Admiralty Maritime Law

Admiralty & Maritime Law:
The Law of The Sea
© 2008 Clark D. Silliman, J.D.

All Rights Reserved.
Admiralty & Maritime Law is:
• The great body of law regulating the

activity of carrying cargo and passengers
over water.
• One of the world’s oldest bodies of law,
tracing its origin to the Mediterranean Sea
where mankind is thought to have first
―gone down to the sea in ships‖ thousands
of years ago!
Origins of Admiralty & Maritime
Law
• Special maritime courts were established in
seaports to resolve controversies among those
engaged in the transportation of goods and
passengers by sea among different nations.
• From these courts a body of general maritime
law developed which was, and is, in many
respects uniform among the seafaring nations.
Development of American
Admiralty Law
• The U.S. Constitution provides in Art. III,
§ 2, cl. 3:
“The judicial Power of the United States
shall . . . extend . . . to all Cases of
admiralty and maritime Jurisdiction . . .”
The U.S. Supreme Court has construed this
clause as conferring upon the federal
government the power to determine what
courts will hear maritime cases and the
power to prescribe the substantive law
governing the disposition of such cases.
Jurisdiction of Admiralty & Maritime
Cases
• 28 U.S.C. § 1333 provides:
‖[T]he district courts shall have original jurisdiction, exclusive of the
courts of the States, of (1) Any civil case of admiralty or maritime
jurisdiction, saving to suitors in all cases all other remedies to
which they are otherwise entitled.‖
• Under this “savings to suitors” clause, state courts may exercise
jurisdiction in some maritime cases, but must apply the substantive
―admiralty and maritime common law‖ developed by the federal
judiciary, unless there is no uniform federal law, in which case they
may apply state substantive law. This is called the “maritime but
local” doctrine.
Jurisdiction of Admiralty & Maritime
Cases (Cont’d.)
• If an admiralty case is brought in federal
court there is no right to a jury trial
unless there is some basis of federal
jurisdiction other than 28 U.S.C. § 1333.
But if the case is brought in state court
the parties may have a jury trial if they
are otherwise entitled to it under state
law.
Jurisdiction of Admiralty in the
United States:
• Is NOT limited, as in England, to the high seas,
but extends to ―all navigable waters of the
United States,‖ which include many inland rivers
and lakes capable of floating vessels carrying
cargo and passengers in interstate and foreign
commerce (e.g., Lake Washington which
connects via the Ship Canal with Puget Sound
and the oceans of the world).
What Is a “Vessel?”
• Whether a dispute is “in admiralty” depends upon
whether it has a sufficient relationship to a “vessel.”
• But there is no settled definition of what is a vessel:
– Congress defined a “vessel” as including ―every
description of watercraft or other artificial contrivance
used, or capable of being used, as a means of
transportation on water.‖ 1 U.S.C. § 3.
– The Supreme Court defined it as ―all navigable
structures intended for transportation.‖ Cope v.
Vallette Dry-Dock Co., 119 U.S. 625 (1887).
What Is a Vessel? (Cont’d.)
– The issue whether a structure is a ―vessel‖ usually
arises in cases involving, for example, ships under
construction, ships which have been withdrawn from
navigation (―dead ships‖) and certain special function
structures like oil drilling platforms, floating dry docks
and anchored gambling casino boats—none of these
is a ―vessel.‖
– But the following have been classified as ―vessels:‖
canning barges, houseboats, dredges, rafts,
seaplanes when waterborne, jet skis, canoes, and
rowboats.
What Are “Navigable Waters?”
• For purposes of determining admiralty jurisdiction, the traditional definition
of ―navigable waters‖ inherited from England was those ―subject to the ebb
and flow of the tide.‖ The U.S. Supreme Court expanded that definition,
however:
Those rivers must be regarded as public navigable rivers in law which
are navigable in fact. And they are navigable in fact when they are
used, or capable of being used, in their ordinary condition as highways
for commerce, over which trade and travel are or may be conducted in
the customary modes of trade and travel on water. And they constitute
navigable waters of the United States within the meaning of the acts of
Congress . . . when they form in their ordinary condition by themselves,
or by uniting with other waters, a continued highway over which
commerce is or may be carried on with other States or foreign countries.
The Daniel Ball, 77 U.S. 557 (l870)(emphasis added).
What Is “Maritime Flavor?”
• Admiralty jurisdiction rests in whole or in part upon a
finding that the event or occurrence which gives rise to a
claim has “maritime flavor.”
– In admiralty contract jurisdiction, the key inquiry is whether the
subject of a contract is maritime. For most maritime contract
cases, special rules have developed that place the contract
either within or without admiralty jurisdiction, so there is no
longer a need for a general inquiry into maritime flavor (e.g.,
contracts to build or sell a vessel are not maritime, but
contracts to insure, supply, load or unload, tow, pilot, dock or
lease (―charter‖) a vessel and to employ a seaman are
maritime!).
What Is ―Maritime Flavor?‖
(Cont’d.)
• In most maritime tort cases, however, the court
must still determine if the tort has sufficient
maritime flavor to warrant the exercise of admiralty
jurisdiction. Courts generally find ―maritime flavor‖
in events which have an effect upon maritime
shipping and commerce substantial enough to
justify the exercise of federal power, I.e., a
substantial relationship to “traditional maritime
activity.”
Jurisdiction over Maritime Torts
• The test of maritime tort jurisdiction:

– 1. That the tort occurred on navigable waters; and,
– 2. That the activity which gave rise to the tort claim
had a maritime flavor.
– 3. Under the Admiralty Extension Act of 1948, 46
U.S.C. § 740, maritime tort jurisdiction extends to all
damage ―caused by a vessel on navigable water,
notwithstanding that such damage . . . be done . . . on
land.
Jurisdiction over Maritime Torts
(Cont’d.)
– 4. Under the Death on the High Seas Act
(―DOHSA’), 46 U.S.C. § 761 et seq., maritime
tort jurisdiction extends to any tort occurring
on the high seas resulting in death, even
though that tort does not have a ―maritime
flavor.‖ Executive Jet Aviation, Inc. v. City of
Cleveland, 409 U.S. 249 (1972).
Jurisdiction over Worker Injury
Claims
• Claims by ―maritime employees‖ (e.g., either ―seamen‖
or ―maritime workers‖) are ―in admiralty‖ and thus
governed by maritime law, NOT state law.
• Who is a ―seaman?” A worker who has a sufficient
employment-related connection with a vessel in
navigation.
• Who is a ―maritime worker?‖ A worker engaged in
maritime-related activities who does not qualify as a
―seaman.‖
Claims (Cont’d.)
• The injured seaman’s remedies:
– Seek traditional tort damages against his/her negligent employer
under the Jones Act (to which attaches a right to a jury trial);
and/or
– Seek damages from the operator of the vessel in which he/she is
employed as a seaman under the maritime doctrine of
unseaworthiness (as to which there in no right to a jury trial)
– Seek maintenance and cure (i.e., the expenses of medical
treatment and living expenses while undergoing treatment) from
his/her employer
Claims (Cont’d.)
• The injured ―maritime worker’s‖ remedies:
– The exclusive remedy is provided by the Longshore & Harbor
Workers’ Compensation Act (―LHWCA‖), 33 U.S.C. §§ 901-950.
The LHWCA has the attributes of the usual workers’
compensation laws enacted by most states.
– Persons covered by the LHWCA include:
• Employees injured on the Outer Continental Shelf in the
course of mineral exploration and production (e.g., oil drilling
platform workers); and
• ―Maritime workers‖ who come within the LHWCA’s definition
of ―maritime worker‖ (33 U.S.C. § 902) and who are injured
on ―navigable waters.‖
Claims (Cont’d.)
• Employees who qualify neither as

―seamen‖ nor ―maritime workers‖
ordinarily will recover from their employers
through state worker’s compensation laws
(e.g., Washington’s industrial insurance
act, RCW 51).
Contracts for the Carriage of
Goods
• Generally:
– Contracts involving the operation and management of merchant
vessels and the carriage of goods and passengers by water are
maritime contracts within the admiralty jurisdiction, governed by
a comprehensive body of statutory and case law.
– These contracts include:
• Charter Parties (―leases‖ in land-based law terminology)
• Bills of Lading
• Contracts for the furnishing of repairs, supplies and other services
to vessels.
Charter Parties
• A charter is an agreement in which a shipowner
places his/her/its ship at the disposal of another.
The written instrument by which a vessel is
leased is a charter party.
• Types of charter parties:
– Demise
– Time
– Voyage
Demise Charter
• The essence of this type of charter is the owner’s
surrender of possession and control of the vessel to the
charterer (the ―lessee‖ in land-law terminology), who
then succeeds to many of the rights and obligations of
the owner; thus the demise charterer is usually called the
owner pro hac vice.
• In many demise charters, the charterer also obtains the
services of the owner’s master and crew, who become
the employees of the charterer during the term of the
charter. If the owner does not furnish the master and
crew, such a demise is called a “bareboat charter.”
Demise Charter (Cont’d.)
• To create a demise charter, the vessel

