authorities,

seamen, longshoremen, passengers, marine insurance underwriters

and other maritime claimants and defendants.

The purposes of the MLA are stated in its Articles of

Association:

The objectives of the Association shall be to advance

reforms in the Maritime Law of the United States, to

facilitate justice in its administration, to promote

uniformity in its enactment and interpretation, to furnish

a forum for the discussion and consideration of problems

affecting the Maritime Law and its administration, to

participate as a constituent member of the Comite

Maritime International and as an affiliated organization of

the American Bar Association, and to act with other

associations in efforts to bring about a greater harmony in

the shipping laws, regulations and practices in different

nations. (Emphasis added).

In furtherance of these objectives, the MLA has, during its

ninety-one years of existence, sponsored a wide range of

legislation dealing with maritime matters including the Carriage of

Goods by Sea Act' and the Federal Arbitration Act.2 The MLA

'46 U.S.C. §§ 1300-1315.

IT]

has also cooperated with congressional committees in the

formulation of other maritime legislation.’

The MLA is also participating in several projects of a maritime

legal nature undertaken by agencies of the United Nations,

including its commissions on trade law (“UNCITRAL”) and trade

and development (“UNCTAD”). It works closely with the

international Maritime Organization (“IMO”).

The MLA has actively participated, as one of some forty-nine

national maritime law associations constituting the Comite

Maritime International,* in the movement to achieve maximum

9: U.S.C. §§ 1-15.

*E.g., 1972 Water Pollution Control Act Amendments, 33

U.S.C. §§ 1251-1376; implementation of the 1972 Convention For

Preventing Collisions at Sea, 28 U.S.T. 3459, T.I.A.S. 8587,

U.N.T.S. 15824, as amended, T.I.A.S. 10672, reprinted in 6

M.M. Cohen, BENEDICT ON ADMIRALTY, Doc. No. 3-4 at

3.35 to 3-78.2 (7th rev'd ed. 1990) (hereinafter “BENEDICT").

see 33 C.F.R. ch. 1, subch. D., Special Note at 160 (1987);

United States Inland Navigation Rules, 33 U.S.C. §§ 2001-2073.

‘These now include the national associations of Argentina,

Australia and New Zealand, Belgium, Brazil, Bulgaria, Canada,

Chile, China, Colombia, Costa Rica, Czechoslovakia, Denmark,

Egypt, Finland, France, Federal Republic of Germany, German

Democratic Republic, Greece, Hong Kong, Iceland, India,

Indonesia, Ireland, Israel, italy, Japan, Korea, Mexico, Morocco,

The Netherlands, Nigeria, Norway, Panama, Peru, Philippines,

Poland, Portugal, Senega!, Spain, Sri Lanka, Sweden, Switzerland,

Turkey, United Kingdom, United States, Uruguay, Union of Soviet

Socialist Republics, Venezuela and Yugoslavia.

IV

international uniformity in maritime law through the medium of

international conventions.*

The MLA believes that uniformity in maritime law, both

national and international, is of great importance. This concern has

been repeatedly expressed by the MLA’s membership and standing

committees. For example, in 1975 the MLA Standing Committee

on Uniformity of United States Maritime Law recommended that

steps be taken to persuade congressional committees “that

nationwide and, in fact, worldwide uniformity in the Maritime

Law is highly desirable, not only from the standpoint of those

involved with maritime commerce but from that of the public as

well.” A resolution to that effect was unanimously adopted at the

MLA Annual Spring Meeting on April 25, 1975.° A substantialiy

identical resolution was adopted by the American Bar Association

in 1976. This policy has since been reaffirmed by the MLA on

several occasions, most recently in a 1986 resolution.’

°E.g., Assistance and Salvage (1910), 37 Stat. 1658 (1913),

reprinted in 6 BENEDICT, Doc. No. 4-1 at 4-2 to 4-10; Ocean

Bills of Lading (The Hague Rules) (1924), 120 L.N.T.S. 155,

reprinted in 6 BENEDICT, Doc. No. 1-1 at 1-2 to 1-19; Collision

(1910), reprinted in 6 BENEDICT, Doc. No. 3-2 at 3-11 to 3-19;

Limitation of Liability of Owners of Sea-Going Ships (1957),

reprinted in 6 BENEDICT, Doc. No. 5-2 at 5-11 to 5-29;

Maritime Liens and Mortgages (1967), reprinted in 6A

BENEDICT, Doc. No. 8-3 at 8-25 to 8-32; Civil Liability for Oil

Pollution Damages (1969), U.N.T.S. 1409, reprinted in 6

BENEDICT, Doc. No. 6-3 at 6-62.103 to 6-76.3; and Limitation

of Liability for Maritime Claims (1976), reprinted in 6

BENEDICT, Doc. No. 5-4 at 5-32.1 to 5-44.3.

