The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_1950/91_1950.zc1

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SUPREME COURT OF THE UNITED STATES
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No. 91-1950
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AMERICAN DREDGING COMPANY, PETITIONER v.
WILLIAM ROBERT MILLER
on writ of certiorari to the supreme court
of louisiana
[February 23, 1994]

  Justice Stevens, concurring in part and concurring in
the judgment.
  It is common ground in the debate between the Court
and Justice Kennedy that language from the majority
opinion in Southern Pacific Co. v. Jensen, 244 U. S. 205
(1917), correctly defines this Court's power to forbid
state tribunals from applying state laws in admiralty
cases.  See ante, at 3, post, at 2.  In my view, Jensen is
just as untrustworthy a guide in an admiralty case
today as Lochner v. New York, 198 U. S. 45 (1905),
would be in a case under the Due Process Clause.
  In the Jensen case, five Members of this Court con-
cluded that the State of New York did not have the
authority to award compensation to an injured long-
shoreman because application of the state remedy would
interfere with the -proper harmony and uniformity- of
admiralty law.  244 U. S., at 216.  Justice Holmes'
dissenting opinion in Jensen, no less eloquent than his
famous dissent in Lochner, scarcely needs embellish-

ment.  See id., at 218-223.  Nonetheless, like Lochner
itself, Jensen has never been formally overruled.
Indeed, in Knickerbocker Ice Co. v. Stewart, 253 U. S.
149 (1920), the same majority that decided Jensen
reached the truly remarkable conclusion that even
Congress could not authorize the States to apply their
workmen's compensation laws in accidents subject to
admiralty jurisdiction.  See also Washington v. W. C.
Dawson & Co., 264 U. S. 219 (1924).
  As Justice Brandeis stated in dissent in Washington,
it takes an extraordinarily long and tenuous -process of
deduction- to find in a constitutional grant of judicial
jurisdiction a strong federal pre-emption doctrine
unwaivable even by Congress.  See id., at 230-231.
Jensen and its progeny represent an unwarranted asser-
tion of judicial authority to strike down or confine state
legislation-even state legislation approved by Act of
Congress-without any firm grounding in constitutional
text or principle.  In my view, we should not rely upon
and thereby breathe life into this dubious line of cases.
  Jensen asks courts to determine whether the state law
would materially impair -characteristic features- of
federal maritime law.  244 U. S., at 216.  The unhelpful
abstractness of those words leaves us without a reliable
compass for navigating maritime pre-emption problems.
As Justice Kennedy demonstrates, the forum non
conveniens doctrine may be classified as a -characteristic
feature- of federal admiralty jurisprudence even though
it did not originate in, nor is it exclusive to, the law of
admiralty.  Compare ante, at 5-7 with post, at 2-6.
There is, however, no respectable judicial authority for
the proposition that every -characteristic feature- of
federal maritime law must prevail over state law.
  As Justice Kennedy observes, post, at 1-2, it is not
easy to discern a substantial policy justification for
Louisiana's selective -open forum- statute, which
exempts only federal maritime and Jones Act claims
from the State's general forum non conveniens policy.
The statute arguably implicates concerns about disrup-
tive local restrictions on maritime commerce that help
explain why admiralty has been a federal subject.  I am
not persuaded, however, that the answer to those
concerns lies in an extension of the patchwork maritime
pre-emption doctrine.  If this Court's maritime pre-
emption rulings can be arranged into any pattern, it is
a most haphazard one.  See generally Currie, Federalism
and the Admiralty: -The Devil's Own Mess,- 1960 S. Ct.
Rev. 158.  Such a capricious doctrine is unlikely to aid
the free flow of commerce, and threatens to have the
opposite effect.
  In order to decide this case, it is enough to observe
that maritime pre-emption doctrine allows state courts
to use their own procedures in Savings Clause and
Jones Act cases, see Offshore Logistics, Inc. v. Tallentine,
477  U. S. 207, 222-223 (1986), and that forum non
conveniens is, as the Court observes, best classified as a
kind of secondary venue rule.  Equally significant is
the fact that Congress, which has unquestioned power to
decree uniformity in maritime matters, has declined to
set forth a federal forum convenience standard for
admiralty cases.  Ante, at 12-15.  It also appears to
have withheld from Jones Act defendants the right of
removal generally applicable to claims based on federal
law.  See 28 U. S. C. 1445(a); 46 U. S. C. App.
688(a); In re Dutile, 935 F. 2d 61, 62 (CA5 1991).
Congress may -determine whether uniformity of regula-
tion is required or diversity is permissible,- Washington,
264 U. S., at 234 (Brandeis, J., dissenting).  When
relevant federal legislation indicates that Congress has
opted to permit state -diversity- in admiralty matters, a
finding of federal pre-emption is inappropriate.  Just as
in cases involving non-maritime subjects, see, e.g.,
Cipollone v. Liggett Group, Inc., 505 U. S. ___, ___ (slip
op., at 9) (1992), we should not lightly conclude that the
federal law of the sea trumps a duly enacted state
statute.  Instead, we should focus on whether the state
provision in question conflicts with some particular
substantive rule of federal statutory or common law, or,
perhaps, whether federal maritime rules, while not
directly inconsistent, so pervade the subject as to
preclude application of state law.  We should jettison
Jensen's special maritime pre-emption doctrine and its
abstract standards of -proper harmony- and -characteris-
tic features.-
  The Jensen decision and its progeny all rested upon
the view that a strong pre-emption doctrine was neces-
sary to vindicate the purpose of the Admiralty Clause to
protect maritime commerce from the -unnecessary
burdens and disadvantages incident to discordant
legislation[.]-  Knickerbocker Ice Co., 253 U. S., at 164.
See also Washington, 264 U. S., at 228; Jensen, 244
U. S., at 217.  Whether or not this view of the Clause
is accurate as a historical matter, see Castro, The
Origins of Federal Admiralty Jurisdiction in an Age of
Privateers, Smugglers and Pirates, 37 Am. J. Legal Hist.
117, 154 (1993) (original purpose of Clause was to
ensure federal jurisdiction over prize, criminal and
revenue cases; private maritime disputes were viewed as
matters for state courts), protection of maritime com-
merce has been a central theme in our admiralty
jurisprudence.  While I do not propose that we abandon
commerce as a guiding concern, we should recognize
that, today, the federal interests in free trade and
uniformity are amply protected by other means.  Most
importantly, we now recognize Congress' broad authority
under the Commerce Clause to supplant state law with
uniform federal statutes.  Moreover, state laws that
affect maritime commerce, interstate and foreign, are
subject to judicial scrutiny under the Commerce Clause.
And to the extent that the mere assertion of state
judicial power may threaten maritime commerce, the
Due Process Clause provides an important measure of
protection for out-of-state defendants, especially foreign-
ers.  See Asahi Metal Industry Co., v. Superior Court of
California, Solano County., 480 U. S. 102 (1987);
Helicopteros Nacionales de Colombia v. Hall, 466 U. S.
408 (1984).  Extension of the ill-advised doctrine of
Jensen is not the appropriate remedy for unreasonable
state venue rules.
  Accordingly, I concur in the judgment and in Part II-C
of the opinion of the Court.