Supreme Law News

It is time for the Coast Guard to defend the authority granted  to it by Congress, the Executive Branch and the courts. On December 27, 2013, the U.S. Coast Guard issued a notice stating that it intended to promulgate a rule containing its assessment framework for, and restating its position regarding, the federalism implications of regulations issued under the authority of various statutes within Titles 33 and 46 of the United States Code. Public comment on the proposed rule should be submitted by March 27, 2014.

I propose that the Legislative, Executive, Judicial Branches of the federal government should cooperatively work toward the rebuilding of the presumption in favor of federal preemption with respect to all matters related to maritime commerce. I also propose that maritime stakeholders undertake measures to make this a reality. The Constitution already allows for such preemption – and it has been implemented with regard to various issues over time, particularly in the early days of the Republic.

The operation of vessels in international commerce has never been more complicated than it is today, particularly from the standpoint of regulatory compliance. A vessel operator must be cognizant of international, national, state and local regulatory requirements. In an ideal world, the regulations of subjects such as navigation safety, crew licensure or pollution would be uniform so that an operator could understand the law and more easily comply. In cases where the requirements of one jurisdiction differ from those of another, it would certainly be helpful to know where the line of demarcation between one jurisdiction and another could be firmly drawn. The regulation of air pollution emitted from large oceangoing vessels has been the subject of an international treaty for many years.

The U.S. Court of Appeals for the Fifth Circuit ruled that wage claims brought by foreign seamen for work on foreign ships are subject to the Foreign Arbitral Awards Convention, even where the claims are based on U.S. law. In the instant case, plaintiff Philippine seamen brought suit in federal court in Louisiana against the shipowner, alleging violation of the U.S. Fair Labor Standards Act (FLSA) for failure to pay federal minimum wage and overtime. Defendant asserted that plaintiffs’ employment contracts were controlled by Philippine law and required arbitration of wage disputes in the Philippines. The trial court refused to order arbitration, citing a Louisiana law expressing the state’s strong public policy against forum selection clauses in employment contracts.