ATTACKING AN ANCIENT ADMIRALTY PRECEDENT
By Armand M. Paré, Jr.
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BRIEF WRITING IN THE SUPREME COURT -- ATTACKING AN ANCIENT ADMIRALTY PRECEDENT By Armand M. Paré, Jr. | Download in MSWord |
Contents
Introduction
Brief writing in the Supreme Court is significantly different from brief writing in any other court. Past legal precedent is of less importance in the Supreme Court than elsewhere. In fact, if the Court decides to grant certiorari, at least four members of the Court have concluded that a review of existing precedent is warranted. Once certiorari has been granted, at least for the advocate promoting a change in the law, the first order of business is to attack the rationality of the "old" rule. The next order of business is to provide a policy framework for a "new" rule. It will likely be useful in this connection to borrow a framework from trends in recent related cases decided by the Court. It seems important, however, to craft an argument that ultimately advocates the smallest logical change in existing law, since the Court appears to prefer moving in measured steps.
Exxon v. Central Gulf
In Exxon Corp. v. Central Gulf Lines, Inc., 500 U.S. 603 (1991) Exxon, under a long-term supply contract, had supplied bunker fuel oil, through Exxon's local fuel supplier, to a vessel in Saudi Arabia. When the fuel was not paid for, Exxon sought to recover the value of the fuel by asserting a maritime lien. The lower courts, however, found that Exxon, under its long-term contract, had acted only as a "general agent" in the supply of the fuel through a local supplier and, on the basis of Minturn v. Maynard, 58 U.S. (17 How. 477)(1855), held that Exxon's claim was outside admiralty jurisdiction. The Court granted certiorari in Exxon to review Minturn.
The "Minturn" Brief-Writing Problem
Drafting an argument to overrule Minturn v. Maynard, 58 U.S. (17 How. 477 (1855), posed certain unusual brief-writing challenges. The decision in Minturn had basically held that a claim by a general agent for the recovery of moneys advanced to a vessel owner was outside admiralty jurisdiction. The body of the Minturn decision, however, was only two short paragraphs in length and did not provide any legal basis for its conclusion. In fact, after stating the facts, the decision abruptly ended with the sentence: "The case is too plain for argument." Since Minturn did not explain its legal underpinnings, it became necessary to attempt to identify them and place them into historical perspective. It was also necessary to explain why these legal underpinnings were no longer valid under existing principles of admiralty and constitutional law.
Minturn and Historical Perspective
The rule in Minturn -- that there is no admiralty jurisdiction in a suit by a general agent against a vessel owner for the recovery of funds advanced by the agent -- is of ancient vintage. Originally, admiralty jurisdiction in England had been wide in scope. This dated back to the creation of the "Laws of Oleron" when King Richard I purportedly set down a comprehensive maritime code on his return from the Crusades. S. Friedell, 1 Benedict on Admiralty 526 (7th revised ed. 1997) ("Benedict"). Beginning in the late 1500s, however, the English common law courts began to restrict the exercise of this jurisdiction by "writs of prohibition" which, in individual cases, barred an admiralty court from proceeding. Benedict ( 41. These writs "were neither consistent in themselves nor reconcilable with principle." Id. Justice Story ("riding circuit") in DeLovio v. Boit, 7 F. Cas. 418 (C.C.D. Mass. 1815) (No. 3,776), pointed out the irrationality of the writs and noted that they generally attempted to confine admiralty jurisdiction "to things wholly and exclusively done upon the sea. . . ." Id. at 431. Individual writs had been based on such artificial notions as: "where the common law hath jurisdiction it excludes the admiralty," Id. at 427, and "the admiralty has jurisdiction; only where the parties have bound themselves in rem." Id. at 439. With respect to contracts, one was considered maritime only if "made upon the high seas and to be executed on the high seas. . . ." Id. at 431. Because of this, the purchase of a new sail by a Master while ashore had been deemed outside admiralty jurisdiction by the English common law courts.
There was another ancient restriction on the English admiralty courts: "[w]here suits were brought in admiralty which called for equitable relief, the Chancellor [of the equity court] would enjoin the prosecution of the action." S. Morrison, The Remedial Powers of the Admiralty, 43 Yale L. J. 1, 11 (1933). Although few in number, such injunctions "were as effective as the writs of prohibition issued by the common law judges." Id. On this basis, for example, a request for an accounting between part owners of a vessel was considered outside the jurisdiction of the English admiralty. The Appollo, 166 Eng. Rep. 109 (1824).
When the United States became a sovereign nation, Article III, Section 2 of the Constitution extended the "judicial power of the United States" to "all cases of admiralty and maritime jurisdiction." American courts, however, with little else to guide them, adopted the English restrictions on admiralty jurisdiction. This led to the early adoption in the United States of the patchwork quilt of jurisdiction left by the English writs of prohibition. Ironically, at about this very time, English admiralty jurisdiction began to recover its broad scope. S. Morrison, The Remedial Powers of the Admiralty, 43 Yale L.J. 1, 12-13 (1933).
