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The functional and historical implications of the Supreme Court's decision in: Northern Insurance Company of New York v. Chatham County, Georgia.

I. INTRODUCTION

Since the Constitution's drafting, achieving the goal of uniformity in admiralty law has been an ongoing struggle in federal courts. (1) This continued struggle is exemplified in the Supreme Court's recent decision in Northern Insurance Company of New York v. Chatham County, Georgia. (2)

Northern called on the Supreme Court to determine whether a defendant County could assert an immunity defense, under common law, to protect it from suit. (3) It has long been established that immunity from suit "is a fundamental aspect of sovereignty which the States enjoyed before the ratification of Constitution, and which they retain today . . . except as altered by the plan of the Convention or certain Constitutional Amendments." (4) The Eleventh Amendment of the Constitution provides sovereign immunity from suit to a limited class. (5) Only States and arms of States may possess immunity from suits authorized by federal law. (6) According to the Supreme Court, this immunity does not extend to counties. (7) Until the Supreme Court's decision in Northern, however, there was debate among the circuits as to whether there existed a separate and distinct source of immunity from suit under the common law. (8) In deciding Northern, both the United States District Court for the Southern District of Georgia and the Eleventh Circuit concluded that common law has "carved out a residual immunity" that protects political subdivisions, such as counties, from suit. (9)

The Court granted certiorari in Northern to determine if there existed a separate and distinct form of immunity, outside of the Eleventh Amendment, upon which a county, not qualifying as an arm of the State, may rely on to assert immunity from suit. (10) The Court held that it did not recognize a common law residual immunity in admiralty suits; therefore, an entity that does not qualify as an arm of the State under the Eleventh Amendment cannot assert an immunity defense to an admiralty suit. (11) This result was correct; however, the Court never stated the real reason for its decision, which is that if it were to grant a separate and distinct immunity, the federal intent behind admiralty law would be threatened.

Part II of this Note sets out the background, history, and law related to the issues presented in Northern. Part III sets out the factual and procedural background of the case and examines the Court's analysis and final decision. Finally, part IV discusses the scope of the Court's holding and its failure to address the real reasons for its decision.

II. HISTORY AND BACKGROUND OF SOVEREIGN IMMUNITY AND ADMIRALTY

The Supreme Court's decision in Northern provides minimal dicta and background on the various areas of law involved. In order to understand the Court's underlying reasoning for its decision, it is necessary to review (1) the history of sovereign immunity as we know it today, (2) the Eleventh Amendment to our Constitution and its historical relationship with admiralty jurisdiction, (3) common law immunity, and (4) the controlling Supreme Court precedent.

A. THE ROOTS OF SOVEREIGN IMMUNITY

The roots of the Eleventh Amendment's sovereign immunity can be traced back to the framers of the Constitution and this nation's roots in English common law. Historically, the States "entered the federal system with their sovereignty intact. (12) The constitutional Framers created a federal government of limited and enumerated powers. (13) They did so in order to preserve sovereignty by reserving to the States all powers not delegated to the federal government, and by prohibiting the federal government from directly regulating the States. (14) These measures created our system of "[d]ual sovereignty." (15) The Constitution provides that under this system, the United States and the individual States each possess sovereign attributes and perform distinct functions. (16) The Constitution recognizes that each State is entitled to the enjoyment of immunity from suit without consent. (17)

The Eleventh Amendment of the Constitution provides that "[t]he Judicial power to the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or subjects of any Foreign State." (18) The Eleventh Amendment's language broadened the original concept of State sovereign immunity, which was already implicit in the Constitution. (19) However, the Eleventh Amendment is not the source of sovereign immunity in itself. (20) Rather, the Eleventh Amendment is the result of a proposal made in response to the Supreme Court's holding in Chisholm v. Georgia. (21) In Chisholm, the Supreme Court erroneously held that States could be sued in assumpsit in federal court by a private citizen of another State. (22) The Chisholm holding shocked the nation, and Congress immediately amended the Constitution in an attempt to clarify that federal judicial power does not extend to suits against non-consenting States brought by citizens of another State. (23)

B. THE THEORY OF COMMON LAW RESIDUAL IMMUNITY

The Respondent in Northern asserted there were two distinct notions of sovereign immunity: (1) Eleventh Amendment sovereign immunity, and (2) a residual common law immunity. (24) The theory of residual immunity refers to the sovereignty established by the Constitution and enjoyed by the States prior to the creation of the Eleventh Amendment. (25) When States entered the Union, they had to surrender part of their sovereignty. (26) However, one aspect retained was their immunity from suit. (27) The Respondent asserted that common law sovereign immunity was derived from this retention. (28) Moreover, this residual immunity was derived separately from, and not limited by, the Eleventh Amendment. (29) While the Supreme Court has determined that counties are not protected under the Eleventh Amendment's sovereign immunity, historically, the common law has afforded counties such immunity. (30)

C. ELEVENTH AMENDMENT AND ADMIRALTY JURISDICTION

Article III of the Constitution "extends" the judicial power of the United States "to all Cases ... of admiralty and maritime jurisdiction." (31) The "fundamental purpose" behind federal maritime jurisdiction was to "preserve adequate harmony and appropriate uniform rules relating to maritime matters and [to] bring them within control of the Federal Government." (32) Functionally, this resulted in the establishment of a single, uniform body of federal law governing maritime matters. (33)

Sovereign immunity principles under the Eleventh Amendment have equal force in federal admiralty law actions. (34) General maritime law is a species of "judge-made federal law;" therefore, sovereign immunity in maritime law is governed by the same principles. (35) For this reason, the Supreme Court, in Northern, used the same requirements to determine whether the county was immune under Eleventh Amendment sovereign immunity as it would have applied in any other general federal immunity action not based on admiralty jurisdiction.

