Amicus Curiae Brief — Northern Ins. Co. of NY v. Chatham County

QUESTION PRESENTED

Whether an entity that does not qualify as an “arm of

the State” for Eleventh Amendment purposes can

nonetheless assert sovereign immunity as a defense to

an admiralty suit.

(I)

TABLE OF CONTENTS

Page

CTs PD si ccvencdvsccucsececedescsers 1

PS toca ikicushishscksdud dene buds eebube ceeds 2

INES 5 dpctiindvcdcncnsanscessbeteusscese 5

Argument:

A political subdivision that is not an “arm of the state”

under the Eleventh Amendment may not invoke sover-

eign immunity as a defense to an in personam suit in

SE < buddcdpbdsdacatckcahavine coneseusddesen cows 7

A. Only a state or an “arm of the state” may assert

sovereign immunity under the Constitution ........ 9g

B. In Workman v. City of New York, this Court

held that municipalities do not enjoy any

specialized form of immunity from in personam —

EN, d:ucd a donees cethed acdtececcses 14

C. The Workman rule complements this Court’s

sovereign immunity precedents and promotes

important interests of admiralty law ............. 22

D. Holding that political subdivisions are entitled

to immunity from in personam suits in

admiralty could disrupt important federal

PI -Wevhcnten bined beh edeRdceedstibcce bobs 25

PE Kddadcccddcedeudatsobaubeiedéasbicessteesde 28

TABLE OF AUTHORITIES

Cases:

Alden v. Maine, 527 U.S. 706 (1999) ........ 6, 9, 11, 14, 23

American Dredging Co. v. Miller, 510 US.

WAS (1GDE) 2. sc rcscccccccreccccccccscccccsccees 8,15

Auer v. Robbins, 519 U.S. 452 (1997) ................. 13

Barnes v. District of Columbia, 91 U.S. 540

DED bbl donesatonadeasbbuued bbiedescenesastsus 11

Cases—Continued: Page

Blatchford v. Native Vill. of Noatak, 501 U.S.

TORENT) Vevsavetscesbnrcvecvesacevaenebenseane

Board of Tr. of the University of Ala. v. Garrett,

gg BRERA TE RCE eS

Broward County v. Wickman, 195 F.2d 614

GREG. FREED ccvccsvcvcvccccodccbecccccess 4, 20, 21

Buckhannon Bd. & Care Home, Inc. v. West

Va. Dep't of Health & Human Res., 532 U.S.

RED 500d bY eoaneckdbcoucdecetelbaelsaiuaes

California v. Deep Sea Research, Inc., 523 U.S.

GO IRGED cc cdacecrcccocsconccscdesvcesecccees 8, 10

Chilean Nitrate Sales Corp. v. Port of San

Diego, 24 Shipping Reg. (P & F) 920 (FMC)

RP. TA GREG bv eccccncccctecoccsscesesncecévese

City of Boston v. Crowley, 38 F . 202

Gi BED ha dovbisivicds ecatceenbieensnetens

City of Chicago v. Robbins, 67 U.S. (2 Black) 418

TD ssacddacnceséxdensanddak eves daeamenenes ueenes

City of Chicago v. White Transp. Co., 243 F.

358 (7th Cir.), cert. denied, 245 U.S. 660

CHBET) ccccccccccccccesccovessecencescceencese 17,19 ©

City of Lafayette v. Louisiana Power & Light

Co, BE US GIO IGT - 6c ccscrceccevccscscovcsses

City of Milwaukee v. Cement Div., Nat'l.

Gypsum Co., 515 U.S. 189 (1995)... 2... eee eee

Complaint of Great Lakes Dredge & Dock Co.

No. 92 C 6745 1996 WL 210081 (N.D. Til.

Sain: 0 Eo iiaciddateibcsbcenibiacsabemnenel

Connone v. Transport Desgagnes, Inc.,

976 F. Supp. 1111 (N.D. Ohio 1997) ................

V

Cases—Continued: Page

Cook County v. United States ex rel. Chandler,

i, ete ee eeewencscetend ces ll

Detroit v. Osborne, 135 U.S. 492 (1890) ............... 11

Dickerson v. United States, 530 U.S. 428

i i ehh eee cokes cedisceéesces sees 22

Evanston v. Gunn, 99 U.S. 660 (1878) .............655 11

FMC v. South Carolina State Ports Auth. , 535

EES EE 2, 7, 9, 10, 27

Greenwood v. Town of Westport, 50 F. 560

TE ddbecddugbeonssees $eesesesoees ses 16

Grupo Data Flux v. Atlas Global Group, LP, 124 8.

DD. jcddebiiadesbbdendbeeesbdedsoeoess< 22

Gulf Container Line, BV v. Port of Houston

Auth., 25 Shipping Reg. (P & F) 1454 (FMC

ET win ad een enid ceeedese seoenset 27

Hans v. Lowisiana, 134 U.S. 1 (1890) ............00005. q

Hess v. Port Auth. Trans-Hudson Corp., 513

EE nnd cn edd dndddddébetecesocesces 11

Hill v. Board of Chosen Freeholders of Essex

County, 45 F. 260 (D. N.J. 1891) ...............44.. 16

Independent Pier Co. v. Philadelphia Reg t

Port Auth., 25 S.R.R. 1381 (1991) .............0005. 26

Jacksonville Maritime Ass'n v. City of

Jacksonville, 27 F.M.C. 149 (1984) ..............4.. 27

Jacob v. City of New York, 315 U.S. 752 (1942) ......... 18

James J. Flanagan Shipping Corp. v. Lake

Charles Harbor & Terminal Dist., 27 Shipping

Reg. (P & F) 1123 (FMC July 30,

PED CGSdeedesesdsocescoecceccetcccccccccceceose 26

VI

Cases—Continued: : Page

Jerome B. Grubart, Inc. v. Great Lakes

Dredge & Dock Co., 513 U.S. 527 (1995)... 18, 22, 24, 28

Jinks v. Richland Cou-ity, 538 U.S. 456 (2008) ......... 12

Kelley Island Lime & Transp. Co. v. City of

Cleveland, 47 F . Supp. 5383 (N.D. Ohio 1942) ........ 17

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920) .... 8

Lake Country Estates, Inc. v. Tahoe Reg’l

Planning Agency, 440 U.S. 391 (1979) ............. 12

Land v. Dollar, 330 U.S. 731 (1947) .... 22... . 2 eee eees 10

Lincoln County v. Luning, 133 U.S. 529

GED cocecsccdeccesensdccsecdeeotocecsceseds 11,14

Louis Dreyfus Corp. v. Plaquemines Port,

Harbor & Terminal Dist., 25 F.M.C. 59

GED oc cecccedscodouaesocaneesesudobénsodoostees 27

Madruga v. Superior Court, 346 U.S. 556 (1954) ........ 4

Maryland v. Miller, 194 F. 775 (4th Cir. 1911) ......... 17

Mersey Docks & Harbour Bd., Tr. v. Gibbs, (1866)

PRED ccdhveeveccccapscesecdecadssdadasees 15

Monell v. Department of Soc. Servs., 436 U.S.

GREED cecudeccneiccdodatasesnascudecéénences 11

Moragne v. States Marine Lines, Inc., 398

PEED ucccccnccssedececenesoescesoetanes 23

Morales v. City of Galveston, 370 U.S. 165

SEED bxcesceedecésconnnsénecsancaecusesquenesss 18

Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274 (1977)... ee cee eee ees 12, 13

Nebraska City v. Campbell, 67 U.S. (2 Black)

SEED cencesdvevacadecéncusncsedbsadaeetsons 11

Vil

Cases—Continued: Page

New Orleans S.S. Ass'n v. Plaquemines Port, Harbor

& Terminal Dist., 23 F.M.C. 556 (1986), aff'd,

Plaquemines Port, Harbor & Terminal Dist. v.