°MLA Minutes, MLA Doc. No. 558 at 6397-98 (1975).

’MLA Minutes, MLA Doc. No. 669 at 8769 (1986).

Vv

In furtherance of its uniformity policy and resolutions, the

MLA has filed amicus briefs in a number of cases, including briefs

accepted by this Court.* However, it is the policy of the MLA to

participate as amicus curiae only when important issues of

maritime law are involved and the impact of the Court’s decision

may be substantial. In one of those cases, Offshore Logistics, Inc.

v. Tallentire’, the Court noted the role of the MLA. Tallentire

involved the issue of whether Section 7 of the Death on the High

Seas Act (DOHSA), 46 U.S.C. § 767, which provides that “[t]he

provisions of any State statute giving or regulating rights of action

or remedies for death shall not be affected,” was intended to

preserve the applicability of state wrongful death statutes on the

high seas. The Court stated that:'°

The Maritime Law Association (“MLA”), an organization

of experts in admiralty law and a prime force in the

movement for a federal wrongful death remedy, drafted

the bill that was enacted as DOHSA. The MLA envisioned

Section 7 to be a jurisdictional savings clause . . . the

MLA, an expert body of maritime lawyers, had reason to

fear that absent a savings clause specifically recognizing

the continued viability of this type of action, state

wrongful death remedies on territorial waters might be

deemed beyond the competency of state courts.

~

‘Chick Kam Choo v. Exxon Corp., 486 U.S. 140 (1988);

Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986); Ray

v. Atlantic Richfield Co., 435 U.S. 151 (1978); Askew v.

American Waterways Operators, Inc., 411 U.S. 325 (1973). For

a more comprehensive listing, see MLA Report, MLA Doc. No.

671 at 8862-63 (1987).

"Id.

477 U.S. at 223-224.

VI

The Court in Tallentire agreed with the MLA that Section 7 is

a jurisdictional savings clause rather than a congressional

endorsement for application of state wrongful death statutes, and

held that stete statutes are preempted where DOHSA applies."

The present case, like Tallentire, presents an important issue

on which the decision of this Court could have a substantial impact

upon the uniformity of maritime law. The employees in this case

were seamen employed on the high seas and in coastal waters.

Consequently, the uniformity of maritime law is gravely threatened

by the Ninth Circuit’s hoiding that they are entitled to overtime

compensation under California state law.

The conditions of maritime employment are not comparable to

those of land-based employment, where it is much more feasible

for workers to be employed in standard eight-hour shifts. If

individual states are permitted to apply their overtime

compensation laws to seamen on vessels in navigation, significant

harmful consequences would result to the MLA’s membership and

the wide variety of interests which it represents. The costs to

maritime employers could become so great as to make it difficult

for them to continue in operation. Such consequences can be seen

in the present case, in which the salaries of certain crewmembers

were tripled by virtue of the Ninth Circuit’s decision. Moreover,

compensation laws might differ from state to state, and the laws of

one state might well be incompatible with those of other states

purporting to regulate the same vessels. The danger of conflicting

state regulation is especially pronounced in maritime commerce,

because vessels typically operate on navigable waterways which

border on several states. In addition to imposing ruinous labor and

administrative costs, the application of differing state compensation

laws would expose maritime employers to conflicting standards and

produce arbitrary and inequitable differences in the treatment of

"477 U.S. at 231-32.

Vil

their employees. It would also interfere with the ability of the

Coast Guard to regulate the manning of vessels on a uniform

national basis, and with the ability of seamen’s unions to represent

their members on a uniform national basis. Finally, cost barriers

resulting from differences in state compensation laws would

impede the free flow of maritime commerce between the states.

Accordingly, the MLA urges that this motion be granted.

THE MLA CAN MAKE A UNIQUE CONTRIBUTION ON

RELEVANT ISSUES

The MLA’s perspective, arising from its interest in the

uniformity and predictability of U.S. maritime law, is

necessarily different from that of the parties to this particular

Suit, who are most interested in its outcome as it affects their

individual positions. The MLA can comment objectively about

the need for review by this Court in order to insure national

uniformity on the issues presented. The MLA will concentrate

only on the need for uniformity in maritime actions regardless

of the forum, and on the dangers of permitting the decision of

the Ninth Circuit Court of Appeals to stand.

DATED August 8, 1991.

