Maritime Law – Fall 2002 – Birnberg

I. Admiralty Jxd and Procedure

A. History: (NS 1-7)

  1. M one of the world's oldest bodies of law. Early coastal ct developed codes ex. The Rules of Oleron and from these codes developed body of gen M law. This can differ from Am law.

B. Development of American Admiralty Law:

  1. Constitution: Art. III §2 cl. 3 extends judicial power to the fed sovereign to "all cases of admiralty and maritime jxd." (A&M)
  2. Judiciary Act of 1789: cgs act that confers on fed cts the power to hear M cases. The SC has interpreted the "admiralty and maritime jxd" clause as conferring on fed two sep powers:
  3. Procedural: the power to determine what cts will hear M cases, and
  4. Substantive: the power to prescribe the substantive law governing disposal of those cases.
  5. Implementation of Article III: Art. 3 just confers judicial power, it was implemented through the Judiciary Act above and the SC in Romero summarized the scope of the power delegated to the fed sovereign:
  6. Article 3 contains 3 sep grants of power:
  7. Empowered cgs to confer A&M jxd on "tribunals inferior to the SC"
  8. Empowered fed cts in their exercise of A&M jxd to draw on the substantive law "inherent in the A&M jxd" (Crowell) and to continue development of this law w/in const limits.
  9. Empowered cgs to revise and supplement M law w/in the limits of the const.

B. Navigable Waters (NS 19-26)

  1. Fed Admiralty CL: cgs has made few substantive rules governing A&M cases so fed cts have made fed admiralty CL. Some by SC but most by lower fed cts. Cts have had to formulate what comes w/in their A&M jxd.
  2. Scope of Admiralty Jxd: extends to all "navigable waters" including many inland rivers and lakes.
  3. Definition of Navigable Waters: jxd extends not only to events on high seas or territorial seas but also to inland waterways that are navigable.
  4. Bodies of water that are navigable in fact which means waters that are used or are capable of being used as waterborne highways for commerce, i.e. those sustaining or capable of sustaining the transpo of goods or passengers by watercraft. The bodies of water must form in their ordinary condition by themselves, or by uniting w/ other waters, a continued hwy over which commerce is or may be carried on w/ other states or foreign countries in the customary modes in which such commerce is conducted by water. (The Daniel Ball)
  5. Core notion: "use" as a "highway of commerce."
  6. Use: in use or susceptible of use for MC. Former navigability may be enough.
  7. Hwy: must be capable of serving as hwy b/t 2 or more states or b/t state and foreign co. Excludes landlocked lakes located in only one state but not those that empty into ocean, great lake or gulf.
  8. Commerce: capable of use for transpo of goods or passengers.
  9. Seasonal navigability: the fact that a body of water is not navigable in fact during part of the year does not defeat admiralty jxd. (Wilder).
  10. Navigability in fact: if you have a waterway that was once navigable and spans two states it is still susceptible of being navigable. (Class).
  11. Generally inland waterway of US is navigable if:
  12. Capable of supporting M commerce;
  13. It runs through two states or empties into the sea; and
  14. It is presently sustaining commerce (use).
  15. Note: sufficient if link in hwy of IC.
  16. Result: if body of water (sustaining MC) runs into another body (sustaining MC) which runs b/t two states = admir. Jxd.

C. Indicia Of Jxd (under Maritime Torts in Book – Chpt. 2 in NS).

  1. Vessels: (see more under JA)
  2. Class Def: something that moves on water
  3. SC Def: all navigable structures intended for transportation.
  4. Floating structure capable of transporting something over water.
  5. 5th Test: look to purpose for which the craft is constructed and the business in which it is engaged. (Blanchard). Other cts suggest whether structure is subjected to "perils of the sea. "
  6. Power: vessel not required to have its own power.
  7. Drilling barges and rigs, which can be moved, are vessels but drilling platforms are not  "islands".
  8. Jet skis may be vessels.
  9. Dead ship: vessel permanently w/drawn from navigation. Ship in for repairs may still be vessel; look to facts.
  10. Appurtenances: all appurtenances of the vessel are part of the vessel.
  11. Admiralty Jxd (in Tort): Locus and Nexus: (Same test as M Torts)
  12. Party seeking M jxd must satisfy two req's:
  13. Maritime location: show either that tort occurred on navigable waters or injx/damage on land was caused by vessel in navigable waters.
  14. Maritime nexus: tort bore some relationship to traditional maritime activity. (Executive Jet – locus not enough need to have maritime connection).
  15. Two things req'd for Maritime Jxd:
  16. Nexus and Locality: locus and connection w/ maritime activity.
  17. Maritime Flavor:
  18. Idea: In most M tort cases, jxd can rest in whole or in part on finding that case has "maritime flavor" Ct must determine if there is sufficient maritime flavor to justify exercise of jxd.
  19. No real def but things to look for:
  20. Usually MF in events and transactions which are major concerns of the shipping industry.
  21. Some perceived need for uniform national rule.

