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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.
S. . extend . § 2. .Development of American Admiralty Law • The U.S. Constitution provides in Art. to all Cases of admiralty and maritime Jurisdiction . 3: “The judicial Power of the United States shall . III. 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. cl.” The U. . . . . .
saving to suitors in all cases all other remedies to which they are otherwise entitled. § 1333 provides: ‖[T]he district courts shall have original jurisdiction. in which case they may apply state substantive law. but must apply the substantive ―admiralty and maritime common law‖ developed by the federal judiciary. . This is called the “maritime but local” doctrine. exclusive of the courts of the States. of (1) Any civil case of admiralty or maritime jurisdiction.S. state courts may exercise jurisdiction in some maritime cases. unless there is no uniform federal law.‖ • Under this “savings to suitors” clause.Jurisdiction of Admiralty & Maritime Cases • 28 U.C.
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. § 1333.Jurisdiction of Admiralty & Maritime Cases (Cont’d. .C.) • 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.
to the high seas..‖ which include many inland rivers and lakes capable of floating vessels carrying cargo and passengers in interstate and foreign commerce (e. Lake Washington which connects via the Ship Canal with Puget Sound and the oceans of the world). as in England.g. .Jurisdiction of Admiralty in the United States: • Is NOT limited. but extends to ―all navigable waters of the United States.
119 U.C..” 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.‖ Cope v. – The Supreme Court defined it as ―all navigable structures intended for transportation. 625 (1887). § 3. Vallette Dry-Dock Co. . or capable of being used.‖ 1 U.S.S.What Is a “Vessel?” • Whether a dispute is “in admiralty” depends upon • whether it has a sufficient relationship to a “vessel. as a means of transportation on water.
floating dry docks and anchored gambling casino boats—none of these is a ―vessel. seaplanes when waterborne. for example.‖ – But the following have been classified as ―vessels:‖ canning barges. rafts. ships under construction. houseboats.) – The issue whether a structure is a ―vessel‖ usually arises in cases involving. canoes.What Is a Vessel? (Cont’d. . ships which have been withdrawn from navigation (―dead ships‖) and certain special function structures like oil drilling platforms. jet skis. and rowboats. dredges.
the traditional definition of ―navigable waters‖ inherited from England was those ―subject to the ebb and flow of the tide. 77 U.What Are “Navigable Waters?” • For purposes of determining admiralty jurisdiction. or capable of being used. when they form in their ordinary condition by themselves. 557 (l870)(emphasis added). . The Daniel Ball. or by uniting with other waters.‖ The U. And they are navigable in fact when they are used. however: Those rivers must be regarded as public navigable rivers in law which are navigable in fact. Supreme Court expanded that definition. over which trade and travel are or may be conducted in the customary modes of trade and travel on water. .S. a continued highway over which commerce is or may be carried on with other States or foreign countries. .S. And they constitute navigable waters of the United States within the meaning of the acts of Congress . in their ordinary condition as highways for commerce.
. tow. load or unload. so there is no longer a need for a general inquiry into maritime flavor (e. the key inquiry is whether the subject of a contract is maritime.g. For most maritime contract cases. contracts to build or sell a vessel are not maritime. but contracts to insure. supply..” – In admiralty contract jurisdiction.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. pilot. dock or lease (―charter‖) a vessel and to employ a seaman are maritime!). special rules have developed that place the contract either within or without admiralty jurisdiction.
the court must still determine if the tort has sufficient maritime flavor to warrant the exercise of admiralty jurisdiction.What Is ―Maritime Flavor?‖ (Cont’d. however.e. I. 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.” .) • In most maritime tort cases.. a substantial relationship to “traditional maritime activity.
Jurisdiction over Maritime Torts • The test of maritime tort jurisdiction: – 1. and. . That the tort occurred on navigable waters. on land. . – 2. notwithstanding that such damage . . – 3. Under the Admiralty Extension Act of 1948. § 740. That the activity which gave rise to the tort claim had a maritime flavor. be done .C. . maritime tort jurisdiction extends to all damage ―caused by a vessel on navigable water.S. . 46 U.
C.Jurisdiction over Maritime Torts (Cont’d.. maritime tort jurisdiction extends to any tort occurring on the high seas resulting in death. 249 (1972). . City of Cleveland.S. § 761 et seq.) – 4.S. Under the Death on the High Seas Act (―DOHSA’).‖ Executive Jet Aviation. even though that tort does not have a ―maritime flavor. v. 46 U. 409 U. Inc.
maritime-related activities who does not qualify as a ―seaman.. NOT state law.g. either ―seamen‖ • or ―maritime workers‖) are ―in admiralty‖ and thus governed by maritime law.Jurisdiction over Worker Injury Claims • Claims by ―maritime employees‖ (e.‖ • Who is a ―maritime worker?‖ A worker engaged in . Who is a ―seaman?” A worker who has a sufficient employment-related connection with a vessel in navigation.
.Jurisdiction over Worker Injury 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).e. 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. the expenses of medical treatment and living expenses while undergoing treatment) from his/her employer .
‖ .Jurisdiction over Worker Injury Claims (Cont’d. 33 U..S. § 902) and who are injured on ―navigable waters. and • ―Maritime workers‖ who come within the LHWCA’s definition of ―maritime worker‖ (33 U.g. §§ 901-950. – Persons covered by the LHWCA include: • Employees injured on the Outer Continental Shelf in the course of mineral exploration and production (e. The LHWCA has the attributes of the usual workers’ compensation laws enacted by most states.S.C. oil drilling platform workers).) • The injured ―maritime worker’s‖ remedies: – The exclusive remedy is provided by the Longshore & Harbor Workers’ Compensation Act (―LHWCA‖).C.
RCW 51).. Washington’s industrial insurance act.) • Employees who qualify neither as ―seamen‖ nor ―maritime workers‖ ordinarily will recover from their employers through state worker’s compensation laws (e.Jurisdiction over Worker Injury Claims (Cont’d. .g.
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. .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. supplies and other services to vessels.
The written instrument by which a vessel is leased is a charter party.Charter Parties • A charter is an agreement in which a shipowner places his/her/its ship at the disposal of another. Types of charter parties: – Demise – Time – Voyage • .
thus the demise charterer is usually called the owner pro hac vice. In many demise charters. who become the employees of the charterer during the term of the charter. who then succeeds to many of the rights and obligations of the owner. such a demise is called a “bareboat charter. the charterer also obtains the services of the owner’s master and crew.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). If the owner does not furnish the master and crew.” • .