RESPECTFULLY SUBMITTED:

/s/) JEROME C, SCOWCROFT

JEROME C. SCOWCROFT

Counsel of Record

Kenneth H. Volk

Paul N. Daigle

1420 Sth Avenue, Suite 2600

Seattle, WA 98101

(206) 621-9168

Attorneys for the Maritime Law

Association of the United States,

Applicant for Leave to File a

Brief as Amicus Curiae

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1991

No. 91-142

TIDEWATER MARINE SERVICES, INC. and WESTERN

BOAT OPERATORS, INC.,

Petitioners,

VS.

LLOYD W. AUBRY, JR., STATE OF CALIFORNIA LABOR

COMMISSIONER, and DIVISION OF LABOR STANDARDS

ENFORCEMENT, STATE OF CALIFORNIA DEPARTMENT

OF INDUSTRIAL RELATIONS,

Respondents.

On Petition for a Writ of Certiorari to the United States Court

of Appeals for the Ninth Circuit

BRIEF OF THE MARITIME LAW ASSOCIATION OF

THE UNITED STATES, AMICUS CURIAE, IN SUPPORT

OF A PETITION FOR A WRIT OF CERTIORARI

The Maritime Law Association of the United States (“MLA”)

respectfully submits this brief as amicus curiae in support of the

Petition for Certiorari by Tidewater Marine Services, Inc. and

Western Boat Operators, Inc. (“Petitioners”).

2

QUESTION OF LAW PRESENTED

Whether state overtime compensation statutes can apply to

seamen employed on vessels in maritime commerce.

INTEREST OF AMICUS CURIAE

This is stated in the Motion which precedes this brief.

SUMMARY OF REASONS FOR GRANTING THE WRIT

Tne employees in this case were seamen employed on the high

seas and the navigable waters of the United States. If California

were permitted to apply its overtime compensation laws, then other

states would likewise be free to regulate the wages of seamen in

maritime commerce. Although the present case involves overtime,

there is no reason why the application of state law would be so

limited. The result would be that seamen’s wage claims could vary

significantly from state to state.

Wher a conflict arises between the application of state law and

the uniformity of maritime law, the Constitution requires that

consideration must be given to the need for uniformity in relation

to the benefits sought by the states from the application of their

laws. When it comes to seamen’s wages, the need for uniformity

is overwhelming. The states would derive little benefit from

application of their laws, because seamen comprise only a small

fraction of the work force. The goals of the state wage and hour

laws would still be met if seamen were excluded from their reach.

On the other hand, the maritime industry would be severely

harmed if states were permitted to regulate seamen’s wage claims.

The interests of the states would also be harmed, because the

economic barriers resulting from diverse state laws would hinder

the flow of maritime commerce. Thus, the Constitutional mandate

of uniformity forbids the application of the California overtime

laws. There is specific and unambiguous federal maritime case law

3

rejecting the application of state law in circumstances analogous to

those of the present case.

If the wages of seamen were in need of protection, it would be

up to Congress rather than the states to supply the necessary

legislation. In fact, seamen’s wages are among the most highly

protected bodies of rights in all of maritime law. They are

governed by extensive and stringent federal statutes dating back

more than two hundred years. The extensive regulation of

seamen’s wages by Congress forecloses additional remedies under

State law.

REASONS FOR GRANTING THE WRIT

I. THE APPLICATION GF CALIFORNIA OVERTIME

MP ATION LAWS TO MARITIME EMPLOYEES

VIOLATES THE CONSTITUTIONAL MANDATE _ OF

UNIFORMITY.

A. CONTRACTS BETWEEN SEAMEN AND _ THEIR

EMPLOYERS SHOULD BE ENFORCED UNIFORMLY

THROUGHOUT THE UNITED STATES REGARDLESS

OF WHERE THE CONTRACT IS MADE OR THE

WORK IS PERFORMED.

In Kossick v. United Fruit Company, 365 U.S. 731, 81S.

Ct. 886 (1961), reh. denied, 366 U.S. 941, 81 S. Ct. 1657 (1961),

an injured seaman sued his employer to recover for improper

treatment at a Public Health Service hospital. The seaman

contended that the shipowner had agreed orally to remain

responsible for the hospital’s treatment. The Supreme Court ruled

that maritime law should have been applied, instead of the New

York statute of frauds, because the application of state law would

undermine the mandate of uniformity. The court reasoned that:

[T]his is such a contract as may well have been made

anywhere in the world, and . . . the validity of it should

4

be judged by one law wherever it was made. 365 U.S. at

741 (citations omitted).

It is equally true that the contracts of seamen employed in a

particular jurisdiction need not have been made in that jurisdiction.