owner must ―completely and exclusively
relinquish possession, command and
navigation‖ of the vessel to the charterer.
It is therefore tantamount to, but just short
of, an outright transfer of ownership of the
vessel.
Demise Charter (Cont’d.)
• Unless the parties agree otherwise, the obligations of the
charterer are to pay the charter hire (the ―rent‖ in land-
law terminology) and to return the vessel to her owner at
the end of the charter term in the same condition as
received, ordinary wear and tear excepted. Thus a
demise charter is a type of bailment.
• Once the demise charter is perfected, the vessel owner
is relieved of liability for the contracts and torts of the
master, crew and vessel—those obligations fall upon the
charterer in personam and the vessel in rem.
Time Charter
• Under a time charter, the vessel owner retains
the management and control of the vessel, but
the time charterer determines the ports of call
and the cargo carried. The vessel owner
provides the crew, equips and maintains the
vessel, makes repairs, and pays normal
operating expenses.
• The term of a time charter is measured by the
duration of one or more voyages. The amount
of charter hire will thus vary by the length of time
of a particular voyage.
Time Charter (Cont’d.)
• Unless the parties agree otherwise, the vessel owner
warrants to the time charterer that the vessel is
seaworthy at the beginning of each voyage, and that the
vessel is reasonably fit to load, carry and unload the
charterer’s cargo.
• Most time charters are effected on standard forms and
any disputes that arise are resolved through arbitration,
not judicial litigation.
• Should the vessel be out of service for repairs during the
term of the time charter, the charterer’s obligation to pay
the charter hire (―rent‖) is suspended—the vessel is then
said to be ―off hire.‖
Time Charter (Cont’d.)
• The master of a vessel under a time charter is the agent
of the vessel owner for purposes of the safe navigation
of the vessel, and is the agent of the charterer in the
handling of the cargo and the selection of loading and
discharging ports and berths. As an agent of both the
vessel owner and the charterer for some purposes,
conflicts of interests may arise. If the charterer orders
the master to do an act which constitutes, in the master’s
opinion, an unreasonable risk to the vessel, the master
may register a protest with the charterer. If the
charterer nevertheless orders the master to proceed, the
risk of loss or damage resulting therefrom falls on the
charterer, NOT the vessel owner.
Voyage Charter
• Under the voyage charter, the vessel owner provides a
vessel, master and crew at the disposal of the charterer for
the carriage of cargo to a designated port. The voyage
charterer may charter (―lease‖) all of the vessel, or only a part
of her, for one or a series of voyages.
• The charterer is obligated to pay the freight, i.e., the rental
charge for the voyage.
• Most charters provide that disputes arising between the
vessel owner and the charterer be resolved by arbitration.
Bills of Lading
• Background: A shipper who ships a small volume of goods not
justifying chartering all or a portion of a vessel usually ships the
goods on ships which make regular voyages to designated ports on
fixed schedules. Such vessels are called ―liners‖ or ―common
carriers.‖
• When a common carrier receives goods for shipment, it issues a
“bill of lading” to the shipper. The bill of lading serves several
functions:
– It is a receipt for the goods shipped.
– It is usually a negotiable instrument, i.e., the shipper may use it to
borrow money on the goods while they are in shipment, using the bill of
lading as collateral to secure the loan; may use it to obtain payment for
the goods from the consignee (the person to whom the goods are to be
delivered at the port of destination), by forwarding and tendering it to the
consignee’s bank.
Bills of Lading (Cont’d.)
– It serves as the contract of carriage,
allocating the risks of the voyage between the
carrier and the shipper. Such allocation of
risks is largely controlled by statute: the
Harter Act, 46 U.S.C. § 190 et seq. and the
Carriage of Goods By the Sea Act
(―COGSA‖), 46 U.S.C. § 1300 et seq.
Bills of Lading - The Harter Act &
COGSA
• On a voyage between an American port and a foreign port, the
Harter Act applies from delivery to the shipper until loading, and
from unloading at the port of destination until delivery to the
consignee; COGSA applies between loading and unloading. On a
coastwise voyage between two American ports, the Harter Act
applies at all times between delivery and redelivery of the cargo.
• Both Acts require the carrier to use due diligence in sending out a
seaworthy vessel at the commencement of the voyage and the
carrier must ―properly and carefully load, handle, stow, carry, keep,
care for and discharge the cargo .‖
•
Bills of Lading – The Harter Act &
COGSA (Cont’d.)
• If such duties are met, the carrier is not responsible for
cargo damage resulting from faults or errors in
navigation or in the management of the vessel (e.g.,
running aground, collision with another vessel, etc.) nor
for losses resulting from the perils of the sea, Acts of
God (e.g., storms, etc.), acts of war and public enemies,
‖restraint of princes‖, strikes or lockouts and riots.
• The shipper bears the risk of ―insufficiency of packing,‖,
i.e., the cargo must be packed in such a manner to be fit
to endure the ordinary hazards of the voyage.
• The carrier is exempted from liability for loss caused by
fire, unless such fire was caused by the carrier’s
―design or neglect.‖
Bills of Lading-The Harter Act &
COGSA (cont’d.)
• COGSA also contains a ―catch all‖ exception relieving the carrier from liability for ―any
other cause arising without the actual fault and privity of the carrier.‖
• The Burden of Proof in Cargo Damage Claims

– The shipper must show prima facie the cargo was damaged or lost while in the
possession of the carrier. This is typically proved by showing the cargo was
delivered to the carrier in an undamaged condition at the commencement of the
voyage (the bill of lading usually recites the receipt of the cargo in “apparent
good order and condition”) and was redelivered in a damaged condition at the
port of destination. If the consignee fails to give written notice to the carrier
of damage to the cargo at the time of delivery of the goods to the
consignee at the port of destination, it is prima facie evidence of the
delivery of the cargo as described in the bill of lading. If the damage is not
apparent at the time of redelivery, the shipper may give notice to the carrier of
damage within three days of redelivery. A marine surveyor may be retained
by the shipper to inspect the cargo for damage at the port of destination.
COGSA (Cont’d.)
– The burden then shifts to the carrier to prove
the damage or loss resulted from a cause for
which the carrier is statutorily not responsible
(liable).
COGSA (Cont’d.)
• At the common law, a carrier is liable for the market value of lost
cargo at its destination, or, if the cargo is damaged but not lost, then
for the difference between market value and the damaged value at
the destination of the cargo.
• COGSA (46 U.S.C. § 1304(5) provides: ―Neither the carrier nor the
ship shall in any event become liable for any loss or damage . . . in
an amount exceeding $500 per package . . .or in case of goods not
shipped in packages, per customary freight unit . . .unless the nature
and value of such goods have been declared and inserted in the bill
of lading . . . [i]n no event shall the carrier be liable for more than the
amount of damage actually sustained.‖
COGSA (Cont’d.)
• With the advent of containerized maritime
shipping, the issue becomes, ―What is the
package?‖ The entire container? The
individual packages within the container?
Most courts have not found an entire
container to be the relevant ―package,‖
UNLESS the shipper delivers a sealed
container and does not reveal its contents
to the carrier.
COGSA (Cont’d.)
• Deviation: The bill of lading specifies the voyage upon which
the cargo will be carried and often designates the method of
stowage during the voyage. At the common law, deviation
by the carrier from the specified voyage or method of stowage
made the carrier liable for damage to the cargo, regardless
whether such deviation was a cause of the damage. The
weight of authority is that an unreasonable deviation
deprives the carrier of the $500 package limitation. COGSA
provides that certain deviations are per se reasonable i.e.,
those for the purpose of attempting to save life or
property at sea, 46 U.S.C. § 1304(2)(l).
Maritime Liens
• Liens on Cargo: a vessel and her operator
have a lien upon a charterer’s/shipper’s
cargo for the freight due for carriage of the
cargo. This lien is often described as
―possessory,‖ i.e., the lien is lost once the
cargo is unloaded from the vessel, unless
the parties intend that it continue after
unloading. Such intention may be inferred
from the conduct of the parties.
Maritime Liens (Cont’d.)
• Liens on Vessels: a lien on a vessel may
be either express (as in a mortgage
contract), or implied by the occurrence of a
maritime tort (e.g., a vessel allides with a
fixed object on or adjacent to navigable
waters, such as a bridge) or the
performance of a maritime service to the
vessel (e.g., furnishing repairs or
necessaries to a ship).
• Nature of the Implied Maritime Lien: the implied
maritime lien is unique to admiralty law—it arises at the
moment of the occurrence of the debt or damages which
it secures, exists without recordation (i.e., it is secret),
does not require possession of the vessel, last in time is
first in right, and can be judicially discharged only by an
in rem action in admiralty court. The rationale for this
implied lien is to enable a vessel to obtain supplies or
repairs necessary to her continued operation by giving a
temporary underlying security which will obtain until
payment can be made or more formal security given.
• The lien may arise even though the vessel owner is not
personally liable for the debt as when a demise charterer
incurs voyage debts, or the vessel may be liable for the
torts of a compulsory pilot. This has been called
elevating a vessel to the status of a juridical person or
the ―personification of the vessel.‖ In every case in
which a vessel is liable in rem, however, some person,
be it the owner, charterer or pilot, for example, is also
liable in personam. Typically the vessel is sued in rem
as a defendant together with any co-defendants who
may be liable to the plaintiff in personam.
• Occurrences Giving Rise to the Implied Maritime
Lien:
– a seaman (including the master) has a lien on
the vessel for his/her wages.
– a maritime tort committed in the operation of a
vessel gives rise to a lien against the
offending vessel.
– there is no lien for the breach of an executory
maritime contract.
– a person who provides ―necessaries‖ (e.g., repairs,
supplies, towage, the use of a drydock, etc.) to a
vessel on the order of the owner or a person
authorized by the owner has a maritime lien on the
vessel, 46 U.S.C. § 31342(a)(1) and must be relying
upon the credit of the vessel for payment.
– since a contract to build a vessel is not maritime,
there is no maritime lien for building a vessel nor for
supplying materials for her original construction.
• Liens in custodia legis: a lien cannot arise against a
vessel when she is in the custody of the court (e.g. after
her arrest by the U.S. marshal); thus liens for seamen’s
wages, moorage and similar continuing services to a
vessel are limited to the period before her seizure by
judicial process. The court which authorized the arrest
of the vessel may allow such expenses incurred in
custodia legis to become payable as expenses of the
administration of justice and with the same ranking as
other court costs (clerk’s filing fee, marshal’s fee for
arresting the vessel, etc.)
• Property to Which Liens Attach: the