) • To create a demise charter. It is therefore tantamount to. command and navigation‖ of the vessel to the charterer. an outright transfer of ownership of the vessel. but just short of.Demise Charter (Cont’d. the vessel owner must ―completely and exclusively relinquish possession. .
ordinary wear and tear excepted. the obligations of the charterer are to pay the charter hire (the ―rent‖ in landlaw terminology) and to return the vessel to her owner at the end of the charter term in the same condition as received. Once the demise charter is perfected.Demise Charter (Cont’d. crew and vessel—those obligations fall upon the charterer in personam and the vessel in rem. • . Thus a demise charter is a type of bailment. the vessel owner is relieved of liability for the contracts and torts of the master.) • Unless the parties agree otherwise.
equips and maintains the vessel. makes repairs. but the time charterer determines the ports of call and the cargo carried. The term of a time charter is measured by the duration of one or more voyages.Time Charter • Under a time charter. • . The amount of charter hire will thus vary by the length of time of a particular voyage. the vessel owner retains the management and control of the vessel. and pays normal operating expenses. The vessel owner provides the crew.
) • Unless the parties agree otherwise.‖ • • . Should the vessel be out of service for repairs during the term of the time charter. Most time charters are effected on standard forms and any disputes that arise are resolved through arbitration. carry and unload the charterer’s cargo.Time Charter (Cont’d. the charterer’s obligation to pay the charter hire (―rent‖) is suspended—the vessel is then said to be ―off hire. not judicial litigation. 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.
in the master’s opinion. the master may register a protest with the charterer. NOT the vessel owner. . the risk of loss or damage resulting therefrom falls on the charterer. As an agent of both the vessel owner and the charterer for some purposes. If the charterer orders the master to do an act which constitutes. and is the agent of the charterer in the handling of the cargo and the selection of loading and discharging ports and berths.Time Charter (Cont’d. an unreasonable risk to the vessel. If the charterer nevertheless orders the master to proceed. conflicts of interests may arise.) • 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.
i. master and crew at the disposal of the charterer for the carriage of cargo to a designated port. the rental charge for the voyage. or only a part of her.Voyage Charter • Under the voyage charter.. The charterer is obligated to pay the freight. The voyage charterer may charter (―lease‖) all of the vessel. Most charters provide that disputes arising between the vessel owner and the charterer be resolved by arbitration.e. for one or a series of voyages. • • . the vessel owner provides a vessel.
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. i. using the bill of lading as collateral to secure the loan. the shipper may use it to borrow money on the goods while they are in shipment. . Such vessels are called ―liners‖ or ―common carriers.e. by forwarding and tendering it to the consignee’s bank.‖ • When a common carrier receives goods for shipment. The bill of lading serves several functions: – It is a receipt for the goods shipped. 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). it issues a “bill of lading” to the shipper. – It is usually a negotiable instrument..
allocating the risks of the voyage between the carrier and the shipper. § 1300 et seq.S.) – It serves as the contract of carriage. Such allocation of risks is largely controlled by statute: the Harter Act. 46 U. and the Carriage of Goods By the Sea Act (―COGSA‖).S.C. § 190 et seq.Bills of Lading (Cont’d. 46 U. .C.
COGSA applies between loading and unloading. handle.The Harter Act & COGSA • On a voyage between an American port and a foreign port. the Harter Act applies at all times between delivery and redelivery of the cargo.Bills of Lading .‖ • . the Harter Act applies from delivery to the shipper until loading. stow. and from unloading at the port of destination until delivery to the consignee. care for and discharge the cargo . On a coastwise voyage between two American ports. keep. carry. • 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.
‖. unless such fire was caused by the carrier’s ―design or neglect. i.Bills of Lading – The Harter Act & COGSA (Cont’d. running aground. The carrier is exempted from liability for loss caused by fire. the carrier is not responsible for cargo damage resulting from faults or errors in navigation or in the management of the vessel (e. The shipper bears the risk of ―insufficiency of packing.‖ • • .. the cargo must be packed in such a manner to be fit to endure the ordinary hazards of the voyage. etc. etc. ‖restraint of princes‖. Acts of God (e. collision with another vessel.g.g. strikes or lockouts and riots.) • If such duties are met. acts of war and public enemies.) nor for losses resulting from the perils of the sea. storms...).e.
the shipper may give notice to the carrier of damage within three days of redelivery. 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. 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. it is prima facie evidence of the delivery of the cargo as described in the bill of lading. .) • • 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. A marine surveyor may be retained by the shipper to inspect the cargo for damage at the port of destination.‖ 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.Bills of Lading-The Harter Act & COGSA (cont’d. If the damage is not apparent at the time of redelivery.
.) – 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).Bills of Lading-The Harter Act & COGSA (Cont’d.
. . .S.) • At the common law. if the cargo is damaged but not lost.‖ .unless the nature and value of such goods have been declared and inserted in the bill of lading .Bills of Lading-The Harter Act & COGSA (Cont’d. . [i]n no event shall the carrier be liable for more than the amount of damage actually sustained. a carrier is liable for the market value of lost cargo at its destination. § 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 .C. . then for the difference between market value and the damaged value at the destination of the cargo. . or. • COGSA (46 U. . per customary freight unit . .or in case of goods not shipped in packages.
.‖ UNLESS the shipper delivers a sealed container and does not reveal its contents to the carrier. ―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.Bills of Lading-The Harter Act & COGSA (Cont’d.) • With the advent of containerized maritime shipping. the issue becomes.
regardless whether such deviation was a cause of the damage.Bills of Lading-The Harter Act & COGSA (Cont’d.C. COGSA provides that certain deviations are per se reasonable i. § 1304(2)(l). deviation by the carrier from the specified voyage or method of stowage made the carrier liable for damage to the cargo. The weight of authority is that an unreasonable deviation deprives the carrier of the $500 package limitation. 46 U. those for the purpose of attempting to save life or property at sea.e. At the common law. .S.) • 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..
This lien is often described as ―possessory.e.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.. Such intention may be inferred from the conduct of the parties. . the lien is lost once the cargo is unloaded from the vessel.‖ i. unless the parties intend that it continue after unloading.
or implied by the occurrence of a maritime tort (e. such as a bridge) or the performance of a maritime service to the vessel (e.g..) • Liens on Vessels: a lien on a vessel may be either express (as in a mortgage contract).g.. . furnishing repairs or necessaries to a ship). a vessel allides with a fixed object on or adjacent to navigable waters.Maritime Liens (Cont’d.
last in time is first in right. .) • 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. and can be judicially discharged only by an in rem action in admiralty court.e. does not require possession of the vessel.Maritime Liens (Cont’d. 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.. it is secret).