Seamen are frequently hired in one state for work in another state

or throughout the United States. For example, Petitioner Tidewater

is headquartered in Louisiana and employs seamen throughout the

United States. The seamen’s wages should be governed by the

same laws regardless of where their contracts are made or the

work is performed.

The MLA does not contend that every maritime interest, no

matter how slight or marginal, should displace every local interest,

no matter how pressing. The Supreme Court stated in Kossick that

state and maritime interests must both be considered in determining

whether a state statute should be preempted by the need for

uniformity. 365 U.S. at 739, 741-42. In the present case, the

application of state overtime compensation laws to seamen would

be extremely harmful to the maritime industry. The benefit to the

states would be only marginal, because maritime employees

comprise a very small portion of the work force to which the state

Overtime compensation laws are directed. Moreover, the

application of state overtime compensation laws would harm the

states by creating economic barriers to the free flow of maritime

commerce. Consequently, the analysis employed in Kossick points

to an accommodation favoring uniformity. The decision of the

Ninth Circuit Court of Appeals must be reversed.

THE DECISI E NINTH Cl

APPEALS WOULD BE EXTREMELY DETRIMENTAL

TO MARITIME COMMERCE.

State overtime laws can be of tremendous significance in

maritime commerce, where working conditions differ significantly

from the land-based working conditions for which state wage and

hour laws are designed. In particular, the realities of shipboard

5

employment make it impossible in many instances to schedule

seamen according to standard eight-hour shifts.

The fundamental differences between maritime and land-based

employment are reflected in the Shipping Act and Coast Guard

Certificates of Inspection for offshore vessels, which set a

maximum work period of twelve hours per day on crew and

supply boats such as those operated by Petitioners. Reliance upon

those federal standards has created an accepted and customary

twelve-hour workday throughout the offshore maritime industry.

The application of land-based state compensation laws would

destroy those customary practices, because it would require

maritime employers to pay for substantial portions of their

employees’ time at premium overtime rates.

In the present case, for example, the California Labor

Commissioner awarded $50,000 in overtime pay to a deckhand

with a salary of approximately $25,000 per year, thereby tripling

his salary. Other employees received comparable increases in

compensation. There are few employers in any industry which

could afford such drastic fluctuations in their payrolls. The

industry as a whole would suffer from the economic dislocations

which the Ninth Circuit’s decision would produce if allowed to

stand.

The Ninth Circuit’s decision would also interfere with the

ability of the Coast Guard to implement its manning requirements

uniformly. The application of differing state laws to crewmembers’

compensation would produce significant differences among states

as to the cost of complying with those requirements.

Moreover, many seamen are employed under collective

bargaining agreements which are intended to apply uniformly

throughout the nation. The application of state overtime and other

compensation laws to such workers would destroy the uniform

6

application of the collective bargaining agreements, and interfere

with the ability of unions to represent their members nationally.

The decision of the Ninth Circuit was based in part on the

majority’s conclusion that the need for uniformity is less with

respect to vessels that are engaged in local offshore operations.

However, it is impossible to distinguish between vessels which

work locally and those which travel between different jurisdictions.

Almost every vessel in maritime commerce has the potential for

interstate operation at any time. Companies like Petitioners are

likely to work in several different states. Their vessels and their

employees are apt to travel between jobs in different states.

Moreover, there are many navigable waterways on which vessels

operate routinely among several states. Examples are the Columbia

River between Washington and Oregon; the Delaware River

between New Jersey, Delaware and Pennsylvania; the Mississippi

River, the Gulf of Mexico, the Great Lakes, and Chesapeake Bay,

on which vessel operations frequently involve several states; and

the Hudson River and New York harbor between New York and

New Jersey.

If California can apply its overtime laws to seamen, other

states can do so as well. A situation would quickly arise in which

seamen would be exposed to fortuitous and inequitable differences

in treatment, shipowners would be exposed to enormous expenses

and administrative burdens, the courts would be exposed to forum

shopping, and irreconcilable conflicts would arise.

The Ninth Circuit’s decision emphasizes that the maritime

employees involved in this action are California residents.

However, it is common for vessels operating on waterways such

as the Columbia River, Delaware River or New York Harbor to

employ crews comprised of residents from several states. On the

Columbia River, for example, the Panel’s decision would permit

the states of Washington and Oregon to apply their own laws to

their own residents. Crewmen who occupy the same rank and do

7

the same work on the same vessel at the same place and time could

then receive substantially different amounts of pay because of

differences in state laws. The results would be inequitable and

divisive for the crewmen, as well as burdensome and expensive for

the shipowners.

Another example is the Pacific Northwest fishing industry, in

which it is common for crewmen on a single vessel to come from

areas throughout the United States and perform services in Oregon,

Washington, Alaska, or ail three of those states.

