This Week’s Brief: March 30

Editor’s Note: In light of the COVID-19 pandemic, the Supreme Court remains closed to the public. The building is open for official business only. March and April oral arguments have been postponed, and filing deadlines for petitions have been extended. The Justices are conducting their private conferences remotely. Orders and opinions continue to be issued as scheduled, but the Justices will not take the bench.

This week saw a lighter load for the Justices. They issued one opinion (from Justice Sotomayor) in a case that blends maritime and contract law and released an orders list in which they added one case to next term’s docket. Oral arguments that had been scheduled for this week did not take place, postponed out of caution for the health and safety of the Court’s employees. The Court also announced further changes in light of COVID-19: Oral arguments scheduled for the April sitting have been postponed too. The Court stated it will consider rescheduling some cases from the March and April sittings toward the end of June, but only “if circumstances permit in light of public health and safety guidance at that time.” Otherwise, it will be looking at a stunted oral argument calendar and a lengthy layover until O.T. 2020. Here’s your brief for the week of March 30.


This Week:
Decisions: 1
Oral Arguments: 0*
Cert. Grants: 1 (O.T. 2020)
GVRs: 3

O.T. 2019:
Cases Decided: 20
Cases Remaining: 51
Weeks Left in Term: 12

*Oral arguments scheduled for this week were postponed due to COVID-19.



First thing Monday morning, the Court released a less-than-earth-shattering orders list. Only one case was added to next term’s docket: Brownback v. King, which concerns the scope of the Federal Tort Claims Act of 1946 and a claim for damages under Bivens v. Six Unknown Fed. Narcotics Agents (1971). The Court granted, vacated, and remanded three cases in light of two decisions issued last week, Comcast Corp. v. Nat’l Assn. of African American-Owned Media and Guerrero-Lasprilla v. BarrNone of the cases denied cert garnered any significant attention.


The Court released one opinion after the orders list on Monday: CITGO Asphalt Refining Co. v. Frescati Shipping Co.Ltd., an esoteric case involving the interpretation of a clause in a shipping contract under maritime law. The question, which featured a circuit split, was whether a “safe berth” clause in a maritime voyage charter contract functions as a guarantee of a shipping route’s safety or, instead, as simply a duty for the chartering company to conduct its due diligence to chart a safe route. Justice Sonia Sotomayor, writing for a 7:2 majority, held the former: the clause establishes a “warranty” for a ship’s safety. Chief Justice Roberts and Justices Ginsburg, Breyer, Kagan, Gorsuch, and Kavanaugh joined in the opinion.

Frescati Shipping Company owned Athos I, a 748-ton oil tanker. Frescati leased the Athos I to Star Tankers, who subleased her to CITGO Asphalt Refining Company (CARCO). Chartered by CARCO, the Athos I was sailing up the Delaware River when on November 26, 2004, near the end of her 1900-mile journey from Venezuela to New Jersey, she struck a submerged anchor. 264,000 gallons of heavy crude oil spilled from her punctured hull into the river.

Under the 1990 Oil Pollution Act (33 U.S.C. §2702(a)), Frescati (Athos I‘s owner) and the federal government covered the initial cleanup costs. They then sought to reclaim the $100+ million in costs from CARCO. For Frescati’s part, the company argued that CARCO had broken a clause in the charter contract between Star Tanker and CARCO. The clause provides, as relevant, that the Arthos I “shall load and discharge at any safe place or wharf . . . which shall be designated and procured by the Charterer [CARCO], provided the [Arthos I] can proceed thereto, lie at, and depart therefrom always safely afloat, any lighterage being at the expense, risk and peril of [CARCO].” This clause, aptly named a “safe berth” clause, is common in many shipping contracts. Frescati asserted that the safe berth clause was meant to guarantee the Arthos I‘s safety to port, and thus that CARCO had breached the clause and was at fault for the oil spill. CARCO responded that the clause imposed only a requirement to conduct its due diligence in finding a safe port—not a broader liability for accidents that happen during the voyage. In other words, the clause directed CARCO only to search for and select a safe port, which CARCO did. What happened to the ship along the way is immaterial so long as the port to which she is sailing is itself “safe.”

Justice Sotomayor sides with Frescati. She begins, appropriately, by analyzing the language of the contract. “Maritime contracts ‘must be construed like any other contracts: by their terms and consistent with the intent of the parties,'” she says (quoting Norfolk Southern R.R. Co. v. James N. Kirby, Pty. Ltd. (2004)). The safe berth clause here requires the charterer to “designat[e] and procur[e]” a “safe place or wharf,” “provided [that] the Vessel can proceed thereto, lie at, and depart therefrom always safely afloat.” This “plainly imposes” on CARCO “at least some ‘duty to select a ‘safe’ berth,'” she asserts. The scope of that duty is also clear: CARCO must designate a “safe berth,” which Sotomayor says means “a berth ‘free from harm or risk'” (quoting the Webster’s Collegiate Dictionary’s definition of “safe”). And that berth “must allow the vessel to come and go ‘always‘ safely afloat: That means afloat ‘at all times’ and ‘in any event,'” citing to another dictionary definition. Thus, Sotomayor concludes that the safe berth clause here “binds the charterer to a warranty of safety.”