FMC, 838 F.2d 536 (D.C. Cir. 1988) ................ 27

New Orleans Stevedoring Co. v. Board of Comm'rs,

29 S.R.R. 1066 (FMC 2002), aff’d, 80 Fed. Appx.

Be ee EE ick dbnctadencdesicsceceaéedené 26

New York, Ex parte, 256 U.S. 490 (1921) ..... 5, 9, 10, 19, 20

NPR, Inc. v. Board of Comm'rs , 28 Shipping

Reg. (P & F) 1512 (FMC Mar. 16, 2000)............. 26

O'Keefe v. Staples Coal Co., 201 F. 131 (D. Mass.

BE Wwccedsesdcbccdetededaibadédetéecescucceess 17

Owen v. City of Independence, 445 U.S. 622

DE -avetecbdendeseadensoeddmtedscousescecessoes 11

Pelican Marine Carriers, Inc. v. City of Tampa, 791

F. Supp. 845 (M.D. Fila. 1922), aff'd, 4 F.3d 990

PRUE “Cacedecdaciceludecccusececoctest< 18

Port of Seattle v. Oregon & Washington R.R.,

TPE euenaconnébbewecnsesesccocnsses 14

Principality of Monaco v. Mississippi, 292

ED Unnocedanecndsseenscoenessnccenndes 9

Principe Compania Naviera, S.A. v. Board of

Comm'rs, 333 F. Supp. 353 (E.D. La. 1971) .......... 17

Puerto Rico Aqueduct & Sewer Auth. v.

Metcalf & Eddy, Inc., 506 U.S. 139 (1998) .......... 10

Regents of the Univ. of Cal. v. Doe, 519 U.S.

SPE Skcdedendacedécccccuscsosedcocccesoee 13

Vill

Cases—Continued: Page

Rogers & Hagerty, Inc. v. City of New York, 285 F.

362 (2d Cir. 1922), cert. denied, 261 U.S. 621

REE nb cuudsse cedtatndendstes éncensedeteseesees 18

Ryan-Wash, Inc. v. Port of Houston Auth., 28

Shipping Reg. (P & F) 236 (FMC Mar. 30, 1998) ..... 26

Scheuer v. Rhodes, 416 U.S. 232 (1974) ............... 10

Seacon Terminals, Inc. v. The Port of Seattle, 26

Shipping Reg. (P & F) 886 (FMC Apr. 14,

ds ticdccecbendeddbisbaddedssodoebeons déuenetee 26

Smith v. Reeves, 178 U.S. 436 (1900) ..........6.6 0000s 9

Southern Pac. Co. v. Jenson, 244 U.S. (1917) ........... 8

Southern Pac. Transp. Co. v. Port of Long Beach, 27

Shipping Reg. (P & F) 690 (FMC Sept. 5, 1996) ..... 26

The Davis, 77 U.S. (10 Wall.) 15 (1869) .............+5- 11

The Lottawanna, 88 U.S. (21 Wall. ) 558 (1874) ........ 24

The Maz Morris, 137 U.S. 1 (1890) ................4-- 23

The Rock Island Bridge, 73 U.S. (6 Wall.) 213 (1867) ... 22

_The Sea Gull, 21 F. Cas. 909 (C.C.D. Md. 1865)

DT saneéésdundccaedeceoescessnenansonesous 23

The Thielbek, 241 F. 209 (9th Cir.), cert. denied, 245

ED edebedu cds vuctdéccccncceddescences 18

Transportacion Maritima Mexicana, S.A. v. Board

of Comm'rs, 25 F.M.C. 698 (1983) .........000eeeees 27

Weightman v. Corporation of Wash., 66 U.S. (1

PD iccndccenenubestucsoscseeédensess ll

West Gulf Mar. Ass'n v. City of Galveston, 22 F.M.C.

DEE. dchicantdbdadeddicnebeodetonnscéievents 27

West Gulf Mar. Ass'n v. Port of Houston Auth., 22

PUREED caccccadcsencecocececcesbeontses 27

IX

Cases—Continued: Page

Wilmington Stevedores, Inc. v. The Port of

Wilmington, 28 F.M.C. 24 (1985) ..........0ceeeees 27

Workman v. City of New York, 179 U.S. 552

PD Sndebbe cccndidaleisutecaednesechocss passim

Constitution, statutes, and regulations

US. Const.:

PRL cndedieedocanecésocdsusdeeasedats 7

PELE dbs tardidaddbcdacdcidtucdesess 1, 5, 8, 9, 10

Judiciary Act of 1789, 28 U.S.C. 1333(1) ................ 8

Shipping Act of 1984, 46 U.S.C. App. 1701 et seg. ........ 2

GPS EEE Segecvcdocesceboocceeessoese ges 25

BD cccesccccccccncesccéccdvcces 26

ID ncn d sc ccddi seedachessubines 26

Se EEE ‘pa cecceccescocccésecncenens 26

SPEED uc decscecocenscccsacscounes 2

ST I occ cncncccocccesetesedcotsns 2

PEEL chiédsentoudaediceonesacesecnusnsees 2, 25

DE shicancntdanstoncedamesencehestteas 2, 25

PE sundcadeshdahecsedendnctosecsunnntedhhs 2

33 C.F.R.

PUNE wddededntindevedacccccoscesatebncdans 2

TD cnidcodndcubegcecsisecesadnes 2

POE. Bbdacdddedbodacdoninsoasesasounseuie 25

IIR signs sc casnagsdecodctowadciion 2

xX

Miscellaneous: Page

American Ass’n of Port Authorities, Seaport

Governance in the United States and Canada

<http://www.aapa-ports.org/pdf/governance_

SED cceecdedcccpesedcousesecoeesa stapes 26

1 Erastus Benedict, The Law of American Admiralty

PLE cccokecccatnaseseneenseucennnees 17, 18

David P. Currie, Federalism and the Admiralty:

“The Devil’s Own Mes”, 1960 Sup. Ct. Rev. 158 ...... ~

Felix Frankfurter & James M. Landis, The Business

of the Supreme Court (1927) .......6ccceeeeeeees 8, 24

1 Steven F. Friedell, Benedict on Admiralty (7th ed.

SPEED - do oeSeccndncpedecseseceeotéenuccess 18

Grant Gilmore & Charles Black, The Law of

Admiralty (2d ed. 1975) .... 2.2.2... cece eee ee eeee 18

William N. Still, Jr., ron Afloat: The Story of the

Confederate Armorclads (1985) ............000000s 3

Joseph Story, Commentaries on the Constitution

(abridge ed. 1833) (1987 reprint) ..............0000% 8

United States Navy Dep’t, Annual Report of the

Navy Department: Report of the Secretary of the

Navy (report from J.A. Dahlgren to Hon. G.

WUE gncccacodccscebucesasecucectaus 3

In the Supreme Court of the Gnited States

No. 04-1618

NORTHERN INSURANCE COMPANY OF NEW YORK,

PETITIONER

v.

CHATHAM COUNTY, GEORGIA

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

The court of appeals held that a political subdivision

that does not qualify as an “arm of the State” for pur-

poses of the Eleventh Amendment nonetheless is enti-

tled to sovereign immunity from an in personam suit in

admiralty. Pet. App. 3a. Applying that rule, the court

concluded that respondent was immune from this action

for damages allegedly caused by the county’s negligent

operation of a drawbridge across the intercoastal water-

way. The United States has a significant interest in the

immunity question presented by this case.

The United States Coast Guard, through the Office

of Bridge Administration, exercises jurisdiction over all

bridges spanning the navigable waters of the United

(1)

2 c

States, including the drawbridge involved in this case.

See 33 U.S.C. 401, 491, 499; 33 C.F.R. Pts. 114-117; 33

C.F.R. 117.353(b) (Causton Bluff Bridge). Among other

things, the Coast Guard regulates the location and

clearance, construction activity, navigation lighting and

signals, and operation of bridges. See 34 C.F.R. Pts.