D. CASE LAW PRECEDENT ON THE ISSUE BEFORE THE COURT

The Eleventh Amendment does not specifically define the scope of a State's sovereign immunity, rather "it merely embodies it." (36) The Supreme Court interpreted the scope of sovereign immunity as it relates to in personam admiralty actions in Ex parte New York (37) and Workman v. New York City. (38) Both cases were heavily referenced by the Supreme Court in Northern.

1. EX PARTE NEW YORK

In Ex parte New York, the Supreme Court held that State immunity from suit applied in admiralty and maritime jurisdiction matters, unless the State had given its consent. (39) In that case, the State of New York and the Superintendent of Public Works petitioned the Supreme Court for writs of prohibition and mandamus. (40) The initial cause of action resulted from boat owners who sued State officers in admiralty for damages to their canal boats caused by expired State charters. (41) The State officers argued that the court did not have jurisdiction to proceed against them because the suits were against the State of New York, and New York had not consented to be sued. (42) The case tested the ability of a State, on its own behalf, to assert sovereign immunity in admiralty court. (43) The Court held that the "immunity of a state from suit in personam in admiralty brought by a private person without its consent, is clear." (44) Under the Eleventh Amendment, a State which had not consented to suit did not fall within the jurisdiction of the court; therefore, it was immune to liability in an admiralty in personam action. (45) Since the Supreme Court issued its decision, Ex parte New York has been cited frequently for the proposition that the principles of the Eleventh Amendment sovereign immunity apply to in personam admiralty cases. (46)

2. WORKMAN V. NEW YORK CITY

The Court in Ex parte New York reaffirmed the Workman principle, that a defendant subject to the jurisdiction of the court may not claim immunity for liability in admiralty. (47) Workman involved a libellant ship owner's vessel, which was injured by the steam of a New York fire boat. (48) In order to recover for the damages to his shin, Workman filed a libel in personam suit against the mayor of New York. (49) The issue of whether the suit could be maintained against the State of New York was brought to the Supreme Court by writ of certiorari. (50) The Supreme Court declared that admiralty law supercedes State law governing sovereign immunity. (51) The Court stated there is no basis in admiralty law for the recognition of immunity of political subdivisions of States from in personam suits; therefore, the suit could be maintained against the city of New York. (52)

In Northern, the petitioner was limited to in personam admiralty jurisdiction. (53) This fact is significant to note in understanding the Court's final decision and in understanding the scope of sovereign immunity in admiralty actions. In an in personam admiralty action, the defendant is not a ship or any other instrument of navigation, but is a person. (54) By comparison, an in rem action involves actions where, "a vessel or thing is itself treated as the offender and made the defendant by name or description." (55)

III.. NORTHERN INS. CO. OF NEW YORK V. CHATHAM COUNTY, GA.

A. FACTS AND PROCEDURAL BACKGROUND

On October 6, 2002, James K. Ludwig, navigated his yacht, the Love of My Life, down the intercoastal waterway of the Wilmington River. (56) As he approached the Causton Bluff Bridge, Mr. Ludwig radioed the bridge operator, an employee of Chatham County, and requested that the draw bridge be raised to permit his yacht to transit the waters beneath the bridge. (57) Upon Mr. Ludwig's request, the bridge operator raised the spans, but just as the Love of My Life approached, one of the spans malfunctioned and cut downward. Unfortunately, before the bridge operator was able to re-raise the span, the Love of My Life collided with the span resulting in severe damage to its hull. (58) As a result, Mr. Ludwig, and his wife Carol, incurred losses in excess of $137,000. (59)

The Ludwigs filed a claim with their vessel's insurance company, Northern Insurance Company of New York ("Northern"). (60) Northern paid the Ludwigs' claim as per their insurance agreement and then sought to recover its costs by filing suit in admiralty against Chatham County in the United States District Court for the Southern District of Georgia. (61) The County answered Northern's claim with a motion for summary judgment alleging that Northern's claim was barred by common law sovereign immunity. (62) In its motion for summary judgment, the County conceded that it was not entitled to Eleventh Amendment immunity because counties are not "arms of the State" for Eleventh Amendment purposes. (63) Relying on Broward County v. Wickman, (64) the district court granted the summary judgment. (65) The court recognized that the issue turned on whether the County was "acting as part of the State," or in other words, "whether [the County] was exercising power delegated from the State" or "performing a proprietary function." (66) Under Wickman, a county could aver "a residual sovereign immunity that arises from common law." (67) Thus, the court interpreted Wickman to extend sovereign immunity from the admiralty process to counties and municipalities when they were deemed part of the State. (68) The court determined that counties do exercise State power to "acquire land and build and operate bridges," and that the County "exercise[d] these state powers" with respect to the Causton Bluff Bridge. (69) Based on this, the district court concluded that the County was a part of the State of Georgia for residual sovereign immunity purposes, and was therefore protected from suit. (70)

