Amicus Curiae Brief — Pacific Merchant Shipping Ass'n v. Aubry

~

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J No. 91-349

= IN THE

= SUPREME COURT OF THE

UNITED STATES

: October Term, 1991

PACIFIC MERCHANT SHIPPING ASSOCIATION,

AMERICAN INSTITUTE OF MERCHANT SHIPPING,

OFFSHORE MARINE SERVICE ASSOCIATION,

WESTERN OIL & GAS ASSOCIATION AND

CLEAN SEAS,

Petitioners,

VS.

LLOYD W. AUBRY, JR., LABOR COMMISSIONER,

DIVISION OF LABOR STANDARDS ENFORCEMENT,

DEPARTMENT OF INDUSTRIAL RELATIONS,

STATE OF CALIFORNIA,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

MOTION BY THE AMERICAN WATERWAYS

OPERATORS, INC., TO FILE AMICUS CURIAE

BRIEF AND BRIEF IN SUPPORT OF PETITIONS

FOR A WRIT OF CERTIORARI

REED M. WILLIAMS

Counsel of Record

WILLIAMS WOOLLEY COGSWELL

NAKAZAWA & RUSSELL

200 Oceangate, Suite 700

Long Beach, California 90802

(213) 495-6000

Attomeys for Amencan Waterways

Operators, Inc., Applicant for Leave

to File a Brief as Amicus Curiae

TABLE OF CONTENTS

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MOTION BY THE AMERICAN WATERWAYS

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BRIEF OF THE AMERICAN WATERWAYS

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SUMMARY OF REASONS FOR GRANTING

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REASONS FOR GRANTING THE WRIT... 4

I. THE NINTH CIRCUIT OPINION

UNDERMINES THE WELL-ESTABLISHED

PRINCIPLE OF THE UNIFORMITY OF

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II. THE NINTH CIRCUIT OPINION

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TABLE OF AUTHORITIES

Page

CASES:

Askew v. American Waterways Operators, Inc.,

GES S15. SRF (1979) wininsiccmmiacaee ees 3

Miles v. Apex Marine Corp.,

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The Lottawanna,

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STATUTES:

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Wage Order 4-80, 8 Cal. Code Regs. Sections

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-iii-

No. 91-349

IN THE

SUPREME COURT OF THE

UNITED STATES

October Term, 1991

PACIFIC MERCHANT SHIPPING ASSOCIATION,

AMERICAN INSTITUTE OF MERCHANT SHIPPING,

OFFSHORE MARINE SERVICE ASSOCIATION,

WESTERN OIL & GAS ASSOCIATION AND

CLEAN SEAS,

Petitioners,

VS.

LLOYD W. AUBRY, JR., LABOR COMMISSIONER,

DIVISION OF LABOR STANDARDS ENFORCEMENT,

DEPARTMENT OF INDUSTRIAL RELATIONS,

STATE OF CALIFORNIA,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

MOTION BY THE AMERICAN WATERWAYS

OPERATORS, INC., TO FILE AMICUS CURIAE

BRIEF AND BRIEF IN SUPPORT OF PETITIONS

FOR A WRIT OF CERTIORARI

Applicant, The American Waterways Operators, Inc.

("AWO"), moves the Court for permission to file the attached

brief amicus curiae in support of both the Petition for Writ of

Certiorari filed by Pacific Merchant Shipping Association,

American Institute of Merchant Shipping, Offshore Marine

-ive

Service Association, Western Oil & Gas Association and

Clean Seas (Case No. 91-349) and the Petition for Writ of

Certiorari filed by Tidewater Marine Services, Inc., and

Western Boat Operators, Inc. (Case No. 91-142) (collectively

referred to as “Petitioners”). All of the Petitioners have given

consent to AWO to file an amicus curiae brief. Respondents,

however, have refused to give consent, and therefore AWO is

seeking leave to file a brief amicus cunae pursuant to Rule

37.2.

AWO seeks leave to file an amicus brief because of

the far-reaching effect the Ninth Circuit’s holding could have

on the interests of AWO’s members, which are principally

coastal and inland tug and barge operators. While

Petitioners have adequately presented the legal issues,

AWO’'s members are different entities than those

represented by Petitioners and therefore have different

interests and concerns that should be brought to the Court's

attention and considered in connection with the pending

petitions for certiorari.