This has been called elevating a vessel to the status of a juridical person or the ―personification of the vessel. charterer or pilot.) • The lien may arise even though the vessel owner is not personally liable for the debt as when a demise charterer incurs voyage debts. is also liable in personam. for example. however. Typically the vessel is sued in rem as a defendant together with any co-defendants who may be liable to the plaintiff in personam.‖ In every case in which a vessel is liable in rem. be it the owner. or the vessel may be liable for the torts of a compulsory pilot. . some person.Maritime Liens (Cont’d.
– there is no lien for the breach of an executory maritime contract.Maritime Liens (Cont’d. – a maritime tort committed in the operation of a vessel gives rise to a lien against the offending vessel. .) • Occurrences Giving Rise to the Implied Maritime Lien: – a seaman (including the master) has a lien on the vessel for his/her wages.
.S. etc.C. there is no maritime lien for building a vessel nor for supplying materials for her original construction. supplies.g. § 31342(a)(1) and must be relying upon the credit of the vessel for payment. towage. the use of a drydock. – since a contract to build a vessel is not maritime.) to a vessel on the order of the owner or a person authorized by the owner has a maritime lien on the vessel.Maritime Liens (Cont’d. 46 U.) – a person who provides ―necessaries‖ (e.. repairs.
marshal). etc.) • Liens in custodia legis: a lien cannot arise against a vessel when she is in the custody of the court (e. thus liens for seamen’s wages.S. marshal’s fee for arresting the vessel.) . 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.Maritime Liens (Cont’d. moorage and similar continuing services to a vessel are limited to the period before her seizure by judicial process.g. after her arrest by the U.
Maritime Liens (Cont’d. even though such equipment be owned by a third person! .) • 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.
a default judgment may be entered against the vessel and her owner. 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.Maritime Liens (Cont’d.e. 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. If the vessel owner fails to appear in the action.. . The court clerk then issues a warrant for the arrest of the vessel which is executed by the U. affixes a copy of the arrest warrant to the vessel’s mainmast or other conspicuous place).S. Marshal who ―plasters‖ the vessel (i. delivers a copy to the person in possession of the vessel or his agent.) • Enforcement of Liens in rem: plaintiff must name the vessel in the complaint as a defendant in rem. and seizes her (takes her into his possession). the vessel may be sold at auction and the maritime liens satisfied out of the sale proceeds.
particularly where the lien holder foregoes reasonable opportunities to enforce the lien. all liens are ―scraped off‖ like barnacles from a vessel hull. the lien is lost.) • Extinction of Liens: a judicial sale in an in rem action • • extinguishes all existing liens i.Maritime Liens (Cont’d. even though the underlying claim is not time-barred. If the claim which a maritime lien secures becomes timebarred. A court may apply the equitable doctrine of laches to bar enforcement of a maritime lien..e. .
. 4. Salvage.Maritime Liens (Cont’d. 6. Preferred ship mortgage. Tort liens (both property and personal injury damages). 5. Expenses of justice—court costs and other expenses • • • • • incurred for the care of the vessel while she is in custodia legis. – By Class: • 1. 2. Contract liens (for the furnishing of necessaries).) • Ranking of Maritime Liens: maritime liens are ranked by class and time. Seaman’s wages. 3.
Under the “voyage rule.” – One exception is the ranking of liens for necessaries. in place of the voyage rule. those for the most recent voyage ranking ahead of those for earlier voyages.Maritime Liens (Cont’d.” the liens of all suppliers of necessaries for a particular voyage are ranked equally. like tugs and other harbor vessels that typically do not sail on ―voyages.) • By Time: within the same class of maritime liens the general rule is that “last in time is first in right.‖ courts apply a “forty day” or in some jurisdictions a “calendar year” rule. . – For vessels.
the master may ―disrate‖ the seaman.” 46 U. and to obey the master until the voyage is completed. .C. to stand by the ship. 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. § 10301 et. If the master determines the seaman is incompetent or has committed misconduct.The Seaman’s Employment Contract • Before entering the service of a vessel. the seaman impliedly warrants s/he is competent to perform the duties of that position.S. specify the capacity in which the seaman is to serve and obligate him to report for duty at a designated time and place. By ―signing on‖ in a specific capacity. The articles must be signed in the presence of the master or other individual in charge. seq. a seaman usually signs a contract. called ―articles.
The Seaman’s Employment Contract (Cont’d.C.S. § 7301 et.) • 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. seq. § 8104 – the living conditions which the seaman must be provided aboard ship. 46 U. seq.S. § 11101 et.C.S. 46 U. 46 U.C. – the seaman’s maritime lien for wages is of the highest rank and the claim is exempt from limitation of liability . – the hours and conditions of the seaman’s employment.
The Seaman’s Employment Contract (Cont’d. except for support of the seaman’s spouse and children – A seaman’s compromise of his claims is liberally construed to protect him/her .) – 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.
in Wilburn Boat Co. and ordinarily would be governed by admiralty law. The governing law is that of the state with the ―most significant relationship‖ to the insurance dispute. Fireman’s Fund Insurance Co. 348 U. the Supreme Court held that most marine insurance issues are to be determined by state law.S. However.Marine Insurance • A contract insuring maritime property or a maritime risk is a maritime contract. v.. . 310 (1955).
g.Marine Insurance (Cont’d. The American marine insurance industry developed in New England seaports (e. . CT).) • Marine insurance developed in England and was in full use there by the sixteenth century.. Hartford.
) • 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”) .Marine Insurance (Cont’d.
but excludes liability for claims from maritime employees who are covered by worker compensation acts.) 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. including claims for maintenance and cure. pollution and damage to cargo. salvage. . It also insures against cost of removing a wrecked vessel.Marine Insurance (Cont’d. The P&I policy insures the vessel owner against personal injury and wrongful death claims by seamen.
Marine Insurance (Cont’d. . • 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.) • Cargo insurance: covers those risks that maritime law imposes upon the shipper/consignee.
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. .‖ both are called ―tugs. governed by special maritime contract rules.” A contract under which a tug owner agrees to tow another’s barge is a contract of towage.‖ a boat which pulls a barge is called a ―tugboat.
Absent express contractual promises. if the tow is manned. an oral one. The tug owes the tow a duty to exercise reasonable care in towing and mooring the tow.) • The contract of towage may be.Towage (Cont’d. 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. and often is. with a crew that is competent and sufficient in number. • . The owner of the towed vessel must furnish a seaworthy vessel with proper equipment and lighting and.