On July 1, 2004, Northern appealed the district court's decision to the Eleventh Circuit Court of Appeals. (71) Bound by Wickman, the court of appeals affirmed the lower court's decision, (72) recognizing that the County was immune from suit under the doctrine of residual sovereign immunity. The Eleventh Circuit held that the "common law has carved out a residual immunity which would protect a political subdivision, such as Chatham County, from suit." (74) The court affirmed the existence of residual common law immunity under the belief that the Supreme Court used it in deciding FMC. (75) In FMC, the Supreme Court stated that the "Eleventh Amendment does not define the scope of the States' sovereign immunity, but is merely one particular exemplification of that immunity." (76) The court further averred that the Supreme Court defined the contours of "residual immunity" by reference to its "far from recent" Wickman precedent, which held that "a city[,] county[,] or municipal entity must be deemed a part of the state and thus not entitled to sovereign immunity if it is exercising power delegated from the state." (77)

The court of appeals determined that Chatham County was exercising delegated State authority when it operated the Causton drawbridge by looking to Continental Insurance, a then recently unpublished decision involving the same bridge with similar facts. (78) In Continental Insurance, the district court held that Chatham County was an arm of the State of Georgia for residual sovereign immunity purposes. (79) The court of appeals also relied on its decision in Kitchen v. CSX Transportation, Inc., where it invoked Georgia's Constitution to conclude that Georgia's sovereign immunity extends to counties, as subdivisions of the State. (80)

The court of appeals also referred to the Supreme Court's decisions in Workman and Ex parte New York. (81) In Workman, the Supreme Court held that New York City could be municipally liable in an in personam admiralty suit arising from a collision between one of its fireboats and a private vessel. (82) Conversely, in Ex parte New York, the Court held that the State of New York was entitled to sovereign immunity in a similar type of suit. (83) The Eleventh Circuit expressly acknowledged that the County in Northern had not asserted an Eleventh Amendment immunity defense, and that even if it had, the suit would fail since it was not an "arm of the State" according to Eleventh Circuit precedent. (84) The court of appeals determined that Northern paralleled Ex parte New York, rather than Workman, because the County exercised power allotted from the State in operating the bridge. (85) Thus, the Eleventh Circuit adopted the district court's analysis and concluded that the "common law has carved out a 'residual immunity,' which would protect a political subdivision[,] such as Chatham County[,] from suit." (86)

On June 1, 2005, Northern filed a petition for a writ of certiorari in the United States Supreme Court based on three reasons. (87) First, Northern asserted there was a single doctrine of sovereign immunity arising from the Eleventh Amendment of the Constitution. They alleged that the lower court's finding that Chatham County was entitled to invoke "residual immunity," in effect, created a fictitious standard of sovereign immunity. Northern further alleged that the court based its creation on their misapplication of the Supreme Court's ruling in FMC, which the lower court mistakenly interpreted to hold that there is a separate common law residual sovereign immunity distinct from Constitutional immunity. (88)

Second, Northern asserted that the Eleventh Circuit's decision in Northern created a conflict between all opinions involving sovereign immunity of any court and jurisdiction and the ruling of the district court and the Eleventh Circuit Court of Appeals. Northern argued that the opinion of the court of appeals specifically conflicted with the Supreme Court's holding in Workman, in which the Supreme Court ruled that State conferred immunity was preempted by admiralty law. (89)

Third, Northern contended that the court of appeals' decision directly conflicted with the Supreme Court of Georgia's ruling in Hines v. Georgia Ports Authority. (90) The court in Hines overruled the decisions of the trial and intermediate appellate courts, which granted sovereign immunity to the Georgia Ports Authority under Georgia's Constitution, citing to Workman. (91) For these reasons, the Supreme Court granted certiorari and addressed the following issue. (92)

B. THE SUPREME COURT'S ANALYSIS OF THE ISSUE

The Court granted certiorari on the issue of "whether or not 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." (93) Justice Thomas delivered the unanimous opinion of the Court, which held that non-arms of the State cannot enjoy Eleventh Amendment sovereign immunity. (94)

The Court stated repeatedly that the issue presented was narrowed because the suit was based on in personam admiralty jurisdiction and that the appellants did not raise an Eleventh Amendment sovereign immunity defense. By specifically stating the issue the Court was deciding, it thereby excluded situations where a party does qualify as an arm of the State or when in rem admiralty jurisdiction is involved. (95) Since the County conceded they are not an arm of the State under the Eleventh Amendment, they thereby waived any defense that they may have had under the Amendment. (96) The Court makes reference to this concession several times. (97)

Before the Court began its analysis in Northern, it discussed which analysis of law it would apply. The Court recognized the pre-ratification of sovereignty as its source of immunity from suits authorized by federal law. (98)

