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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2428%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1991
- **Citation:** 502 U.S. 1002

## Text

| Bunrome Court, US. |

FILED

Nos. 91-142 and 91-349 MAY 15 1992
THE CLERK

Iu the Supreme Court of the Unite:

OCTOBER TERM, 1991

TIDEWATER MARINE SERVICE, INC., ET AL., PETITIONERS
Uv.

LLoyYD W. AUBRY, JR.,
STATE OF CALIFORNIA LABOR COMMISSIONER, ET AL.

PACIFIC MERCHANT SHIPPING ASS’N, ET AL., PETITIONERS
Vv.

LLoyp W. AUBRY,
STATE OF CALIFORNIA LABOR COMMISSIONER, ET AL,

ON PETITIONS FOR WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

KENNETH W. STARR
Solicitor General

STUART M. GERSON
Assistant Attorney General

MAUREEN E. MAHONEY
Deputy Solicitor General

STEPHEN L. NIGHTINGALE
Assistant to the Solicitor General

ANTHONY J. STEINMEYER
JOHN P. SCHNITKER
Attorneys
Department of Justice
Washington, D.C. 20530
(202) 514-2217

QUESTIONS PRESENTED

1. Whether the Fair Labor Standards Act preempts
the application of California’s overtime compensation
laws to certain maritime workers.

2. Whether the application of California’s overtime
compensation laws to those workers is preempted by
the federal law of admiralty, as defined in Southern
Pacific Co. v. Jensen, 244 U.S. 205 (1917), and its
progeny.

(1)

TABLE OF CONTENTS

Page
EE SC a a sspssoviiddneseneunieesshoies 1
EE Ss a 7
Ie cebasetnteuwencase 20

TABLE OF AUTHORITIES
Cases:

Askew v. American Waterways Operators, Inc.,
Set Sa e ne 8,10, 16
Calbeck v. Travelers Ins. Co., 370 U.S. 114 (1962)... 9
Central Delivery Serv. v. Burch, 355 F. Supp. 954
(D. Md. 1973), aff’d mem., 486 F.2d 1399 (4th

a s saadelipintnanvuniicinienibiiiiees 12
Davis v. Department of Labor & Indus., 317 U.S.
a cceudemsanibenboniovaiions 9
Director, Office of Workers’ Compensation Pro- :
grams V. Perini North River Assocs., 459 U.S.
oo netunnsniuasonedbiaeimniieiaes 10
Grant Smith-Porter Ship Co. v. Rohde, 257 U.S.
a ducccnsmmnhepannetoabanaaes 9
Huron Portland Cement Co. v. City of Detroit, 362
ois cesmeceaencacantnbs 8,9
Just Vv. Chambers, 312 U.S. 383 (1941) —.............. 8,10, 14
Kassel v. Consolidated Freightways Corp., 450
AEST SERENE Es Sees are a 9
Knickerbocker Ice Co. v. Stewart, 253 U.S. 149
UT iesideenimies SOLES Pima WEU 2 OSE ak Oa 12

Kossick v. United Fruit Co., 365 U.S. 731 (1961).. 17
Maccabees Mut. Life Ins. Co. v. Perez-Rosado, 641

I ME Uc ccacenstpmosnsdnsencoecornssnenbescere 12
McDermott Int’l, Inc. v. Wilander, 111 S. Ct. 807
NUN SE 3
Miles v. Apex Marine Corp., 111 S. Ct. 317
a EEL Ee ada LO ean eS 15-16
Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207
ees adsbcssamiaghinoees 12, 14,17
Oil Workers Int’l Union v. Mobil Oil Corp., 426
Na ada casmevamnbices 12,13
(III)

Cases—Continued : Page
Overnight Transp. Co. Vv. Tianti, 926 F.2d 220 (2d
Cir.), cert. denied, 112 S. Ct. 170 (1991) ........... 12
Plouffe v. Farm & Ranch Equipment Co., 570 P.2d
Se CE adaticaceaibecce ee. 12
Pony Pettis Moving Co. v. Roberts, 784 F.2d 439
A I, i al 12

Ray V. Atlantic Richfield Co., 485 U.S. 151 (1978).. 8
Romero V. International Terminal Operating Co.,