) • The towage contract is not one of bailment. Claims between tug and tow arising out of the towage contract are secured by maritime liens on the offending vessels. however. thus. • . The tow can use the doctrine of res ipsa loquitur in meeting its burden of proof.Towage (Cont’d. 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.
Grays Harbor Pilots.g.. Puget Sound Pilots.Pilotage • Pilot: one who has specialized knowledge of conditions of navigation in specific waters (e. RCW 88. etc.. § 8502). • Both federal and state law compel the use of licensed pilots (―compulsory pilots‖) in specified waters (e. .S.16. • A shipowner is not vicariously liable in personam for the negligence of a compulsory pilot. 46 U.) and who goes aboard a vessel to direct her safely in those waters. but the vessel is liable in rem for that pilot’s torts.g.C.
• ..g.Pilotage (Cont’d. The unincorporated association through which most pilots operate is not liable for a member pilot’s torts (e. 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. Puget Sound Pilots).) • 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 rescue of property from a maritime peril. dates to Roman times.Salvage • Salvage. The salvor’s claim is secured by a maritime lien on the property salvaged. In many cases. the salvor acts to save maritime property without any preexisting agreement with the owner for the compensation to be paid by the owner. . however. In such cases of voluntary or ―pure‖ salvage. Such rescue may occur pursuant to express contract (―contract salvage‖) between the owner and the salvor. maritime law imposes a quasicontractual obligation upon the property and its owner to compensate the salvor for his efforts.
the salvor is entitled to an award which is commensurate with the value of the property. the risk involved and the effort expended. and when they arise. the potential rescuers are few. Under American maritime law. • Quasi-Contract Salvage has generated much more litigation. the risks in rescue are great.Salvage (Cont’d. and the temptation of the rescuer to appropriate the property as his own is strong. the seagoing ―Good Samaritan‖ must be given added incentive to undertake rescue efforts and to return the rescued property to its owner.) • Contract Salvage presents few issues for litigation. The premise underlying an award is that when maritime property is in peril. the law of contracts applies. Accordingly. .
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. however. If the vessel has been abandoned. a crew member’s duty to aid his own vessel has terminated.) • 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‖). may not recover salvage.‖ thus the master and crew are not entitled to salvage for saving their own vessel.Salvage (Cont’d. Persons who are under a duty to aid a vessel or other property in peril. since their efforts are not ―voluntary. and his subsequent salvage efforts may qualify for a salvage award. • .
Salvage (Cont’d.C. . Thus where there is a statutory duty to save lives in peril on the sea. 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. Coast Guard. 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.. harbor firefighters.S. the aid to the imperiled is not ―voluntary. 46 U.S. the U. 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.) are not entitled to salvage awards.‖ and hence there is no right to salvage. public employees whose duty it is to save life and property in peril on navigable waters (e.) • Generally. § 2303.g. etc. • Similarly.
may be entitled to share in the salvage award.. he may refuse a proffered rescue.g. it has been abandoned at sea by its owner without hope of recovery or intention to return.Salvage (Cont’d. however. Anyone who performs an act which contributes to the safety of imperiled property (e.‖ i. or even by simply standing by).) • If property is ―derelict. even though not the person who effects the rescue. the person who aids a vessel by transmitting an SOS message. A salvor is entitled to a salvage award only if the salvage efforts are successful. If the property ultimately perishes in the peril. if the owner or his agent remains on board the imperiled vessel. by warning of an impending peril. salvage is not owed. • . the salvor may save the property without the owner’s permission..e. even if a reasonable person would not have done so under the circumstances.
Statute of Limitation: suit for a salvage award must be brought within two years after the salvage. The salvor is held to a duty of reasonable care under the circumstances..Salvage (Cont’d.e. to not embezzle the property) and a breach of this duty forfeits the right to a salvage award.) • Amount of the Salvage Award: will rarely exceed onehalf the value of the property saved. • . and any breach of that duty will diminish the amount of the award. 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. American maritime law requires the salvor maintain the ―most scrupulous fidelity‖ to the salvaged property (i.
g. or the property has been abandoned at sea for a long period of time. 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.C. District Court [28 U.S. maritime law may classify such property as ―found‖ and under the doctrine of ―finds. § 1333]) which orders the vessel sold and the proceeds paid to the captor.‖ the rescuer of such property may be awarded ownership rather than a lesser award of salvage.Salvage (Cont’d.S. U.) • Finds: if the owner expressly disclaims ownership. • ..
a vessel. her cargo and the freight (the vessel’s fee for carrying the cargo) are said to be ―at risk. The allocation of loss is called “particular average. the owner’s insurer. the vessel sinks and is lost during the voyage.Particular Average • In the typical voyage. for example.” .‖ if the voyage is unsuccessful because. or a third party wrongdoer. the owner of one or more of these interests suffers a loss that may be borne by such owner.
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.” .General Average • When the perils of the sea endanger a vessel whose master and crew are free from fault.‖ This is called “general average. it may become necessary to ―sacrifice‖ one of the interests.
.) • General Average applies only when: – 1. there is a danger to which both the vessel and her cargo are exposed. the danger is imminent and apparently ―inevitable.General Average (Cont’d. – 2.‖ which means there is no probable escape except by inflicting loss upon one of the interests.
there is a voluntary sacrifice. – 4.General Average (Cont’d. “jetsam.” and if a buoy is attached to it to aid in later retrieval if it sinks. the attempt to avoid the common danger is successful. such as jettisoning cargo (jettisoned cargo that floats is called “flotsam. is it called “lagan”) or stranding the vessel. and – 5.) – 3. .‖ and if it sinks. the party seeking contribution from the owners of the other interests is free from fault.
the owners of the ―saved interests‖ pay to the owner of the ―sacrificed‖ interest their pro rata share of his loss. When general average applies.) • The sacrifice need not be destruction or damage to property. to the owners of all the interests at risk. • . the loss is transferred from the owner of the interest that is sacrificed. It may be the incurring of extraordinary expenses for the joint benefit of vessel and cargo.General Average (Cont’d.
) • Example of General Average: assume a vessel valued at $800. Assume that two-thirds of the cargo (valued at $100.000.00.General Average (Cont’d. the cargo loss is $100. . the cargo owner bears the remainder of his loss ($15.000).000. or a total of $85.000 is carrying cargo worth $150. The total of the interests at risk is $1.000 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.000) is jettisoned. which is the percentage of the total loss (15%) equal to his percentage in the maritime venture.000. and the sacrifice qualifies for general average. for a freight charge of $50.000. The vessel owner must reimburse the cargo owner for 85% of the latter’s loss.000.