As previously mentioned in part II, section A, sovereign immunity goes back to pre-constitutional law, from the time of the "crown and colonies." (99) The Court had to decide whether or not to apply the same analysis in deciding actions involving non-arms of the State as it would apply to actions involving arms of the State. When the Court decides actions against States, or arms of a State, it analyzes constitutional and pre-ratification sources. However, since neither party asked the Court to re-examine the Eleventh Amendment immunity, the Court did not look at pre-ratification sources, but rather looked only to Supreme Court precedent. The Court seemed to infer that a different outcome may have resulted if the County had raised an Eleventh Amendment arm of the State defense as opposed to residual common law immunity. Since the County did not raise such a defense, the Court was barred from looking back to pre-ratification immunity, and was instead limited to prior Supreme Court case law, which had repeatedly refused to extend sovereign immunity to Counties. The Court presented a slew of Supreme Court decisions where the Court refused to extend sovereign immunity to Counties exercising a "slice of [state] power," as was the case with Chatham County in Northern. (100)

The analysis section of the Court's decision was bifurcated into two distinct discussions. First, the Court examined the County's argument that the Supreme Court had previously recognized a distinct "residual" immunity permitting adoption of a broader test than what the Court applies under Eleventh Amendment sovereign immunity. (101) Second, the Court addressed the County's request that the Court recognize a distinct sovereign immunity for in personam admiralty suits. (102)

1. COUNTY'S ARGUMENT FOR A DISTINCT "RESIDUAL" IMMUNITY UNDER THE COMMON LAW

The County argued that the common law provides for a residual immunity, which is broader than the immunity provided under the Constitution. (103) The County further argued that the Court has recognized a distinct residual immunity permitting the adoption of a broader test than applied under Eleventh Amendment immunity to determine whether an entity was acting as an arm of the State, and thus, entitled to immunity. (104) The Court rejected the County's contention, and stated that the Court has only referenced State's "residuary and inviolable sovereignty" that survived the Constitution. (105) In footnote 2 of the opinion, the Court mentioned its uncertainty over whether the County believed that residual immunity is a common-law immunity unaltered by federal substantive law, or a constitutionally-based immunity. (106) The Court was unable to discern where the County found this "residual immunity." (107) Thus, the Court held that regardless of the immunity's source, residual immunity would serve to extend sovereign immunity beyond its pre-ratification scope. (108) In effect, the Supreme Court solidly refused to recognize a sovereign immunity separate and distinct from the Constitutionally-based Eleventh Amendment immunity.

The Court cited to Alden, in concluding that a County cannot claim immunity based on its being a county or an arm of the State. (109) According to Supreme Court precedent, Chatham County was subject to suit unless it was acting as an arm of the State in its operation of the drawbridge. However, since the County conceded that it was not an arm of the State, the Court could not find that it was immune under sovereign immunity. The Court again reminded the parties that certiorari was granted premised on the conclusion that the County was not, in fact, an arm of the State. (110) Thus, the Court decided the case based on that presumption. The Court determined that, "[a]ccordingly, the County's concession and the presumption underlying the question on which [the Court] granted review were dispositive." (111) In essence, the Court held that regardless of whether common law provided immunity to the County, it must decide the case using its own case law; and under its case law, the County was not an arm of the State and there simply was no precedent to support a contrary holding.

Upon its conclusion that the County did not qualify as an arm of the State of Georgia, the Court turned to the second issue presented, which was whether the Court will recognize a separate and distinct in personam admiralty immunity.

1. THE COUNTY'S REQUEST THAT THE COURT RECOGNIZE IN PERSONAM ADMIRALTY IMMUNITY

As an alternative ground, the County asked the Court to "recognize a distinct sovereign immunity in in personam admiralty suits that bars cases arising from a County's exercise of core state functions with regard to navigable waters." (112) The Court reminded the parties that it must resolve sovereign immunity questions in admiralty by relying on principles set out in the Supreme Court's sovereign immunity precedent, and not by examining history or jurisprudence specific to admiralty suits. (113) The Court reasoned that a distinct immunity in admiralty cases cannot be reconciled with the Court's precedent; therefore, it should be denied. (114) Supporting this contention, the Court again cited Workman. (115) Under Workman, admiralty law simply does not recognize immunity in an in personam admiralty suit. (116) In Northern, the Court seemed to imply that if it were able to apply a historically based examination of sovereign immunity, then maybe a distinct admiralty immunity may be justified. The Court, however, limited itself to analyzing the issue under its own case precedent. Thus, the Court followed its decision in Workman, and applied the general principle that sovereign immunity does not bar a suit against a county in an admiralty suit. (117)

The County asserted that the reach of Workman was limited, and that the Court's decision in Exgarte New York demonstrated that Workman was inapplicable to Northern. (118) However, the Court disagreed. (119) It pointed out that Ex parte New York involved only the substantive law of admiralty and not the Court's power to exercise jurisdiction over a particular defendant. (120) The Court asserted that the holding of Ex parte New York extended sovereign immunity beyond cases in law and equity, to cases in admiralty. (121) The Court further explained that Ex parte New York addressed the issue of whether courts of admiralty may "give redress in a case where jurisdiction over the person or property cannot be exerted." (122) The Court held that it lacked the power to apply general admiralty principles. (123) Workman addressed the question of whether courts of admiralty may, notwithstanding State law, "redress a wrong committed by one over whom such courts have adequate jurisdiction," such as municipalities. (124) In this circumstance, the Court held that general admiralty principles govern. (125) The Court concluded that Workman more aptly applied to Northern, and that Ex parte New York did not. (126) Because the defendant-entity was an entity generally within the jurisdiction of admiralty, analogous to Workman, this compelled the Court to hold that the County was unprotected by sovereign immunity. (127)

The Court finally concluded that the County was not immune from suit. Furthermore, the Court found that the County failed to demonstrate that it was acting as an arm of the State under the Eleventh Amendment of the Constitution when it operated the drawbridge. Therefore, the Court reversed the judgment of the court of appeals. (128) Thus, the County was not entitled to immunity from Northern's suit. (129)

IV. THE SCOPE OF THE COURT'S DECISION AND ITS FAILURE TO DISCUSS THE FUNCTIONAL AND HISTORICAL REASON BEHIND ITS DECISION.