DATED: September 19, 1991.

Respectfully submitted,

REED M. WILLIAMS

Counsel of Record

WILLIAMS WOOLLEY COGSWELL

NAKAZAWA & RUSSELL

200 Oceangate, Suite 700

Long Beach, California 90802

(213) 495-6000

Attomeys for American Waterways

Operators, Inc., Applicant for Leave

to File a Brief as Amicus Curiae

No. 91-349

IN THE

SUPREME COURT OF THE

UNITED STATES

October Term, 1991

PACIFIC MERCHANT SHIPPING ASSOCIATION,

AMERICAN INSTITUTE OF MERCHANT SHIPPING,

OFFSHORE MARINE SERVICE ASSOCIATION,

WESTERN OIL & GAS ASSOCIATION AND

CLEAN SEAS,

Petitioners,

VS.

LLOYD W. AUBRY, JR., LABOR COMMISSIONER,

DIVISION OF LABOR STANDARDS ENFORCEMENT,

DEPARTMENT OF INDUSTRIAL RELATIONS,

STATE OF CALIFORNIA,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF THE AMERICAN

WATERWAYS OPERATORS, INC.,

AMICUS CURIAE, IN SUPPORT OF

PETITIONS FOR A WRIT OF

CERTIORARI

The American Waterways Operators, Inc. ("“AWO”)

respectfully submits this brief as amicus curiae in support of

both the Petition for Wnt of Certiorari filed by Pacific

Merchant Shipping Association, American Institute of

Merchant Shipping, Offshore Marine Service Association,

Western Oil & Gas Association and Clean Seas (Case No.

91-349) and the Petition for Wnt of Certiorari filed by

Tidewater Marine Services, Inc., and Western Boat

Operators, Inc. (Case No. 91-142) (collectively referred to as

Petitioners”).

QUESTION OF LAW PRESENTED

Whether the State of California can regulate the

maximum working hours of seamen serving on United States

documented vessels operating on the high seas and within

State territorial waters off the coast of California?

INTEREST OF AMICUS CURIAE

The American Waterways Operators, Inc., is a non-

profit national trade organization that has represented the

interests of domestic water transportation operators since

1944. Approximately 300 companies, including many coastal

and inland tug and barge operators who operate within

California coastal waters, are members of AWO.

AWO's objectives and purposes are set forth in its

Constitution and Bylaws as follows:

(a) To maintain itself as a

strong national association of

carriers and act as the unifying

body and definitive spokesman

for the waterways industry in

Washington and, through its field

staff, around the country.

(b) To inform the Federal

government and the media of the

Association's position on issues

and to effectively influence the

decisionmakers.

(c) To keep the

members, Board of Directors and

Executive Committee fully

informed on all matters involving

Congress, Federal departments

and agencies, and other public

and private entities that affect

the industry and the

Association’s ability to achieve its

objectives.

(d) To carry out the

policies of the Association.

In furtherance of these objectives, AWO has been

involved in the formulation of maritime legislation and in the

development of maritime case law for over forty-five years.

AWO has participated in proceedings before this Court, both

as an amicus curiae and as a party. E.g. Askew v. American

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

AWO only participates as amicus cunae when

important issues of maritime law that may substantially affect

its members are at stake. As AWO believes that the present

case involves legal issues that could have far-reaching effects

both on the uniformity of maritime law throughout the

United States and on its members who operate in California

and other states within the Ninth Circuit, AWO supports the

Petitions for Writ of Certiorari in Case Nos. 91-349 aid

91-142. '

SUMMARY OF REASONS FOR GRANTING THE WRIT

The Ninth Circuit’s majority opinion held that

California could properly apply its land-based overtime

regulations to maritime employers operating on the high seas

and coastal waters off of California. This decision not only

controverts longstanding federal maritime law that prohibits

State reguiations that destroy or interfere with the uniformity

of maritime law, but it also adversely impacts the maritime

industry in California and other Ninth Circuit states. And

because tugboat and barge operations are interstate, they will

be especially affected by the inconsistency of maximum hour

regulations among the West Coast states and the costs and

burdens associated with California's overtime regulations.