114-117. The Coast Guard’s interest in maritime safety

is enhanced by the application of basic maritime tort

standards to bridges and other facilities built, main-

tained, and operated by political subdivisions.

The Federal Maritime Commission (FMC) adminis-

ters the Shipping Act of 1984, 46 U.S.C. App. 1701 et

seq., which governs common carriage by water to and

from the United States. See 46 C.F.R. 501 et seq. The

FMC enforces the Shipping Act through prosecutions

initiated by it, see 46 U.S.C. App. 1710(a), and through

privately-filed complaints adjudicated by FMC, see 46

U.S.C. App. 1710(c). See generally FMC v. South

Carolina State Ports Auth., 535 U.S. 748, 756-759

(2002). The FMC frequently adjudicates privately-filed

complaints against political subdivisions engaged in ac-

tivities regulated under the Shipping Act, see note 14,

infra, and therefore has a substantial interest in the

amenability of such entities to suit.

The United States also has a general interest in

promoting the uniformity of federal maritime law and

the flow of commerce on the Nation’s navigable waters.

STATEMENT

1. Petitioner is the insurer of a Catalina

yacht—Love of My Life—owned by James K. Ludwig.

On October 6, 2002, Ludwig was sailing Love of My Life

along the Wilmington River (formerly St. Augustine

Creek), a part of the intercoastal waterway, about five

3

miles south of Savannah, Georgia, near Causton’s Bluff.’

He came upon the Causton Bluff Bridge, a drawbridge

owned, operated, and maintained by respondent Chat-

ham County, Georgia. The bridge connects Savannah

with Whitemarsh, Wilmington, and Tybee Islands, and

was built in 1963 to enable cars to reach the islands.

Respondent’s employees—“bridge tenders”—operate

the bridge mechanism so that the span may be raised to

permit passage of light pleasure craft, tug and tow ves-

sels, and other commercial vessels. Pet. App. 7a-8a.

When Love of My Life approached the bridge, the

bridge tender opened it, but soon realized that the

bridge was malfunctioning and that one span was drift-

ing down. Although the tender tried to notify Ludwig of

the problem, Ludwig’s radio was turned off. The tender

was able to stop the downward drift of the span and be-

gin to raise it, but Love of My Life nonetheless hit the

span and then deviated to the side and struck the bridge

itself. As a result of the allision, Love of My Life suf-

fered $78,980.50 in damages and Ludwig incurred addi-

tional expenses, with the total damages adding up to

$137,987.69. Pet. App. 8a-9a.

2. Petitioner commenced this in personam admi-

ralty action in United States District Court for the

Southern District of Georgia, asserting claims of negli-

' During the Civil War, Causton’s Bluff served as a strategic outpost

for Savannah and the site of one of the largest earthen work forts

occupied by the confederate army. When General Sherman moved on

the city in 1864 as part of his march to the sea, the confederate army

sent the warship /sondiga to guard a former bridge near Causton’s

Bluff and other key sites. See William N. Still Jr., Jron Afloat: The

Story of the Confederate Armorclads 215 (1985); see also Annual

Reports of the Navy Department: Report of the Secretary of the Navy

(Report from J.A. Dahigren to Hon. G. Welles, Jan. 4, 1865).

4d

gence, maintenance of a continuing nuisance, and viola-

tion of the navigable servitude encompassed in various

U.S. Coast Guard and U.S. Army Corps of Engineers

permits. Pet. App. 7a-9a.* The district court granted

summary judgment for respondent, holding that

respondent was entitled to sovereign immunity from

suit, and dismissed petitioner’s action. /d. at 12a-l6a.

The district court stated that “[t]he pertinent issue

before the Court * * * is whether [respondent] is enti-

tled to the same immunity as the state.” Pet. App. 13a.

Relying on the decision of the Fifth Circuit in Broward

County v. Wickman, 195 F.2d 614 (1952), the court de-

termined that that issue turned on whether respondent

“was acting as part of the State” —z.e., “whether

[respondent] was exercising power delegated from the

State,” or instead “performing a proprietary function.”

Pet. App. 15a. The court concluded that “counties exer-

cise state power to acquire land and build and operate

bridges,” ibid., and that respondent “exercis[ed] these

state powers” with respect to the bridge at issue. /d. at

16a. Accordingly, the court held “that the County is

protected by sovereign immunity.” /did.

3. The Eleventh Circuit affirmed. Pet. App. 1a-6a.

The court noted that respondent “is not asserting an

Eleventh Amendment immunity defense.” /d. at 3a n.1.

It reasoned, however, that “common law has carved out

a ‘residual immunity,’ which would protect a political

subdivision such as [respondent] from suit.” /d. at 3a.

2 Inan in personam admiralty action, “the defendant is a person, not

a ship or some other instrument of navigation.” Madruga v. Superior

Court, 346 U.S. 556, 560-561 (1954). By contrast, in an in rem action, “a

vessel or thing is itself treated as the offender and made the defendant

by name or description.” /d. at 560. The question presented in this

case is limited to in personam admiralty actions.

5

In reaching that conclusion, the court of appeals relied

on the Fifth Circuit’s decision in Wickman, which heid

that a county was entitled to immunity from suit for the

alleged negligent operation of a bridge. /d. at 4a.

The court of appeals also referred to this Court’s

decisions in Workman v. New York City, 179 U.S. 552

(1900), and Ex parte New York, 256 U.S. 490 (1921). In

Workman, this Court held that New York City could be

held liable in an in personam admiralty suit arising

from a collision between one of its fireboats and a pri-

vate vessel, whereas in Ex parte New York the Court

held that New York State was entitled to sovereign im-

munity from a similar suit. The court of appeals

reasoned that this case was “parallel” to Ex parte New

York, not to Workman, because respondent—though not

a State—exercised powers delegated from the State in

operating the bridge. Pet. App. 4a-5a. Accordingly, the

court held that respondent was entitled to “invoke resid-

ual sovereign immunity” to defeat this action. /d. at 5a.

SUMMARY OF ARGUMENT

A political subdivision that does not enjoy Eleventh

Amendment immunity under the arm-of-the-state doc-

trine is not entitled to assert sovereign immunity from

an in personam admiralty action.

A. The Eleventh Amendment and the basic constitu-

tional principles it embodies guarantee an immunity

from suit for States and entities that are considered

“arms of the State.” In Ex parte New York, 256 US.

490, 500 (1921), this Court held that state sovereign im-

munity extends to in personam admiralty suits. In a

long line of cases before and after that time, however,

the Court has established in non-admiralty cases that

this “principle of sovereign immunity * * * does not ex-

6

tend to suits prosecuted against a municipal corporation

or other governmental entity which is not an arm of the

State.” Alden v. Maine, 527 U.S. 706, 756 (1999).

Accordingly, it is settled that political subdivisions of

States and other entities that are not arms of the State

are not entitled to sovereign immunity under the Consti-

tution.

B. In Workman v. New York City, 179 U.S. 552

(1900), this Court refused to adopt a different regime for

admiralty. The Court held that the immunity of political

subdivisions is governed by uniform federal admiralty

law, not by the widely varying laws and rules of the

States or their political subdivisions. In addition, the

Court held that there is no basis in admiralty law for

recognizing immunity of political subdivisions of States

from in personam suits in admiralty. Nothing in Ex

parte New York undermines either of those holdings.

Ex parte New York expressly cited Workman, and it

distinguished Workman on precisely the ground that

Workman dealt with lesser political entities that, unlike

States, are not entitled to immunity and that therefore

are within the reach of the admiralty courts.

C. The Workman rule has stood the test of time and

dovetails with settled immunity principles recognized

outside of admiralty. In addition, the rule is supported

by important objectives of admiralty law—z.e., compen-

sating the victims of wrong and establishing uniform

rules governing ships as they pass from port to port.