A. THE SCOPE OF APPLICABILITY

Due to the narrow nature in which the Court presented the issue on certiorari, the holding in Northern is very limited in its practical applicability. The Court determined that an entity not qualifying as an arm of the State, may not qualify for immunity under the Eleventh Amendment and cannot assert an immunity defense to admiralty suits. (130)

The scope of the Court's holding in Northern is two-fold. First, the Court only considered in personam admiralty immunity. The Court never mentioned in rem immunity; therefore, the Court's decision does not extend to suits prosecuted against municipal corporations or other government entities. (131) Second, the Court has determined that in suits where non-arms of the State assert sovereign immunity, the Court will use its own case law in its analysis, rather than an originalist interpretation of the Constitution. In essence this case precedent is applicable to situations where an entity not qualifying as an arm of a State asserts immunity under some theory other than the Eleventh Amendment. In these cases, if the defendant is not a State or an "arm of the State" under the Eleventh Amendment test, it may not assert a sovereign immunity defense in an in personam admiralty suit.

B. THE COURT'S TRUE REASON FOR REVERSAL

The true reasoning and intent behind the Court's holding in Northern is difficult to discern from its text. The Court's decision is predominantly doctrinal in nature. (132) Justice Thomas relied on Supreme Court precedent only, and even that doctrinal discussion is scant. While the Court's sole reliance on doctrine produced the correct outcome in Northern, there remains one very important consideration missing from Justice Thomas's opinion. This Note contends that the driving force behind the Supreme Court's decision was uniformity in admiralty law.

There is strong historical support for the Supreme Court's finding that there is a single basis for asserting an immunity defense in admiralty. The intent behind the inclusion of admiralty cases within the federal court's jurisdiction was to create uniformity in admiralty law. (133) This notion was evidenced in the ratification debates, where the Framers expressed particular concern with uniformity of state court decisions in admiralty and maritime cases. (134) This concern precipitated the ratification of admiralty jurisdiction into federal courts. (135) The very purpose behind the vesting of admiralty jurisdiction in federal courts was the intent to protect states from the consequences of differing admiralty laws and its uncertain effects. (136) The Court in Northern was aware of these strong historical arguments, as they were raised in both the Petitioner's Brief and the United States' Amici Brief. (137)

If the Supreme Court applied the common law residual immunity test to control Northern, this precedent would result in a difficult test to apply, and would produce non-uniform admiralty law with respect to when an entity may assert an immunity defense. (138) Functionally, the Court's allowance of residual immunity would be difficult for various federal courts to apply. There would be separate tests applied by courts depending on whether a party decided to assert immunity under the Eleventh Amendment or common law. If an entity was a non-arm of the State, they may escape immunity by asserting a different common law test, but it is questionable what that test would be. The level of state support required to bring an entity into the same realm of immunity under common law may remain broad and defeat the purpose behind immunity. It is not functionally wise to have two separate bases for asserting the same defense in admiralty suits. Furthermore, these separate bases are not supported historically. Overall, this could result in widely varying holdings under similar facts. Moreover, the United States, in its Amici Brief stated that, "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 longstanding federal interest in uniformity by placing such entities beyond the reach of admiralty courts." (139) However, Justice Thomas failed to discuss this important originalist and functional concern in the Court's decision on why federal admiralty law trumps common law residual immunity.

V. CONCLUSION

The Supreme Court reached the correct decision in Northern. The Court stated that it does not recognize a common law residual immunity in admiralty suits and, therefore, an entity that does not qualify as an arm of the State under the Eleventh Amendment cannot assert an immunity defense to an admiralty suit. (140) While Justice Thomas stated that the Court based its decision solely on doctrine; this Note finds that the real reason behind the Court's decision was an originalist concern with uniformity among admiralty courts.

Janel M. Glynn, The author gratefully acknowledges the assistance and guidance of William E. O'Neil, Adjunct Professor of Maritime Law, Loyola University New Orleans, College of Law.

(1.) The Constitution specifically deprives States of maritime and admiralty jurisdiction for the sake of uniformity. Federal courts are empowered with such jurisdiction. U.S. Const. amend. XI.

(2.) 126 S. Ct. 1689(2006).

(3.) Brief for the Petitioner at 6, Northern Ins. Co. v. Chatham County, Ga., 126 S. Ct. 1689 (2006) (No. 04-1618).

(4.) Alden v. Maine, 527 U.S. 706, 713 (1999).

(5.) Id. (Eleventh Amendment immunity is neither derived from nor limited by the Eleventh Amendment).

(6.) Id. at 740.

(7.) Lake Country Estates, Inc. v. Tahoe Reg'l Planning Agency, 440 U.S. 391, 401 (1979).