REASONS FOR GRANTING THE WRIT

I. THE NINTH CIRCUIT OPINION

UNDERMINES THE WELL-ESTABLISHED

PRINCIPLE OF THE UNIFORMITY OF

FEDERAL MARITIME LAW

It is a _ longstanding principle of American

jurisprudence that federal maritime law be uniform

throughout its states. United States Supreme Court cases as

far back as 1874 (The Lottawanna, 88 U.S. 558 (1874)), and as

recent as 1990 (Miles v. Apex Marine Corp, __ U.S. ___, 111

S.Ct. 317 (1990)), have recognized that state law should not

defeat or interfere with the uniformity of maritime law. Yet,

if allowed to stand, the majority decision by the Ninth Circuit

would allow the State of California to impose overtime

compensation requirements that would destroy the very

uniformity that this Court has declared must exist in federal

maritime law.

’

<4.

Currently, AWO’s tugboat and barge operator

members are subject to federal maritime law and Coast

Guard regulations with respect to the maximum allowable

number of hours worked by their crewmembers. For

example, governing federal statutes specify that captains “may

not work for more than 12 hours in a consecutive 24-hour

period except in an emergency.” 46 U.S.C. 8104(h).

Tugboat captains therefore work a six-hour watch, rest for six

hours, work six hours again and then rest six hours. A relief

captain will work the intervening six-hour watches. The

captains, as well as other crewmembers, remain on the

tugboat for several weeks at a time as it travels up and down

the West Coast or to Alaska and Hawaii, and then fly home

for a period of uninterrupted vacation, usually at least two

weeks in duration.

These hour requirements are uniform throughout the

United States, so that companies whose tugboats or barges

operate up and down the West Coast are subject to the same

maximum hour requirements regardless of which state their

vessels happen to be in during a work day or work week.

However, if California is allowed to impose its overtime

provisions to tugboat and barge companies operating off of

the coast of California, this uniformity will be destroyed.

Indeed, a tugboat captain whose one month journey begins in

California and ends in Oregon will have to be paid by one set

of standards during the days and hours spent off the coast of

California and another set of standards during the time spent

off of Oregon.

II. THE NINTH CIRCUIT OPINION

ADVERSELY AFFECTS THE OPERATIONS

OF AWO’S MEMBERS AND OTHER

MARITIME EMPLOYERS

This destruction of uniformity that will result if

California applies its land-based regulations to maritime

employers will have an adverse effect on tugboat and barge

operators and the entire maritime industry in California and

other Ninth Circuit states. On its face, the regulation in

question (Wage Order 4-80) pertains to land-based

professional, technical, clerical and mechanical employees

who traditionally work a 9-to-5 workday five days a week. As

explained above, tugboat and barge employees traditionally

work a twelve-hour day for weeks at a time. Accordingly, the

imposition of Wage Order 4-80 on maritime employees, such

as tugboat and barge operators, is not only inappropriate but

also onerous.

Tugboat and barge operators will be required to either

pay substantial amounts of overtime (at least four hours a day

per employee) to employees while working in waters off of

the coast of California or restructure their staffing schedules

by hiring a third employee to do what two employees are

normally able to accomplish in 24 hours. Neither option is

practical in the maritime industry, where vessels are moving

worksites. For example, employers would have to keeptrack

of where the vessel was located at a certain hour when

calculating overtime or restaffing crews. Moreover, given the

size constraints of tugboats, the hiring of additional standby

crew is burdensome and onerous.

CONCLUSION

The application of California’s overtime compensation

regulations to tugboat and barge operators and other

maritime employers would not only destroy the longstanding

uniformity of maritime law but also would adversely impact

the maritime industry. AWO believes the Ninth Circuit's

majority opinion is contrary to decisions of this Court, and it

therefore supports the writs of certiorari filed by Petitioners

in Case Nos. 91-349 and 91-142.

DATED: September 19, 1991.

Respectfully submitted,

REED M. WILLIAMS

Counsel of Record

WILLIAMS WOOLLEY COGSWELL

NAKAZAWA & RUSSELL

200 Oceangate, Suite 700

Long Beach, California 90802

(213) 495-6000

Attomeys for American Waterways

Operators, Inc., Applicant for Leave

to File a Brief as Amicus Curiae