vessel herself and all equipment which is
an integral part of the vessel and is
essential to her navigation and operation,
even though such equipment be owned
by a third person!
• Enforcement of Liens in rem: plaintiff must name the vessel in the
complaint as a defendant in rem. The court clerk then issues a
warrant for the arrest of the vessel which is executed by the U.S.
Marshal who ―plasters‖ the vessel (i.e., affixes a copy of the arrest
warrant to the vessel’s mainmast or other conspicuous place),
delivers a copy to the person in possession of the vessel or his
agent, and seizes her (takes her into his possession). The vessel is
then in custodia legis and any attempt to retake possession from the
marshal without a court order is punishable as a contempt of court
and perhaps also as a crime. The parties may stipulate to the
vessel’s release from the marshal’s custody upon the posting of a
bond sufficient to cover plaintiff’s claimed damages. If the vessel
owner fails to appear in the action, a default judgment may be
entered against the vessel and her owner, the vessel may be sold at
auction and the maritime liens satisfied out of the sale proceeds.
• Extinction of Liens: a judicial sale in an in rem action
extinguishes all existing liens i.e., all liens are ―scraped
off‖ like barnacles from a vessel hull.
• If the claim which a maritime lien secures becomes time-
barred, the lien is lost.
• A court may apply the equitable doctrine of laches to bar
enforcement of a maritime lien, even though the
underlying claim is not time-barred, particularly where
the lien holder foregoes reasonable opportunities to
enforce the lien.
• Ranking of Maritime Liens: maritime liens are
ranked by class and time.
– By Class:
• 1. Expenses of justice—court costs and other expenses
incurred for the care of the vessel while she is in custodia
legis.
• 2. Seaman’s wages.
• 3. Salvage.
• 4. Tort liens (both property and personal injury damages).
• 5. Contract liens (for the furnishing of necessaries).
• 6. Preferred ship mortgage.
• By Time: within the same class of maritime liens the
general rule is that “last in time is first in right.”
– One exception is the ranking of liens for necessaries. Under the
“voyage rule,” the liens of all suppliers of necessaries for a
particular voyage are ranked equally, those for the most recent
voyage ranking ahead of those for earlier voyages.
– For vessels, like tugs and other harbor vessels that typically do
not sail on ―voyages,‖ courts apply a “forty day” or in some
jurisdictions a “calendar year” rule, in place of the voyage rule.
The Seaman’s Employment
Contract
• Before entering the service of a vessel, a seaman usually signs a
contract, called ―articles.” 46 U.S.C. § 10301 et. seq. The articles
must be signed in the presence of the master or other individual in
charge, specify the capacity in which the seaman is to serve and
obligate him to report for duty at a designated time and place, to
stand by the ship, and to obey the master until the voyage is
completed. By ―signing on‖ in a specific capacity, the seaman
impliedly warrants s/he is competent to perform the duties of that
position. If the master determines the seaman is incompetent or has
committed misconduct, the master may ―disrate‖ the seaman. In
that event the seaman may demand discharge from the service of
the vessel or accept a new position for the remainder of the voyage.
Contract (Cont’d.)
• Seaman are said to be “wards of admiralty”
who must be protected from overreaching by the
shipowner or master. This special status is
reflected in many federal statutes:
– a person must have basic qualifications to ―sign on‖
as a seaman, 46 U.S.C. § 7301 et. seq.
– the hours and conditions of the seaman’s
employment, 46 U.S.C. § 8104
– the living conditions which the seaman must be
provided aboard ship, 46 U.S.C. § 11101 et. seq.
– the seaman’s maritime lien for wages is of the highest
rank and the claim is exempt from limitation of liability
Contract (Cont’d.)
– a seaman may enforce his claim for wages in federal
court in a summary proceeding without prepayment of
the civil filing fee (now $350)
– a seaman may recover ―double wages‖ (also called
―penalty wages‖) if the shipowner fails to pay wages
without sufficient cause
– a seaman’s wages are exempt from attachment by
creditors, except for support of the seaman’s spouse
and children
– A seaman’s compromise of his claims is liberally
construed to protect him/her
Marine Insurance
• A contract insuring maritime property or a
maritime risk is a maritime contract, and
ordinarily would be governed by admiralty law.
However, in Wilburn Boat Co. v. Fireman’s Fund
Insurance Co., 348 U.S. 310 (1955), the
Supreme Court held that most marine insurance
issues are to be determined by state law. The
governing law is that of the state with the ―most
significant relationship‖ to the insurance dispute.
Marine Insurance (Cont’d.)
• Marine insurance developed in England

and was in full use there by the sixteenth
century. The American marine insurance
industry developed in New England
seaports (e.g., Hartford, CT).
• Types of Marine Insurance Policies:
– Hull Policy – insures the vessel against
certain risks for a stated period of time:
• from accidents in navigation or loss caused by
extraordinary action of the sea, fire, theft or
battery (“marine risks”)
• from loss caused by acts of war (“war risks”)
• From marine and war risks in a single policy
(“all risks”)
Protection and Indemnity (“P&I”) Policy:
provides public liability coverage to the shipowner against
claims for personal injury or wrongful death and claims for
non-collision damage to other vessels or property. It also
insures against cost of removing a wrecked vessel,
salvage, pollution and damage to cargo. The P&I policy
insures the vessel owner against personal injury and
wrongful death claims by seamen, including claims for
maintenance and cure, but excludes liability for claims
from maritime employees who are covered by worker
compensation acts.
• Cargo insurance: covers those risks that

maritime law imposes upon the
shipper/consignee.
• Maritime common law provides that an
insurer who pays a covered loss under a
marine insurance policy is subrogated to
the insured’s claim against third parties.
Towage
• A significant part of American maritime
commerce is the transportation of cargo by non
self-propelled barges. A boat which pushes a
barge is called a ―towboat;‖ a boat which pulls
a barge is called a ―tugboat;‖ both are called
―tugs.” A contract under which a tug owner
agrees to tow another’s barge is a contract of
towage, governed by special maritime contract
rules.
Towage (Cont’d.)
• The contract of towage may be, and often is, an
oral one. Absent express contractual promises,
the tug owner warrants it will furnish a seaworthy
tug and crew and that it possesses sufficient skill
and knowledge to perform the tow safely. The
owner of the towed vessel must furnish a
seaworthy vessel with proper equipment and
lighting and, if the tow is manned, with a crew
that is competent and sufficient in number.
• The tug owes the tow a duty to exercise
reasonable care in towing and mooring the tow.
Towage (Cont’d.)
• The towage contract is not one of bailment; thus,
proof by the tow of delivery of the tow in good
condition and redelivery in a damaged condition
does not give rise to a presumption the tug was
at fault. The tow can use the doctrine of res ipsa
loquitur in meeting its burden of proof, however.
• Claims between tug and tow arising out of the
towage contract are secured by maritime liens
on the offending vessels.
Pilotage
• Pilot: one who has specialized knowledge of
conditions of navigation in specific waters (e.g., Puget
Sound Pilots, Grays Harbor Pilots, etc.) and who goes
aboard a vessel to direct her safely in those waters.
• Both federal and state law compel the use of licensed
pilots (―compulsory pilots‖) in specified waters (e.g.,
RCW 88.16, 46 U.S.C. § 8502).
• A shipowner is not vicariously liable in personam for the
negligence of a compulsory pilot, but the vessel is liable
in rem for that pilot’s torts.
Pilotage (Cont’d.)
• But maritime law does not allow the vessel
master to abdicate his authority and
responsibility for the safe navigation of his
vessel to a pilot; therefore, through the doctrine
of respondeat superior, the shipowner may be
liable in personam for the master’s negligence in
failing to assert command when the compulsory
pilot’s conduct is obviously negligent.
• The unincorporated association through which
most pilots operate is not liable for a member
pilot’s torts (e.g., Puget Sound Pilots).
Salvage
• Salvage, the rescue of property from a maritime peril,
dates to Roman times. Such rescue may occur pursuant
to express contract (―contract salvage‖) between the
owner and the salvor. In many cases, however, the
salvor acts to save maritime property without any pre-
existing agreement with the owner for the compensation
to be paid by the owner. In such cases of voluntary or
―pure‖ salvage, maritime law imposes a quasi-
contractual obligation upon the property and its owner to
compensate the salvor for his efforts. The salvor’s claim
is secured by a maritime lien on the property salvaged.
Salvage (Cont’d.)
• Contract Salvage presents few issues for litigation, and when
they arise, the law of contracts applies.
• Quasi-Contract Salvage has generated much more litigation.