) • A claim for general average is secured by a maritime lien on the property saved. the interests at risk are insured against. and general average is computed and paid through informal proceedings among the insurers.General Average (Cont’d. In the vast majority of cases. .
General Average (Cont’d.)
• 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.
125 (1873) places the burden upon the violator vessel to show that such statutory violation not only did not. • . a plaintiff’s contributory negligence never barred recovery as it did under land-based common law.) • In allision/collision cases. the Pennsylvania Rule (The Pennsylvania.S. where the alleged wrongdoer has violated a statutory rule of the road.Maritime Tort Law (Cont’d. but could not have contributed to the cause of the loss! The doctrine of comparative negligence has always obtained in maritime law. 86 U.
or. § 763a provides a three year statute of • • limitations for maritime tort actions. such future earnings must be reduced to present value. General maritime law recognizes a cause of action for the wrongful death of the victim of a maritime tort. 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.C.S. when the victim dies.Maritime Tort Law (Cont’d. An important element of damages in maritime tort claims is recovery for loss of future earnings.) • 46 U. Just as in land-based tort law. 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. . recovery by his wrongful death beneficiaries of the financial support they would have received from the victim.
or made an unreasonable settlement demand.. formerly discretionary with the court. plaintiff was dilatory in filing suit. unless circumstances make it inequitable to do so (e.Maritime Tort Law (Cont’d. is mandated by recent case law. etc.) .) • Prejudgment interest on maritime tort claims.g.
many of the same principles apply. In this sense. it is analogous to land-based auto accident law. and there is much statutory regulation.Collision Law--Liability • Maritime collision law regulates the navigation of vessels and imposes liability for negligent navigation that causes injury or damage. .
Collision Law—Liability (Cont’d. may be a joint tortfeasor and thus will be liable to her passengers and crew for the full amount of their damages. . That vessel. if at fault. 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. 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. passengers and cargo.) • Maritime collision law also provides for apportionment of damages among the vessels involved for injuries/damage to crew.
” the maritime equivalent of negligence per se. The general test of ―fault‖ is whether the person navigating the vessel acted as a ―reasonably prudent mariner‖ at the time of the accident. violation of these statutes or regulations constitutes ―statutory fault.Collision Law—Liability (Cont’d. 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. Because there is a plethora of statutes and regulations whose purpose is to minimize or eliminate the risk of collision. but the vessel is liable in rem.) • A vessel is liable in rem for her collision torts. The owner is NOT liable in personam for the torts of a compulsory pilot. • .
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.Collision Law—Liability (Cont’d.) • Vessels. are unable to quickly decrease speed. because of their size and lack of friction. stop.
1 et seq.F.). .) • 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.R. and – The Inland Rules of the Road which apply to all vessels upon the inland waters of the U.S.R. § 2001(a)). § 81. and on Canadian waters of the Great Lakes (codified at 33 C.F.Collision Law—Liability (Cont’d.
S. the ―point and bend‖ rule on the Mississippi River which provides that an ascending vessel navigate to the ―point‖ side of the river. a violation of a custom may constitute fault. • .Collision Law—Liability (Cont’d. Occasionally.) • The U. Failure to comply with these has the same effect as violation of a Rule of the Road.. and the descending vessel to the opposite or ―bend‖ side of the river where the current is stronger). e.g. Coast Guard and Corps of Engineers have adopted regulations affecting navigation.
Both sets of Rules of the Road generally prescribe similar conduct in similar situations. . overtaking or crossing situations.) • The Rules of the Road prescribe the speed at which a vessel should proceed. the lights and shapes she must exhibit. There is a special rule for vessel conduct during fog or other conditions of limited visibility.Collision Law—Liability (Cont’d. the sounds or signals she must emit and the maneuvers she must take when coming upon another vessel in meeting.
and a green light amidships on the starboard side. a masthead. range and stern light.‖ three white lights. (Rule 23).Collision Law—Liability (Cont’d. and a red light amidships on the port side. .) • Lighting Rules: large vessels underway at night must show five ―running lights.
(Rule 13) . making only such changes as are fairly to be expected in the normal course of navigation.Collision Law—Liability (Cont’d. the one being overtaken is the privileged/stand on vessel.) • Steering Rules: prescribe which vessel has the right of way in a given situation. The privileged vessel must maintain her course and speed. neither has the right of way. the overtaking vessel is the burdened/give way vessel. but must steer so as to pass each other ―port to port. The burdened vessel must execute the maneuver safely. – If one vessel is overtaking the other. – If the vessels are meeting.‖ (Rule 14).
as the burdened/give way vessel. (Rule 34) Vessels operating in American waters equipped with radio telephones also communicate their intentions in a crossing situation via that medium. 33 U. § 1201 et seq.Collision Law—Liability (Cont’d.C. the vessel on the right has the right of way (i. . The other vessel. (Rule 15) The burdened/give way vessel must signal her course change intentions with sound signals—blasts on the ship’s whistle.) – If the vessels are in a crossing situation.e. The privileged/stand on vessel responds with appropriate sound signals to indicate her assent.S.. must maneuver to effect the crossing safely. is the privileged/stand on vessel).
take all way off and navigate with extreme caution until danger of collision is over. a vessel hearing the fog signal of another vessel forward of her beam.Collision Law—Liability (Cont’d. circumstances may arise in which a reasonably prudent mariner can avoid collision only by deviating from the precise conduct mandated by the Rules. and if necessary. must reduce speed to a minimum at which she can maintain her course. • .) • The ―Fog‖ Rule (Rule 19): when underway in conditions of limited /restricted visibility. While strict adherence to the Rules of the Road is ordinarily required. not if the mariner can prove that ―special circumstances‖ existed which mandated such departure from the Rule(s). Will ―statutory fault‖ be found against such mariner? No.
.) • Presumptions of Fault: – In an allision between a moving vessel and a stationary object. – A drifting vessel was set adrift by the negligence of those in control of her. – An unexpected and unexplained sheer by one vessel into another raises a presumption of negligent steering by the sheering vessel.Collision Law—Liability (Cont’d. the vessel is presumed to be at fault.
Collision Law—Liability (Cont’d.) • 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.‖ .
C.S.Collision Law—Liability (Cont’d.) • 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. § 2009 of the Inland Rules).