The court of appeals’ rule that political subdivisions en-

joy immunity whenever they exercise powers delegated

from the State would foster uncertainty, and thus litiga-

tion, about the threshold jurisdictional determination

when such entities are subject to suit. Moreover, in a

broad sense, all powers exercised by such subdivisions

7

are drawn from the State, and it would therefore be ex-

ceptionally difficult to apply the court of appeals’ immu-

nity test in any principled fashion.

D. Arule that political subdivisions are immune from

in personam admiralty actions would disrupt significant

federal interests. First, immunizing such activities from

basic admiralty tort principles would undermine an im-

portant incentive to operate bridges and other maritime

facilities safely, and it would therefore disserve the sig-

nificant federal interest in maritime safety. Second, the

court of appeals’ immunity rule could frustrate the ob-

jectives of the Shipping Act by inviting challenges to the

jurisdiction of the FMC to adjudicate private complaints

filed against local government entities under the Ship-

ping Act. Cf. FMC v. South Carolina State Ports Auth.,

535 U.S. 743 (2002). Third, holding that political subdi-

visions are immune from in personam admiralty suits

could impede maritime commerce by threatening the

confidence that vessel owners have in the safety of

bridges and other maritime facilities as their vessels

move from one port to the next along the Nation’s vital

network of navigable waters.

ARGUMENT

A POLITICAL SUBDIVISION THAT IS NOT AN “ARM OF

THE STATE” UNDER THE ELEVENTH AMENDMENT MAY

NOT INVOKE SOVEREIGN IMMUNITY AS A DEFENSE TO

AN IN PERSONAM SUIT IN ADMIRALTY

The Constitution “extend[s]” the judicial power of

the United States “to all Cases * * * of admiralty and

maritime Jurisdiction,” U.S. Const. Art. III, § 2, Cl. 1.

The “fundamental purpose” underlying that juris-

dictional grant is “[t]o preserve adequate harmony and

appropriate uniform rules relating to maritime matters

8

and bring them within control of the Federal Govern-

ment.” Knickerbocker Ice Co. v. Stewart, 253 U.S. 149,

160 (1920); see Joseph Story, Commentaries on the Con-

stitution § 870, at 618-619 (abridged ed. 1833) (1987 re-

print). The establishment of a uniform body of federal

law governing maritime matters was of particular

concern to the framers, because “[m]aritime commerce

was ... the jugular vein of the Thirteen States.” Cali-

fornia v. Deep Sea Research, Inc., 523 U.S. 491, 501

(1998) (quoting Frankfurter & Landis, The Business of

the Supreme Court 7 (1927)); see also David P. Currie,

Federalism and the Admiralty: “The Devil’s Own

Mess,” 1960 Sup. Ct. Rev. 158, 163.* The decision below

extending sovereign immunity to a political subdivision

that is not an “arm of the State” for purposes of the

Eleventh Amendment is wrong and threatens the long-

standing federal interest in uniformity by placing such

entities beyond the reach of admiralty courts.

* Federal jurisdiction over admiralty actions is not exclusive. Since

the first Judiciary Act in 1789, state courts have had concurrent

jurisdiction over in personam admiralty actions under the “saving to

suitors” clause now embodied in 28 U.S.C. 1333(1). See American

Dredging Co. v. Miller, 510 U.S. 443, 446 (1994). In entertaining such

actions, however, state courts are generally obliged to give effect to the

substantive rules of federal maritime law. /d. at 447. A state court may

not adopt a remedy that “works material prejudice to the characteristic

features of the general maritime law or interferes with the proper

harmony and uniformity of that law.” /bid. (quoting Southern Pac. Co.

v. Jensen, 244 U.S. 205, 216 (1917)).

9

A. Only A State Or An “Arm Of The State” May Assert Sov-

ereign Immunity Under The Constitution

1. The Eleventh Amendment provides: “The Judicial

power of the United States shall not be construed to

extend to any suit in law or equity, commenced or prose-

cuted against one of the United States by Citizens of

another State, or by Citizens or Subjects of any Foreign

State.” In Hans v. Louisiana, 134 U.S. 1 (1890), the

Court held that the constitutional principles reflected in

the Eleventh Amendment extend to suits against a State

by its own citizens, even though such suits do not fall

within the Amendment’s plain terms. In later cases, the

Court has held that those same basic principles preclude

suits against States in a number of other contexts not

explicitly addressed by the text of the Eleventh Amend-

ment. See, e.g., FMC v. South Carolina State Ports

Auth., supra (administrative adjudications before

FMC); Alden v. Maine, 527 U.S. 706 (1999) (private

suits in state courts pursuant to federal causes of ac-

tion); Blatchford v. Native Vill. of Noatak & Circle Vill.,

501 U.S. 775 (1991) (suits by Indian tribes); Principality

of Monaco v. Mississippi, 292 U.S. 313 (1934) (suits by

foreign nations); Smith v. Reeves, 178 U.S. 436 (1900)

~ (suits by federal corporations).

2. It is established that state sovereign immunity

provides the States with “a defense to suits in admiralty,

though the text of the Eleventh Amendment addresses

only suits ‘in law or equity.’” Alden, 527 U.S. at 728 (cit-

ing Ex parte New York, 256 U.S. 490, 497 (1921)). In Ex

parte New York, certain barge owners sued tugboat

owners in admiralty for damages to barges in tow. The

district court ordered the state superintendent of public

works to appear in his official capacity and answer the

10

claims, because the tugs were under charter to the State

when they suffered the damages. /d. at 496, 501. The

case tested the ability of the State itself to assert sover-

eign immunity in admiralty court; no political subdivi-

sion was involved in the case. Citing Hans and other

cases, this Court noted that “the entive )adicial power

granted by the Constitution does not emvrace authority

to entertain a suit brought by- private parties against a

State without consent given.” /d. at 497. The Court

added: “[{njor is the admiralty and maritime jurisdiction

exempt from the operation of this rule.” /bid. See id. at

503 (The States, which are “exempt from litigation at

the suit of individuals in all other judicial tribunals,”

are entitled to “a like exemption in the courts of admi-

ralty and maritime jurisdiction.”) (emphasis added). In

short, the Court held that “the immunity of a State from

suit in personam in the admiralty brought by a private

person without its consent, is clear.” Jd. at 500.‘

* Ex parte New York has frequently been cited for the proposition

that the principles of Eleventh Amendment sovereign immunity apply

to in personam admiralty cases. See, e.g., FMC, 535 U.S. at 754; Deep

Sea Research, 523 U.S. at 503; Puerto Rico Aqueduct & Sewer Auth. v.

Metcalf & Eddy, Inc. ,506 U.S. 139, 145 n.4 (1993); Welch v. Texas Dep't

of Highways & Pub. Transp., 483 U.S. 468, 473, 488-489" (1987) .

(plurality opinion); Scheuer v. Rhodes, 416 U.S. 232, 237 (1974); Land

v. Dollar, 330 U.S. 731, 738 (1947). By contrast, the “Court has not

always charted a clear path in explaining the interaction between the

Eleventh Amendment and the federal courts’ in rem admiralty

jurisdiction.” Deep Sea Research, 523 US. at 502. In the in rem

context, the Court has held that the Eleventh Amendment does not bar

admiralty jurisdiction in a case against a State where the State is not in

possession of the vessel or property at issue, but has indicated that the

Eleventh Amendment does bar the exercise of such jurisdiction when

the vessel or property at issue is in the hands of the State. /d. at 507;

11

3. An “important limit to the principle of sovereign

immunity is that it bars suits against States but not

lesser entities,” and that such immunity therefore “does

not extend to suits prosecuted against a municipal cor-

poration or other governmental entity which is not an

arm of the State.” Alden v. Maine, 527 U.S. at 756; see

Board of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356,

369 (2001) (“[T]he Eleventh Amendment does not ex-

tend its immunity to units of local government”). The

“ultimate control of every state-created entity resides

with the State, for the State may destroy or reshape any

unit it creates.” Hess v. Port Auth. Trans-Hudson

Corp., 513 U.S. 30, 47 (1994). But this Court has recog-

nized at least since Lincoln County v. Luning, 133 US.