Se i, BRR AAAs ed 7,10
Skyline Homes, Inc. v. Department of Indus. Re-
lations, 211 Cal. Rptr. 792 (Ct. App. 1985) _...... 12
Southern Pacific Co. v. Jensen, 244 U.S. 205
5, et eae BETH 8,9, 14, 15, 16
Standard Dredging Corp. Vv. Murphy, 319 U.S. 306
PUIIUIIIEY sicaserscecokstamesideiechssansicarreentteiecn mater meme ees 10, 11,17
State v. Comfort Cab Co., 286 A.2d 742 (N.J.
Super. Ct. ADD. DIV. 1GTE) q.....-cceeccereccesecsccocnseeceees 12
Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715
ITI sctsar-ssdasniatutntbdoscopsdchapceisaitelacbenemiitsteseaieldeidsadlemnadcteanimnatatea 10
Webster v. Bechtel, Inc., 621 P.2d 890 (Alaska
SED snjcheiccncensetasasichoitadastnssssbecduikddinesih indian uses Rte cs 12
West Coast Hotel Co. v. Parrish, 300 U.S. 379
5, SCENE ET CCE OE EFT IIIS SP > SFP OR a ee 16
Wilburn Boat Co. Vv. Fireman’s Fund Ins. Co., 348
fk, SNR een WOR Cr de Oe oe ee 8
Williams v. W.M.A. Transit Co., 472 F.2d 1258
es EIS. EEED caccenccaschsnimsavecteniucweneetvonvebonesos ae 12
Constitution, statutes and regulations:
U.S. Const. :
Art. I, § 8, Cl. 3 (Commerce Clause) .................. 9
PA IR RAEN Oey Bor, Sei en A Nie eee en Se 7
Ee ME TIIs: i tocriiehidedatadabinecbiaticiaductiareass deuadalsueatanevnanees 7
Death on the High Seas Act § 7, 46 U.S.C. 767 _....... 14
Fair Labor Standards Act of 1938, 28 ¥ S.C. 201
SRNR )
* sf ( {
, ,
r f T r a |

1) { | { rc) t
e
‘
+) |
r ’ ~
Y ’ ) 1 r ]
I) S ¢ ()]
_ 4 : fy,
Wve {
4 5 | ‘ _-
i ia ( I} ne) i ra
11T) + ] } \&
— . . :

{ '
) r
‘ bad 4 A = rT
. )
1u Pr A Lb5 ine ¢
FLSA ss n
nd j i i
Wy ri; ? ' y ¢ , t
] Lor | f
em) ¢ | f a
D\ W [ Lo ~('¢ } 1 } 0 }

7] ‘ T
\r . T ‘ ‘ 4
‘ 4 ‘ ‘
\ \ t) ca
> ‘ ‘
, r wort { \ ( }
‘ P + ;
, ,
, > >
r ACR +
i \ bi.
]
iaV

S BEST AVAILABLE COPY’

(

+
)
. .,
'
y
sé

pre
? ~
fit
)
t
.
{
vy
t
+}
‘ ~

6

With respect to the first prong of this test, the court
found that “‘{m]aritime statutes do not apply to maritime
employees, like these, who are not on vessels making for-
eign, intercoastal, or coastwise voyages”; that the FLSA
savings clause, 29 U.S.C. 218(a), “specifically allow[s]
states to enforce overtime laws more generous than the
FLSA”;° and that there is “no indication that Congress
intended that maritime employees not benefit from more
generous state wage and hour laws.” Pet. App. A27.
Thus, the court concluded, “California’s attempt to sup- P
plement federal law in this case does not present an
irreconcilable conflict with the statutory maritime law
or with the FLSA; it does not ‘contravene the essential
purpose expressed by an act of Congress.’” Ibid.

The court also concluded that application of Califor-
nia’s overtime pay laws “does not unduly disrupt federal
admiralty law and, for that reason, is not constitutionally
invalid.” Pet. App. A35. Balancing “federal and state
interests involved in application of the overtime provi-
sions,” the court determined “that the balance tips in
favor of California in this case.” Jd. at A31-A32. The
court detersgnined that “‘application of the state’s overtime
law will not disrupt international or interstate com-
merce”’ because the vessels in question operate exclusively
off the California coast and their crews consist of Cali-
fornia residents. Jd. at A34.

Judge Copple dissented. He would have held “that
state laws mandating overtime pay are preempted by
federal admiralty law” and by the FLSA. Pet. App.
A42.

v7

* The court of appeals rejected the district court’s characteriza-
tion of the savings clause as an impermissible delegation of au-
thority to prescribe maritime law. Rather, the panel stated, the
savings clause simply makes clear Congress's “intent not to disturb
the traditional exercise of the states’ police powers with respect to
wages and hours more generous than the federal standards.” Pet.
App. A265.