The premise underlying an award is that when maritime
property is in peril, the potential rescuers are few, the risks in
rescue are great, and the temptation of the rescuer to
appropriate the property as his own is strong. Accordingly,
the seagoing ―Good Samaritan‖ must be given added
incentive to undertake rescue efforts and to return the
rescued property to its owner. Under American maritime law,
the salvor is entitled to an award which is commensurate with
the value of the property, the risk involved and the effort
expended.
Salvage (Cont’d.)
• Salvors of human life are entitled to a fair share of the salvage
award to the salvors of the vessel and cargo; if there is no
concurrent property salvage, (thus a ―pure life salvage‖), a
rescuer of persons in peril at sea possibly may recover the
expense of rescue from the vessel in which the imperiled
persons were passengers or members of the crew under the
doctrine of unjust enrichment.
• Persons who are under a duty to aid a vessel or other
property in peril, may not recover salvage, since their efforts
are not ―voluntary;‖ thus the master and crew are not entitled
to salvage for saving their own vessel. If the vessel has been
abandoned, however, a crew member’s duty to aid his own
vessel has terminated, and his subsequent salvage efforts
may qualify for a salvage award.
Salvage (Cont’d.)
• Generally, neither the owner nor the master and crew of a vessel
which negligently collides with another vessel is entitled to salvage
for saving the other vessel imperiled by the collision. 46 U.S.C. §
2303, imposes a duty upon a vessel master involved in a marine
casualty to render assistance to persons endangered by the
casualty if he can do so without serious danger to his own vessel
and the persons onboard her, and § 2304 imposes upon a master
the duty to render assistance to any individual found on navigable
waters in danger of being lost if he can do so without serious danger
to his own vessel and the persons onboard here. Thus where there
is a statutory duty to save lives in peril on the sea, the aid to the
imperiled is not ―voluntary,‖ and hence there is no right to salvage.
• Similarly, public employees whose duty it is to save life and property
in peril on navigable waters (e.g., the U.S. Coast Guard, harbor
firefighters, etc.) are not entitled to salvage awards.
Salvage (Cont’d.)
• If property is ―derelict,‖ i.e., it has been abandoned at sea by
its owner without hope of recovery or intention to return, the
salvor may save the property without the owner’s permission;
however, if the owner or his agent remains on board the
imperiled vessel, he may refuse a proffered rescue, even if a
reasonable person would not have done so under the
circumstances.
• A salvor is entitled to a salvage award only if the salvage
efforts are successful. If the property ultimately perishes in
the peril, salvage is not owed. Anyone who performs an act
which contributes to the safety of imperiled property (e.g., the
person who aids a vessel by transmitting an SOS message,
by warning of an impending peril, or even by simply standing
by), even though not the person who effects the rescue, may
be entitled to share in the salvage award.
Salvage (Cont’d.)
• Amount of the Salvage Award: will rarely exceed one-
half the value of the property saved, although there is no
absolute rule. A costly salvage effort that rescues
property of historical and archeological value may justify
an award approaching 100% of the value. The salvor is
held to a duty of reasonable care under the
circumstances, and any breach of that duty will diminish
the amount of the award. American maritime law
requires the salvor maintain the ―most scrupulous
fidelity‖ to the salvaged property (i.e., to not embezzle
the property) and a breach of this duty forfeits the right to
a salvage award.
• Statute of Limitation: suit for a salvage award must be
brought within two years after the salvage.
Salvage (Cont’d.)
• Finds: if the owner expressly disclaims ownership, or
the property has been abandoned at sea for a long
period of time, maritime law may classify such property
as ―found‖ and under the doctrine of ―finds,‖ the rescuer
of such property may be awarded ownership rather than
a lesser award of salvage.
• Prize: is a sovereign’s capture at sea of an enemy’s
vessel or other property during time of war. The captor
takes the vessel to a prize court (e.g., U.S. District Court
[28 U.S.C. § 1333]) which orders the vessel sold and the
proceeds paid to the captor.
Particular Average
• In the typical voyage, a vessel, her cargo and
the freight (the vessel’s fee for carrying the
cargo) are said to be ―at risk;‖ if the voyage is
unsuccessful because, for example, the vessel
sinks and is lost during the voyage, the owner of
one or more of these interests suffers a loss that
may be borne by such owner, the owner’s
insurer, or a third party wrongdoer. The
allocation of loss is called “particular average.”
General Average
• When the perils of the sea endanger a
vessel whose master and crew are free
from fault, it may become necessary to
―sacrifice‖ one of the interests, a principle
of maritime law dating from the Roman
Empire (!) requires that ―the loss
occasioned for the benefit of all must be
made good by the contribution of all.‖
This is called “general average.”
General Average (Cont’d.)
• General Average applies only when:

– 1. there is a danger to which both the vessel
and her cargo are exposed;
– 2. the danger is imminent and apparently
―inevitable,‖ which means there is no probable
escape except by inflicting loss upon one of
the interests;
– 3. there is a voluntary sacrifice, such as
jettisoning cargo (jettisoned cargo that floats
is called “flotsam;‖ and if it sinks, “jetsam;”
and if a buoy is attached to it to aid in later
retrieval if it sinks, is it called “lagan”) or
stranding the vessel;
– 4. the attempt to avoid the common danger is
successful; and
– 5. the party seeking contribution from the
owners of the other interests is free from fault.
• The sacrifice need not be destruction or damage
to property. It may be the incurring of
extraordinary expenses for the joint benefit of
vessel and cargo.
• When general average applies, the loss is
transferred from the owner of the interest that is
sacrificed, to the owners of all the interests at
risk; the owners of the ―saved interests‖ pay to
the owner of the ―sacrificed‖ interest their pro
rata share of his loss.
• Example of General Average: assume a vessel valued at
$800,000 is carrying cargo worth $150,000, for a freight
charge of $50,000. Assume that two-thirds of the cargo
(valued at $100,000) is jettisoned, and the sacrifice
qualifies for general average. The total of the interests at
risk is $1,000,000, the cargo loss is $100,000 and the
vessel owner represents 85% (the value of the vessel and
the freight) of the value of the maritime venture (the
voyage) saved from the peril. The vessel owner must
reimburse the cargo owner for 85% of the latter’s loss, or a
total of $85,000.00; the cargo owner bears the remainder of
his loss ($15,000), which is the percentage of the total loss
(15%) equal to his percentage in the maritime venture.
• A claim for general average is secured by

a maritime lien on the property saved. In
the vast majority of cases, the interests at
risk are insured against, and general
average is computed and paid through
informal proceedings among the insurers.
• The issue of general average is now addressed in bills of
lading. With the enactment of the Harter Act and
COGSA, both of which relieve the carrier from liability to
the cargo owner for damage caused by errors in the
management and navigation of the vessel by her master
and crew, vessel owners argued they could recover in
general average when their negligence was that from
which they were relieved by those statutes. The U.S.
Supreme Court has approved clauses in bills of lading
that allow the vessel owner to recover in general
average, notwithstanding the cause of the loss suffered
was a negligent act from which a carrier is relieved from
liability under Harter and COGSA. Such clauses are
called Jason clauses, after the name of the Supreme
Court decision that permitted their use: The Jason, 225
U.S. 32 (1912).
Maritime Tort Law
• The most frequently occurring maritime torts are
those arising out of collisions between vessels,
allisions between moving vessels and stationary
objects, injuries to seamen and claims by harbor
workers against vessels and their operators
under the LHWCA.
• General maritime tort law has been fashioned
for the most part by the U.S. District Courts and
Courts of Appeal, rather than by the U.S.
Supreme Court.
Maritime Tort Law (Cont’d.)
• In most general maritime tort cases, liability is predicated
upon negligence and/or strict liability. The maritime common
law has borrowed from and added to the general common law
of torts. Judge Learned Hand’s famous formula defining
negligence was stated by him in a maritime tort case, United
States v. Carroll Towing Co., 159 F.2d 169 (2nd Cir. 1947).
Duty in maritime negligence turns upon the foreseeability of
the risk (―proximate cause‖).
• Maritime law rejects the land-law premises liability
classifications of ―trespasser,‖ ―licensee‖ and ―invitee‖ and
instead imposes a duty of reasonable care to all persons who
come aboard a vessel for purposes not inimical to those of the
interests of the vessel owner/operator.
• In allision/collision cases, where the alleged
wrongdoer has violated a statutory rule of the
road, the Pennsylvania Rule (The Pennsylvania,
86 U.S. 125 (1873) places the burden upon the
violator vessel to show that such statutory
violation not only did not, but could not have
contributed to the cause of the loss!
• The doctrine of comparative negligence has
always obtained in maritime law; a plaintiff’s
contributory negligence never barred recovery
as it did under land-based common law.
• 46 U.S.C. § 763a provides a three year statute of
limitations for maritime tort actions.
• General maritime law recognizes a cause of action for the
wrongful death of the victim of a maritime tort.
• An important element of damages in maritime tort claims is
recovery for loss of future earnings, or, when the victim dies,
recovery by his wrongful death beneficiaries of the financial
support they would have received from the victim. Just as in
land-based tort law, such future earnings must be reduced
to present value. The Supreme Court has held that the trier
of fact in determining damages for loss of future earnings may
consider the taxes the worker would have paid on such
earnings and the effect of inflation on such earnings. The
Court also has held the jury may be instructed that its award
for loss of future earning capacity is not subject to federal
income taxation.
• Prejudgment interest on maritime tort

