Admiralty in a Nutshell
Authors:
Maraist, Frank L. / Galligan Jr., Thomas C. / Sutherland, Dean A. / Kuebel, Sara B.
Edition:
8th
Copyright Date:
2022
27 chapters
have results for admiralty in a nutshell
Chapter XIX. Jurisdiction and Procedure in Maritime Claims 73 results (showing 5 best matches)
- The first major change came in 1938, when the Federal Rules of Civil Procedure were adopted and made applicable in all cases of law and equity. This produced a unification of the law and equity “sides” of federal court, but admiralty remained separate. The special admiralty rules continued to govern cases on the admiralty “side.” In 1966, the Federal Rules were made applicable to cases in which the federal court is exercising jurisdiction through the admiralty power. This seemingly sounded the death knell for the admiralty “side” of the federal court, but, to borrow a phrase, the news of its death was greatly exaggerated. The 1966 effort at unification made nearly all of the Federal Rules of Civil Procedure applicable in admiralty matters, but the rulemakers retained a number of special rules that apply only when the federal court is exercising jurisdiction through the admiralty power. For example, amended Rule 38(e) provides that “[t]hese rules shall not be construed to create a...
- Prior to the American Revolution, English law developed three court systems—law, equity and admiralty—which exercised jurisdiction over different types of controversies. The admiralty court was the outgrowth of the informal “port courts,” which initially resolved maritime disputes. The concept of separate courts of law, equity and admiralty was imported into the colonies and subsequently survived the Revolution and the adoption of the Constitution. In the early days of the federal judiciary, however, a single judge performed all three functions in a given geographical area; as a result, each federal court had three dockets or “sides”—law, equity and admiralty. If a matter was brought before the court and jurisdiction was based upon the federal admiralty power, the case would be placed on the admiralty docket and would be processed through application of special admiralty rules by a judge “sitting in admiralty” and lawyers sometimes called “proctors in admiralty.” The admiralty...
- Unquestionably a court of admiralty will not enforce an independent equitable claim merely because it pertains to maritime property. . . . But that is not the case before us. Libellants went into admiralty on a claim arising upon a contract of affreightment supplemented by charges of negligence in the nondelivery of a sea cargo—matters obviously within the admiralty jurisdiction. As an incident to that claim, in order to secure respondents’ appearance and to insure the fruits of a decree in libellants’ favor, they made an attachment. . . .
- Supplemental jurisdiction poses an additional problem in a maritime setting. When jurisdiction in a federal court is premised solely upon the admiralty power, the parties are not entitled to trial by jury. If a party to a maritime claim brought as an admiralty claim is permitted to “pend” a nonfederal (state law) cause of action, the whole case presumably will be tried in federal court without a jury. However, since the “pended” or nonfederal claim arises out of state law, the litigants usually would have been entitled to try the claim to a jury in state court. Application of supplemental jurisdiction in a federal court sitting in admiralty could deprive a litigant of the trial by jury to which he otherwise was entitled.
- There is no general venue requirement for an action brought as an admiralty claim in federal court; if the court has jurisdiction over the person, venue is proper. However, some maritime actions brought in federal court under the admiralty jurisdiction are subject to special venue rules; examples include proceedings for limitation of liability, Supplemental Rule F(9), Admiralty and Maritime Claims, and suits against the United States under the Suits in Admiralty Act,
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Preface to the Eighth Edition 5 results
- Joining us in this Eighth Edition of the Admiralty Nutshell is Sara Kuebel, who practices maritime law in New Orleans. We welcome her and her valuable contributions to this publication.
- Most law school professors deal with discrete areas of the law such as contracts, torts, property, or commercial law. But one teaching admiralty has the opportunity to delve into many substantive, procedural and remedial aspects of the law and to analyze how those varied areas apply to one activity—maritime shipping and commerce. The admiralty professor must be concerned with such subjects as torts, contracts, worker compensation, insurance, commercial law, security devices, procedure, federal courts, constitutional law, international law and conflicts of law, as well as peculiar aspects of maritime law such as salvage, limitation of liability, and general average. Thus, the maritime lawyer is truly a specialist in generality, a specialist in the law governing disputes that arise on or near, or affect commerce on water. It is easy to see how one falls in love with this wonderful area of the law.
- President Emeritus Galligan is grateful to his coauthor, Professor Maraist, who not only has included him in this project and so many others over the years, but who convinced him about thirty years ago that it would be wise for Galligan, as a Torts teacher, to also teach a course in Admiralty. The authors owe unending thanks to Madeline Babin, administrative assistant at LSU, without whose extraordinary effort this edition would not have been completed in a timely fashion.
- The authors are not sailors drawn to the subject by our love of the sea. We are lawyers who have occupied ourselves with maritime law because it is one of the most comprehensive and fascinating subjects imaginable. In this book, we have tried to bring our enthusiasm for the subject to those who may find this book useful. We have attempted to make our explanations clear and to avoid bogging down in needless detail. But we have also tried to identify and address significant maritime issues of current concern. In the spirit of the Nutshell Series, we have attempted to provide the newcomer to the material with a helpful introduction, but we also have attempted to provide all those who deal with maritime law with a helpful review and a useful presentation of cases decided since the seventh edition was published.
- In this eighth edition we have strived to preserve the organization, clarity, tone, and style of the earlier editions. We have updated the citations where a more recent significant case has been decided or where Congress has acted. We also have made textual changes where the material demanded it. Generally, however, we have tried to preserve the inherent strengths of the previous editions.