529, 530 (1890)—which was decided the same day as

Hans v. Louisiana—that “cities and counties do not

enjoy Eleventh Amendment immunity.” Hess, 513 U.S.

at 47.° Because “(t]he bar of the Eleventh Amendment

to suit in federal court * * * does not extend to coun-

see The Davis, 77 U.S. (10 Wall.) 15 (1869). Because this case is an in

personam admiralty action, the scope of sovereign immunity with

respect to in rem admiralty actions is not at issue.

. This understanding is deeply rooted in our history. Municipalities

typically were subject to suit in tort from the founding. Owen v. City

of Independence, 445 U.S. 622, 638-650 (1980). By 1871, “{aJs a general

rule, it was understood that a municipality's tort liability in damages

was identical to that of private corporations and individuals.” /d. at 640;

see Cook County v. United States ex rel. Chandler, 538 U.S. 119, 126-

127 (2003); Monell v. Department of Soc. Servs. of the City of New York,

436 U.S. 658, 687-688 (1978); see also Detroit v. Osborne, 135 U.S. 492,

498 (1890); Barnes v. District of Columbia, 91 U.S. 540 (1875);

Evanston v. Gunn, 99 U.S. 660 (1878); Nebraska City v. Campbell, 67

US. (2 Black) 590, 590 (1863); City of Chicago v. Robbins, 67 U.S. (2

Black) 418, 428 (1863); Weightman v. Corporation of Wash. , 66 U.S. (1

Black) 39, 50 (1862).

12

ties and similar municipal corporations,” subordinate

political entities that are not sufficiently identified with

the State itself to be considered arms of the State are

“not entitled to assert any Eleventh Amendment immu-

nity from suit in the federal courts.” Mt. Healthy City

Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280-281

(1977).°

The fact—deemed dispositive by the court of appeals

in this case—that an entity, though not an arm of the

State, may be exercising powers delegated by the State

is of no consequence in applying the rule that political

subdivisions are not entitled under the Constitution to

state sovereign immunity. Thus, “the Court has consis-

tently refused to construe the [Eleventh] Amendment to

afford protection to political subdivisions such as coun-

ties and municipalities, even though such entities exer-

cise a slice of state power.” Lake Country Estates, Inc.

v. Tahoe Reg'l Planning Agency, 440 U.S. 391, 401

(1979) (internal quotation marks omitted).

Indeed, even in the context of determining whether

an entity is an arm of the State (which is not an issue

° That bedrock rule finds expression throughout this Court’s case

law. See also, e.g., Jinks v. Richland County, 538 U.S. 456, 465-466

(2003) (“Although we have held that Congress lacks authority under

Article I to override a State’s immunity from suit in its own courts, it

may subject a municipality to suit in state court if that is done

pursuant to a valid exercise of its enumerated powers.”) (citation

omitted); Buckhannon Bd. & Care Home, Inc. v. West Va. Dep't of

Health & Human Res., 532 U.S. 598, 609 n.10 (2001) (“Only States and

state officers acting in their official capacity are immune from suits for

damages in federal court. Plaintiffs may bring suit for damages against

all others, including municipalities and other political subdivisions of a

State.”) (citation omitted); cf. City of Lafayette v. Louisiana Power &

Light Co., 435 U.S. 389, 412 (1978) (state action antitrust exemption

does not extend to political subdivisions).

13

here), the Court has not focused on the extent to which

it exercises delegated state powers. For example, in

Auer v. Robbins, 519 U.S. 452, 456 n.1 (1997), the Court

rejected the claim that the St. Louis, Missouri, Board of

Police Commissioners was an arm of the State. In

reaching that conclusion, the Court did not inquire into

whether or to what extent the Board exercised powers

delegated by the State. Instead, the Court noted that,

although the state governor appointed four of the five

board members, the city was “responsible for the

board’s financial liabilities” and “the board is not subject

to the State’s direction or control in any other respect.”

Ibid. (citation omitted). See Regents of the Univ. of Cal.

v. Doe, 519 U.S. 425, 429 (1997) (inquiry focuses on “the

essential nature and effect of the proceeding” and the

“nature of the entity created by state law”) (internal

quotation marks and citations omitted); Mt. Healthy,

429 U.S. at 280 (inquiry “depends, at least in part, upon

the nature of the entity created by state law” and basing

inquiry on extent of independent powers of entity to

- raise money and issue bonds). The “arm of the State”

inquiry necessarily turns on the nature of the entity and

extent of state control, rather than the extent to which

an entity exercises powers delegated by the State, at

least in part because all local governments exercise pow-

ers that, in theory, could be exercised by the State itself

and are therefore delegated. See pp.21-22, infra.

The same principle—that States generally are enti-

tled under the Constitution to sovereign immunity and

political subdivisions are not—has been applied in admi-

ralty contexts. Indeed, in the same Term that the Court

held in Ex parte New York ti:at constitutional principles

of state sovereign immunity shield States from in

personam liability in admiralty, the Court stated in an-

14

other admiralty case that “(t]he Port [of Seattle], being

a municipal corporation under the laws of Washington

* * * could have been sued in the federal court.” Port of

Seattle v. Oregon & Washington R.R., 255 U.S. 56, 71

(1921) (citing, inter alia, Lincoln County v. Luning,

supra). The Court explained that “although the State

has also an interest” in the case, “suit against the [mu-

nicipal] port would not be prevented by the Eleventh

Amendment.” /bid.

Accordingly, basic principles of sovereign immunity

protected by the Constitution compel the conclusion

that, although the States and their arms enjoy immunity

from in personam suits in admiralty, that “immunity

does not extend to suits prosecuted against a municipal

corporation or other governmental entity which is not an

arm of the State.” Alden, 527 U.S. at 756.

B. In Workman v. City of New York, This Court Held That

Municipalities Do Not Enjoy Any Specialized Form Of

Immunity From Jn Personam Suits In Admiralty

1. a. More than a century ago, in Workman v. New

York City, 179 U.S. 552 (1900), this Court held that ad-

miralty law recognizes no extra-constitutional principle

of immunity for political subdivisions. In Workman, a

fire-boat owned by the City of New York collided with

another vessel in attempting to extinguish a fire in a

warehouse. Applying state law, the court of appeals

held that, because “the city, in the operation of the fire-

boat, performed a governmental, and not a corporate,

function,” the city was not liable in admiralty for its ac-

tions. See id. at 557. In the view of the court of appeals,

actions taken “for the general good of the public as indi-

vidual citizens * * * are governmental” (and hence

within the realm of immunity), while actions that “pri-

15

marily and legitimately devolve upon the municipality

itself” are not governmental (and hence may be the sub-

ject of suit). Jd. at 556. -

This Court reversed. The Court explained that the

case presented two questions: “first, whether * * * the

law of the city of New York or the maritime law should

control; and, second, if the case is solely governed by the

maritime law, whether the city of New York is liable.”

179 U.S. at 557. With respect to the first question, the

Court explained that, if state law were permitted to con-

trol, maritime law “would be necessarily one thing in

one state and one in another; one thing in one port of the

United States and a different thing in some other port;”

and “one thing to-day and another thing to-morrow.”

Id. at 558; see id. at 559-563. Because that would lead to

“({tJhe practical destruction of a uniform maritime law,”

id. at 558, the Court held that the question whether the

city could be held liable was governed by uniform fed-

eral admiralty law, not by state law. Cf. American

Dredging Co. v. Miller, 510 U.S. 443, 447, 450-454

(1994).”

The Court then turned to the question whether, “un-

der maritime law, the city of New York was liable for

the injury inflicted by the fire-boat.” 179 U.S. at 563-

564. The Court explained that “there is no limitation

” As the Workman Court recognized, the English courts had reached

the same conclusion:

“It would be a strange distinction to persons coming with their

ships to different ports of this country, that in some ports, if they

sustain damage by the negligence of those who have the

management of the docks, they will be entitled to compensation,

and in others they will not.”