claims, formerly discretionary with the
court, is mandated by recent case law,
unless circumstances make it inequitable
to do so (e.g., plaintiff was dilatory in filing
suit, or made an unreasonable settlement
demand, etc.)
Collision Law--Liability
• Maritime collision law regulates the

navigation of vessels and imposes liability for
negligent navigation that causes injury or
damage. In this sense, it is analogous to
land-based auto accident law; many of the
same principles apply, and there is much
statutory regulation.
Collision Law—Liability (Cont’d.)
• Maritime collision law also provides for apportionment of
damages among the vessels involved for
injuries/damage to crew, passengers and cargo.
Passengers and crew members injured in a collision of
two or more vessels usually sue only the vessel in which
they were serving or being carried. That vessel, if at
fault, may be a joint tortfeasor and thus will be liable to
her passengers and crew for the full amount of their
damages. The vessel owner may then seek contribution
from the other vessels at fault so that ultimately each
vessel pays its percentage share (based upon degree of
fault) of the total damages sustained by all persons in
the collision.
• A vessel is liable in rem for her collision torts. Her
owner/demise charterer (owner pro hac vice) usually will
be liable in personam under respondeat superior for the
negligence of the master or crew in causing the collision.
The owner is NOT liable in personam for the torts of a
compulsory pilot, but the vessel is liable in rem.
• The general test of ―fault‖ is whether the person
navigating the vessel acted as a ―reasonably prudent
mariner‖ at the time of the accident. Because there is a
plethora of statutes and regulations whose purpose is to
minimize or eliminate the risk of collision, violation of
these statutes or regulations constitutes ―statutory
fault,” the maritime equivalent of negligence per se.
• Vessels, because of their size and lack of friction, are
unable to quickly decrease speed, stop, or change
course. Collision between them frequently can be
avoided only if the mariners in charge discover any risk
of collision at the earliest possible time and promptly
take measures to avoid collision with which both
mariners are familiar. The efforts they must undertake to
discover the risk of collision and the measures they take
to avoid collision after the risk is discovered are
prescribed with precision by the Rules of the Road.
• There are two sets of Rules of the Road:

– The Collision Regulations (―COLREGS‖) (formerly the
International Rules of the Road) which apply to all
vessels on the high seas beyond American territorial
waters (codified at 33 C.F.R. § 81.1 et seq.); and
– The Inland Rules of the Road which apply to all
vessels upon the inland waters of the U.S. and on
Canadian waters of the Great Lakes (codified at 33
C.F.R. § 2001(a)).
• The U.S. Coast Guard and Corps of Engineers have

adopted regulations affecting navigation. Failure to
comply with these has the same effect as violation of a
Rule of the Road.
• Occasionally, a violation of a custom may constitute
fault, e.g., the ―point and bend‖ rule on the Mississippi
River which provides that an ascending vessel navigate
to the ―point‖ side of the river, and the descending vessel
to the opposite or ―bend‖ side of the river where the
current is stronger).
• The Rules of the Road prescribe the speed at

which a vessel should proceed, the lights and
shapes she must exhibit, the sounds or signals
she must emit and the maneuvers she must take
when coming upon another vessel in meeting,
overtaking or crossing situations. There is a
special rule for vessel conduct during fog or
other conditions of limited visibility. Both sets of
Rules of the Road generally prescribe similar
conduct in similar situations.
• Lighting Rules: large vessels underway at

night must show five ―running lights;‖ three
white lights, a masthead, range and stern
light, and a red light amidships on the port
side, and a green light amidships on the
starboard side. (Rule 23).
• Steering Rules: prescribe which vessel has the right of
way in a given situation.
– If the vessels are meeting, neither has the right of way, but must
steer so as to pass each other ―port to port.‖ (Rule 14).
– If one vessel is overtaking the other, the overtaking vessel is the
burdened/give way vessel, the one being overtaken is the
privileged/stand on vessel. The burdened vessel must execute
the maneuver safely. The privileged vessel must maintain her
course and speed, making only such changes as are fairly to be
expected in the normal course of navigation. (Rule 13)
– If the vessels are in a crossing situation, the vessel
on the right has the right of way (i.e., is the
privileged/stand on vessel). The other vessel, as the
burdened/give way vessel, must maneuver to effect
the crossing safely. (Rule 15) The burdened/give way
vessel must signal her course change intentions with
sound signals—blasts on the ship’s whistle. The
privileged/stand on vessel responds with appropriate
sound signals to indicate her assent. (Rule 34)
Vessels operating in American waters equipped with
radio telephones also communicate their intentions in
a crossing situation via that medium. 33 U.S.C. §
1201 et seq.
• The ―Fog‖ Rule (Rule 19): when underway in conditions
of limited /restricted visibility, a vessel hearing the fog
signal of another vessel forward of her beam, must
reduce speed to a minimum at which she can maintain
her course, and if necessary, take all way off and
navigate with extreme caution until danger of collision is
over.
• While strict adherence to the Rules of the Road is
ordinarily required, circumstances may arise in which a
reasonably prudent mariner can avoid collision only by
deviating from the precise conduct mandated by the
Rules. Will ―statutory fault‖ be found against such
mariner? No, not if the mariner can prove that ―special
circumstances‖ existed which mandated such departure
from the Rule(s).
• Presumptions of Fault:
– In an allision between a moving vessel and a
stationary object, the vessel is presumed to
be at fault.
– An unexpected and unexplained sheer by one
vessel into another raises a presumption of
negligent steering by the sheering vessel.
– A drifting vessel was set adrift by the
negligence of those in control of her.
• The Lookout Rule: Rule 5 of the

COLREGS (and a similar Inland Rule of
the Road) requires every vessel ―maintain
a proper lookout by sight and hearing as
well as by all available means appropriate
in the prevailing circumstances and
conditions.‖
• Navigation in narrow and congested

channels of rivers and harbors is
particularly perilous and there are special
rules that attempt to reduce the risk of
collision. Both sets of Rules of the Road
have provisions that apply in such
situations (Rule 9 of the COLREGS and
33 U.S.C. § 2009 of the Inland Rules).
• In the absence of statutory fault, collision liability turns

upon the ―reasonably prudent mariner‖ standard. If a
mariner is free from fault when an emergency arises
(i.e., the vessel becomes in extremis), his/her
subsequent actions are not judged by the reasonably
prudent mariner standard (because one is not
expected to act with the same rational and calm
consideration with which one would be expected to
act in a less stressful situation). This is similar to the
land-based tort law doctrine of ―discovered peril‖ or
―sudden emergency.‖
Collision Law - Damages
• When a vessel is lost as a result of a collision
(or is a ―constructive total loss‖ because the cost
of repairs exceeds her value—in land-based
terminology, she is ―totalled‖), her owner may
recover her fair market value together with the
net freight (gross freight less expenses of the
voyage, i.e., ―lost profits‖).
• If a vessel is damaged, her owner is entitled to
recover the cost of repairs and for loss of use or
profits, sometimes referred to as ―detention‖ or
―demurrage‖ damages.
Collision Law – Damages (Cont’d.)
• The Wreck Act, 33 U.S.C. § 409, imposes two

affirmative duties upon the owner of a vessel
that is wrecked or sunk in a navigable channel:
the duty to mark the wreck and the duty to
remove her.
• The owner of the sunken wreck may be liable to
third persons who are injured as a result of the
failure to mark or to remove the vessel.
• P&I insurance insures against the cost of

wreck removal when removal is
compulsory by law (as is the case under
the Wreck Act).
• Marine Pollution: The Oil Pollution Act of 1990, 33

U.S.C. §§ 2701 et seq., makes the owner of a vessel
from which pollution emanates, strictly liable for the
cost of restoring natural resources damaged by the
pollution (this legislation is a direct response to the
Exxon Valdez disaster in Prince William Sound in 1989!)
• There are but three statutory defenses to liability under
the Act: that the discharge of pollutants was caused
solely by an act of God, act of war, or act or omission of
a third party.
• Discharge of hazardous substances other than
petroleum and related products is governed by CERCLA,
42 U.S.C. §§ 9601-9675.
• Oil and other forms of pollution are also regulated by the

