(415) 984-8346

VIA FEDERAL EXPRESS

Commission on Structural Alternatives
for the Federal Courts of Appeals
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E.
Washington, D.C. 20544

Re:	Hearing Before the Commission on Structural Alternatives for the Federal Courts of Appeals, in San Francisco, May 29, 1998

Dear Justice White and Members of the Commission:

My name is Walter Johnson, and I am a partner in the San Francisco and Long Beach-based law firm of Lillick & Charles LLP. Thank you for inviting me to testify before the Commission at the hearings scheduled for May 29, 1998, in San Francisco. I am pleased to submit the following written testimony.

As an attorney who has practiced maritime law in the Ninth Circuit for the last fourteen years, I would like to speak to the Commission about the importance to maritime commerce and to the admiralty bar of preserving the consistency of maritime law in the Pacific Rim region. After graduating from Stanford Law School in 1983 I began my legal career as a law clerk for the Honorable Procter Hug, Jr. Since entering private practice in San Francisco in 1984 I have practiced primarily in the federal courts and have appeared perhaps a dozen times before the Ninth Circuit, most often on admiralty matters. I therefore speak as one who knows the Ninth Circuit from both inside and out.

The admiralty practice, perhaps more than any other area of legal specialty, is not only national but international in scope. The Constitutional grant of original jurisdiction over admiralty to the federal courts is an implicit acknowledgment that the uniform administration of maritime law is good for maritime commerce. The Supreme Court of the United States has repeatedly endorsed the concept of uniformity in maritime law, from The Lottawana (Rodd v. Heartt), 21 Wall. 558 (1875), to Miles v. Apex Marine, 498 U.S. 19 (1990). It was Justice Bradley in The Lottawana who said the following:

One thing . . . is unquestionable: the Constitution must have referred to a system of law co-extensive with and operating uniformly in the whole country. It certainly could not have been the intention to place the Rules and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign States. [21 Wall. at 575]

In an ideal world -- ideal at least for maritime attorneys -- where we truly have "a system of law co-extensive with and operating uniformly in the whole country," we would not have the admiralty law of the Fifth Circuit, the admiralty law of the Second Circuit, the admiralty law of the Ninth Circuit, and so forth. We would have a single admiralty court of appeals whose territory would be the entire United States. I realize that this kind of radical restructuring is not exactly what the Commission has been formed to consider; but I must tell you that when I asked other maritime attorneys how the appellate courts should be restructured, a surprising number favored the formation of an admiralty court of appeals. The perceived need for uniformity in admiralty law is not just among law professors and Supreme Court justices but also among the rank and file who practice in this area every day.

Sad to say, maritime lawyers do not rule the world. We know we are not going to have an admiralty circuit. But we are very fortunate in the Pacific region to have a single court of appeals that stretches from San Diego to the North Slope of Alaska to Hawaii and the various Pacific islands. Further, notwithstanding the size of the Ninth Circuit and the number of its judges, the Ninth is one of the very soundest and most consistent Circuits in the United States in its doctrines of admiralty and maritime law. This quality brings to maritime legal affairs in the Pacific region a unity, predictability and confidence that are of great value in maritime commerce.

There are special maritime ties between California and the Pacific Northwest. The three principal carriers in the West, American President Lines, Matson Navigation Company, and Crowley Maritime Corporation, almost the last of a depleted industry in the United States, are all based in the San Francisco Bay Area. All have very strong ties and major operations in Puget Sound. There are also major ties in the carriage of oil between Alaska and California. A number of waterfront industries, most notably stevedores and terminal operators, are fully engaged in interstate operations on this Coast and employ many workers, as do the steamship companies. The Pacific Maritime Association, which has represented both the waterfront and steamship employers up and down the Pacific Coast for decades, is an important agency here in the maintenance of labor peace and the promotion of maritime prosperity. I believe that all of these operations, and many more in the maritime industry, proceed more confidently on the basis that the law in California is the same as the law in Alaska, Washington, and Oregon.

The Atlantic and Gulf Coasts are not unified under a single circuit as we are here in the Pacific region, and maritime commerce somehow manages to carry on nonetheless. My point is not that maritime commerce will wither and die if the Ninth Circuit is split. Our Supreme Court does review admiralty decisions from time to time, and a fair degree of uniformity in maritime law has been achieved throughout the country. But there are innumerable differences among the circuits in the details, and it is on that level that lawyers give their most important advice. Our clients already know the law in its general outlines; it is the details that concern them: What must my bill of lading say if I want my foreign arbitration clause to be enforced? What must I pay an injured seaman for "maintenance"? What must my ship repair contract say if I want to limit damages? How should I go about foreclosing on a preferred ship mortgage if I want to collect the deficiency? What liabilities does my company face in the event of an oil spill? It helps us as legal advisors, and it helps our Pacific region clients, when we can give them a single answer. It is especially helpful when we can give a single answer to our clients in Japan, China, Korea, and other Pacific Rim trading partners. To many of those clients the multiplicity of American law is already a daunting enigma. They are wary of it, and we are not always able to be reassuring.

I cannot tell you precisely how the splitting of the Ninth Circuit would harm maritime commerce in the Pacific region, and I have no way of predicting what inconsistencies would arise. I am absolutely certain, however, that inconsistencies would arise and that the harm would be real. In view of the vast potential for the growth of maritime commerce among Pacific Rim nations in the twenty-first century, I ask this Commission to consider the importance of maintaining a single federal court of appeals for the entire region.

There are, as the Commission will no doubt hear, many other reasons for keeping the Ninth Circuit together as a single court. I will not speak to those other reasons except to say that I have always found it a pleasure to deal with the Ninth Circuit. It is very well administered and gives excellent service in the face of an enormous work load. From the quality of the opinions that it writes to the quality of the answers that I get when I have to call the Clerk's office with questions about an appeal that I am handling, the Ninth Circuit sets a very high standard.

I thank the Commission for this opportunity to present my views as a maritime attorney. I would be happy to provide additional information or to assist the Commission further in any way that I can.

Respectfully,

Walter T. Johnson
of Lillick & Charles LLP

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cc:	Hon. Procter Hug, Jr. (w/o enclosure)