179 U.S. at 560 (quoting Mersey Docks & Harbour Bd., Tr. v. Gibbs,

(1866) L.R. 1 H.L. 122).

16

taking [municipal] corporations out of the reach of the

process of a court of admiralty.” Jd. at 565. To the con-

trary, such political subdivisions “are amenable to judi-

cial process” and “admiralty * * * courts, within the

limit of their jurisdiction, may reach persons having a

general capacity to stand in judgment.” Jbid. Having

found that the city “was * * * subject to the process of

a court of admiralty,” id. at 566, the Court held that “in

the maritime law, the public nature of the service upon

which a vessel is engaged at the time of the commission

of a maritime tort affords no immunity from liability in

a court of admiralty,” id. at 570. The Court therefore

concluded that the city’s immunity defense “was without

foundation in the maritime law.” /bid.

Even the dissenters in Workman did not advance a

theory of general municipal liability from in personam

suits in admiralty comparable to the one adopted by the

court of appeals below. Rather, they took the much nar-

rower position that a city should not be svbjected to tort

liability for firefighting and similar emergency activi-

ties. See 179 U.S. at 577-581. They distinguished cases,

more analogous to this one, allowing suits against a mu-

nicipality “for injuries from a defect in a highway which

the city is bound by its charter to repair,” id. at 575, or

for cases involving “injuries caused to vessels by not

keeping open a draw in a bridge,” id. at 589.°

b. The holding of Workman that “the theory of sov-

ereign attribute * * * does not control the maritime law,

. Drawbridge accidents were not uncommon by the time of Work-

man, and admiralty courts had recognized the in personam liability of

municipalities for negligence in the operation of drawbridges. See, e.g.,

Greenwood v. Town of Westport, 60 F. 560 (D. Conn. 1894); Hill v.

Board of Chosen Freeholders of Essex County, 45 F.260(D. N.J. 1891);

City of Boston v. Crowley, 38 F. 202 (D. Mass. 1889).

17

and cannot justify an admiralty court in refusing to re-

dress a wrong where it has jurisdiction to do so,” 179

U.S. at 572, has been recognized by the lower courts

from the time that Workman was decided.’ Likewise,

the treatise writers uniformly acknowledge that holding.

As the 1940 edition of Benedict on Admiralty explained,

“{a] municipal corporation, unlike a sovereign, is subject

to the jurisdiction of a court of admiralty and neither the

public nature of the service upon which a municipal ves-

sel is engaged at the time of the commission of a mari-

time tort nor a local rule of law rendering the city non-

liable in the State courts on the theory that the city was

exercising not merely a corporate but a governmental

* See, ¢.g., City of Chicago v. White Transp. Co., 243 F. 358, 359 (7th

Cir.) (“[A] municipal corporation is liable for any negligent act,

committed on navigable waters, which would render any private

corporation or any individual liable”), cert. denied, 245 U.S. 660 (1917);

Maryland v. Miller, 194 F . 775, 784 (4th Cir. 1911) (holding city liable

for maritime tort and stating that “even the nonliability of a city by rea-

son of the exercise of its governmental functions does not serve to

relieve it from liability”); Connone v. Transport Desgagnes, Inc., 976 F.

Supp. 1111, 1112 (N.D. Ohio 1997) (“{UJnder federal maritime law, it is

well established that a political subdivision of a state may not invoke

sovereign immunity as a defense against maritime tort claims.”) (citing

cases); Principe Compania Naviera, S.A. v. Board of Comm’rs, 333 F.

Supp. 353, 356 & n.10 (E.D. La. 1971) (“[WJhere an admiralty court has

jurisdiction over the parties and subject matter, sovereign immunity

will not defeat an otherwise meritorious lawsuit brought against a state

agency for its alleged torts”); Kelley Island Lime & Transp. Co. v. City

of Cleveland, 47 F . Supp. 533, 540 (N.D. Ohio 1942) (“The liability of a

municipality for a maritime tort * * * has been established in the

courts for several decades.”); O’Keefe v. Staples Coal Co., 201 F. 131,

134 (D. Mass. 1910) (holding county subject to maritime liability for

negligent operation of drawbridge and relying on Workman for the

proposition that “because the city was amenable to the process of the

admiralty court,* * * it was liable like any other defendant for a

maritime tort”).

18

function can bar a recovery in admiralty.” 1 Erastus C.

Benedict, The Law of American Admiralty § 216, at

481-482 (6th ed. 1940). Accord Grant Gilmore & Charles

L. Black, The Law of Admiralty § 9-13, at 608 (2d ed.

1975) (Workman “held that the city could be sued in

personam, under principles of maritime law which pre-

vailed over local law by which the city was immune from

suit”); 1 Steven F. Friedell, Benedict on Admiralty

§ 112, at 7-37 (7th ed. (revised) 1988) (“Nor can a state

law deprive a party of redress in admiralty against a

municipality for the negligence of its servants.”).

In addition, this Court has considered several admi-

ralty cases against political subdivisions since Work-

man, with no inkling that such entities are entitled to

sovereign immunity. See, e.g., City of Milwaukee v. Ce-

ment Div., Nat'l Gypsum Co., 515 U.S. 189 (1995);

Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock

Co., 513 U.S. 527 (1995); Morales v. City of Galveston,

370 U.S. 165 (1962); Jacob v. New York City, 315 U.S.

752 (1942). And lower courts (outside the Fifth Circuit

and the Eleventh Circuit here) have generally followed

Workman and rejected claims by municipalities of

immunity (whether based on federal or state law) in ad-

miralty actions. See, e.g., Complaint of Great Lakes

Dredge & Dock Co., No. 92 C 6754, 1996 WL 210081, at

*2 (N.D. Ill. Apr. 26, 1996) (collecting cases).

c. The Court in Workman acknowledged that, where

a foreign sovereign itself or a vessel owned by a foreign

10 See also Rodgers & Hagerty, Inc. v. City of New York, 285 F. 362,

363-364 (2d Cir. 1922), cert. denied, 261 U.S. 621 (1923); City of Chicago

v. White Transp. Co., 243 F. at 358-359; The Thielbek, 241 F. 209, 214

(9th Cir.), cert. denied, 245 U.S. 661 (1917); Pelican Marine Carriers,

Inc. v. City of Tampa, 791 F.Supp. 845, 856-858 (M.D. Fla. 1992), affd,

4 F.3d 999 (11th Cir. 1993) (Table).

19

sovereign had been sued in an admiralty court, the court

had “declined to exercise jurisdiction.” 179 U.S. at 566;

see id. at 567-569 (citing English cases). The Court ex-

plained that “these rules, however, proceed upon the

hypothesis of the want of a person or property before

the court over whom jurisdiction can be exerted.” /d. at

566. They “rest{], not upon the supposed want of power

in courts of admiralty to redress a wrong committed by

one over whom such courts have adequate jurisdiction,

but alone on their inability to give redress in a case

where jurisdiction over the person or property cannot

be exerted.” /bid. Where, as in the case of political sub-

divisions, the admiralty court does have jurisdiction,

“the maritime law affords no justification” for the con-

tention that the subdivision in its “public or governmen-

tal” capacity “should be treated by the maritime law as

a sovereign” and excused from liability. Jd. at 566.

2. As noted above, twenty years after Workman,

this Court held in Ex parte New York that States are

entitled under the Constitution to sovereign immunity

from in personam admiralty suits. That result, how-

ever, is entirely consistent with Workman. The Ex

parte New York Court explained that Workman “was

careful to distinguish between the immunity from juris-

diction attributable to a sovereign upon grounds of pol-

icy, and immunity from liability in a particular case.”

256 U.S. at 499. The Court held that States were enti-

tled to “immunity from jurisdiction” in admiralty (as in

other) cases. See id. at 497 (noting that a State unde:

the Constitution “may not be sued without its consent”).

