Jim Maloney


Fort Schuyler (no bridge)




The State University of New York Maritime College at Fort Schuyler is the nation’s oldest maritime school, with origins dating back to 1874. The school has been at its present location since the 1930s, after FDR, in his last act as governor of New York, signed a lease with the War Department so that New York could use the land and the fort at the historic peninsula in the Bronx as the permanent home of the state’s maritime school.


By 1950, the maritime school at Fort Schuyler had become part of the State University of New York (SUNY), and was known as SUNY Maritime College. In that year, Congress, responding to requests that the federal land be deeded over to the state, passed a federal statute, Public Law 81-755. This statute allowed transfer of title to New York subject to some very specific conditions. Congress, recognizing the federal sovereign interest in nautical education, wanted assurances that the land would be used perpetually and exclusively for that purpose, and deliberated the matter carefully before allowing the property at Fort Schuyler to be conveyed to New York. Before the statute was enacted in 1950, there had been considerable public debate and congressional oversight, including several drafts of a bill and a formal report in the House of Representatives. When the 1950 statute was finally signed into law, it specifically provided that the property must, among other things, be used perpetually “as a maritime school, devoted exclusively to purposes of nautical education,” or else title to the property would automatically revert to the United States. A New York statute enacted in 1951 reaffirmed that the State, and specifically SUNY, accepted the property subject to that condition. After both statutes were in place, the United States granted the land to New York under a 1956 deed incorporating the same provision, worded identically. Thus, the federal statute, the state statute, and the deed all say the same thing: that the State must use the real property at Fort Schuyler “as a maritime school, devoted exclusively to purposes of nautical education,” and that if it does otherwise, title will revert to the United States. It is important to recognize that, under the law of reverter of title, this would occur automatically if the condition is triggered, i.e., if the property is used for any other purpose.


In early 2000, that seemed to be exactly what was about to happen. Plans by SUNY and then-current College President David Brown would have made “nautical education” optional, which is obviously something that cannot satisfy the requirement that “nautical education” be exclusive. In a letter to the Maritime College Community dated July 20, 2000, SUNY Vice Chancellor John O’Connor wrote: “The College will recruit non-cadets for admission in the fall of 2001. Non-cadet recruitment will include transfer, part-time . . . and commuter students.” Such incoming students would “have the opportunity to live on campus, if there is available space,” and would “have the opportunity to go on at least one sea term,” but would be free to opt out of those more rigorous parts of the educational program (regiment, seamanship, at-sea training, etc.) that have historically always been a part of the Maritime College undergraduate education.


It is clear that such new non-cadet students would not be required to learn the practical skills of seamanship, nor would they be required to complete training cruises or to participate in the cadet regiment. But hands-on training in seamanship, underway and ashore, as well as training in chain of command, watchstanding and self-discipline, are the “nautical” components of the Maritime College education, since it is those components that impart to students the skills necessary to become competent seamen. Making those nautical components optional not only would undermine the traditional program but, more to the point, would arguably trigger automatic reverter of title, putting the school itself at grave risk.


A dictionary in print when the statutes were drafted defines the word “nautical” as “pertaining to seamen or to the art of navigation.” The same dictionary defines “maritime” far more broadly, with definitions including “bordering on the sea,” “connected with the sea,” “relating to or dealing with matters of commerce or navigation on the sea,” and, lastly, “nautical.” Thus, “maritime” is broader, and includes “nautical,” but not the other way around. Any education that is “nautical” will also therefore be “maritime,” but not every “maritime education” would qualify as a “nautical education.” It seems reasonable, since “nautical” means “pertaining to seamen or to the art of navigation,” that the distinguishing attribute of a “nautical education” is that it includes components designed to teach something of the skills and attitudes required to become a competent seaman. The maritime school at Fort Schuyler has in fact always been devoted exclusively to nautical education of that very sort, going back to well before 1950 when the statute was enacted. Participation in hands-on training in seamanship, chain of command, watchstanding and self-discipline has always been required of all undergraduate students. Given that history, coupled with the dictionary definitions quoted above, Congress could not have used the phrase “nautical education” in the statute to mean “maritime education.”


But that is essentially the position that SUNY was taking in 2000. SUNY governance appeared to believe that, as long as all undergraduate programs include some classroom study of things maritime (such as oceanography), the statutory requirement would be met, even if students in these new programs never learn to tie a bowline, stand a watch, or distinguish the blunt end from the pointy end on a ship, let alone set foot on one.


Some people apparently believe that requiring nautical education to be the exclusive form of education at Fort Schuyler is outmoded because the American merchant marine is, by most accounts, not exactly thriving. But such arguments ignore the fact that the American maritime industry overall is bigger than ever. More goods move into and out of U.S. ports than ever before. Can we say that the national interest in providing an education that will yield personnel who can competently and safely manage that massive infrastructure is any less today than it was in the 1950s, when the dual-sovereign deal was made? For one thing, international trade has grown explosively since then, and most of the goods moving into and out of this nation do so by water. For another, back then neither Alaska nor Hawaii was yet a state, but their subsequent admission has only made the United States more dependent internally on waterborne transportation than was the case when New York and SUNY made the deal with the United States during the early 1950s.


Moreover, nautical education, in the sense in which it is defined a few paragraphs back, is valuable in its own right. The attitudes and practices of good seamanship facilitate success in many endeavors, maritime-related or not, whether undertaken in the context of private industry, the military, government service, or the performing arts, to name only some of the areas in which graduates of the traditional program at Fort Schuyler have distinguished themselves.