Clean Water Act, 33 U.S.C. §§ 1251-1397, and the
Outer Continental Shelf Lands Act, 43 U.S.C. § 1811 et
seq.
• Negligent or intentional discharge of pollutants from a
vessel into navigable waters is a maritime tort. Maritime
tort law may afford a remedy to private persons
damaged through pollution of navigable waters, but such
remedy may be preempted by the Oil Pollution and
Clean Water Acts which may also preempt some but not
all remedies provided by state law.
Maritime Worker Injury Claims
• The remedies available to an employee against his/her
employer and a vessel in which the employee is working
are determined by the employee’s status as a seaman,
a maritime worker or a nonmaritime worker.
• Two of the seaman’s major claims, negligence of his/her
employer and unseaworthiness of the vessel, are
governed by maritime tort principles. The other, the right
to maintenance and cure, is akin to worker’s
compensation, but is governed by judicially developed
principles of maritime law, not statute.
(Cont’d.)
• The maritime worker’s usual recovery is
against the employer through the LHWCA, but
he/she also may have a remedy against the
vessel in which he/she is working under
maritime tort law principles.
• The nonmaritime worker’s recovery for work-
related injuries is usually through a state
worker’s compensation scheme, except where
the injury is caused by the employer’s maritime
tort.
Maritime Worker Injury Claims (Cont’d.)
• Claims by seaman and maritime workers against

third parties are governed either by maritime
tort law or state law, depending upon whether
there is maritime tort jurisdiction.
• Nonmaritime worker tort claims against third
parties will be governed either by maritime tort
law or state law, or some combination of the two.
Seaman’s Remedies
• Maintenance and Cure: a seaman who incurs
illness or injury in the service of the vessel is
entitled to his/her wages to the end of the
voyage and to maintenance (an allowance for
living expenses while undergoing medical
treatment) and cure (the cost of reasonably
necessary medical care until attainment of
maximum cure), even though the seaman’s
employer was free from fault in the cause of the
illness or injury.
Seaman’s Remedies
• Unseaworthiness of the Vessel: a

vessel owner/operator owes to the crew
the duty to furnish a safe place to work
and live aboard the vessel. Breach of this
duty gives rise to a claim for general
damages.
Seaman’s Remedies
• Negligence of the Employer: Congress

in 1920, through the Jones Act, 46 U.S.C.
§ 688, extended the provisions of the
Federal Employers’ Liability Act (―FELA‖),
45 U.S.C. § 51 et seq. (which granted
interstate railroad workers a claim against
their employer for negligence) to seaman,
granting them the right to sue their
maritime employer for negligence.
Seaman’s Remedies (Cont’d.)
• Who are Jones Act seamen? A seaman is a

―member of the crew of a vessel‖ who
– (1) has a more or less permanent connection with, or
performs a substantial part of his/her work aboard
– (2) a vessel
– (3) in navigation and
– (4) is aboard the vessel to contribute to her function
or to the accomplishment of her mission.
• The following have been held to be Jones

Act seamen:
– a hairdresser, a bartender, a masseuse and a
musician on a cruise ship
– a waiter and an entertainer on a casino vessel
– a painter on a paint boat
• The duration of a worker’s connection to a vessel and
the nature of the worker’s activities, taken together,
determine whether he/she is a seaman, i.e., the quantity
and quality of a worker’s duties aboard a vessel.
• A judicially developed rule of thumb (Chandris, Inc. v.
Latsis, 515 U.S. 347 (1995)) is that a worker must spend
at least 30% of his/her working time aboard a vessel in
navigation to be a seaman.
• A worker’s status as a seaman is a mixed question of
law and fact for the jury.
• Maintenance and Cure – for seamen aboard
oceangoing vessels, the right to maintenance and
cure is virtually absolute; all injuries/illnesses aboard
ship are covered, as well as injuries/illnesses
incurred while off the vessel on shore leave. Thus in
Koistinen v. American Export Lines, Inc., 83
N.Y.S.2d 297 (N.Y. City Ct. 1948), a seaman who
was injured in a foreign port when he jumped out of
a prostitute’s window to avoid mayhem at the hands
of her pimp was held entitled to maintenance during
his period of recuperation.
• A seaman in not entitled to maintenance and cure if
his/her injury or illness occurred through his/her own
―willful misconduct.‖ This term means something more
than mere negligence. Two classic examples of a
seaman’s willful misconduct are injuries/illnesses
incurred while intoxicated or incurring sexually
transmitted diseases (―STDs‖).
• From 1791 to 1981, the U.S. Government provided free
medical care for disabled seamen, first through special
seamen’s hospitals and later through Public Health
Service hospitals. Congress closed these. Now the
seaman’s employer may designate the physicians and
medical facilities that he/she will supply the seaman.
• The daily rate of maintenance may be established by a
collective bargaining agreement (―CBA‖) between the
seaman’s union and employer, or, in the absence of a
CBA, by the court based upon the seaman’s evidence of
actual living expenses ashore while undergoing
treatment for a qualifying illness/injury.
• An action for maintenance and cure can be brought
against the vessel owner in personam and against the
vessel in rem. If a claim for maintenance and cure is
joined with a Jones Act negligence claim, the seaman is
entitled to a jury trial on the maintenance and cure
claim, as well as the negligence claim.
• If the employer fails to provide prompt and

adequate medical treatment that causes the
seaman’s condition to worsen, the employer
may be liable for compensatory damages,
including pain and suffering.
• If such failure is willful, the seaman is also
entitled to recover actual attorney fees, Vaughan
v. Atkinson, 369 U.S. 527 (1962).
• Unseaworthiness – usually joined with a Jones
Act claim by the seaman against his/her
employer. Since an unseaworthy condition of a
vessel is usually caused or contributed by the
negligence of a crew member, hence allowing
recovery of damages under a Jones Act
negligence claim, the unseaworthiness remedy
is often unnecessary, EXCEPT when:
– 1) an unseaworthy condition arises without employer
negligence (the employer’s breach of the warranty to
provide a seaworthy vessel results in strict liability);
– 2) the seaman must establish a maritime lien
against the vessel (Jones Act liability does not
give rise to a maritime lien against a vessel,
only in personam liability of the vessel owner
for negligence);
– 3) the seaman is not an employee of the
vessel owner (the Jones Act gives a remedy
only against the seaman’s employer).
• Warranty of Seaworthiness: the shipowner is

not required to furnish an accident-free vessel,
only one reasonably fit for her intended use
while she is in navigation.
• The difference between unseaworthiness and
negligence is that in the former, the seaman
need not prove the vessel owner knew or should
have known of the unreasonably dangerous
condition that caused the seaman’s injury.
• While the damages recoverable for breach of
the warranty of seaworthiness and for Jones Act
negligence are nearly the same, there are two
important differences: punitive damages are
recoverable from a shipowner who willfully
breaches the warranty of seaworthiness (but are
not recoverable upon a Jones Act negligence
claim), and a seaman can recover for loss of
consortium under unseaworthiness, but not
under the Jones Act.
• Jones Act Negligence: applies only if a