D. Jxd Over Maritime Torts: (NS 32-45, Sum 38-45)

  1. Old Rule: locality alone was all that was required. If tort occurred on navigable waters it was maritime if not, not. Plymouth.
  2. SOL on Maritime Tort: 3 yrs.
  3. SC General Test for Presence of Maritime Tort Jxd: Locus and Nexus
  4. Maritime Location: The tort occurred on navigable waters; i.e. on maritime locality and
  5. Maritime Nexus/Flavor: The relevant activity had a maritime connection or flavor. Executive Jet
  6. Does the type of incident involved have the potential to disrupt maritime commerce, and (Sisson)
  7. Does the general activity involved bear a relationship to traditional maritime activity? (Grubart)
  8. Genesis of The Nexus Criterion: The Trilogy:
  9. Executive Jet: SC adopts locality + nexus test for determining jxd over M tort in context of domestic airplane accidents. Lacked sufficient maritime nexus to support MJ.
  10. Foremost Insurance: Collision of 2 pleasure craft on navigable water. H: Ct extends Executive to non-aviation maritime torts. Tort is not in admiralty unless it has maritime flavor. Rat: Even if not commercial there is maritime jxd b/c of disruption to maritime navigation.
  11. Sisson v. Ruby: admiralty jxd extended to claims arising out of a fire on pleasure yacht that damaged both the marina at which the yacht was docked and several neighboring vessels. H: maritime protection can be extended beyond water; can be maritime if it affects maritime commerce.
  12. The Nexus Criterion:
  13. Grubart: M jxd applied to claim for building damage in downtown Chicago as a result of tunnel flood from barge driving piles.
  14. Two part test for the maritime nexus (flavor):
  15. The ct must first assess the general features of the type of incident involved to determine whether the incident has a "potentially disruptive impact on maritime commerce" and if so:
  16. The ct must determine whether the "gen character of the activity giving rise to the incident shows a substantial relationship to a trad maritime activity"
  17. Deal w/ accidents on water that terminate on land. For this you need locus + maritime flavor. In all cases where someone falls off something into a boat it is not maritime commerce. Maritime jxd if fall off a boat onto a bridge.
  18. Admiralty Extension Act: extends M jxd to "all cases of damage or injx caused by a vessel on navigable water, notwithstanding that such damage or injx be done or consummated on land." Suit may be brought in rem or in personam.
  19. Gutierrez: Man on dock slips and falls on beans from ship. H: use trad proximate cause test to determine whether damage was caused by vessel under AEA. Here injx were proximately caused by D's negl and the unsx of its cargo and containers.
  20. Case Extends MJ to areas adjacent to ship.
  21. Aviation Torts: admiralty jxd may still apply.
  22. DOHSA (1920) – extends fed admiralty power to torts occurring on the high seas and causing death. May not req "maritime flavor."

E. Jxd Over Maritime Contracts: (NS 27-32)

  1. M K's: can be enforced in fed ct w/out any other basis of SMJ.
  2. Nature of Maritime K: nature and subject matter of the K, not the making or performance, govern. MK can be on land or water but has to have a direct and substantial link b/t the K and the operation of the ship, its navigation, or its management afloat taking into account needs of the shipping industry.
  3. The Distinction: usually draw line b/t K's for good and services furnished directly to vessel and pertaining to actual navigation and management of vessel and those which indirectly affect the vessel or its voyage.
  4. Types of K's: look for maritime flavor here as well.
  5. K to charter vessel is MK.
  6. K to purchase vessel NOT MK.
  7. Can have an oral K in maritime law (but not over sale). (Kossick – oral K for care that would have been invalid under state law SOF OK under maritime law b/c sufficiently related to maritime concerns.)
  8. Oral K to repair is maritime K.
  9. K to provide services to movable oil rig maritime K. On oil platform NO.
  10. K for insurance on vessel is maritime K. (Insurance v. Dunham).
  11. Stevedoring K w/ vessel is maritime K.
  12. K for repair it maritime K. (Pacific Steamship – essential character of services was maritime even if repairs in dry dock)
  13. K for lease of containers is maritime K. Lease of cargo containers for use on a ship is a maritime K (rat: modern substitute for a hold, functionally part of the ship).
  14. K for passengers YES but Cargo No.
  15. Executory K's can be maritime. (Terminal Shipping)
  16. Agency K's: There is no per se rule against agency K's from MJ, look to the "subject matter of the K to see if services performed under it are maritime in nature." (Exxon)
  17. Mixed K's: To support admiralty jxd in breach of K action, the underlying K must ordinarily be a maritime K. 2 exceptions: (Didn't discuss).
  18. Character of K is primarily maritime and other is incidental  admiralty jxd.
  19. If K is mixed w/ maritime and non-maritime aspects—maritime jxd exists if they can be separated w/out prejudice. (Kuehne).