But the bottom line is this: the words of the federal and state statutes, and of the deed granting Fort Schuyler to the State of New York, all require that the property be used perpetually “as a maritime school, devoted exclusively to purposes of nautical education,” and that if it is ever used for any other purpose, title will revert to the United States. These are the words of law, and if state government officials want to change them, the national and state legislatures, with the countersignatures of their executives (President and Governor), may do just that. The process is called democracy. That’s how those words got “on the books” in the first place, and that’s how they should be amended or deleted if the SUNY or College administration ever finds them inconsistent with their plans. But for public servants to disregard those words, to treat them as if they may be ignored or evaded, simply because the U.S. merchant marine is at the moment relatively small, or because applications to the Maritime College have declined in recent years, is unacceptable in a system of government supposedly based on democratic principles and on the rule of law.


In light of all of the above, and after having been called upon by the Maritime College Alumni Association to give a legal opinion, I filed suit in my own name in federal court in March 2000. My lawsuit sought two things: (1) a judicial declaration of the meaning of “nautical education” in the contexts of the federal statute and of the identical provisions in the state statute and deed; and (2) an order preventing the defendants from making any changes that would trigger reverter of title unless they were prepared to relinquish possession.


I proceeded pro se primarily on the basis that my young sons had a future interest in the existence of the school. I also brought the action qui tam pro domino rege quam pro si ipso in hac parte sequitur (“qui tam”), i.e., on behalf of the federal sovereign, invoking an ancient doctrine that was in existence at the time the Ninth Amendment was ratified. If popular sovereignty in the context of a federal system is to have any meaning, a citizen should be able to seek declaratory judgment on behalf of one sovereign if it appears that the other is about to breach a dual-sovereign compact, especially where the consequences of that breach (automatic reverter of title) would be disastrous. The right to proceed qui tam in such a situation is, I argued, among those “retained by the People.” DESPITE MY HAVING BRIEFED THIS IMPORTANT CONSTITUTIONAL ARGUMENT FULLY BEFORE THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT AND IN MY SUBSEQUENT PETITIONS FOR REHEARING AND FOR CERTIORARI, IT HAS NEVER EVEN BEEN ADDRESSED, EVEN THOUGH THE CASE HAS BEEN FULLY AND FINALLY APPEALED! (In my humble opinion, the utter failure of the federal judiciary in this case, which involves important public resources and even more important constitutional issues, amounts to a certain indicator that neither judicial review nor popular sovereignty remains a reliable component of our current dual-sovereign “democratic” system. Accordingly (and unfortunately), I hold out far greater hopes for federal systems other than the one in this nation where federalism began.)


I acted quickly (which is why I had to act on my own) precisely because I wanted to obtain a judicial determination of what constitutes “exclusively nautical education” BEFORE the changes were made. If the changes were made first and then turned out to have been inconsistent with the statutory provisions and the covenants in the deed, it would, under the law, be too late to make a difference. Title would already have reverted automatically to the United States.


Perhaps the most surprising aspect of the case is that I, a private citizen acting alone, was and remain the only person or entity ever to have sought such a determination of the meaning of the statutes and covenants in the deed. To begin with, one would have hoped that the SUNY officials themselves would have acted responsibly by seeking the opinion of the Attorney General as to the consequences of their proposed changes at the College before proceeding with them. If there were any doubt about whether or not SUNY’s plans were consistent with the statutory requirements, the relevant issues should be decided first and the changes made later. Any other approach risks triggering reverter of title, and thereby puts the institution on shaky ground. But that risky course of action is exactly the one that the SUNY officials initially chose to take (and, in truth, have remained embarked upon). Since the debate began, SUNY has never even publicly acknowledged that the statutes and land-grant provisions exist, let alone that they may have an effect on the scope of their decisions for the use of the land.


One would also have expected that the United States would have appeared in my federal suit in order to vindicate the federal sovereign interest, but the United States Department of Justice, under two Attorneys General (Janet Reno and John Ashcroft), consistently turned a deaf ear to my repeated pleas that they get involved.


Instead, what happened was this: Deborah A. Batts, the federal judge assigned to the case, decided sua sponte that I lacked standing to sue, and dismissed the case without ever hearing any arguments on the very issues that she decided. Her dismissal order was signed on June 1, 2000, after she had granted the New York State Attorney General’s office additional time to respond to the complaint, but without even bothering to wait for the filing of that response. In fact, when Judge Batts dismissed the case, the Assistant Attorney General (Jerry Slater, SUNY Maritime Class of 1959) and I were still exchanging briefs regarding the defendants’ motion to dismiss, which, of course, was never heard by the Court. The foregoing scenario is comparable to a referee’s saying that the next round will decide who wins, and then declaring one fighter the loser before that next round ever starts.


In thus circumventing our system of “adversarial justice,” Judge Batts disregarded the principle that a sua sponte dismissal, entered without giving the dismissed party an opportunity to be heard, is patently unfair. The United States Court of Appeals for the Second Circuit, in fact, had said just that in two cases, one from 1976 and another from 1982. But times, it seems, have changed...


I appealed the dismissal to the Second Circuit, briefing and supporting the constitutional qui tam arguments fully, but those issues, as noted above, were never even addressed on appeal. The court simply concluded that Judge Batts had “properly” dismissed the qui tam prong of the complaint. Certiorari was denied by the U.S. Supreme Court, and denied again on petition for rehearing. Thus, constitutional arguments relating to citizens’ rights in a dual federal system theoretically based on popular sovereignty were fully and finally appealed without ever having been reviewed!





NOTE: See hyperlinks in text above for many more pdf documents than are listed below.



· The Second Circuit’s summary order (HTML) affirming Judge Batts’s dismissal of the pro se and qui tam action.

· Second Circuit briefs (PDF)