seaman is injured or killed in the course of
his/her employment, and most commonly arises
when the seaman is injured by the negligence of
a co-employee.
• The Jones Act employer owes a duty to rescue a
seaman who has jumped or fallen overboard
without antecedent employer negligence.
• The statute of limitation on Jones Act claims is
three years, 46 U.S.C. § 56.
• A Jones Act claim may be brought as an
admiralty claim in federal court, or in state court,
and, because it arises under an Act of Congress,
it may also be brought as a law claim in federal
court.
• A Jones Act claim filed in state court may not be
removed to federal court. 28 U.S.C. § 1445(a).
Maritime Workers
• Maritime Workers include longshoremen, shipbuilders,
ship repairers, ship breakers and others whose work on or
near navigable waters facilitates the waterborne
transportation of cargo and passengers. Since these
workers are not ―seamen,‖ they are not covered by the
Jones Act and hence have no cause of action against their
employers for negligence. Congress enacted the LHWCA
in 1927, a comprehensive worker’s compensation scheme
for maritime workers who do not qualify as seamen. As
subsequently amended, the LHWCA covers:
– 1. claimants engaged in maritime employment
– 2. injured on navigable waters or any adjoining pier,
wharf or similar structure customarily used in
loading, unloading, repairing or building a vessel.
Maritime Workers (Cont’d.)
Those not covered include those employed:
1. exclusively to perform office, clerical, secretarial,
security or data processing work;
2. by a club, camp, recreational operation,
restaurant, museum or retail outlet;
3. by a marina and not engaged in construction,
replacement or expansion of the marina;
4. by suppliers, transporters or vendors;
5. aquaculture workers; and
6. to build or repair recreational vessels under 65 feet
in length. 33 U.S.C. § 902(3)(A)-(F).
• The Outer Continental Shelf Lands Act, 43 U.S.C. §
1333(b), extends LHWCA coverage to oil production
workers aboard fixed platforms located on the outer
continental shelf, unless they qualify as ―seamen‖
through their connection with some vessel. The
Supreme Court held that production of minerals from a
fixed platform is not maritime employment. Herb’s
Welding, Inc. v. Gray, 470 U.S. 414 (1985). Thus oil
production workers on fixed platforms within state
territorial waters (24 miles seaward (formerly three
miles)) are excluded from LHWCA coverage, and
instead are covered by the appropriate state worker’s
compensation scheme.
• LHWCA Benefits:
– 1. Disability - 2/3 of average weekly wage before
injury/occupational disease for total disability, either temporary
or permanent. If the disability is partial, (either temporary or
permanent) the compensation is 2/3 of the difference between
the average weekly wage before the injury/occupational disease
and the wage earning capacity after the injury/occupational
disease.
– 2. Medical Services – claimant may select her/his own health
care provider and may be required to submit to an IME by a
physician selected by her/his maritime employer.
– 3. Wrongful Death Benefits – payable to statutorily designated
survivors
• Processing LHWCA Claims: initially through the U.S.
Dept. of Labor. A claimant must give notice of claim
within thirty days of its occurrence and must file a formal
claim within one year of the occurrence. Failure to give
such notice may not bar recovery of benefits if the
maritime employer knew about the injury or otherwise
was not prejudiced by the failure, or if the deputy
commissioner excuses the failure. The time periods for
giving notice begin to run when the claimant reasonably
should have known of the existence of a work-related
injury/illness.
• The maritime employer must controvert the
claim or commence voluntary disability
payments within 14 days after the occurrence of
the injury/illness. The claimant is then relieved
of the duty to give notice and the one year
statute of limitations upon filing a formal claim is
tolled.
• If the employer controverts the claim, the claim
first undergoes a conciliation process in which
the deputy commissioner seeks to promote an
amicable settlement.
• If conciliation fails to produce a settlement, the claim
goes to a contested hearing before an ALJ for decision.
• The ALJ’s decision is appealable first to the Benefits
Review Board (―BRB‖) and then to the U.S. Circuit Court
of Appeals in the circuit in which the case arose. The
BRB must uphold the ALJ’s findings of fact (―F/F‖) if they
are supported by substantial evidence which may consist
only of the credible evidence of the claimant. The Court
of Appeals’ review of the BRB’s decision is limited to
questions of law and whether the BRB adhered to its
scope of review of the ALJ’s F/F.
• A maritime employer who fails to timely pay LHWCA benefits
is subject to penalties (an additional 10% if any installment of
compensation payable without an award is not paid within
fourteen days after it becomes due; and an additional 20% if
an installment of compensation payable under the terms of
an award, is not paid within ten days after it becomes due).
• Claimant’s attorney fee must be fixed by the Office of Worker
Compensation Programs (―OWCP‖); however if the employer
unsuccessfully contests liability, it must pay a reasonable
attorney fee to claimant’s counsel.
• An LHWCA compensation award is modifiable if there is a
change in the degree of claimant’s disability or wage-earning
capacity.
• When a maritime worker is negligently injured while working aboard a vessel in
navigation, s/he has a cause of action against the vessel and her owner for
negligence. The warranty of seaworthiness does not extend to maritime workers.
The vessel owner’s duty of care owed to the maritime worker aboard the vessel
under the LHWCA (33 U.S.C. § 905(b)) has been stated by the Supreme Court
(Scindia Steam Navigation Co., Ltd., v. De Los Santos, 451 U.S. 156 (1981) to be:
– 1. the ―turnover duty,‖ i.e., to warn maritime workers of latent defects (those not
known to the maritime worker and which would be neither obvious nor
anticipated by a skilled maritime worker) in the cargo stow and cargo.
– 2. the ―active operations duty,‖ i.e., a continuing duty to exercise reasonable care
to make the vessel safe once the maritime workers begin their activities if the
vessel owner actively participates in the activities or it maintains control over the
area where the activities are conducted.
– 3. the "duty to intervene,‖ i.e., if the vessel owner knows of an unsafe condition
and reasonably believes the maritime employer will not remedy it, then the
vessel owner must intervene to halt the activities, eliminate the unsafe condition,
or make the maritime employer eliminate it.
• The Maritime Employer’s Rights against

Third Parties: the employer has a right of
subrogation against a third party tortfeasor
whose negligence proximately caused the injury
for which LHWCA compensation has been paid.
– If the maritime worker has sued the third party
tortfeasor (such as the vessel in which the injury
occurred and her owner), the maritime employer may
intervene to enforce its subrogation rights.
– The maritime worker may settle the claim against the
third party without the maritime employer’s approval,
even if that defeats such employer’s subrogation
rights. But any settlement without the employer’s
approval discharges the employer from liability to pay
future compensation.
– If the maritime worker does not sue the third party
tortfeasor within six months after acceptance of an
award of compensation, the employer may sue the
third party tortfeasor to enforce its subrogation rights.
Public Employees
• The exclusive remedy of seaman and maritime
workers employed by the United States is
compensation under the Federal Employees’
Compensation Act, 5 U.S.C. § 8101 et seq.
• State and local government employees who qualify
as seamen (e.g. seamen employed aboard
Washington state ferries) are entitled to all the
traditional seaman’s remedies. They are expressly
excluded from the LHWCA and the Outer
Continental Shelf Lands Act.
Wrongful Death
• Death on the High Seas Act (―DOHSA‖): created a
cause of action for the exclusive benefit of a decedent’s
surviving spouse, parent, child or dependent relative
when the death was caused by a wrongful act occurring
on the high seas beyond a marine league (three
nautical miles). 46 U.S.C. § 761 et seq. Recovery of
damages is limited to pecuniary loss only, i.e., for
monetary or other material benefits received from
decedent while alive, but not for loss of society and
companionship.
Wrongful Death (Cont’d.)
• In commercial aviation accidents, DOHSA

applies only beyond 12 miles from shore,
and the wrongful death beneficiaries
(those who were dependent upon
decedent before death) may recover
BOTH pecuniary and nonpecuniary
damages .
• Remedies Available to Wrongful Death
Beneficiaries of Seamen:
– 1. If a seaman is killed by employer negligence
ANYWHERE upon navigable waters, his/her
beneficiaries may recover both pecuniary and
nonpecuniary damages (decedent’s pain and
suffering damages survive to the beneficiaries);
– 2. If a seaman is killed beyond territorial navigable
waters by an unseaworthy condition, his/her
beneficiaries may recover only pecuniary damages
under DOHSA.
– 3. If a seaman is killed upon territorial navigable
waters by an unseaworthy condition, his/her
beneficiaries may recover wrongful death pecuniary
damages and perhaps nonpecuniary damages (the
law is unsettled) under general maritime common law.
Moragne v. States Lines, Inc., 398 U.S. 375 (1970).
– 4. In all other maritime wrongful death actions where
death occurred upon territorial navigable waters, the
wrongful death beneficiaries may recover under
Moragne.
• Wrongful Death Beneficiaries:
– Jones Act beneficiaries take by ―class:‖ a surviving
spouse or child precludes recovery by a more remote
surviving class of relative such as a dependent parent
or other dependent relatives.
– DOHSA and Moragne beneficiaries all share in the
recovery, regardless of ―class.‖
– In either of the above cases, the beneficiaries must
have been financially dependent upon decedent in
order to be entitled to recover wrongful death
damages.
– All such wrongful death actions are subject to
a three-year statute of limitation.
– Decedent’s personal representative is the
proper party plaintiff and controls the litigation.
– Jurisdiction of such wrongful death actions
lies either in federal court under its admiralty
jurisdiction or its law jurisdiction under
diversity of citizenship, or in state court.
• The LHWCA provides wrongful death

benefits to designated beneficiaries of a
maritime worker whose work-related injury
causes death.
Platform Injuries
• Maritime law treats movable drilling structures as
vessels, stationary or ―fixed‖ platforms (those more than
temporarily attached to the seabed) as land.
• Torts occurring on fixed platforms are ordinarily
governed by state law, unless preempted by some
federal law. One such law is the Admiralty Extension
Act, 46 U.S.C. § 740, which would apply if a vessel
negligently allides with a fixed platform causing injury to
those on the platform. DOHSA might also apply in some
cases. Otherwise, the maritime common law treats the
fixed platform as an ―extension of the land‖ thus lacking
―locality‖ (not upon navigable waters) and ―maritime
flavor‖ (not involving a vessel in navigation).
Platform Injuries (Cont’d.)
• Claims against employers by non-seamen
working on fixed platforms will be governed by
either the LHWCA or by a state worker’s
compensation scheme, depending upon the
geographical area in which the injury occurs: if
the platform is located on the Outer Continental
Shelf Lands, LHWCA applies; if within territorial
waters, the applicable state act applies.
Sovereign Immunity of the United
States as Vessel Owner
• In the Suits in Admiralty Act, 46 U.S.C. § 741 et seq.,
Congress authorized suits in personam against the
United States as the owner/operator of a merchant
vessel.
• Similarly, in the Public Vessels Act, 46 U.S.C. § 781 et
seq., Congress authorized actions in personam against
the United States for torts committed by ―public vessels,‖
including warships.
• Both acts expressly prohibit in rem actions against
vessels owned/operated by the United States.
Joint and Several Liability,
Indemnity and Contribution
• Maritime law imposes joint and several liability upon joint
tort feasors. State tort reform legislation in recent years
has moved toward several liability, or modified joint
liability—not so admiralty law!
• When one tort feasor is held jointly and severally liable
with one or more tort feasors, issues of indemnity and
contribution may arise.
• Maritime law allows indemnity where the indemnitor’s
negligence ―triggers‖ the indemnitee’s liability (e.g.
vicarious or strict liability). Maritime law allows
contribution among joint tort feasors based upon
percentage of fault.
Limitation of Liability
• When a voyage or events subject a vessel owner to
liability, maritime law, 46 U.S.C. § 183, may permit
him to limit his liability arising out of the voyage to
the value of the vessel and freight then pending, but
if death or personal injury results from an
occurrence involving a seagoing vessel (a
passenger vessel operating on the high seas), the
owner’s liability is increased to $420 per ton. The
vessel owner entitled to limitation need surrender
only the vessel or its value after the occurrence; if,
as is often the case, the vessel is sunk or heavily
damaged, the limitation fund available to claimants
may be insignificant.
Limitation of Liability (Cont’d.)
• The vessel owner may commence a single (all
claimants’ suits will be consolidated in this one
action though they may have been commenced
separately in a number of different courts)
limitation proceeding in federal court (where,
because it is on the admiralty side, there is no
right to a jury trial) without admitting liability; if he
is exonerated (found to be without fault) he owes
nothing, but if he is found at fault, he may limit
his liability to the value of the vessel (usually
NOTHING, if the vessel is lost!)
• If the vessel owner has been

compensated for loss of his vessel by his
insurers, those proceeds are not part of
the limitation fund available to claimants!
The vessel owner retains those proceeds,
even though those damaged by his vessel
recover little or nothing!
• Even the owner of a pleasure boat or of an