The Ninth Circuit’s decision is unrealistic even for companies

which are localized in California. For example, Clean Seas

Association was a party in the proceedings below. It is involved in

the containment and recovery of open ocean oil spills. An oil spill

could easily occur near the California-Oregon border. Such a spill

would involve residents of California, Oregon and elsewhere,

employed by Clean Seas and a variety of other companies. The

vessels involved in cleanup and containment would operate in both

Oregon and California waters. (The relevance of this scenario is

illustrated by the NESTUCCA oil spill in 1988, in which oil

contacted beaches all the way from central Washington to northern

British Columbia.) Under the Ninth Circuit’s decision, both

Oregon and California would be entitled to apply their laws to

their residents for overtime incurred in their waters. It would be

impossible to keep track of which workers were entitled to be

compensated under which laws during which periods of time. !t

would be inequitable for the employers and employees to have

compensation depend upon whether a vessel happened to be in

Oregon waters, California waters, or on the high seas when the

overtime occurred. It would be unfair to limit the employees from

other states to base pay when workers from Oregon and California

were earning overtime. It would be equally unfair to arbitrarily

assign such employees to one state or the other.

8

The Ninth Circuit’s decision would also expose maritime

employers to conflicting state standards, because the overtime laws

in the states where they operate might not be uniform. For

example, a fleet of vessels operating between New York and New

Jersey might well hire both New York and New Jersey residents.

The New Jersey legislature might make its overtime laws

applicable to New Jersey residents, while the New York legislature

might make its overtime laws applicable to services performed in

New York waters. Moreover, the compensation schemes might

vary substantially between the two states, and the statutes of each

state might include fines and penalties for non-compliance. The

New York employees would be victimized during New Jersey

operations, because only the New Jersey residents would be

entitled to overtime. The employer would be victimized during

New York operations, because it would be subject to conflicting

standards. At all times the employer would face the ruinous burden

of keeping track of the dates, locations and amounts of overtime

for its employees. The same problems would be faced by fleets of

tugboats and/or barges operating on the Columbia, Delaware and

Mississippi Rivers, hiring employees from two or more states for

work in two or more states.

The preceding examples are not exaggerated or unrealistic.

They reflect the ordinary, everyday realities of maritime

commerce. In order to avoid the problems illustrated by those

examples, the Court must reverse the Ninth Circuit’s decision and

rule that the California overtime laws cannot be applied to seamen.

THE NINTH CIRCUIT’S DECISION WOULD ALSO BE

HARMFUL TO THE I F THE STATES.

The Ninth Circuit neglected important state interests which

weigh against the application of California law. Maritime workers

comprise only a small portion of California’s work force. The

objectives of California’s overtime compensation laws would still

be met if maritime workers were excluded. On the other hand,

9

California has a substantial interest in the free flow of maritime

commerce among the states. That interest would be frustrated if

maritime employment contracts were subject to local wage laws.

For example, the present action includes a Louisiana company

performing supply services off the California coast. It also includes

an organization created for oil spill cleanup and damage

prevention. There are only a few companies with the expertise to

provide such services, and they are employed throughout the

United States.

These examples illustrate that the expertise and resources

needed for maritime operations are not uniformly distributed. It is

in the interests of every maritime state to avoid barriers which

would hinder the free flow of personnel and materials which the

industry requires. Such barriers can be avoided only by adhering

to the rule that seamen’s employment contracts cannot be modified

by diverse locai laws.

D. THE LOCALIZED NATURE OF INDIVIDUAL

W RS’ PLOYMENT HAS NEVER JUSTIFIED

A__DEPARTURE FROM __THE MANDATE _ OF

UNIFORMITY.

The decision in Southern Pacific Company v. Jensen, 244

U.S. 205, 37 S. Ct. 524 (1916), should control this case. Jensen

involved a longshoreman who was killed on a pier in New York

City while loading a steamship which operated between New York

and Texas. The Supreme Court held that the New York State

workers’ compensation statute could not constitutionally be applied

to longshoremen or other employees engaged in maritime

commerce. The Court reasoned that:

[N]o such legislation is valid if it . . . works material

prejudice to the characteristic features of general maritime

law, or interferes with the proper harmony and uniformity

of that law in its international and interstate relations. . . .

10

x *

If New York can subject foreign ships coming into her

ports to such obligations as those imposed by her

compensation statute, other states may do likewise. The

necessary consequence would be destruction of the very

uniformity in respect to maritime matters which the

Constitution was designed to establish; and freedom of

navigation between the states and with foreign countries

would be seriously hampered and impeded. . . . 244 U.S.

at 216-17.