(8.) The Supreme Court in Fed. Maritime Comm 'n v. South Carolina Ports Auth. [hereinafter FMC] referenced that States' "residuary and inviolable sovereignty" survived the Constitution. 535 U.S. 743, 751 (2002). Lower courts have interpreted this dicta to be the Supreme Court's recognition of a separate common law based immunity defense.

(9.) Northern, 126 S. Ct. at 1690.

(10.) Id. at 1692.

(11.) Id.

(12.) Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 779 (1991).

(13.) Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 779 (1991).

(14.) Brief for the Petitioner at 10, Northern, 126 S. Ct. 1689 (No. 04-1618) (citing Alden, 527 U.S. at 728 (citing U.S. Const, amend. X)).

(15.) Id.

(16.) Brief for the Petitioner at 10, Northern, 126 S. Ct. 1689 (No. 04-1618) (citing FMC, 535 U.S. at 751).

(17.) Brief for the Petitioner at 10, Northern, 126 S. Ct. 1689 (No. 04-1618) (citing Seminole Tribe v. Florida, 517 U.S. 44, 71 (1996)). The Framers borrowed the idea of sovereign immunity in the Eleventh Amendment from English common law. William Blackstone, 1 Commentaries *244. Sovereign immunity literally means, "the King can do no wrong." Id. For a more complete historical discussion on the Eleventh Amendment, see David J. Bederman, Admiralty and the Eleventh Amendment, 72 Notre Dame L. Rev. 935 (1997) (the Constitution specifically provides that states enjoy and retain dignity and sovereignty).

(18.) U.S. Const, amend. XI.

(19.) Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 267-68 (1997).

(20.) Id. at 268.

(21.) 2 U.S. 419 (1793) (executor of a South Carolina merchant brought action in assumpsit against the State of Georgia in the Supreme Court. The merchant claimed breach of supplies contract. Georgia claimed sovereign immunity and declined to appear in court).

(22.) Id.

(23.) FMC, 535 U.S. at 752. In deciding Chisholm, the Supreme Court was fully aware of admiralty jurisdiction and its impact on claims of state sovereign immunity. See Bederman, supra note 17, at 954. The concern subsequently arose when it was realized that the Constitution failed to embrace recognition of State sovereign immunity from suit in federal court. Id.

(24.) Brief for the Respondent at 6, Northern, 126 S. Ct. 1689 (No. 04-1618). For a discussion see infra notes 78-83 and accompanying text.

(25.) Brief for the Respondent at 6, Northern, 126 S. Ct. 1689 (No. 04-1618). See supra note 14 and accompanying text.

(26.) Brief for the Respondent at 7, Northern, 126 S. Ct. 1689 (No. 04-1618) (citing Gilbert v. Richardson, 264 Ga. 744, 745-46 (1994)).

(27.) Id.

(28.) Id.

(29.) Id.

(30.) Workman v. New York City, 179 U.S. 552 (1990).

(31.) U.S. Const, art. Ill, [section] 2, cl. 1. Very little is known about the passing of the Eleventh Amendment in Congress in 1793 and 1794. See Bederman, supra note 17, at 954. However, within two days of the Supreme Court's decision in Chisholm, the constitutional amendment was introduced to the House of Representatives by Theodore Sedgwick of Massachusetts. Id.

(32.) Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 160 (1920); see Joseph Story, Commentaries on the Constitution [section] 87, at 618-19 (abridged ed. 1833) (1987 reprint). The text of the Eleventh Amendment is silent as to its application to admiralty cases. It expressly covers "any suit in law or equity." It is presumed that when the Eleventh Amendment is looked to within the context of Chisholm and the rest of the Constitution, it covers admiralty cases. Id. For a more complete discussion on the historical moment, see Bederman, supra note 17, at 940-46.

(33.) California v. Deep Sea Research, Inc., 523 U.S. 491, 501 (1998). The Framers were particularly concerned with a uniform admiralty law because "[m]aritime commerce was . . . the jugular vein of the Thirteen States." Id. (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 federal court's jurisdiction over admiralty actions is not exclusive. Brief for the United States as Amici Curiae Supporting Petitioner at 8, Northern, 126 S. Ct. 1689 (No. 04-1618) (citing American Dredging Co. v. Miller, 510 U.S. 443, 446 (1994)). The Judiciary Act of 1789 allows state courts to have concurrent jurisdiction over in personam admiralty actions under the "saving suitors" clause. Id. Their limited jurisdiction in admiralty is limited by their being obligated to give effect to the substantive rules of federal maritime law. Id. This Act further emphasizes the goal of uniformity among maritime laws.

(34.) Welch v. Tex. Dep't of Highways & Pub. Transp., 483 U.S. 468, 489 (1987).

(35.) Id.

(36.) Alden, 527 U.S. at 722. See also supra text accompanying note 17.

(37.) 256 U.S. 490(1921).

(38.) 179 U.S. 552.

(39.) 256 U.S. at 497.

(40.) Id. at 490.

(41.) Welch v. Tex. Dep't of Highways & Pub. Transp., 483 U.S. 468, 496 (1987).

(42.) Id.

(43.) Id. Ex parte New York did not involve political subdivisions, as was the case in Northern.

