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Waiver of Exemption

The general rule of sovereign immunity in admiralty cases is that a sovereign, whether the U.S.government, the U.S. states or a foreign sovereign having friendly relation with the U.S., is exempted from the U.S. admiralty jurisdiction.  Accordingly, a sovereign can be sued only with its consent.  However, this exemption enjoyed by a sovereign in admiralty jurisdiction can be waived.

Congress is empowered to waive the exemption from admiralty jurisdiction granted to the U.S. government.  When Congress waives the exemption it means that courts can proceed with trial of a suit against the U.S. government or other sovereign.  Waiver of exemption can be express of implied.  When the U.S. sues for damages inflicted on its vessel or cargo, there is implied waiver of exemption on the part of the U.S. to counter suit on same transaction by other party.  Sovereign immunity is waived especially in cases where the vessel or cargo was not owned directly by a sovereign and was privately owned or possessed.  A proceeding to decide on the question of waiving the exemption can be maintained in admiralty courts.  However, a waiver is usually construed strictly in favor of the U.S.’s interest, because the U.S. cannot be sued in its courts without its consent.[i]

When an action is brought by the U.S. to recover damages from a party who has a legal claim against the state, his/her right of set off cannot be denied.[ii] The U.S. cannot be sued in a state court, thus an admiralty suit against the U.S. has to be filed in federal court.[iii]

In Ex parte State of New York No, 2, 256 U.S. 503, the court observed that a vessel owned and possessed by a state and employed exclusively for its governmental purposes is exempt from seizure for a tort caused by the vessel’s negligent operation.  However, the state or commonwealth may waive its immunity to admiralty claims under its tort claims act.

State sovereign immunity is different from federal sovereign immunity.  Federal sovereign immunity is a common law doctrine and it states that the federal government cannot be sued without its consent.  On the other hand, state sovereign immunity is a constitutional doctrine which rests on principles of federalism.  Federal courts can order the federal government to act because the court is a part of the federal government.  However, federal court cannot order a state, which is a separate sovereign, to pay damage without the state’s consent.[iv]

The eleventh amendment to the U.S.constitution prohibits suits, including suits in admiralty, by a citizen of a state against any state, including the citizen’s own state, without the state’s consent or unless Congress abrogates a state’s sovereign immunity.  The amendment reflects a fundamental principle of sovereign immunity, and protects states from suits in both federal and state courts.[v].  The Suits in Admiralty Act, (“Act”) 46 U.S.C.S. § 742, waives sovereign immunity of the U.S.  Additionally, the Act grants agents and employees of the U.S. immunity from individual liability.[vi] Also, a general statute allowing the State to enter into contracts implies a waiver of sovereign immunity by the Legislature, when the State is sued for breach of that contract.[vii]

State immunity was discussed in Alden v. State, 1998 ME 200 (Me. 1998).  The court stated that each state is a sovereign entity in the federal system and that it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.  Sovereign immunity protects a state from suit by private parties in its own courts without its consent, even when the cause of action derives from federal law.  In the absence of waiver by the state of its sovereign immunity, a state may constitutionally interpose that immunity as a bar to a class action brought in a state court.  The eleventh amendment to the U.S. constitution precludes the federal courts from circumventing the sovereign immunity of states.  In the absence of a specific statutory waiver of immunity, a legislative waiver of the sovereign’s immunity from suit may be found implicit in a general scheme.  It contemplates that the state will become party to particular kinds of contracts.

[i] Schillinger v. United States, 155 U.S. 163 (U.S. 1894 ).

[ii] . Siren, 74 U.S. 152, 154-155 (U.S. 1869).

[iii] Roth v. Kiewit Offshore Servs., 625 F. Supp. 2d 376 (S.D. Tex. 2008).

[iv] Zych v. Unidentified, Wrecked & Abandoned Vessel, 19 F.3d 1136 (7th Cir. Ill. 1994).

[v] Alden v. State, 1998 ME 200 (Me. 1998).

[vi] Martin v. Miller, 65 F.3d 434 (5th Cir. Tex. 1995).

[vii] Knowlton v. AG, 2009 ME 79 (Me. 2009).

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