Collision Law—Liability (Cont’d.)
• 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.
Collision Law – Damages (Cont’d.) • P&I insurance insures against the cost of wreck removal when removal is compulsory by law (as is the case under the Wreck Act). .
.C. makes the owner of a vessel from which pollution emanates.Collision Law – Damages (Cont’d. Discharge of hazardous substances other than petroleum and related products is governed by CERCLA. • • .) • Marine Pollution: The Oil Pollution Act of 1990. or act or omission of a third party. 33 U. 42 U.S. act of war.C. 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. §§ 9601-9675. §§ 2701 et seq.S.
S.C. Maritime tort law may afford a remedy to private persons damaged through pollution of navigable waters.) • Oil and other forms of pollution are also regulated by the Clean Water Act. and the Outer Continental Shelf Lands Act.Collision Law – Damages (Cont’d. Negligent or intentional discharge of pollutants from a vessel into navigable waters is a maritime tort. 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.C. § 1811 et seq. §§ 1251-1397.S. 33 U. 43 U. • .
but is governed by judicially developed principles of maritime law. a maritime worker or a nonmaritime worker. negligence of his/her employer and unseaworthiness of the vessel. not statute. is akin to worker’s compensation. • .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. are governed by maritime tort principles. the right to maintenance and cure. Two of the seaman’s major claims. The other.
) • 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. except where the injury is caused by the employer’s maritime tort. • .Maritime Worker Injury Claims (Cont’d. The nonmaritime worker’s recovery for workrelated injuries is usually through a state worker’s compensation scheme.
depending upon whether there is maritime tort jurisdiction.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. • . Nonmaritime worker tort claims against third parties will be governed either by maritime tort law or state law. or some combination of the two.
even though the seaman’s employer was free from fault in the cause of the illness or injury.Maritime Worker Injury Claims (Cont’d. .) 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).
) 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.Maritime Worker Injury Claims (Cont’d. Breach of this duty gives rise to a claim for general damages. .
granting them the right to sue their maritime employer for negligence. § 51 et seq.S. (which granted interstate railroad workers a claim against their employer for negligence) to seaman. 45 U. 46 U.Maritime Worker Injury Claims (Cont’d.C.) Seaman’s Remedies • Negligence of the Employer: Congress in 1920. through the Jones Act. extended the provisions of the Federal Employers’ Liability Act (―FELA‖). § 688.C.S. .
Maritime Worker Injury Claims 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.
Maritime Worker Injury Claims Seaman’s Remedies (Cont’d.)
• The following have been held to be Jones
– 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
Maritime Worker Injury Claims Seaman’s Remedies (Cont’d.)
• 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.
Y.Y. Inc. . as well as injuries/illnesses incurred while off the vessel on shore leave. American Export Lines.2d 297 (N. City Ct.Maritime Worker Injury Claims Seaman’s Remedies (Cont’d. 1948). Thus in Koistinen v. the right to maintenance and cure is virtually absolute. 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.S. all injuries/illnesses aboard ship are covered. 83 N.) • Maintenance and Cure – for seamen aboard oceangoing vessels..
Congress closed these. From 1791 to 1981. • .‖ This term means something more than mere negligence.) • A seaman in not entitled to maintenance and cure if his/her injury or illness occurred through his/her own ―willful misconduct.Maritime Worker Injury Claims Seaman’s Remedies (Cont’d. Government provided free medical care for disabled seamen. Now the seaman’s employer may designate the physicians and medical facilities that he/she will supply the seaman. the U.S. first through special seamen’s hospitals and later through Public Health Service hospitals. Two classic examples of a seaman’s willful misconduct are injuries/illnesses incurred while intoxicated or incurring sexually transmitted diseases (―STDs‖).
or. by the court based upon the seaman’s evidence of actual living expenses ashore while undergoing treatment for a qualifying illness/injury. as well as the negligence claim. An action for maintenance and cure can be brought against the vessel owner in personam and against the vessel in rem. the seaman is entitled to a jury trial on the maintenance and cure claim.) • The daily rate of maintenance may be established by a collective bargaining agreement (―CBA‖) between the seaman’s union and employer.Maritime Worker Injury Claims Seaman’s Remedies (Cont’d. • . in the absence of a CBA. If a claim for maintenance and cure is joined with a Jones Act negligence claim.
Maritime Worker Injury Claims Seaman’s Remedies (Cont’d. Vaughan v.) • 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. 527 (1962). • . 369 U. Atkinson. the seaman is also entitled to recover actual attorney fees.S. If such failure is willful.
Maritime Worker Injury Claims Seaman’s Remedies (Cont’d. . Since an unseaworthy condition of a vessel is usually caused or contributed by the negligence of a crew member.) • Unseaworthiness – usually joined with a Jones Act claim by the seaman against his/her employer. 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).
. only in personam liability of the vessel owner for negligence).) – 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. – 3) the seaman is not an employee of the vessel owner (the Jones Act gives a remedy only against the seaman’s employer).Maritime Worker Injury Claims Seaman’s Remedies (Cont’d.
only one reasonably fit for her intended use while she is in navigation.) • Warranty of Seaworthiness: the shipowner is not required to furnish an accident-free vessel. • . the seaman need not prove the vessel owner knew or should have known of the unreasonably dangerous condition that caused the seaman’s injury.Maritime Worker Injury Claims Seaman’s Remedies (Cont’d. The difference between unseaworthiness and negligence is that in the former.
Maritime Worker Injury Claims Seaman’s Remedies (Cont’d. .) • 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.
The Jones Act employer owes a duty to rescue a seaman who has jumped or fallen overboard without antecedent employer negligence. and most commonly arises when the seaman is injured by the negligence of a co-employee. • .) • Jones Act Negligence: applies only if a seaman is injured or killed in the course of his/her employment.Maritime Worker Injury Claims Seaman’s Remedies (Cont’d.
because it arises under an Act of Congress. • . it may also be brought as a law claim in federal court.) • The statute of limitation on Jones Act claims is • three years.S. § 56.C. A Jones Act claim may be brought as an admiralty claim in federal court.Maritime Worker Injury Claims Seaman’s Remedies (Cont’d. and. A Jones Act claim filed in state court may not be removed to federal court. or in state court. 28 U.C.S. 46 U. § 1445(a).