SS

|

DISCUSSION

This case presents difficult and novel issues concerning
a State’s exercise of its traditional powers to regulate the
minimum wages of its citizens in the context of mari-
time employment. Under this Court’s cases, the decisive
question—under the particular circumstances presented
here—is whether the State’s assertion of authority im-
permissibly interferes with the “proper harmony and
uniformity” or the “characteristic features” of general
maritime law. On the specific facts of this case, we be-
lieve that the court of appeals correctly concluded that
the State’s assertion of authority was not unconstitu-
tional. Furthermore, although this Court may ultimately
need to resolve the issues presented, we do not believe
that review is necessary at this time. Rather, it would be
appropriate to defer judgment on the constitutional ques-
tion resolved by the court of appeals at least until poten-
tially dispositive state law issues have been addressed by
the California state courts.

1. The permissible scope of the States’ role in regulat-
ing maritime activity has been a recurring issue in this
Court. The general principles applicable to this case are,
accordingly, well established.

a. Article III extends the judicial power to “all Cases
of admiralty and maritime Jurisdiction.” U.S. Const.
Art. III, § 2, Cl. 1. This jurisdictional grant empowers
“the federal courts in their exercise of the admiralty and
maritime jurisdiction * * * to draw on the substantive
law ‘inherent in the admiralty and maritime jurisdiction,’
and to continue the development of this law within con-
stitutional limits” and also empowers “Congress to revise
and supplement the maritime law within the limits of the
Constitution.” Romero v. International Terminal Operat-
ing Co., 358 U.S. 354, 360-361 (1959).

It is also firmly established, however, that States re-
tain authority to act on a variety of issues within the
scope of federal admiralty jurisdiction. As this Court
explained in Romero, 358 U.S. at 373-374: “It is true

8

that state law must yield to the needs of a uniform fed-
eral maritime law when this Court finds inroads on a
harmonious system. But this limitation still leaves the
States a wide scope.” Consequently, maritime law has
often been “modified or supplemented by state action.”
Just v. Chambers, 312 U.S. 388, 388 (1941).”

b. In defining the role that state law may properly
play in the maritime context, this Court has made clear
that state law may be preempted in either of two ways:

First, a federal statute has the same preemptive effect
in the maritime setting as in any other context. Thus,
under this Court’s familiar formulation, the federal stat-
ute may expressly preempt state law; it may occupy the
field to the exclusion of state law; and state laws that are
inconsistent with the federal statute or that stand as an
obstacle to Congress’s objectives are invalid. See Ray V.
Atlantic Richfield Co., 435 U.S. 151, 157-158 (1978).

Second, in the seminal case of Southern Paciic Co. V.
Jensen, 244 U.S. 205 (1917), this Court recognized a
further limitation on state authority in the maritime
context. In Jensen, a New York dockworker was killed
in the course of moving cargo from a vessel engaged in
the interstate shipment of goods. His survivors there-
after sought compensation under the New York Workers’
Compensation Act. This Court held that the state statute
could not be applied to the accident. While recognizing
that “general maritime law may be changed, modified, or
affected by state legislation * * * to some extent,” the
Court declared (244 U.S. at 216):

[Nlo such legislation is valid if it contravenes the
essential purpose expressed by an act of Congress or
works material prejudice to the characteristic fea-
tures of the general maritime law or interferes with

10 See, ¢.g., Askew v. American Waterways Operators, Inc., 411
U.S. 325 (1973); Huron Portland Cement Co. v. City of Detroit,
362 U.S. 440 (1960) ; Wilburn Boat Co. v. Fireman's Fund Ins. Co.,
348 U.S. 310 (1955).

9

the proper harmony and uniformity of that law in its
international and interstate relations.

As Jensen made clear, that limitation on state authority
is comparable to the one derived from the so-called “dor-
mant Commerce Clause.” ™

ec. As the Court’s subsequent decisions in the area
of workers’ compensation reflect, the so-called “Jensen
line’—between matters governed exclusively by uniform
federal maritime law and matters on which States may
act—is difficult to discern.’2 The Court has cautioned

11 The Court explained in Jensen (244 U.S. at 216-217) :

A similar rule in respect to interstate commerce deduced
from the grant to Congress of power to regulate it is now
firmly established. ‘Where the subject is national in its char-
acter, and admits and requires uniformity of regulation, affect-
ing alike all the States, such as transportation * * * between
the States, Congress can alone act upon it and provide the
needed regulations.” * * * And the same character of reason-
ing which supports this rule, we think, makes imperative the
stated limitation upon the power of the States to interpose
where maritime matters are involved.