18-foot rowboat is entitled to limit his/her
liability so long as the occurrence causing
injury to others occurred on navigable
waters.
• A vessel owner may only limit his liability for tort or contractual
obligations incurred without his knowledge or privity.
– In the tort context, this means:
• 1) the owner did not personally participate in the
negligence or fault which caused injury. He is not required
to supervise the vessel in port or at sea. As long as he
selects competent personnel and gives them adequate
instructions, he will not be found with knowledge or privity
of the later negligent acts of the master and crew,
EXCEPT when personal injury or death is the result of
tortious conduct of the vessel master—then the vessel
owner IS charged with knowledge or privity of the master.
• 2) if the owner delegates ALL management and control of
his vessel to another such that the delegate can be said to
be the owner’s ―alter ego,‖ the owner may be charged
with knowledge and privity of the delegate’s negligence or
fault.
• 3) if the owner is aboard his vessel and is in active
control of her, then he is charged with knowledge
and privity.
• 4) if the owner is a corporation which necessarily
must act through human beings, that corporation is
generally charged with knowledge and privity of
the acts of its ―high level management personnel‖
(which may include the master).
– In the contract context, the vessel owner
remains liable for his personal contracts,
e.g., contracts for supplies and repairs,
seaman’s wages and maintenance and cure.
There are cases holding that claims for
damage to cargo through voyage deviation
are not subject to limitation, nor are claims
that arise under the Wreck Act and the Rivers
and Harbors Act.
• Procedure in Limitation of Liability
– The vessel owner must petition for limitation in federal
court within six months after receipt of a written claim
against him arising out of the occurrence. This period
of limitation may not necessarily begin when the
owner receives the first written claim—it may not
begin until the owner realizes the aggregate of all the
claims arising from an occurrence exceed the value of
his vessel.
– The owner may assert limitation as an affirmative
defense in actions brought against him in both federal
and state court. He usually will also deny liability,
pleading limitation in the alternative.
– The owner who seeks limitation must
surrender title to the vessel and file with the
court a bond in the amount of the value of the
vessel.
– Since jurisdiction of limitation is exclusively in
the admiralty ―side‖ of federal court, there is
no right to a jury trial.
Jurisdiction and Procedure in
Maritime Claims
• History
• In the early days of our federal judiciary, there were
three ―sides‖ (involving separate dockets) in federal
court: law, equity and admiralty. A single judge presided
over all three sides. In 1938 when the Federal Rules of
Civil Procedure (―F.R.Civ.P.‖) were adopted, the law and
equity ―sides‖ were unified. Thus today it is fair to say
the United States District Court has two remaining
―sides:‖ law and admiralty. The F.R.Civ. P. still provide
special rules for admiralty proceedings, e.g., Rules 14(c),
38(e) and the Supplemental Rules for Certain Admiralty
and Maritime Claims.
Maritime Claims (Cont’d.)
• Subject Matter Jurisdiction
• Admiralty and maritime claims may be asserted in either federal or
state court: the same maritime substantive law applies in both court
systems. However, only a federal court, sitting in admiralty, may
adjudicate an in rem action against a vessel to foreclose maritime
liens and to grant limitation of liability. Where plaintiff brings a
maritime claim only in personam in federal court, it may be brought
on the law ―side‖ (where there is a right to a jury trial) only if the
diversity of citizenship jurisdictional requirements are met—
otherwise it must be brought on the admiralty ―side‖ where there is
no right to a jury trial except when the matter arises out of
navigation upon the Great Lakes, 28 U.S.C. § 1873. Additionally if
plaintiff brings a ―federal question‖ claim on the law ―side‖ of federal
court (where there is a constitutional right to a jury trial) and a
maritime claim on the admiralty ―side,‖ and both arise from the same
transaction or occurrence, plaintiff may obtain a jury trial of both
matters.
• Subject Matter Jurisdiction (Cont’d.)
• If a maritime claim is brought in state court, there is a
right to a jury trial if granted by state or federal law (e.g.,
the Jones Act). If brought in state court, however, the
defendant may remove the case to federal court if there
is diversity of citizenship between plaintiff and defendant
and the requisite amount in controversy (>$75,000),
except that a Jones Act claim brought in state court is
not removable to federal court even if there is diversity
of citizenship jurisdiction.
• One reason a plaintiff might elect federal court over state
court is that federal judges generally are more skilled in
and sympathetic to maritime concerns.
• Venue
• There is no general venue requirement for
an action brought on the admiralty ―side‖
of federal court: if the court has personal
jurisdiction over an in personam
defendant, venue is proper.
Crimes Committed at Sea
• The U.S. Constitution provides in Art. I,

§8(10):
• ―The Congress shall have Power . . .
To define and punish Piracies and Felonies
committed on the high Seas, and Offenses
against the Law of Nations.‖
Crimes Committed at Sea (Cont’d.)
• The relevant portions of the United States criminal code re piracy
on the high seas are found at 18 U.S.C. §§1651-1653.
– § 1651. Piracy under law of nations
– Whoever, on the high seas, commits the crime of piracy as defined by
the law of nations, and is afterwards brought into or found in the
United States, shall be imprisoned for life.
– Jurisdiction to try persons charged with the crime of piracy on the high
seas under this statute lies exclusively in the United States District
Court . As with any other federal crime, the alleged pirate has a right
to a ―speedy and public trial, by an impartial jury . . .to be informed of
the nature and cause of the accusation; to be confronted with witness
against him, to have compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his defense.‖ U.S.
Const., Amend. VI.
Researching Maritime Law
• Primary Authorities
United States Code Annotated (―U.S.C.A.‖)
American Maritime Cases (―A.M.C.‖)
Secondary Authorities
Admiralty and Maritime Law Guide, www.admiraltylawguide.com
Gilmore, Grant and Black, Charles L., Jr., The Law of Admiralty (2d.ed. 2001)
Jury Instructions
Schoenbaum, Thomas J., Admiralty and Maritime Law (3d ed. 2001)
Conclusion
• I leave you with the sailor’s traditional farewell:
May you have fair winds and following seas!

Admiralty Maritime Law

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Admiralty Maritime Law

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Admiralty & Maritime Law:

The Law of The Sea

© 2008 Clark D. Silliman, J.D.

• The great body of law regulating the

• The test of maritime tort jurisdiction:

• Employees who qualify neither as

• To create a demise charter, the vessel

• The Burden of Proof in Cargo Damage Claims

• Property to Which Liens Attach: the

• Marine insurance developed in England

• Cargo insurance: covers those risks that

• Quasi-Contract Salvage has generated much more litigation.

• General Average applies only when:

• A claim for general average is secured by

• Prejudgment interest on maritime tort

• Maritime collision law regulates the

• There are two sets of Rules of the Road:

• The U.S. Coast Guard and Corps of Engineers have

• The Rules of the Road prescribe the speed at

• Lighting Rules: large vessels underway at

• The Lookout Rule: Rule 5 of the

• Navigation in narrow and congested

• In the absence of statutory fault, collision liability turns

• The Wreck Act, 33 U.S.C. § 409, imposes two

• P&I insurance insures against the cost of

• Marine Pollution: The Oil Pollution Act of 1990, 33

• Oil and other forms of pollution are also regulated by the

• Claims by seaman and maritime workers against

• Unseaworthiness of the Vessel: a

• Negligence of the Employer: Congress

• Who are Jones Act seamen? A seaman is a

• The following have been held to be Jones

• If the employer fails to provide prompt and

• Warranty of Seaworthiness: the shipowner is

• Jones Act Negligence: applies only if a

• The Maritime Employer’s Rights against

• In commercial aviation accidents, DOHSA

• The LHWCA provides wrongful death

• If the vessel owner has been

• Even the owner of a pleasure boat or of an

• The U.S. Constitution provides in Art. I,

American Maritime Cases (―A.M.C.‖)

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