There is no exception in Jensen for workers who reside and

work solely within the state whose laws are at issue. In fact, the

work of longshoremen such as Jensen is typically limited to the

locations in which they reside. Their employment is every bit as

localized as that of the workers in the present case. Moreover, the

operations of companies such as Petitioners are fully as interstate

as the operations of Southern Pacific, and the application of state

law would impede maritime commerce as much in the present case

as in Jensen.

nsen was followed by Chelentis v. Luckenbach S.S. Co.,

Inc., 247 U.S. 372, 38 S. Ct. 501 (1918). Chelentis involved a

seaman who sued his employer for injuries caused by the master’s

negligence. In the earlier case of The Osceola, 189 U.S. 158

(1903), the Supreme Court had held that there was no cause of

action under maritime law for such injuries. The seaman contended

in Chelentis that he was entitled to recover under the common law,

rather than maritime law, by virtue of the Savings to Suitors

Clause in Section 9 of the Judiciary Act of 1789, 1 Stat. 96. The

Savings Clause “saved to suitors, in all cases, the right of a

common-law remedy where the common law is competent to give

it.” The Supreme Court held that under the Constitutional mandate

of uniformity, the common law was not competent to give a

negligence cause of action to seamen. The Court stated that:

1]

No state has the power to abolish the well-recognized

maritime rule concerning measure of recovery and

substitute therefor the full indemnity rule of the common

law. Such a substitution would distinctly and definitely

change or add to the settled maritime law; and it would be

destructive of the ‘uniformity and consistency at which the

Constitution aimed on all subjects of a commercial

character affecting the intercourse of the states with each

other or with foreign states.” 247 U.S. at 382 (citations

omitted).

Jensen and Chelentis are not alone in holding that localized

maritime transactions must be governed by a uniform maritime

law. In Pope & Talbot, Inc. v, Hawn, 346 U.S. 406, 74S. Ct.

202 (1953), a carpenter employed by a refitting company was

injured while working on a ship which his employer had agreed to

repair. The carpenter resided and worked in Pennsylvania, where

the ship was temporarily berthed. Moreover, shipyards are

Stationary work sites which employ local residents. Their

Operations are every bit as localized as the work in the present

case, if not more so. The Supreme Court heid nevertheless that the

carpenter’s right of action against the shipowner was governed by

the maritime rule of comparative fault rather than the Pennsylvania

rule of contributory negligence. The Court stated that:

True, Hawn was hurt inside Pennsylvania... . But he

was injured on navigable waters while working on a ship

to enable it to complete its loading . . . . Consequently

... [h]is right of recovery for unseaworthiness and

negligence is rooted in federal maritime law. 346 U.S. at

409, 74S. Ct. at 205.

A similar result was reached in Kermarec v. Compagnie

Generale Transatlantique, 358 U.S. 625, 79 S. Ct. 406 (1959), in

which the guest of a crewman sued the shipowner for injuries

received when he fell down a stairway on a vessel in New York

City. The guest was not involved with the business of the vessel,

12

and did not travel with it. The casualty was therefore a purely

local incident, except for the fact that it occurred on a vessel

berthed at a pier in navigable waters. The state’s interest in having

its laws applied was every bit as great in Kermarec as in the

present case. The Supreme Court held nevertheless that the

shipowner’s duty to the guest was governed by maritime rather

than state law.

In Lloyd v. Goodall, 102 U.S. 541 (1881), the Supreme Court

held that federal admiralty law preempted state statutes concerning

a vessel which operated exclusively off the coast of California, like

the vessels involved in the present case. See also London Co, v.

Industrial Commission, 279 U.S. 109 (1929), in which the Court

found preemption of state law concerning a casualty which

occurred in California coastal waters, and Union Fish Co, v.

Erickson, 248 U.S. 308 (1919), which held that the application of

California’s statute of frauds to a seaman’s oral employment

contract made within the state was preempted by the need to have

a uniform rule for maritime employment contracts.

The foregoing decisions indicate that the mandate of uniformity

applies with equal force to seamen and employers who reside or

work locally. If seamen’s contracts are to be supplemented by

compensation laws, the laws must be enacted by Congress and be

national in scope. The Supreme Court stated recently that even

Congress may be forbidden from supplementing maritime

employment contracts by diverse state compensation statutes.

Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 229, 106 S.

Ct. 2485 (1986).

E. THE MANDATE OF UNIFORMITY IS A LONG-

TANDI R IREMENT AT__PERVADE

EVERY ASPECT OF MARITIME EMPLOYMENT.