(44.) Id. at 501. Eleventh Amendment sovereign immunity applies to in personam admiralty cases according to the Supreme Court in Workman. By contrast, the Supreme Court has not always "charted a clear path in explaining the interaction between the Eleventh Amendment and the federal court's in rem admiralty jurisdiction." Deep Sea Research, 523 U.S. at 502. In in rem cases 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 jurisdiction when the vessel or property at issue is in the hands of the state.

(45.) Ex parte New York, 256 U.S. at 502.

(46.) Brief for the United States as Amici Curiae Supporting Petitioner at 10, Northern, 126 S. Ct. 1689 (No. 04-1618). See 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. 130, 145 (1993); Welch, 483 U.S. at 473, 488-89; Scheucer v. Rhodes, 416 U.S. 232, 237 (1974); Land v. Dollar, 330 U.S. 731, 738 (1947).

(47.) Ex parte New York, 256 U.S. at 499 (this immunity is the same immunity a State would enjoy if it consented to suit). The Court in Workman was careful to "distinguish between immunity from jurisdiction attributable to a sovereign upon grounds of policy, and immunity from liability in a particular case." Id. Workman involved a question of the substantive law of admiralty. Id. In contrast, the issue in Ex parte New York involved power to exercise jurisdiction. Id.

(48.) 179 U.S. at 552.

(49.) Id.

(50.) 179 U.S. at 564.

(51.) Id.

(52.) Id. at 574. The Court in Ex parte New York did nothing to undermine Workman.

(53.) Northern, 126 S. Ct. at 1689.

(54.) Madgruga v. Super. Ct., 346 U.S. 556, 560-61 (1954).

(55.) Id. at 560.

(56.) Northern, 126 S. Ct. at 1692.

(57.) Brief for the Petitioner at 2, Northern, 126S.Q. 1689 (No. 04-1618).

(58.) Id. at 3.

(59.) Brief for the Petitioner at 3, Northern, 126 S. Ct. 1689 (No. 04-1618).

(60.) Northern, 126 S. Ct. at 1692.

(61.) Northern, 126 S. Ct. at 1692.

(62.) Id.

(63.) Id.

(64.) 195 F.2d 614 (5th Cir. 1952) (yacht owner brought libel suit in admiralty against Broward County, Florida for damages resulting from the yacht's collision with an underwater projection of a bridge owned and operated by the County. The Fifth Circuit held that the County, in absence of consent, was immune).

(65.) Northern, 126 S. Ct. at 1692.

(66.) Brief for the United States as Amici Curiae Supporting Petitioner at 4, Northern 126 S. Ct. 1689 (No. 04-1618).

(67.) Brief for the Petitioner at 4, Northern, 126 S. Ct. 1689 (No. 04-1618).

(68.) Id.

(69.) Id.

(70.) Northern, 126 S. Ct. at 1692. See Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (Eleventh Circuit explicitly adopted all decisions of the former Fifth Circuit before October 1, 1981, as binding precedent).

(71.) Brief for the Petitioner at 7, Northern, 126 S. Ct. 1689 (No. 04-1618).

(72.) Id.

(73.) Id. at 1693.

(74.) Brief for the Petitioner at 6, Northern, 126 S. Ct. 1689 (No. 04-1618) (quoting unpublished opinion of the Eleventh Circuit).

(75.) Id.

(76.) Id.

(77.) Id.

(78.) Id. (citing Cont'l Ins. Co. v. Chatham County, No. 04-10661-FF, 112 F. App'x 3 (11th Cir. July 8, 2004)).

(79.) No. 04-10661-FF 112F. App'x at 3.

(80.) 6 F.3d 727 (11th Cir. 1993).

(81.) Brief for the Petitioner at 6, Northern, 126 S. Ct. 1689 (No. 04-1618).

(82.) 179 U.S. at 556.

(83.) 256 U.S. 490.

(84.) Northern, 126 S. Ct. at 1693.

(85.) Id. at 1692.

(86.) Id.

(87.) Id.

(88.) Id.

(89.) Id.

(90.) Id.; Hines, 604 S.E.2d 189 (Ga. 2004).

(91.) Hines, 604 S.E.2d at 189 (state-conferred immunity is preempted by federal admiralty law). The petitioners in Northern also requested the Supreme Court to grant certiorari on the grounds that (1) the Eleventh Circuit erred in determining that the County was an "arm of the State" of Georgia; (2) the court erred in ruling that the County was entitled to sovereign immunity even though the damages inflicted on the Plaintiffs were caused by the negligent performance of a ministerial act and the creation of a continuing nuisance, which Georgia's Constitution provides that sovereign immunity is not granted; and (3) the lower court ignored numerous cases decided by the U.S. Supreme Court which held state and local government authorities to be responsible for creating hazards to navigation. Brief for the Petitioner at 1, Northern, 126 S. Ct. 1689 (No. 04-1618). While these issues are important to note, they are not addressed by the Supreme Court in their decision; therefore, they fall outside of the scope of this note.

(92.) Northern, 126 S. Ct. at 1690.

(93.) Id. at 1692.

(94.) Id.

(95.) This also suggests a zone of doubt as to the treatment of an in rem action under similar facts. The Court doesn't touch on this situation.

(96.) Northern, 126 S. Ct. at 1693; see Brief for the Respondent at 8, Northern, 126 S. Ct. 1689 (No. 04-1618).

