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www.marinelink.com 19the commerce and navigation of the United States, from a uniformity of rules and decisions in all maritime ques-tions, authorize us to believe that national policy, as well as judicial logic, require the clause of the Constitution to be construed as to embrace all maritime contracts, torts, and injuries, or, in other words, to embrace all those causes which originally and inherently belonged to the admiralty before any statutable restriction.? DeL-ovio v. Boit, 7 Fed.Cas. 418 (C.C.D.Mass. 1815). That case concerned whether a contract for marine insurance was controlled by state law or federal law. Justice Sto- ry emphatically ruled in favor of federal admiralty and maritime jurisdiction.The issue of the extent of the federal power over for- eign and interstate commerce as applied to maritime navigation reached the U.S. Supreme Court several years later. The state of New York had granted exclusive rights for the operation of mechanically-powered ships in its waters to the company founded by Robert Ful-ton. A competing company brought suit. After losing in New York state court, the competitor appealed to the US Supreme Court. In striking down the state decision, the court stated in pertinent part: ?If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations and among the several states is vested in Congress as absolutely as it would be in a single government, having in its consti-tution the same restrictions on the exercise of the power as are found in the Constitution of the United States.? Gibbons v. Ogden, 22 U.S. 1 (1824). In 1959, the Supreme Court struck down an Illinois statute that required certain rear fender mudguards on trucks and trailers operated on its highways as constituting an unreasonable burden on interstate commerce. Yet in 1960, it upheld the Detroit Smoke Abatement Code as applied to a ship engaged in in-terstate commerce while docked at a pier within the city. In the latter case, the court ruled that the Detroit code was an even-handed exercise of police power in an area where the federal government had not exercised its authority. Where the federal government has perva- sively exercised its authority with respect to the design, construction, and operation of commercial vessels, the court has ruled that the concept of field preemption ap-plies ? that the federal government has adopted such a body of regulation that there is no room left for states to exercise any authority. It can reasonably be asserted that the federal government has now established an ex-tensive and detailed body of law with regard to marine environmental protection. Whatever gaps may have ex- isted previously have now been closed. State regulation of maritime commerce should be the exception, rather than the rule, and it should be clearly and carefully cir- cumscribed. As noted above, the federal government could adopt, if it so chose, a field preemption approach with regard to marine environmental protection mat-ters and elsewhere. There has though, at least to date, been insufficient pressure on the legislative, executive, and judicial branches to adopt such a position. I con-tend that the time has come. I do not advocate that the marine industry should be unregulated, or even under- regulated. Rather, I contend that Justice Story was right when, almost 200 years ago, he advocated uniformity in the regulation of the maritime industry. Federal unifor- mity has been allowed to erode over time. The rebuild- ing effort must begin now. MR #5 (18-25).indd 19MR #5 (18-25).indd 195/3/2013 1:05:59 PM5/3/2013 1:05:59 PM