The all-encompassing nature of the uniformity requirement

is illustrated dramatically by the history of seamen’s actions for

i3

personal injury and death. Prior to 1920, general maritime law was

held to preclude an action for wrongful death. The Harrisburg, 119

U.S. 199, 7 S. Ct. 140 (1886). It was also held to preclude an

action by seamen against their employers for negligence. The

Osceola, 189 U.S. 158, 23 S. Ct. 483 (1903). Because there was

no maritime remedy, state statutes were permitted to supply a

remedy for seamen killed in state waters. See, for example, The

Tungus v. Skovgaard, 358 U.S. 588, 79 S. Ct. 503 (1959). in

1920, Congress enacted the Jones Act to provide a remedy for

seamen injured or killed as a result of their employer’s negligence.

Once the Jones Act was adopted, the Supreme Court held that state

wrongful death statutes could no longer be applied to seamen.

Lindgren v. United States, 281 U.S. 38, 50 S. Ct. 207 (1930).

Thirty-four years later, in Gillespie v. United States Steel Corp.,

379 U.S. 148, 85 S. Ct. 308 (1964), the Supreme Court

reaffirmed that because of the mandate of uniformity, state

wrongful death statutes cannot apply to seamen covered by the

Jones Act. 379 U.S. at 155.

Also in 1920, Congress enacted the Death on the High Seas

Act (DOHSA), supra, to provide recovery for wrongful death on

the high seas. Once DOHSA was enacted, it was afforded the same

treatment as the Jones Act in Lindgren and Gillespie. In Offshore

Logistics, Inc, v. Tallentire, supra, the Supreme Court held that

DOHSA preempts state wrongful death statutes.

DOHSA permitted recovery for deaths caused by unseaworthi-

ness as well as negligence. However, The Harrisburg continued to

preclude recovery for wrongful death under general maritime law.

As a result, a number of anomalies existed with respect to seamen

who were killed in the course of their employment. For example,

death caused by unseaworthiness was actionable if it occurred on

the high seas, but frequently not if it occurred in state territorial

waters. The Supreme Court therefore overruled The Harrisburg

and created a maritime wrongful death action. Moragne v. States

14

Marine Lines, 398 U.S. 375, 90 S. Ct. 1772 (1970). A principal

reason for the decision was to:

{G]ive effect to the constitutionally based principle that

federal admiralty law should be a system of law

coextensive with, and operating uniformly in, the whole

country. 398 U.S. at 402 (citations omitted).

Now that a wrongful death action has been recognized under

general maritime law, it is evolving in the same manner as the

Jones Act and DOHSA with regard to uniformity. In Matter of S/S

Helena, 529 F.2d 744 (Sth Cir. 1976), and Nelson v. United

States, 639 F.2d 469 (9th Cir. 1980), it was held that the general

maritime cause of action preempts the very state statutes which

were theretofore the only remedy for wrongful death in state

territorial waters. In Nelson, the Ninth Circuit stated particularly

that:

The need for uniformity in maritime wrongful death

actions requires extension of Moragne to cover claims

based on negiigence to the exclusion of state wrongful

death statutes. 639 F.2d at 473.

Uniformity is therefore a fundamental imperative which must

be given great weight by the courts. When the weight of that

imperative is combined with decisions such as Jensen, which holds

squarely that state compensation statutes cannot constitutionally be

applied to maritime employees, and with consideration of the

federal and state interests which would be impaired by the Ninth

Circuit’s decision, the conclusion becomes inescapable that the

Ninth Circuit’s decision must be reversed.

II. APPLICATION OF STATE LAW_T EAMEN’S

EMPLOYMENT A EMENTS IS _PREEMPTED BY

EXTENSIVE FEDERAL LEGISLATION.

The decision of the Ninth Circuit was prior to the recent

decision in Miles v. Apex Marine Corporation, U.S. __, 111

S. Ct. 317 (1990). The Supreme Court held in Miles that the

15

damages recoverable in a general maritime action for the death of

a seaman do not include loss of society, and that a general

maritime survival action cannot include recovery for the decedent’s

lost future earnings. The Court’s reasoning in Miles applies to the

present case. The Court stated that Congress has legislated

extensively with respect to the substantive legal protections

available to seamen, and:

We may supplement the statutory remedies where doing so

would achieve the uniform vindication of such policies

consistent with our constitutional mandate, but we must

also keep strictly within the limits imposed by Congress.

111 S. Ct. at 323 (emphasis added).

Similarly, the Supreme Court stated in Ray v. Atlantic

Richfield Co., 435 U.S. 151 (1978), that:

[WJhere failure of . . . federal officials affirmativeiy to

exercise their full authority takes on the character of a

ruling that no such regulation is appropriate or approved.