See Huron Portland Cement Co. v. City of Detroit, 362 U.S. at 443
(noting that state statute may be unconstitutional if “unduly bur-
densome on maritime activities or interstate commerce”). See also
Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 669 (1981)
(the Commerce Clause itself “is ‘a limitation upon state power even
without congressional implementation’” and “requires that some
aspects of trade generally must remain free from interference by
the States”).

12 Although Jensen could have been read to preclude application
of state workers’ compensation statutes to any injuries on navigable
waters, this Court later held that state law would govern accidents
occurring on such waters that were “local matters.” Grant Smith-
Porter Ship Co. v. Rohde, 257 U.S. 469, 477 (1922). After a period
in which the Court had difficulty in clarifying the scope of that
exception to Jensen, it then recognized a “twilight zone” in which
an injured maritime employee could invoke either state workers’
compensation statutes or the federal Longshore and Harbor Work-
ers’ Compensation Act. See Davis v. Department of Labor & Indus.,
317 U.S. 249, 256 (1942); Calbeck v. Travelers Ins. Co., 370 U.S.
114 (1962).

10

against reading Jensen too broadly, but it has not re-
treated from the core principle articulated in that case—
that state law may not interfere with the “characteristic
features of the general maritime law” or “the proper har-
mony and uniformity of that law in its international and
interstate relations.” See, e.g., Director, Office of Work-
ers’ Compensation Programs v. Perini North River
Assocs., 459 U.S. 297, 306 & n.14 (1983); Sun Ship, Ine.
v. Pennsylvania, 447 U.S. 715, 717-719 (1980); Askew
v. American Waterways Operators, Inc., 411 U.S. at 337-
339, 344; Just v. Chambers, 312 U.S. at 389."

Various forms of state regulation have been upheld
under this test. As this Court noted in Askew: “State-
created liens[,] * * *.[s]tate remedies for wrongful
death and state statutes providing for the survival of
actions|,] * * * [s]tate rules for the partition and sale
of ships, state laws governing the specific performance of
arbitration agreements, state laws regulating the effect
of a breach of warranty under contracts of maritime in-
surance—all these laws and others have been accepted as
rules of-decision in admiralty cases, even, at times, when
they conflicted wtih a rule of maritime law which did not
require uniformity.” 411 U.S. at 338, quoting Romero,
358 U.S. at 373-374.

The import of these decisions is that every attempt by
the States to regulate maritime activity must be care-
fully examined on its own facts. We therefore turn to
the question of whether application of state overtime
compensation laws to the vessels in issue is foreclosed
either because: (1) a federal statute, here the FLSA,

13 See Standard Dredging Corp. V. Murphy, 319 U.S. 306, 309
(1943); Askew v. American Waterways Operators, Inc., 411 U.S.
at 344.

14 Cases applying that general principle to specific situations are
legion. See 1 S. Friedell, Benedict on Admiralty §§ 112-113 (rev.
7th ed. 1992) (collecting cases in which state law has and has not
been preempted).

11

preempts state law; or (2) the application of California’s
laws to the circumstances of this case unduly interferes
with maritime uniformity under Jensen.

2. The court of appeals’ basic conclusion—that the
FLSA does not preempt California’s overtime statute—
is required by the statutory language itself. That
conclusion is also fully consistent with this Court’s
precedents."®

a. The literal language of the FLSA’s savings clause,
29 U.S.C. 218(a), forecloses petitioners’ claim of statu-
tory preemption. That Section states that “[n]o provi-
sion” of the FLSA—a reference broad enough to encom-
pass both the exemption for “seamen” and the Act’s over-
time provisions as applied to other maritime employees—
shall excuse noncompliance with “any * * * State law”
establishing higher minimum wages or more generous
overtime protection. Congress scarcely could have ex-
pressed its intention to preserve state law more clearly.
Cf. Standard Dredging Corp. v. Murphy, 319 U.S. 306,
310 (1943) (rejecting the contention that an exemption
from federal Social Security taxes for persons employed
“as an officer or member of the crew of a vessel on the
navigable waters of the United States’ preempted state
unemployment insurance taxes) ."®

15—In the courts below, petitioner Tidewater also relied on 46
U.S.C. 8104, a provision of the Shipping Act which regulates the
maximum number of hours that seamen may work aboard certain
United States-documented vessels. 91-142 Pet. 6, 26, 29. Both the
district court (Pet. App. A59-A60) and court of appeals (id. at
A12-A14) concluded that this provision does not preempt state laws
requiring overtime pay for those working fewer hours. Neither ©
petition seeks further review of that determination. Similarly, is-
sues concerning federal regulation of the minimum manning re-
quirements to certain commercial vessels are not at issue. State
regulation of this issue would present a very different question
from the one presented here.