Neither the holding nor the rationale of Ex parte New

York, however, did anything to disturb Workman’s

holding that admiralty law does not recognize—for enti-

ties that are subject to the jurisdiction of an admiralty

20

court—an “immunity from liability in a particular case.”

The Workman and Ex parte New York decisions

therefore complement one another and track the general

rule outside of admiralty: while States (and arms of

States) are entitled to sovereign immunity, lesser politi-

cal entities are not.

3. The court of appeals in this case failed to recog-

nize the crucial difference between the State, which is

entitled under the settled principles discussed above to

sovereign immunity, and its political subdivisions, which

are not. The court of appeals noted that its predecessor

court in Broward County v. Wickman, 195 F.2d 614 (5th

Cir. 1952), had, instead of following Workman, “dr[awn]

a parallel to” Ex parte New York. No such parallel, .

however, would be valid. Ex parte New York stands for

the proposition that, absent consent, a State has immu-

nity from an in personam suit in admiralty. Nothing in

Ex parte New York suggests that the immunity it recog-

nized would extend beyond the State or an arm of the

State, and Ex parte New York has never been cited for

that principle by this Court. The court of appeals there-

fore was mistaken in holding that the correct “parallel”

(Pet. App. 4a) in a case involving a political subdivision

is to Ex parte New York, rather than to this Court’s de-

cision squarely rejecting immunity for such political

subdivisions in Workman."

'' The court of appeals’ error in fact dates back to the Fifth Circuit's

decision in Broward County v. Wickman, supra. In that case, a yacht

owner sued a Florida county for damages incurred when it struck an

abutment of a drawbridge. The court noted that a Florida Supreme

Court decision had held that a Florida county “partakes of the

immunity of the state, and may not be sued at law in an action ex delicto

by one who has sustained damage because the county permitted a

bridge to become unsafe.” 195 F.2d at 615. The Florida Supreme

21

Furthermore, the court of appeals’ alternative rule

grounding immunity on whether a municipality is “exer-

cising power delegated from the state,” Pet. App. 5a, is

not only directly at odds with the reasoning of

Workman, see 179 U.S. at 570 (rejecting immunity rule

based on “public nature of the service” in which munici-

pality was engaged), but also would lead to indetermi-

nate and arbitrary results. To begin with, because all

power exercised by political subdivisions is in a broad

sense “a slice of state power,” Lake Country Estates,

440 U.S. at 401; see Lincoln County v. Luning, 133 U.S.

at 530 (a political subdivision necessarily exercises only

“such powers as are given to it by the state”), the court

of appeals’ test may not be capable of meaningful appli-

cation.

Moreover, to the extent that the test is able to draw

meaningful distinctions among maritime activities en-

gaged in by municipalities, it reduces the threshold

jurisdictional inquiry as to whether a municipal defen-

dant is amenable to suit to a case-by-case determination

of what powers allegedly were exercised by the munici-

pality with respect to the particular events giving rise to

suit. Unlike the “arm of the State” inquiry, which fo-

cuses on the nature of the entity and therefore will not

vary from case to case (see pp. 12-13, supra), this in-

quiry would focus on the specific activities involved in a

Court’s holding, however, should have been of no consequence, because

this Court’s decision in Workman expressly rejected the proposition

that the immunity of a political subdivision in an admiralty case

depends on state law, and that basic rule of admiralty law is equally

binding in state court. See note 3, supra. The court of appeals in

Wickman was accordingly mistaken in concluding that “a state and its

political subdivisions are immune from process in actions of this

character.” /bid. (emphasis added).

22

given case, and would have to be relitigated anew in

each case. The inquiry, though presumably resolving an

issue of federal law, would not only be fact-specific, but

would turn largely on questions of state law (including

a comparative analysis of which maritime functions are

typically delegated to local entities). Such a case-by-

case inquiry could only foster uncertainty, and the liti-

gation that accompanies uncertainty, about when munic-

ipalities are answerable in admiralty court. See Grupo

Datafluxz v. Atlas Global Group, LP, 124 S. Ct. 1920,

1930 (2004) (“[uJncertainty regarding the question of

jurisdiction is particularly undesirable”); Great Lakes

Dredge & Dock Co., 513 U.S. at 547 (jurisdictional rules

should not depend on case-specific inquiries that “would

be hard to apply, jettison{] relative predictability for the

open-ended rough-and-tumble of factors,” and invit{e]

complex argument in a trial court and a virtually inevita-

ble appeal.”).”

C. The Workman Rule Complements This Court’s

Sovereign Immunity Precedents And Promotes

Important Interests Of Admiralty Law

There have been no developments in the law that

have undercut Workman’s “doctrinal underpinnings.”

Dickerson v. United States, 530 U.S. 428, 443 (2000). To

the contrary, the holding in Workman that political sub-

divisions do not partake of the State’s sovereign immu-

2 Another problem with the court of appeals’ rule is that States at

times delegate functions not merely to political subdivisions but to

private actors as well. See, e.g., Richardson v. McKnight, 521 U.S. 399

(1997) (prisons); The Rock Island Bridge, 73 U.S. (6 Wall.) 213 (1867)

(private bridge over navigable water). The court of appeals’ rule could

lead to claims of immunity by such private actors, a result that is at

odds with traditional principles of sovereign immunity.

23

nity dovetails with settled immunity principles

repeatedly recognized by this Court outside of admi-

ralty. See Alden v. Maine, 527 U.S. at 756; Part A, sw-

pra. Furthermore, the settled distinction that the con-

stitutional framework and this Court’s decisions draw

between the States and their political subdivisions for

purposes of sovereign immunity preserves the State’s

sovereign immunity for any functions that a State

determines to perform itself, while at the same time pre-

cluding States from leveraging their immunity to shield

other entities from suit. The distinction therefore has

been consistently and recently recognized and

reaffirmed by the Court. See pp. 11-13, supra.

Moreover, recognizing a new municipal immunity

from admiralty suits at this late date not only would

require overruling Workman and sharply deviating

from the established framework for sovereign immunity,

but would be inconsistent with central principles of ad-

miralty law. An important objective of admiralty law

has long been to compensate the victims of wrong, and

the Court in Workman relied in part on that objective to

support its result. See Workman, 179 U.S. at 563 (not-

ing “imperative command” of admiralty courts to “ad-

minister redress for every maritime wrong in every case

where they have jurisdictional power over the person by

whom the wrong has been committed”); see also

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

386-387 n.5 (1970) (permitting wrongful death recoveries

under general maritime law); The Max Morris, 137 U.S.

1, 14 (1890) (rejecting contributory negligence as abso-

lute bar to recovery in admiralty cases); The Sea Gull,

21 F. Cas. 909, 910 (C.C.D. Md. 1865) (No. 12, 578)

(Chase, J.) (“[C]ertainly it better becomes the humane

and liberal character of proceedings in admiralty to give

24

than to withhold the remedy.”). Holding that municipal-

ities are immune from in personam suits in admiralty

would bar recovery to the victims of maritime torts in-

volving the operation of bridges, the maintenance of

ports, piers, or wharves, and a host of other maritime .

activities engaged in by municipalities.

Another fundamental objective of admiralty law is

uniformity. See Great Lakes Dredge & Dock Co., 513

U.S. at 546 n.6 (one of the justifications for admiralty

jurisdiction is promoting “uniformity of substantive

law”); The Lottawanna, 88 U.S. (21 Wall.) 558, 575

(1874) (“One thing * * * is unquestionable; the Consti-

tution must have referred to a system of [admiralty] law

coextensive with, and operating uniformly in, the whole

country.”); Frankfurter & Landis, supra, at 7 (“The

need for a body of [admiralty] law applicable throughout

the nation was recognized by every shade of opinion in

the constitutional convention.”). Adopting a legal re-

gime that permitted a vessel’s right of redress for inju-

ries to vary from one port to the next would threaten

that important interest. This Court in Workman recog-

nized the haphazard and potentially disruptive legal

regime that would exist if a vessel’s ability to recover for

injuries “instead of being general and ever abiding,

would be purely local—would be one thing to-day and

another thing to-morrow” as the vessel traveled from

port to port. 179 U.S. at 558. In Workman, this Court

spared maritime law from such a haphazard and poten-

tially disruptive legal regime by following the general

rule that municipalities are not immune from suit.