F. Federalism and Admiralty Jxd (NS 10-14)

  1. Judiciary and Judicial Procedure: Pleadings and Motions (NS 354- )
  2. § 1333. Admiralty, Maritime and Prize Cases:
  3. The dist cts shall have original jxd, exclusive of the States of:
  4. any civil case of admiralty or maritime jxd, saving to suitors all other remedies to which they are otherwise entitled.
  5. Any prize brought into the US and all proceedings for the condemnation of property taken as prize.
  6. No Jury Trial Right: when jxd of fed ct is premised solely on § 1333 jury trial is not available. Applies when matter brought in as admiralty claim (i.e. fed ct is exercising jxd only by virtue of admiralty power).
  7. "Law Claim": if there is some other basis for fed jxd may be entitled to jury trial i.e. a "law claim". (Romero – one at law claim is enough to bring all claims to jury.)
  8. Saving to Suitors: gives state ct SMJ. Reserves the right to non-admiralty remedy where the CL can give it. Allows for jury trial if entitled to it under state law. Use fed law unless "maritime but local". Can be heard in fed ct as a law claim if it arises under maritime CL w/ diversity or it arises under fed statute.
  9. Fed cts have exclusive jxd over purely maritime matters, but STS reserves right of P to pursue non-maritime remedies in all other cases
  10. Only in personam suit provides P w/ choice of law, in rem is exclusively maritime.
  11. Admiralty Law: if matter is in admiralty, maritime substantive law applies no matter what ct it is in i.e. fed or state under saving suitors.
  12. Not In Rem: CL is competent to give all M remedies except in in rem proceedings. §1333 gives exclusive jxd to fed ct over all in rem to enforce maritime lien or preferred ship mortgage.
  13. Complex stuff w/ joinder of claims i.e. Jones Act and unsx and M&C see pg. 360-1 in NS.
  14. Rule 9 (h) Admiralty and Maritime Claims:
  15. A pleading or count setting forth a claim for relief w/in the A&M jxd that is also w/in the jxd of the dist ct on some other ground may contain a statement identifying the claim as an admiralty or maritime claims for the purposes of Rule 14(c), 38(e), 82 and the Supplemental rules for Certain Admiralty Claims. If the claim is cognizable only in admiralty, it is an admiralty or maritime claim for those purposes whether so identified or not. The amendment of a pleading to ad or w/draw an identifying statement is governed by the principles of Rule 15. A case that includes an admiralty or maritime claims w/in this subdivision is an admiralty case w/in 28 USC 1292(a)(3).
  1. In Rem Jxd:
  2. Rule: In admiralty the ship is liable for its own torts and K's. Can sue both the vessel (in admiralty) and the person (in personam). (Hine) See CN's pg 4 for procedure. The vessel is the D.
  3. In Personam Jxd:
  4. If the cause it not the jxd of admiralty, or if it is in personam, it is essentially CL and w/in the saving the suitors clause. (Rounds)
  5. Concurrent jxd b/t fed ct in admiralty and state ct: Dicta in Tallentire that DOHSA claims are, Jones Act claims are concurrent.
  6. Comity: competing state and fed laws needed to be accommodated in fashioning CL. Where cgs has leg or where there is fed interest in promoting M shipping/commerce requiring uniform rule, the states interest is overcome. BUT where there is neither fed statute nor need for uniformity, ct applying M law may adopt state law. This is "maritime but local" approach.
  7. Applying State law: When case meets criteria for admiralty jxd, the substantive rules of maritime tort must be applied whether in state or fed ct.
  8. state law can be used to supplement fed law when it is not incompatible w/ it or when state interests outweigh national interest in uniformity.
  9. In the absence of statute or precedent in maritime law state law should be applied
  10. Maritime Law Preemption of State Law:
  11. Factors to determine if fed law preempts state law:
  12. State law not preempted when has detailed scheme to fill in gap in ML
  13. SL not preempted when state has strong interest (maritime but local)
  14. ML preempts when uniform rule facilitates commerce
  15. ML preempts when SL impinges on foreign or state relations.
  16. State law rejected where conflicts w/ fed statute.