. . . States are not permitted to use their police powers to

enact such a regulation.

435 U.S. at 178, quoting Bethlehem Steel Co. v. New York State

Labor Relations Board, 330 U.S. 767, 774 (1947). Accord Napier

v. Atlantic Coast Line, 272 U.S. 605 (1926); Norfolk & Western

Ry. v. Public Utilities Comm., 926 F.2d 567, 570 (6th Cir. 1991).

See also Friedell Benedict on Admiralty Section 112, page 7-37,

which states that:

As the Supreme Court has long recognized, the absence of

a federal right of recovery may suggest a strong federal

interest, and when a state ’supplements’ the federal law by

adding a cause of action it thereby deprives the defendant

of a substantive right to be free of an obligation.

The foregoing authorities indicate that state law is preempted

by federal statutes pertaining to seamen’s wages. Seamen are

among the most carefully protected groups in the maritime

industry. See U.S. Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351,

16

91 S. Ct. 409 (1971), which held that Section 301 of the Labor

Management Relations Act of 1947, 29 U.S.C. § 185 (1986), does

not preclude seamen from suing the shipowner for overtime wages

and penalty wages under the appropriate sections of the seamen’s

wage statutes, 46 U.S.C. §§ 10301(b), 10303(e)-(i), 10501(b),

10504(a)-(e), and 2101(12) (West Supp. III 1985). Seamen have

been wards of Congress for over 200 years. Arguelles, supra, 400

U.S. at 355. Their rights vis-a-vis their employers have been

carefully protected by extensive federal legislation. Subtitle II of

46 U.S.C. is devoted to vessels and their crew. Parts E-G of

Subtitle II, 46 U.S.C. § 7101-11501, are dedicated to the manning

of vessels, the documentation of seamen, and the rights of seamen

under their employment contracts. Those statutes are traceable

back to the Act of July 20, 1790. Arguelles, supra, 400 U.S. at

353-54.

The federal seamen’s wage statutes have omitted maximum

hour and overtime provisions of the kind which California seeks

to impose in this case. There can be no question that Congress

would have included such provisions if it had wanted to do so.

Their omission from the very strict and pervasive seamen’s wage

statutes must be regarded as a ruling within the meaning of the

Miles and Ray decisions that such provisions are inappropriate and

therefore disapproved for seamen. This conclusion is bolstered by

Section 13(b)(6) of the Fair Labor Standards Act. (“FLSA”), 29

U.S.C. § 213(b)(6). Section 13(6)(6) specifically exempts seamen

from land-based maximum hour and overtime standards. The

FLSA originally exempted seamen from both minimum wage and

overtime provisions. 52 Stat. 1067 § 103(a)(3), c. 676 (1938). In

1961 Congress amended the FLSA to apply the minimum wage to

seamen. However, Congress continued to exempt seamen from the

maximum hour and overtime provisions. 75 Stat. 71, §§ 9 & 10

(1961). During both legislative sessions, Congress recognized the

necessity of exempting seamen from the overtime provisions

because of their variable and unscheduled working hours and the

17

existing regulation of seamen’s working conditions by federal

maritime agencies. See Hearings on S. 2475 and H.R. 7200 Before

the Senate Comm. on Education and Labor and the House Comm.

on Labor, 75th Cong., Ist Sess. 544-49 (1937); Hearings on S.

256, S. 879, S. 89 Bills Amendin FLSA Before the

Subcomr _ on Labor of the Senate Comm. on Labor and Public

Welfare, 87 Cong., Ist Sess. 376-79 (1961); S. Rep. No. 145,

89th Cong., Ist Sess. 32-33 (1961). See also 29 C.F.R. § 783.0

et seq., discussing the FLSA legislative history.

CONCLUSION

This Court must rule on two grounds that the California

overtime compensation laws cannot constitutionally be applied to

seamen. The first ground is that the application of California law

is contrary to the Constitutional mandate of uniformity. A number

of decisions by the United States Supreme Court have forbidden

the application of state law to seamen’s employment contracts even

when the transactions at issue are localized in nature. The second

ground is that courts and state legislatures may not supplement the

remedies provided by Congress in the federal seamen’s wage

Statutes.

DATED: Agel X , 1991.

RESPECTFULLY SUBMITTED:

/s/) JEROME C. SCOWCROFT

JEROME C. SCOWCROFT

Counsel of Record

Kenneth H. Volk

Paul N. Daigle

1420 Sth Avenue, Suite 2600

Seattle, WA 98101

(206) 621-9168

Attorneys for the Maritime Law

Association of the United States,

Application for Leave to File a

Brief as Amicus Curiae