There is no reason for the Court to reverse course here.

25

D. Holding That Political Subdivisions Are Entitled To

Immunity From Jn Personam Suits In Admiralty Could

Disrupt Important Federal Interests

In several different respects, a rule that political

subdivisions are immune from in personam admiralty

actions could disrupt significant federal interests.

1. Nationwide there are thousands of bridges over

navigable waters. Pursuant to Act of Congress (see 33

U.S.C. 401, 491), the U.S. Coast Guard exercises juris-

diction over all such bridges, including their location and

clearance, construction, lighting and safety, and mainte-

nance, and the use and operation of drawbridges in par-

ticular. See 33 C.F.R. Pts. 114-118. The existing federal

regulatory regime, however, rests in part on the under-

standing based on Workman and its acceptance for

more than a century that political subdivisions remain

subject to the incentives for safe operation provided by

admiralty tort principles. If such entities, contrary to

the longstanding background principle, could assert

immunity from in personam suits for maritime torts,

that would unsettle the baseline for federal regulation

and could require more intensive federal regulation of

bridges and the imposition of additional expenses on

both the federal government in terms of dollars and on

local governments in terms of lost autonomy.

2. A holding that political subdivisions enjoy immu-

nity from suit in admiralty also could invite challenges

to the jurisdiction of the FMC to adjudicate privately

filed complaints against such entities. Pursuant to the

Shipping Act, the FMC regulates, inter alia, enti-

ties—called marine terminal operators, or

MTOs—engaged “in the business of furnishing wharf-

age, warehouse, or other terminal facilities in connection

with a common carrier.” 46 U.S.C. App. 1702(14). The

26

FMC relies on privately filed complaints, among other

enforcement tools at its disposal, to ensure that MTOs

comply with the Shipping Act."

MTOs are frequently operated by state or local gov-

ernment entities. In particular, there are at least 126

commercial ports in the United States that are affiliated

with a state or local government instrumentality. See

American Ass’n of Port Authorities, Seaport Gover-

nance in the United States and Canada (available at

<http://www.aapa-ports.org/pdf/governance_uscan.

PDF >). The FMC estimates that a significant percent-

age of such ports (as high as 70%) are operated by mu-

nicipal or county authorities. And the FMC frequently

adjudicates privately filed complaints against such au-

thorities, including complaints alleging unreasonable

discrimination by MTOs in awarding of terminal leases

for facilities built and maintained by public entities."

''The FMC’s regulation of MTOs includes the oversight of filed

agreements, which involve the fixing or discussing of rates and which

are immune from antitrust prosecution, see 46 U.S.C. App. 1703(b); the

oversight of the publication of rates, regulations, and practices, see 46

U.S.C. App. 1707(f); and oversight of regulated conduct to ensure that

MTOs do not engage in prohibited acts, including prohibitions against

unreasonable preferences, unreasonable discrimination, and

unreasonable refusals to deal or negotiate, see 46 U.S.C. App. 1709(d).

4 See, e.g., New Orleans Stevedoring Co. v. Board of Comm'rs, 29

Shipping Reg. (P&F) 1066 (FMC June 28, 2002), aff’d, 80 Fed.Appx.

681 (D.C. Cir. 2003); NPR, Inc. v. Board of Comm'rs, 28 Shipping Reg.

(P&F) 1512(FMC Mar. 16, 2000); Ryan-Waish, Inc. v. Port of Houston

Auth. ,28 Shipping Reg. (P&F) 236 (FMC Mar. 30, 1998); Southern Pac.

Transp. Co. v. Port of Long Beach, 27 Shipping Reg. (P&F) 690 (FMC

Sept. 5, 1996); James J. Flanagan Shipping Corp. v. Lake Charles

Harbor & Terminal Dist., 27 Shipping Reg. (P&F) 923 (FMC July 30,

1997); Seacon Terminals, Inc. v. The Port of Seattle, 26 Shipping Reg.

(P&F) 886 (FMC Apr. 14, 1993); Independent Pier Co. v. Philadelphia

Reg'l Port Auth., 25 Shipping Reg. (P&F) 1381 (FMC Feb. 20, 1991);

27

In FMC v. South Carolina State Ports Authority,

this Court held that Eleventh Amendment sovereign

immunity extends to an FMC adjudication in a privately

filed complaint against an entity that is an “arm of the

State.” See 535 U.S. at 751 & n.6. The rule adopted by

the court of appeals in this case could interfere with the

FMC’s regulatory duties if political subdivisions that did

not qualify as “arms of the State” claimed immunity

from the FMC’s adjudicatory jurisdiction on the ground

that political subdivisions, like the State itself in South

Carolina State Ports Authority, are entitled to sover-

eign immunity in admiralty.

3. Finally, a rule that political subdivisions may be

immune from suit in an in personam admiralty action

could impact the flow of commerce along the Nation’s

navigable waters. As this Court observed in Workman,

“{ijt cannot be doubted that the greater part, if not the

whole, of the maritime commerce of the country is either

initiated or terminated in ports where municipal corpo-

rations exist.” 179 U.S. at 559. Granting immunity from

admiralty suit to political subdivisions that construct,

operate, or maintain ports, bridges, and other maritime

Gulf Container Line, BV v. Port of Houston Auth., 25 Shipping Reg.

(P&F) 1454 (FMC May 3, 1991); Chilean Nitrate Sales Corp. v. Port of

San Diego, 24 Shipping Reg..(P&F) 920 (FMC Apr. 29, 1988); New

Orleans S.S. Ass'n v. Plaquemines Port, Harbor & Terminal Dist., 28

F.M.C. 556 (1986), aff’d sub nom. Plaquemines Port, Harbor &

Terminal Dist. v. Federal Mar. Comm'n, 838 F.2d 536, 539 (D.C. Cir.

1988); Wilmington Stevedores, Inc. v. The Port of Wilmington, 28

F.M.C. 24 (1985); Transportacion Maritima Mexicana, S.A. v. Board

of Comm'rs, 25 F.M.C. 698 (1983); Louis Dreyfus Corp. v. Plaquemines

Port, Harbor & Terminal Dist., 25 F.M.C. 59 (1982); Jacksonville Mar.

Ass'n v. City of Jacksonville, 27 F.M.C. 149 (1984); West Gulf Mar.

Ass'n v. City of Galveston, 22 F.M.C. 101 (1980); West Gulf Mar. Ass'n

v. Port of Houston Auth., 22 F.M.C. 420 (1980).

28

facilities could lessen the confidence that vessel owners

have in their ability to send their vessels and goods

safely from one port to another, throughout the Nation.

It is therefore important that the uniform body of mari-

time law—which was designed at least in part to pro-

mote the flow of maritime commerce, see Great Lakes

Dredge & Dock Co., 513 U.S. at 546 n.6—apply fully to

municipalities and other subdivisions, as it does to other

entities.

CONCLUSION

The decision of the court of appeals should be re-

versed.

Respectfully submitted.

PHILIP J. PERRY Se.

General Counsel PETER D. KEISLER

J. MICHAEL WIGGINS Assistant Attorney General

si laa General GREGORY G. GARRE

Depoimet ytd ee

Assistant to the Solicitor

RADM. JOHN E. CROWLEY, General

Judge Advocate General MARK B. STERN

ROBERT BRUCE ISAAC J. LIDSKY

LT. CMDR. MATTHEW J. Fay Attorneys

poet

United States Coast Guard

AMY WRIGHT LARSON

General Counsel

PHILLIP CHRISTOPHER HUGHEY

Deputy General Counsel

Federal Maritime

Commission

DECEMBER 2005