16 Federal and state courts have uniformly construed 29 U.S.C.
218(a) to preserve state laws from claims that they are preempted

ee

12

b. This Court’s decisions in Knickerbocker Ice Co. V.
Stewart, 253 U.S. 149 (1920); Oil Workers Intl Union V.
Mobil Oil Corp., 426 U.S. 407 (1976); and Offshore Logis-
tics. Inc. v. Tallentire, 477 U.S. 207 (1986), do not sug-
vest a different conclusion. In Knickerbocker Ice, the
Court struck down a federal statute that purported to
authorize application of state workers’ compensation laws
beyond the “Jensen line’—i.e., to the area in which this
Court had already held that application of state law would
interfere unduly with the uniformity of federal maritime
law. The savings clause in the FLSA is not subject to

se on the same basis. It protects state laws from
claims that they have been preempted by the FLSA; it
does not purport to add to the authority States possess to
enact maritime law or to protect such laws from Jensen-
type preemption.

Although somewhat closer to the mark, Mobil Oil and
Tallentire are also distinguishable. In Mobil Oil, the
Court addressed a provision of the National Labor Rela-
tions Act that preserves certain state right-to-work laws.
Section 8(a) (3) of that Act, 29 U.S.C. 158(a) (3), gener-
ally authorizes agency and union shop agreements, but a
savings clause provides that njothing in thle] [Act]
shall be construed as authorizing the execution or appli-
cation of agreements requiring membership in a labor
organization as a condition of employment in any State

se

by FLSA exemptions. Overnight Transp. Co. v. Tianti, 926 F.2d
220, 222 (2d Cir.), cert. denied, 112 S. Ct. 170 (1991) ; Pony Pettis
Moving Co. v. Roberts, 784 F.2d 439, 441 (2d Cir. 1986); Mac-
cabees Mut. Life Ins. Co. v. Perez-Rosado, 641 F.2d 45, 46-47
(Ist Cir. 1981); Central Delivery Serv. v. Burch, 355 F. Supp. 954,
958 (D. Md. 1973), aff’d mem., 486 F.2d 1399 (4th Cir. 1973);
Williams v. W.M.A. Transit Co., 472 F.2d 1258, 1261 (D.C. Cir.
1972): Skyline Homes, Inc. v. Department of Indus. Relations, 211
Cal. Rptr. 792, 799 (Ct. App. 1985); Webster v. Bechtel, Inc., 621
r¢

i
P.2d 890, 896-900 (Alaska 1980) ; Plouffe v. Farm & Ranch Equip-

ment Co., 570 P.2d 1106, 1109 (Mont. 1977); State v. Comfort Cab
Co., 286 A.2d 742, 746-748 (N.J. Super. Ct. App. Div. 1972).

13

or Territory in which such execution or application is
prohibited by State or Territorial Law,’ 29 U.S.C. 164 (b)
(emphasis added). In keeping with the highlighted phrase,
this Court determined that the savings clause preserved
state law only within certain territorial limits. Specifi-
cally, the Court held that “predominant job situs is the
controlling factor in determining whether * * * a State
can apply its right-to-work laws to a given employment
relationship” and, accordingly, that no State could apply
its right-to-work laws to employees who spent most of
their time working on the high seas. 426 U.S. at 420.17
There is no language in the FLSA’s savings clause that
places any comparable territorial limit on the state law
it preserves. To the contrary, the FLSA provision pro-
tects “any * * * State law” providing minimum wages

17 In reaching that conclusion, the Court relied on several factors:
(1) the fact that the savings clause, like the provision authorizing
agency shop agreements, focuses on “post-hiring conditions of em-
ployment,” which by their nature center on the job situs (426 U.S.
at 417); (2) legislative history indicating that the validity of
agency shop agreements was to be determined “under the laws of
any State in which they are to be performed,” presumably the job
situs (id. at 418); and (3) two “practical considerations’—the
propriety of “minimizling| the possibility of patently anomalous
extra-territorial applications of any given State’s right-to-work
laws” (ibid.) and promoting predictability regarding the legality of
agency shop agreements (id. at 419). None of those factors was
tied tu the maritime character of the employment at issue.