The Legal Principles Underlying the Minturn Decision
Restrictions on admiralty jurisdiction adopted by the American courts prior to the Minturn decision included the following: "the admiralty has no jurisdiction at all in the matters of account between part-owners," The Steamboat New Orleans v. Phoebus, 36 U.S. (11 Pet.) 175 (1837); "[i]f the common law can try the cause, and give full redress, that alone takes away the Admiralty jurisdiction," Ramsay v. Allegre, 25 U.S.(12 Wheat.) 611, 631 (1827); there is no admiralty jurisdiction when a case is "nothing more than the common law action for money had and received [i.e., an action for `assumpsit'] brought in a court of admiralty," Cutler v. Rae, 48 U.S. (7 How.) 729 (1849); "in cases of contract, [the admiralty] has no jurisdiction at all in personam, except as incident to the exercise of its jurisdiction in rem," Id. at 640; no lien can exist for supplies rendered in a vessel's home port, The General Smith, 17 U.S. (4 Wheat.) 438 (1819); and, for a contract to be maritime, it had to involve services that were "substantially performed upon the sea, or tidewaters," The New Jersey Steam Navigation Co. v. The Merchants' Bank of Boston, 47 U.S. (6 How.) 344 (1848).
On this latter basis, Justice Grier, who would later author Minturn, wrote while "riding circuit", in language straight from the writs of prohibition, that a stevedore's contract to load and discharge cargo was outside admiralty jurisdiction because it involved a service "neither made at sea nor for a service to be performed at sea; both were in the port of Philadelphia, and within the county of Philadelphia. The ship was safely moored at the wharf. . . ." M'Dermott v. The S.G. Owens, 16 F. Cas. 15, 1 Wall. Jr. 370, 371 (C.C.E.D. Pa. 1849) (No. 8748).
Prior to the decision in Minturn, no case appears to have squarely held that a claim by a general agent to recover amounts advanced to the vessel owner was, per se, outside admiralty. However, as shown by the above authorities, the following jurisdictional principles prevailed at the time of Minturn:
Rejection of the Minturn Principles
By 1991, when Exxon v. Central Gulf, came before the Court, the above-mentioned principles, which appeared to support the decision in Minturn, had become obsolete. This including the following:
Proposing an Alternative Approach -- Policy Consideration
After attempting to convince the Court that Minturn should be overruled because its apparent underlying principles had been discredited, the task then became one of proposing an alternative approach. Although Exxon v. Central Gulf involved the question of contract jurisdiction, a then recent decision of the Court regarding admiralty tort jurisdiction provided a useful theme for an alternative approach. In Sisson v. Ruby, 497 U.S. 356 (1990), the Court said the following regarding the exercise of admiralty jurisdiction: "the demand for tidy rules can go too far, and when the demand entirely divorces the jurisdiction it has gone too far." Id. , at 364, n.2. It concluded: "The fundamental interest giving rise to maritime jurisdiction is `the protection of maritime commerce". . . ." Id. at 367.
This created the policy argument in Exxon. That argument, following Sisson v. Ruby, was that admiralty jurisdiction should be extended where it will help protect and promote maritime commerce. In Exxon, the specific argument urged was that admiralty jurisdiction should be extended to a general agent that supplied fuel to a vessel because such a service was at the very core of maritime commerce. Indeed, in Exxon, had the fuel supply not been made by Exxon, the vessel would have come to a literal stop.
Limiting The Request For A Change In The Law
The Supreme Court seems reluctant to make wholesale changes in existing precedent and, like any court, appears only inclined to make those limited changes in the law required by the case before it (or as may be logically necessary to provide a "bright line" rule). For example, in Exxon, although the Supreme Court overruled Minturn v. Maynard in a 9-0 decision, it said:
We conclude that Minturn is incompatible with current principles of admiralty jurisdiction over contracts and therefore should be overruled. We emphasize that our ruling is a narrow one. We remove only the precedent of Minturn from the body of rules that have developed over what types of contracts are maritime. Rather than apply a rule excluding all or certain agency contracts from the realm of admiralty, lower courts should look to the subject matter of the agency contract and determine whether the services performed under the contract are maritime in nature. See generally Kossick, supra, 365 U.S. at 735-738, 81 S.Ct., at 890-892 (analogizing the substance of the contract obligations and finding the contract within admiralty jurisdiction).(Emphasis added), 500 U.S. at 612.
This leaves open, on a case-by-case analysis in the lower courts, the less elegant issues of whether individual contracts are within or outside admiralty jurisdiction. The only guidance is that "lower courts should look to the subject matter of the agency contract and determine whether the services performed under the contract are maritime in nature." Although that may not provide much practical guidance for future cases, the Court chose not to make a rule for all future cases its concern in Exxon.
Conclusion
Brief writing in the Supreme Court poses unique challenges to the practitioner who traditionally relies on precedent and factual distinctions of precedent to build an argument. It provides a rare opportunity to consider the historical development of a body of law and to creatively suggest reasons why that law should move in a particular direction. Of course, as always, one must eventually come to focus on the particular case and eventually advocate only a change in the law necessary in the circumstances.