She next discards CARCO’s due-diligence interpretation. Sotomayor cites the fundamental tenet of contract law that a party obliged to do something is “liable in damages for breach of contract even if he is without fault” (citation omitted). So here, CARCO still breached the language of the contract’s safe berth clause despite the fact that it isn’t (strictly speaking) CARCO’s fault that the Arthos I collided with an anchor. Moreover, while contract law “generally does not, by its own force, limit liability based on tort concepts of fault,” says Sotomayor, “parties are of course free to contract for such limitations.” But the parties clearly didn’t do that in this contract. “CARCO does not identify—nor can [Sotomayor] discern—any language in the clause hinting at ‘due diligence’ or related concepts of ‘fault.'” CARCO’s other arguments—all hinging on general maritime law exceptions or specific “fault” limitations in contract law—similarly “find no foothold in the language of the charter party at issue here.”

Thus, Sotomayor holds that the plain language of the safe berth clause at issue here functions as a “warranty” (a guarantee) of the Arthos I‘s safety and that CARCO has not advanced any convincing reason to contravene the clause’s meaning. A win for Frescati, and a gash to the side of CARCO.

Justice Clarence Thomas (joined by Justice Alito) dissented, coming to the opposite conclusion. He would hold that the plain language of the safe berth clause does not create a “warranty” for safety.

Thomas reads the clause at base as imposing not a duty on CARCO to find a safe berth, but a right to do so. Thomas says CARCO “has the right to ‘designat[e]’ a ‘safe place or wharf’ for discharge.” But, asserts Thomas, that right is limited where the vessel is unable to “lie at, and depart” from that berth “always safely afloat.” Thomas also argues that this reading follows from another case in 1902, Mencke v. Cargo of Java Sugar, in which the Court interpreted a safe berth clause as limiting the “right to select a dock.”

Because Thomas does not think the language of the contract explicitly guarantees a “warranty” of safety, he would remand the case to allow a lower court to conduct factfinding on this issue.


The Court held no proceedings Tuesday through Thursday. Oral arguments that had been scheduled during these days were postponed.


The Court announced Friday afternoon that oral arguments scheduled for the month of April are postponed. In a press release, the Court said it “will consider rescheduling some cases from the March and April sessions before the end of the Term, if circumstances permit in light of public health and safety guidance at that time.” Normally the end of the term is the last week in June, but we may well still be feeling the effects of COVID-19 at that time. So, the Court “will consider a range of scheduling options and other alternatives if arguments cannot be held in the Courtroom before the end of the Term.” The press release further stated that orders and opinions will continue to be released on schedule; that the Supreme Court building remains open only for official business, although most employees are working remotely; and that the building remains closed to the public.

The Court also conducted its weekly, private conference. The Justices reviewed the petitions on their docket and debated whether to grant review for any of them. Out of an abundance of caution, only Chief Justice Roberts was actually present in the Supreme Court building; the other eight Justices took part in the conference over the phone. We can expect news from this conference in the Court’s next orders list on Monday. Some high profile cases the Justices are considering include:

  • Box v. Planned Parenthood of Indiana & Kentucky, Inc. This case challenges an Indiana state abortion law that requires women who seek an abortion to, among other things, undergo a fetal ultrasound eighteen hours before the abortion is performed. The question presented is whether such an ultrasound requirement violates a woman’s Fourteenth Amendment rights.
  • Arlene’s FlowersInc. v. Washington. This case is a mirror-image to that of Masterpiece CakeshopLtd. v. Colorado, on whose merits the Court punted in 2018. The questions before the Court are (1) whether a state violates a floral designer’s Free Exercise and Free Speech rights by forcing her to create custom floral arrangements celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and (2) whether the Free Exercise Clause’s prohibition on religious hostility applies to the executive branch.
  • United States v. California. This case involves the Trump administration’s challenge to California’s statewide “sanctuary” law. The law prohibits state law-enforcement officers from providing information about immigrants (both legal and illegal) to federal immigration officials. The question before the Court is whether federal immigration law preempts California’s sanctuary law—and others like it in cities and states around the country—under the Supremacy Clause of the Constitution.
  • Worman v. Healey. This case concerns a Massachusetts state law that bans, inter alia, semiautomatic “assault weapon[s]” and magazines capable of accepting 10+ rounds of ammunition. The question presented is whether that law violates the Second Amendment to the Constitution.
  • Malpasso v. Pallozzi. This is a constitutional law case asking whether a state law that categorically prohibits residents from carrying handguns outside the home for self-defense violates the Second Amendment.
  • Reisman v. Associated Faculties of the University of Maine. This case mixes labor unions with the Free Speech Clause of the First Amendment. The question presented is whether it violates the First Amendment to designate a labor union to represent and speak on behalf of public-sector employees who object to its advocacy.
  • Territory of Guam v. Davis. This case concerns a unique Fifteenth Amendment challenge to a political referendum Guam undertook under the 2000 Plebiscite Law. The federal territory allowed only “native inhabitants of Guam” to vote on the island’s future political status with the United States. The question presented is whether the Fifteenth Amendment permits Guam to invite only “native inhabitants of Guam” to participate in a potential political-status plebiscite that would yield only a nonbinding, symbolic expression of self-determination preferences.
  • Collins v. Mnuchin. This case concerns a constitutional challenge to the structure of the Federal Housing Finance Agency (FHFA), a mirror-image case to that of Seila Law v. CFPB, the challenge to the structure of the Consumer Financial Protection Bureau. The questions presented in Collins are (1) whether the structure of the FHFA violates the separation of powers, and if so (2) whether the actions of the FHFA must be annulled and the statute creating its structure struck down.
The Week Ahead

The Court is now between sittings, though the next oral arguments that had been scheduled for the latter part of April have been postponed.

On Monday the Justices at 9:30am EDT will release orders from Friday’s conference. At 10:00am EDT there is a possibility of opinions. No other official proceedings are scheduled for the rest of the week.

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