‖ they are not covered by the Jones Act and hence have no cause of action against their employers for negligence. unloading. injured on navigable waters or any adjoining pier. the LHWCA covers: – 1. wharf or similar structure customarily used in loading. shipbuilders.Maritime Worker Injury Claims Maritime Workers • Maritime Workers include longshoremen. Congress enacted the LHWCA in 1927. As subsequently amended. claimants engaged in maritime employment – 2. ship repairers. repairing or building a vessel. a comprehensive worker’s compensation scheme for maritime workers who do not qualify as seamen. 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.
33 U. by a club.C. camp. transporters or vendors.S. restaurant. recreational operation. and 6. exclusively to perform office.Maritime Worker Injury Claims Maritime Workers (Cont’d. by a marina and not engaged in construction.) Those not covered include those employed: 1. 3. . aquaculture workers. secretarial. by suppliers. to build or repair recreational vessels under 65 feet in length. 4. § 902(3)(A)-(F). security or data processing work. replacement or expansion of the marina. 2. clerical. museum or retail outlet. 5.
Thus oil production workers on fixed platforms within state territorial waters (24 miles seaward (formerly three miles)) are excluded from LHWCA coverage. § 1333(b). 43 U. unless they qualify as ―seamen‖ through their connection with some vessel. Gray.) • The Outer Continental Shelf Lands Act. v. 470 U.S. and instead are covered by the appropriate state worker’s compensation scheme.C. . Herb’s Welding.S. extends LHWCA coverage to oil production workers aboard fixed platforms located on the outer continental shelf.Maritime Worker Injury Claims Maritime Workers (Cont’d. 414 (1985). Inc. The Supreme Court held that production of minerals from a fixed platform is not maritime employment.
either temporary or permanent. – 2. Disability .2/3 of average weekly wage before injury/occupational disease for total disability. (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. Wrongful Death Benefits – payable to statutorily designated survivors .) • LHWCA Benefits: – 1. – 3. If the disability is partial.Maritime Worker Injury Claims Maritime Workers (Cont’d. 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.
S. Dept. . of Labor. 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. 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.Maritime Worker Injury Claims Maritime Workers (Cont’d.) • Processing LHWCA Claims: initially through the U. 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.
the claim first undergoes a conciliation process in which the deputy commissioner seeks to promote an amicable settlement.Maritime Worker Injury Claims Maritime Workers (Cont’d. 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 maritime employer must controvert the claim or commence voluntary disability payments within 14 days after the occurrence of the injury/illness.
Maritime Worker Injury Claims Maritime Workers (Cont’d.) • If conciliation fails to produce a settlement. the claim • goes to a contested hearing before an ALJ for decision. 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 ALJ’s decision is appealable first to the Benefits Review Board (―BRB‖) and then to the U.S. 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. .
is not paid within ten days after it becomes due).) • 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. it must pay a reasonable attorney fee to claimant’s counsel. and an additional 20% if an installment of compensation payable under the terms of an award. Claimant’s attorney fee must be fixed by the Office of Worker Compensation Programs (―OWCP‖). • • . An LHWCA compensation award is modifiable if there is a change in the degree of claimant’s disability or wage-earning capacity. however if the employer unsuccessfully contests liability.Maritime Worker Injury Claims Maritime Workers (Cont’d.
– 3.C. – 2.‖ i. s/he has a cause of action against the vessel and her owner for negligence.‖ i. § 905(b)) has been stated by the Supreme Court (Scindia Steam Navigation Co.S. then the vessel owner must intervene to halt the activities. . The vessel owner’s duty of care owed to the maritime worker aboard the vessel under the LHWCA (33 U. 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.. The warranty of seaworthiness does not extend to maritime workers.S.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.. v. if the vessel owner knows of an unsafe condition and reasonably believes the maritime employer will not remedy it.Maritime Worker Injury Claims Maritime Workers (Cont’d. the ―active operations duty. the "duty to intervene. the ―turnover duty.) • When a maritime worker is negligently injured while working aboard a vessel in navigation.e.‖ i. 156 (1981) to be: – 1. De Los Santos.. Ltd.. 451 U. or make the maritime employer eliminate it.e.. eliminate the unsafe condition.
Maritime Worker Injury Claims Maritime Workers (Cont’d. the maritime employer may intervene to enforce its subrogation rights. .) • 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 employer may sue the third party tortfeasor to enforce its subrogation rights. But any settlement without the employer’s approval discharges the employer from liability to pay future compensation.) – 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.Maritime Worker Injury Claims Maritime Workers (Cont’d. – If the maritime worker does not sue the third party tortfeasor within six months after acceptance of an award of compensation. .
g. They are expressly excluded from the LHWCA and the Outer Continental Shelf Lands Act.C. seamen employed aboard Washington state ferries) are entitled to all the traditional seaman’s remedies.Maritime Worker Injury Claims Public Employees • The exclusive remedy of seaman and maritime workers employed by the United States is compensation under the Federal Employees’ Compensation Act. § 8101 et seq. • State and local government employees who qualify as seamen (e. 5 U. .S.
• 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 .
Wrongful Death (Cont’d.)
• 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. Inc. 375 (1970).Wrongful Death (Cont’d. . his/her beneficiaries may recover wrongful death pecuniary damages and perhaps nonpecuniary damages (the law is unsettled) under general maritime common law. In all other maritime wrongful death actions where death occurred upon territorial navigable waters. States Lines. the wrongful death beneficiaries may recover under Moragne.S. If a seaman is killed upon territorial navigable waters by an unseaworthy condition. 398 U.. Moragne v. – 4.
) • 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. the beneficiaries must have been financially dependent upon decedent in order to be entitled to recover wrongful death damages.‖ – In either of the above cases.Wrongful Death (Cont’d. . regardless of ―class.
– 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.Wrongful Death (Cont’d. or in state court.) – All such wrongful death actions are subject to a three-year statute of limitation.
.Wrongful Death (Cont’d.) • The LHWCA provides wrongful death benefits to designated beneficiaries of a maritime worker whose work-related injury causes death.
Otherwise.S. § 740. unless preempted by some federal law.Platform Injuries • Maritime law treats movable drilling structures as • vessels. One such law is the Admiralty Extension Act. . DOHSA might also apply in some cases. Torts occurring on fixed platforms are ordinarily governed by state law. 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).C. stationary or ―fixed‖ platforms (those more than temporarily attached to the seabed) as land. which would apply if a vessel negligently allides with a fixed platform causing injury to those on the platform. 46 U.
the applicable state act applies. . if within territorial waters. LHWCA applies.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.