In fact, the majority in Mobil Oil declined to adopt Justice
Powell’s suggestion, which parallels petitioners’ position here, that
the employees’ status as seamen should be decisive. See 426 U.S.
at 421 (Powell, Jr., concurring in the judgment) (urging that the
NLRA savings clause should not apply to “employment contracts
of maritime workers whose job situs is the high seas and who
thereby enjoy a special status’). The Court also made clear that
it was “creat[ing| no ‘exemption’ from § 14(b) for the maritime
industry.” Jd. at 420 n.12.

Far from supporting petitioners’ position, therefore, Mobil Oil

indicates that a savings clause that is capable of applying in both
the land-based and maritime settings should have the same basic
effect in both contexts.

14

or overtime above the floor set by the FLSA, thereby
preserving those laws to the fullest extent permissible.

Tallentire construed Section 7 of the Death On the
High Seas Act (DOHSA), 46 U.S.C. 767, as a “jurisdic-
tional savings clause’ preserving the jurisdiction of the
state courts over actions under that statute, as opposed
to “a guarantee of the applicability of state substantive
law to wrongful deaths on the high seas.” 477 U.S. at
232. The Court chose from among those two alternatives
on the basis of a detailed review of the drafting history
of that Section in light of the maritime law prevailing at
the time of its enactment. /d. at 220-233. In the course
of this analysis, the Court found support for its choice in
the “prevailing ‘uniformity’ doctrine” recognized by
Jensen. See id. at 227. The Court did not suggest that
a savings clause must invariably be construed to preclude
application of state law in the maritime setting, and the
FLSA’s savings clause cannot be construed in a manner
analogous to Section 7. Consequently, Tallentire does not
support petitioners’ position.

3. Because the FLSA neither adds to nor detracts
from the authority States otherwise possess to apply their
overtime laws to maritime workers, the issue of Jensen
interference must be addressed. As set forth above, Jen-
sen requires preemption if application of California’s
statute to the workers at issue here “works material
prejudice to the characteristic features of the general
maritime law” or “interferes with the proper harmony
and uniformity of that law in its international and in-
terstate relations.” 244 U.S. at 216; Just v. Chambers,
312 U.S. at 388 n.7, 389. The Jensen test is defined at
such a high level of generality, however, that it provides
very little guidance for determining when a State has
exceeded its constitutional authority to regulate conduct.
We are nevertheless persuaded—based on the precedents
that have applied Jensen—that the court of appeals cor-
rectly concluded that the State’s assertion of authority
was constitutional on the specific facts of this case.

15

a. The Ninth Circuit’s resolution of the Jensen issue
derives strong support from several considerations. First,
it is not clear that application of the State’s overtime
compensation rules to vessels that do not engage in inter-
state or foreign commerce disrupts the “uniformity” of
maritime law “in its international and interstate rela-
tions.” Jensen, 244 U.S. at 216. Jensen itself involved
application of state law to the owner of a vessel engaged
in interstate transportation of goods. The court of ap-
peals’ holding in this case is in fact limited to vessels
Whose significant contacts are all exclusively with Cali-
fornia—i.e., to vessels that “do not engage in foreign,
intercoastal, or coastwise voyages.” Pet. App. A9-A10
nb. See also id. at A30-A37 (same).'*’ Further, the
employment relationship has strong ties to California.
The employees at issue are all California residents who
were hired in California, receive paychecks at California
addresses, and pay California taxes. Jd. at A7, A382.
A34-A35, A37.

We recognize that the vessels in issue are not engaged
in wholly “intrastate” activities because their operations
are conducted at least in part on the high seas off the
California coast. It seems to be more germane to this
prong of the Jensen inquiry, however, that the vessels
are not travelling to other state and foreign ports, where
concerns of “uniformity” and conflicting legal require-
ments are more likely to come into play. Cf. Miles v.

