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Friday, May 20, 2022

Maritime Logistics Professional

Constitutional Collision Course

Posted to Global Maritime Analysis with Joseph Keefe (by on April 28, 2017

The Galveston-Texas City Pilots act to head off local federal pilots who want to compete for business in a previously closed space. Their motion in Galveston County District Court may instead force the State to rule on a matter that may or may have not had legs to begin with. That’s something that every pilot group from coast-to-coast will be watching quite closely – and rightly so. 

The story, by now, is a familiar one to all of us. In Galveston, Texas, the drama widens as a group of federally licensed pilots petition for the right to pilot registered, deep draft tonnage on Galveston Bay. The effort involves maritime professionals who don’t necessarily want to join the local GalTex group; instead, they want to form their own competing association. These federal pilot hopefuls base their argument for a State Issued license, in part, on the premise that “Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed, nor shall the law of primogeniture or entailments ever be in force in this State.” That – apparently – is Texas state law. Or, when it comes to state pilot monopolies in the Lone Star State; maybe not.

The U.S. system of marine pilot oversight is also a familiar scheme. Individual states have the right to govern commerce on their own waterways as they see fit. When it comes to deciding who will be trusted to guide large, deep draft tonnage into their blue water ports, the standard business model calls for one association – typically described as ‘state pilots’ – to perform all of this work (at least the registered, foreign flag variety), without outside competition, governed by a local pilot board of one sort or another.

Occasionally, there comes a challenge to the status quo, which, in most cases, is easily brushed aside. State pilots have deep pockets, staying power when it comes to protracted disputes, friends in high places, and real incentives to ensure that nothing changes. This time, it could be different. If so, the local state pilots may have no one to blame but themselves.

You can’t put the toothpaste back into the tube once it has been squeezed out. Acting in court to defend themselves against something which hasn’t even happened is one thing. Aiming their fire in the wrong direction and arguably in the wrong venue is another. And now, something which was probably just a minor annoyance has developed into a full-blown test of whether a system of marine safety and oversight which has existed for decades is, in fact, legal.

Justin Renshaw, attorney for five federal pilot hopefuls, had this to say: “Procedurally, the Pilots and their counsel missed the mark for many reasons, particularly suing an entity with nothing before the Board. But I think the bottom line is that the Pilots are still trying to dictate the process by which they are governed. The law does not allow them to do that free from anti-trust accountability. They may not like it, but it is precisely what they are seeking with this suit – to be declared free from anti-trust accountability.” And, up until now, Renshaw – working pro bono – hasn’t done much beyond submit applications to the local pilot board and attend a few (reportedly contentious) pilot board meetings. On one level, he certainly has made someone, somewhere, quite nervous. That, by any legal standard, is pretty impressive.

This case is likely headed to court. And, says Renshaw, owing to the ‘constitutional’ nature of the matter, the proper venue is Austin. The GalTex Pilots (arguably) settled that discussion when they asked the court to declare that the statutory requirements for appointing Branch and Deputy Pilots in Galveston County found in Chapter 67 of the Texas Transportation Code do not create an unconstitutional monopoly under the Texas Constitution … What happens next is anyone’s guess, but for now, this is one pilot dispute which doesn’t hinge on who has the most money to pay for attorneys.

Specifically, the GalTex pilots ask, “Does the Application Process for Deputy and Branch Pilots in Galveston County contained in Chapter 67 of the Texas Transportation Code violate Article 1, Sec. 26 of the Texas Constitution Prohibiting Monopolies?” In doing so, they have rolled the dice that the answer they get is the one they want. That’s anything but certain. Nevertheless, I’m told that a good attorney never asks a question in court that he or she already doesn’t already know the answer to. Do they know something that we don’t? And, what if the answer is yes?

This month, ground zero for state and federal pilots everywhere is most certainly Galveston, Texas. Soon, that battleground could move to Austin, Texas. State Pilots (everywhere else) are surely hoping that it doesn’t then migrate to Washington, D.C. – MarPro

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Joseph Keefe is a 1980 (Deck) graduate of the Massachusetts Maritime Academy and lead commentator of MaritimeProfessional.com. Additionally, he is Editor of both Maritime Logistics Professional and MarineNews magazines. He can be reached at jkeefe@maritimeprofessional.com or at Keefe@marinelink.com. MaritimeProfessional.com is the largest business networking site devoted to the marine industry. Each day thousands of industry professionals around the world log on to network, connect, and communicate.

Tags: State Pilot Federal Pilot