Publication Title

Journal of Maritime Law and Commerce


dormant Commerce Clause

Document Type



In examining federalism issues relevant to merchant vessels, this article will distinguish between those laws and regulations governing liability for harm and those which regulate safety. Federalism questions arise most frequently in the former, private, maritime law domain, when courts are called upon to determine judicial jurisdiction and the extent to which state law may be applied to adjudicate liability and damages in cases falling within the admiralty and maritime jurisdiction. Less frequently, the federalism debate focuses on public maritime law, when states seek to regulate commercial vessel safety or vessel-source pollution.

This article will begin with an examination of the constitutional allocation of federal and state powers relevant to regulation of merchant vessel safety and vessel-source pollution prevention. Next, it describes the constitutional limitations on the states' exercise of their police powers, focusing on the "dormant" Commerce Clause doctrine and the Court's preemption and supersession jurisprudence. The article will then examine the principal international conventions and related United States statutes which make up the foreign relations law of the United States that will typically be relevant in a preemption analysis of state merchant vessel safety and pollution prevention laws and regulations. Finally, the article will identify weaknesses in the current approach to analyzing preemption challenges, propose a new approach and apply the new approach to issues raised by state regulation of merchant vessel-construction, design, equipment, or manning, merchant vessel operations, and vessel-source polluting discharges or emissions.



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