'® The court expressly reserved the question whether respondent
is “preempted by federal law from applying California’s overtime
pay laws to maritime employees employed primarily on the high
seas on coastwise vessels engaged in coastwise voyages.” Pet. App.
A9-Ayl0 n.5. It should be noted that some interstate and foreign
voyages fall outside the definitions of “coastwise,” “coastal.” and
“foreign” voyages—for instance, voyages between adjoining States,
or between a State and Canada or Mexico. See note 2, supra. The
court of appeals’ reasoning, however, suggests that its holding
would not reach vessels engaged in any interstate or foreign voy-
ages. See id. at A384 (noting that application of State’s law would
not disrupt “international or interstate commerce”).

16

Apex Marine Corp., 111 8. Ct. 317 (1991) (declining to
adopt a rule of maritime law coverning wrongful death
actions that would distinguish between territorial waters
and the high seas).

Second. it is not apparent that a uniform rule gov-
erning overtime pay is the kind of “characteristic fea-
ture|] of the general maritime law” (Jensen, 244 U.S.
at 216) that precludes state law supplementation. As the
cases cited by petitioners indicate (91-349 Pet. 11-12),
admiralty courts have generally enforced the parties’ bar-
gain with respect to overtime, regardless of whether that
bargain precluded or required overtime pay. Although
petitioners emphasize that 12-hour shifts are standard in
the industry, California does not prohibit that practice.

Finally, as the court of app als correctly observed,
Stutes have a keen interest in protecting the welfare of
their citizens through the adoption of overtime compen-
sation laws. See West Coast Hotel Co. Vv. Parrish, 300
U.S. 379 (1937) (upholding the States’ constitutional au-
thority to impose minimum wage requirements as an
exercise of the police power). A State may refrain from
regulating employment in the maritime industry for a
variety of compelling reasons, but its underlying interest
in protecting the wages of its citizens who work on board
vessels is no different than its interest in protecting its
citizens who work in factories.

b. That being said, there is, we believe, considerable
force to petitioners’ arguments that state law should not
apply to their operations. The interest in the uniformity
of maritime law has retained tne greatest force with re-
spect to “suits relating to the relationship of vessels, ply-
ing the high seas and our navigable waters, and to their
crews.” Askew v. American Waterways Operators, Inc.,
411 US. at 344. In terms of their effect on vessels and
their crews, overtime compensation laws are in many

respects similar to the workers’ compensation law at issue
‘n Jensen itself, and the state statute of frauds that this
Court held could not bar a seaman from recovering dam-

17

ages under an oral contract with a vessel owner in Kos-
sick v. United Fruit Co., 365 U.S. 731 (1961).

This Court has nevertheless permitted some state reg-
ulation of the relationship between the vessel and its crew.
In Standard Dredging Co. v. Murphy, 319 U.S. 306
(1943), the Court found that application of a state un-
employment insurance statute to vessels employing sea-
men off the coast of New York was not “destructive of
admiralty uniformity.” /d. at 309. The Court found that
Jensen invalidated a State’s efforts to provide workers’
compensation remedies because they “interfered with the
existing admiralty system of relief,” ibid., but that no
similar argument could be made with respect to the im-
position of taxes on vessels to provide unemployment com-
pensation for workers. Similarly, Kossick can be read
to mean only that the state law of contracts should not be
invoked to directly prohibit a method of contracting—
the use of oral agreements—that had been widely used in
maritime commerce.

In contrast, California’s overtime compensation require-
ment simply imposes a financial burden on the vessel
owner as a nondiscriminatory exercise of the State’s police
power in furtherance of the public welfare of its citizens.
See, Kossick, 365 U.S. at 741 (emphasizing thet the stat-
ute of frauds was a rule of contract law, not a “public
regulation”). Requiring overtime compensation, as in
Murphy, does not directly interfere with any rule of
admiralty law or prohibit any method of contracting or
navigating.’®

We also recognize that application of state overtime
statutes on the high seas is more likely to lead to the
possibility for conflicts among state laws. See Tallentire,
477 U.S. at 213-214 (describing the consequences of ef-
forts to apply state wrongful death statutes in that set-
ting). When a State seeks to assert jurisdiction over a
vessel based upon such factors as the residence of the

19 A state law imposing a maximum number of hours per shift
would, in our view, pose a greater potential for direct interference.

De

18

members of the crew or contacts between the vessel and
a State ‘rather than the vessel’s exclusive presence in its
territorial waters), the potential that more than one State
will be in a position to assert such an interest is not diffi-
cult to envision. Although the court of appeals identified
facts in this case that made such conflicts unlikely, the
mobility of vessels, their potential for multiple uses, and
the turnover in their crews may make those limitations
hard to enforce in later cases. For these reasons, there
is considerable force to the point that application of state
overtime laws could lead to undue interference with the
essential uniformity of federal maritime law.