(97.) Northern, 126 S. Ct. at 1693-95.

(98.) Id. at 1693.

(99.) See supra part II. A.

(100.) Northern, 126 S. Ct. at 1693 (citing Workman, 179 U.S. at 565 (municipalities, unlike states, do not enjoy a constitutionally protected immunity from suit); Lincoln County v. Luning, 133 U.S. 529, 530 (1890) (same); Alden, 527 U.S. at 722 (same); Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 280 (1977) (same); Lake Country Estates, 440 U.S. at 401 (same); Jinks v. Richland County, 538 U.S. 456, 466 (2003) (same)).

(101.) Id.

(102.) Id. at 1694.

(103.) Id.; see discussion supra part II.B.

(104.) Northern, 126 S. Ct. at 1693.

(105.) Id.; see also The Federalist No. 39, at 245 (James Madison) (Clinton Rossiter ed., 1961).

(106.) Northern, 126 S. Ct. at 1693 n.2 ("it is unclear whether the Respondent believes that residual immunity is common-law immunity that has been unaltered by federal substantive law, or, as the Solicitor General appears to believe, a constitutionally based immunity that is distinguishable from the one drawn from the constitutional structure. In either case, it appears that the residual immunity would serve to extend sovereign immunity beyond its pre-ratification scope"); see Transcript of Oral Argument at 16, Northern, 126 S. Ct. 1689 (No. 04-1618) ("what Respondent calls residual sovereign immunity ... is the doctrine of constitutional sovereign immunity").

(107.) Northern, 126 S. Ct. at 1693 n.2.

(108.) Id.

(109.) Id. at 1694.

(110.) Id.

(111.) Id.

(112.) Northern, 126 S. Ct. at 1694.

(113.) Id.

(114.) Id.

(115.) Id.

(116.) Id.; see also The Federalist No. 80, at 478 (Alexander Hamilton) (Clinton Rossiter ed., 1961):

It has been doubted whether this amendment [Eleventh Amendment] extends to cases of admiralty and maritime jurisdiction, where the proceeding is in rem and not in personam. There [in an in rem action] the jurisdiction of the court is founded upon possession of the thing; and if the states should interpose a claim for the property, it does not act merely in the character of a defendant but as an actor. Besides, the language of the amendment is, that the 'judicial power of the United States shall not be construed to extend to any suit in law or equity.' But a suit in the admiralty is not, correctly speaking, a suit in law or in equity but is often spoken of in contradiction to both.

(117.) Northern, 126 S. Ct. at 1694 (Workman held that such immunity "afforded no reason for denying redress in a court of admiralty for the wrong which . . . [had] been committed" by the City of New York).

(118.) Northern, 126 S. Ct. at 1694.

(119.) Id.

(120.) Id. at 1695.

(121.) Id. (Article III, Section 2 of the Constitution confers judicial power in cases of law and equity).

(122.) Northern, 126 S. Ct. at 1695.

(123.) Id.

(124.) Id.

(125.) Id.

(126.) Id.

(127.) Id. ("[b]ecause here, as in Workman and in contrast to Ex parte New York, the defendant is an entity generally within the jurisdiction of the [d]istrict [c]ourt, Ex parte New York is inapposite, and Workman compels the conclusion that the County is unprotected by sovereign immunity").

(128.) Id. ("[b]ecause the County has failed to demonstrate that it was acting as an arm of the State when it operated the Causton Bluff Bridge, the County is not entitled to immunity from Northern's suit").

(129.) Id.

(130.) Northern, 126 S. Ct. at 1695.

(131.) Because Northern involves an in personam admiralty action, the scope of sovereign immunity with respect to in rem admiralty issues is not at issue. Brief for the United States as Amici Curiae, Northern, 126 S. Ct. 1689. See supra note 44 and its related discussion on treatment of in rem in contrast to in personam suits.

(132.) Phillip Bobbitt, The Modalities of Constitutional Argument, in constitutional Interpretation 12-22, at 1 (Oxford, Blackwell 1991). Doctrinal constitutional decisions apply rules generated by precedent. Id.

(133.) Phillip Bobbin, The Modalities of Constitutional Argument, in Constitutional Interpretation 12-22, at 1 (Oxford, Blackwell 1991). Doctrinal constitutional decisions apply rules generated by precedent.

(134.) Brief for the Petitioner at 7, Northern, 126 S. Ct. 1689 (No. 04-1618).

(135.) Wythe Holt, "To Establish Justice": Politics, the Judiciary Act of 1789, and the Invention of the Federal Courts, 1989 Duke L.J. 1421, 1427-30(1989).

(136.) Id.

(137.) See Brief for the United States as Amici Curiae Supporting Petitioner at 9, Northern, 126 S. Ct. 1689 (No. 04-1618). According to Bobbin, historical approaches to construing the text of the Constitution refer back to what a particular provision is thought to have meant to its ratifiers. Bobbin, supra note 132, at 1.

(138.) See Brief for the United States as Amici Curiae Supporting Petitioner at 9, Northern, 126 S. Ct. 1689 (No. 04-1618).

(139.) See Brief for the United States as Amici Curiae Supporting Petitioner at 9, Northern, 126 S. Ct. 1689 (No. 04-1618).

(140.) Northern, 126 S. Ct. at 1695.
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