F. Indicia of Jxd: The Analysis: (Chpt II NS)

  1. Is it a vessel?
  2. Is it in navigable waters?
  3. Does it have a maritime Flavor?

II. Personal Injx and Death Claims

  1. Remedies of a Seaman: General Overview:
  2. Remedies available depend on status:
  3. Seaman:
  4. Negligence against the employer (Jones Act)
  5. Unsx against the ship
  6. Law: maritime tort or state
  7. Non-seaman maritime worker: (Longshore and Harbor Workers)
  8. LHWCA
  9. Law: maritime tort or state
  10. A non-maritime worker:
  11. workers comp except where injx caused by ER's M tort.
  12. M&C:
  13. Law settled on following (Osceola SC):
  14. Vessel and owners liable is seaman falls sick, or is wounded in the service of the ship, to the extent of his M&C, and to his wages at least so long as the voyage is continued. (See also Cox)
  15. Only have to pay M&C if illness or injx while "in service of the ship."
  16. Persons liable to pay M&C:
  17. Seaman's ER who is usually vessel owner. Charterer's not liable unless demise charter. Where seaman employed by one person, and vessel owned by another, ER can be liable as ER and vessel owner may be liable as agent; an in any event liable in rem.
  18. Owner pro hac vace/Demise Charter: act as de facto owner; navigate, supply man, food and fuel. Liable for MC, unsx or negl. Can sue real owner too.
  19. Time Charter: charter for period of time. Owner still responsible for man, food, fuel. C not liable for M&C or unsx.
  20. Voyage Charter: not liable for M&C.
  21. Space Charter: rent space in vessel or container. Not liable, only ER liable for M&C.
  22. What does ER have to pay:
  23. Maintenance: sum for living expenses aboard the ship. (Ritchie v. Grimm – says also he has to prove some expenses?)
  24. Cure: limited to seaman's med expenses only until reaches max med cure. No palliatives i.e. treatment for pain.
  25. Wages: only to end of voyage. Entitled to wages for time he couldn't work. Usually only wages for time you were supposed to work. If you are on foreign articles you have to have a K, if you are coastwise your not entitled to wages.
  26. 3 yr SOL.
  27. No Fault Doctrine: M&C as long as in course and scope of employment
  28. Non-applicable doctrines: Contributory negligence, fellow servant doctrine and assumption of the risk don't apply to maritime law  M&C. (Warren)
  29. Fellow servant: faults of fellow E's not attributable to them but ER.
  30. Comparative fault is used: still recover by percentage.
  31. Willful Misconduct: Bar to recovery. Alcohol no but narcotics yes. Tripping while drunk on shore leave OK. Committing robbery on shore and getting hurt not. (Lancaster Towing)
  32. Fraudulent Concealment of Pre-existing Injx: must be fit for duty. If you lie on physical and you have injx for which you later sue, no M&C. Out on SJ.
  33. Exception: last ship rule: if believe in good faith fit for duty, last ship responsible for M&C, even if condition was preexisting, started on another vessel or was fault of other vessel.
  34. When will you get paid M&C: Injx on land and "in service of the ship":
  35. When "subject to the call of duty" ship is liable for M&C. (Hobson SC– ER not liable for M&C of EE not subject to call of duty).
  36. Archer – P was "in service of the ship" when req to come back 2 days b/f due to start work even when on shore.
  37. Blue water seaman: on shore leave in service of the ship b/c can be called to duty, no for vacations. Ex. breaks arm jumping from prostitute. Rat: nature of work need shore pursuits.
  38. Commuter seaman (day man only): Job doesn't b/g till at ship. Lunch and going home at night from work ER not liable for M&C. Off the job. If go home w/ pager and can be called back is subject to the call of duty.
  39. I: were they subject to call of duty? Look to things like do they have a place to sleep there etc.
  40. Extended time on shore: subject to call? Usually OK.
  41. Duration of the Obligation: The duty of the ship for M&C extends only until the injx seaman has been cured as far as possible (i.e. disability declared permanent). No M&C just to relieve pain. (Farrell and Vella).
  42. Only until max cure is reached, don't have to care for rest of life just M&C ex. life support but will never get better = no more M&C.
  43. Penalties for not paying M&C: damages for not paying atty's fees only.