4. States have seldom sought to regulate activities on
the high seas and, to our knowledge, have never sought to
regulate the overtime compensation of seamen and mari-
time employees. Although it is difficult to resolve the con-
stitutionality of such state regulation under the imprecise
standard adopted in Jensen, we do not believe that review
of respondent’s action is necessary at this time. In our
view, several factors counsel in favor of deferring con-
sideration of this question.

First, the state courts have not yet had an opportunity
to consider petitioners’ claims that the wage order in issue
cannot properly be applied to maritime workers under
state labor and administrative law. It does not appear
that these claims are frivolous. As petitioners point out,
the express terms of the wage order appear to be directed
at “land-based” occupations, 91-142 Pet. 7; 91-349 Pet. 9;
the order has never previously been applied to maritime
workers, ibid.; the wage order was adopted by a separate
agency, the Industrial Welfare Commission, after public
rulemaking, 91-142 Pet. 7 n.9; and respondent’s extension
of the order to maritime workers was made without any
period for notice and comment.*’ Petitioners have ac-

20 Even the California Labor Commissioner has expressed uncer-
tainty as to the category of maritime workers he will seek to
protect under the law. Br. in Opp. 8, 12-14 (questioning whether, in

19

cordingly asserted that respondent failed to “comply with
state administrative and procedural requirements re-
garding wage and hour ru'emaking and law enforce-
ment,” Pet. App. A32; vet these claims have not been re-
solved because petitioners’ challenves to the state admin-
istrative proceedings have been stayed pending the out-
come of this case. Br. in Opp. 7.

This is not to suggest that in applying these recula-
tions to petitioners’ operations respondent exceeded his
administrative authority. We suggest, more modestly,
that the Court may wish to decline to consider whether
respondent’s actions were unconstitutional until after the
state courts have had an opportunity to determine whether
they were proper under state law. If the state courts con-
clude that respondent exceeded his authority under state
labor or administrative law, then the constitutional issue
will obviously be rendered moot.

Second, we are persuaded that the decision’s potential
for immediate disruption of maritime commerce is not
sufficient to outweigh these countervailing prudential con-
siderations. There is apparently no dispute that the issue
is “novel,” and that no other State has sought to apply
its overtime compensation laws to maritime workers.
Pet. App. A46; 91-142 Pet. 5 n.8. The vessel owners
therefore cannot presently claim that they are being
subjected to conflicting state law requirements. The
Ninth Circuit in fact minimized the potential for such
conflict by expressly limiting its decision to application of
California’s overtime rule to vessels that do not make in-
terstate or foreign voyages.

Third, and relatedly, the Ninth Circuit is the first court
of appeals to consider the issue presented. As a result,
there is no disharmony, as yet. in the body of federal law.
In addition, the analysis required by Jensen depends
heavily on the nature of the burdens the state requirement
imposes on maritime commerce. Consideration of the
light of the court of appeals’ limitations on relief, petitioners’
with the ruling will ever arrive).

y

“anticipated problems”

20

question might therefore be more informed after a
greater opportunity for the courts to evaluate the prac-
tical impact of the specific regulatory efforts in issue.
All in all, further review can appropriately wait for
another day.”
CONCLUSION
The petition for a writ of certiorari should be denied.

respectfully submitted.

KENNETH W. STARR
Solicitor General

STUART M. GERSON
Assistant Attorney General

MAUREEN E. MAHONEY
Deputy Solicitor General

STEPHEN L. NIGHTINGALE
Assistant to the Solicitor General

ANTHONY J. STEINMEYER
JOHN P. SCHNITKER
Attorneys

MAy 1992

21 Principles of issue preclusion and stare decisis will limit the
ability of some parties to relitigate this constitutional question in
California. It would not appear likely, however, that further con-
sideration of the issue will be totally foreclosed in future proceed-
ings. Parties with proper standing who were not represented in
this case could raise the constitutional question in state court pro-
ceedings. A judgment of the California court on the constitutional
issue would then be subject to review on certiorari. Further, the
issue would also be subject to review again in federal proceedings
if respondent seeks to enforce the overtime laws to other vessels
that present materially different facts.

YoU. S. GOVERNMENT PRINTING orrice; 1992 312324 45429

Prunus chenentete sien tienes yma meen uae enummmaucrEa

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2428%3A5. Public record. Not legal advice.