S. § 741 et seq. 46 U.C.. 46 U. Similarly. Congress authorized actions in personam against the United States for torts committed by ―public vessels. Congress authorized suits in personam against the United States as the owner/operator of a merchant vessel. in the Public Vessels Act. • • .C..Sovereign Immunity of the United States as Vessel Owner • In the Suits in Admiralty Act.S. § 781 et seq. Both acts expressly prohibit in rem actions against vessels owned/operated by the United States.‖ including warships.
Joint and Several Liability. State tort reform legislation in recent years has moved toward several liability. vicarious or strict liability). . Maritime law allows indemnity where the indemnitor’s negligence ―triggers‖ the indemnitee’s liability (e. issues of indemnity and contribution may arise. Maritime law allows contribution among joint tort feasors based upon percentage of fault. or modified joint liability—not so admiralty law! When one tort feasor is held jointly and severally liable with one or more tort feasors. Indemnity and Contribution • Maritime law imposes joint and several liability upon joint • • tort feasors.g.
if.C. 46 U. maritime law. the vessel is sunk or heavily damaged.Limitation of Liability • When a voyage or events subject a vessel owner to liability. . but if death or personal injury results from an occurrence involving a seagoing vessel (a passenger vessel operating on the high seas). The vessel owner entitled to limitation need surrender only the vessel or its value after the occurrence.S. the owner’s liability is increased to $420 per ton. as is often the case. § 183. may permit him to limit his liability arising out of the voyage to the value of the vessel and freight then pending. the limitation fund available to claimants may be insignificant.
if he is exonerated (found to be without fault) he owes nothing. he may limit his liability to the value of the vessel (usually NOTHING.Limitation of Liability (Cont’d. there is no right to a jury trial) without admitting liability. because it is on the admiralty side. but if he is found at fault.) • 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. if the vessel is lost!) .
those proceeds are not part of the limitation fund available to claimants! The vessel owner retains those proceeds.) • If the vessel owner has been compensated for loss of his vessel by his insurers.Limitation of Liability (Cont’d. even though those damaged by his vessel recover little or nothing! .
Limitation of Liability (Cont’d. .) • 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.
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.) • A vessel owner may only limit his liability for tort or contractual obligations incurred without his knowledge or privity. this means: • 1) the owner did not personally participate in the negligence or fault which caused injury. As long as he selects competent personnel and gives them adequate instructions. . – In the tort context. • 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. he will not be found with knowledge or privity of the later negligent acts of the master and crew.Limitation of Liability (Cont’d.‖ the owner may be charged with knowledge and privity of the delegate’s negligence or fault. He is not required to supervise the vessel in port or at sea.
that corporation is generally charged with knowledge and privity of the acts of its ―high level management personnel‖ (which may include the master).Limitation of Liability (Cont’d. 4) if the owner is a corporation which necessarily must act through human beings.) • 3) if the owner is aboard his vessel and is in active • control of her. then he is charged with knowledge and privity. .
g. seaman’s wages and maintenance and cure. e. the vessel owner remains liable for his personal contracts.Limitation of Liability (Cont’d.) – In the contract context. 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.. contracts for supplies and repairs. .
pleading limitation in the alternative. – The owner may assert limitation as an affirmative defense in actions brought against him in both federal and state court.Limitation of Liability (Cont’d.) – 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. He usually will also deny liability. • Procedure in Limitation of Liability . 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.
. – Since jurisdiction of limitation is exclusively in the admiralty ―side‖ of federal court.Limitation of Liability (Cont’d.) – 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. there is no right to a jury trial.
Jurisdiction and Procedure in Maritime Claims • In the early days of our federal judiciary. Thus today it is fair to say the United States District Court has two remaining ―sides:‖ law and admiralty. there were • History three ―sides‖ (involving separate dockets) in federal court: law. equity and admiralty. 38(e) and the Supplemental Rules for Certain Admiralty and Maritime Claims. still provide special rules for admiralty proceedings. . In 1938 when the Federal Rules of Civil Procedure (―F..R.‖) were adopted. the law and equity ―sides‖ were unified. The F.Civ.R. Rules 14(c). A single judge presided over all three sides.Civ.g. P. e.P.
However. . may adjudicate an in rem action against a vessel to foreclose maritime liens and to grant limitation of liability.C. plaintiff may obtain a jury trial of both matters. 28 U. sitting in admiralty.S.) • Admiralty and maritime claims may be asserted in either federal or • Subject Matter Jurisdiction state court: the same maritime substantive law applies in both court systems. only a federal court. § 1873. 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.Jurisdiction and Procedure in Maritime Claims (Cont’d. Where plaintiff brings a maritime claim only in personam in federal court.‖ and both arise from the same transaction or occurrence. 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.
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. the Jones Act). 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.g. If brought in state court. .) • If a maritime claim is brought in state court.000).Jurisdiction and Procedure in Maritime Claims (Cont’d. however. except that a Jones Act claim brought in state court is not removable to federal court even if there is diversity of citizenship jurisdiction.) • right to a jury trial if granted by state or federal law (e. there is a • Subject Matter Jurisdiction (Cont’d..
• Venue .Jurisdiction and Procedure in Maritime Claims (Cont’d. venue is proper.) • 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.
§8(10): • ―The Congress shall have Power .‖ . I. . and Offenses against the Law of Nations. Constitution provides in Art. To define and punish Piracies and Felonies committed on the high Seas. .S.Crimes Committed at Sea • The U.
S. As with any other federal crime.to be informed of the nature and cause of the accusation. Const. Piracy under law of nations – Whoever. §§1651-1653. VI. to have compulsory process for obtaining witnesses in his favor. commits the crime of piracy as defined by the law of nations.C. – § 1651.S.. the alleged pirate has a right to a ―speedy and public trial. . Amend. on the high seas. – 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 .Crimes Committed at Sea (Cont’d. and is afterwards brought into or found in the United States.) • The relevant portions of the United States criminal code re piracy on the high seas are found at 18 U. . to be confronted with witness against him.‖ U. by an impartial jury . . and to have the Assistance of Counsel for his defense. shall be imprisoned for life.
.C.com Gilmore..ed.‖) Secondary Authorities Admiralty and Maritime Law Guide. 2001) Jury Instructions Schoenbaum.‖) American Maritime Cases (―A. The Law of Admiralty (2d. Thomas J.C.Researching Maritime Law • Primary Authorities United States Code Annotated (―U. 2001) .S. www..A. Grant and Black. Charles L.admiraltylawguide. Jr.M. Admiralty and Maritime Law (3d ed.
Conclusion • I leave you with the sailor’s traditional farewell: May you have fair winds and following seas! .