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Chapter I. Introduction 29 results (showing 5 best matches)
- Chapter III examines how one determines when a matter is “in admiralty,” and the chapters which follow discuss the substantive and procedural laws which govern the disposition of a matter which is “in admiralty.” Defining the bounds of admiralty jurisdiction, i.e., determining whether a matter is “in admiralty,” involves the application of both geographical and conceptual factors. The geographical factors—“navigable waters” and “vessels”—continue to play important major roles in the inclusion or exclusion of some matters from the maritime jurisdiction. The conceptual factor is a determination of whether the matter has potential impact upon maritime shipping and commerce sufficient to invoke the attention of, and the expenditure of resources by, the federal sovereign. This factor, may be referred to in a shorthand way as “maritime nexus” or “flavor.” In the past, the geographical factors have produced some certainty in determining the bounds of admiralty jurisdiction, frequently at...
- The first clause gives federal courts the power to hear any matter which is “in admiralty,” without regard to the existence of a federal statute creating the maritime right or to diverse citizenship or any minimum amount in controversy. This jurisdictional grant originally had the effect of continuing the colonial admiralty court as one “side” of the new ). One characteristic feature of that admiralty “side” of federal court was special admiralty procedures. Another difference between the law and admiralty “sides” of federal court was that a litigant was not entitled to trial by jury on the admiralty “side,” while the Seventh Amendment guarantees jury trial in most matters brought on the law “side.” In 1966, by amendment to the Federal Rules of Civil Procedure, the separate “sides” were merged. Despite the merger, however, several important procedural features (including the non-availability of jury trial) remain applicable when the jurisdiction of the federal court is premised...
- Thus, a matter which falls within the federal admiralty power may be brought on the admiralty “side” of federal court, in state court and, if there is an independent basis of jurisdiction (diversity of citizenship or federal question), as a law claim in federal court. (saving-to-suitors clause does not allow a party to “elect” to proceed at law in federal court instead of in admiralty when admiralty provides the only basis for subject-matter jurisdiction). Regardless of the court in which the matter is brought, if the rule of decision is not proscribed by federal statute, the court must determine the applicable admiralty substantive rule. It does this by a selective process similar to that by which the common law developed. Since the source of this power to create a body of admiralty “common law” is Article III, Section 2, one could assume that all cases arising under the admiralty “common law” fall within the federal question jurisdiction of federal courts, ...the Supreme Court in...
- In summary, a determination that a matter is “in admiralty,” i.e., that it comes within the admiralty and maritime jurisdiction granted to the federal sovereign under Article III, Section 2, produces these results:
- In the broadest sense, admiralty is the great body of law—statutory and jurisprudential—which regulates the activity of carrying cargo and passengers over water. In a limited sense, admiralty or maritime law denotes those rules which govern contract, tort, and worker compensation claims arising out of travel and work on or over water.
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Chapter XIV. Wrongful Death 38 results (showing 5 best matches)
- A Jones Act death claim may be brought in federal court at law or in admiralty or in state court. A death action premised upon may be brought in admiralty or in state court or, if there is diversity jurisdiction, on the law side of federal court. DOHSA, , authorizes the personal representative of the decedent to bring an action “in a civil action, in admiralty.” This language has led some courts to conclude that jurisdiction over a DOHSA claim is exclusively in the federal court sitting in admiralty, and the claimant is not entitled to trial by jury unless the claim is properly joined with some other claim (such as a Jones Act claim) triable to a jury. Later decisions, including strong dicta by the Supreme Court in , indicate that jurisdiction over a DOHSA claim is concurrent between the admiralty court and state court.
- Whenever the death of a person shall be caused by wrongful act . . . occurring on the high seas beyond a marine league . . . the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent’s wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.
- Subsequently, the Supreme Court once again considered the issue of wrongful death recovery in admiralty cases. The issue was whether state law could be used to supplement the benefits available under the general maritime law wrongful death remedy in a case where the decedent was not a seaman or longshore worker, and the death occurred in territorial waters. In , the Court ruled that in maritime wrongful death cases in which (1) the decedent was not a seafarer (seaman, longshore worker or person otherwise engaged in a maritime trade); (2) there was no applicable Congressionally enacted comprehensive tort recovery regime i.e., otherwise applicable federal statute; and (3) the death occurred in territorial waters, state remedies may remain applicable and not displaced by
- These anomalies and the continued lack of congressional response led the Supreme Court in 1970 to abrogate the rule barring recovery for wrongful death in admiralty. In a superb opinion authored by Justice John Marshall Harlan, the Court ruled that the beneficiaries of a seaman killed within territorial waters could recover wrongful death benefits under the general maritime law, regardless of whether a statute of the state in which the accident occurred permitted such recovery. remedy was limited to a longshoreman’s unseaworthiness claims, but that view has not prevailed; provides a remedy whenever the defendant’s conduct constitutes a maritime tort, including both negligence and unseaworthiness. . This is, of course, consistent with the remedial nature of a wrongful death claim.
- The Court specifically reserved the question of whether state law could be applied to standards governing liability, as distinguished from rules on remedies. On remand, the appellate court applied maritime law in determining the standard for tort liability but state wrongful death law for the types of damages recoverable.
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Chapter XVII. Joint and Several Liability, Indemnity and Contribution 14 results (showing 5 best matches)
- When the underlying obligation is maritime, admiralty law determines the extent to which a debtor who pays the creditor can shift all or part of the loss to a third person. Generally, an indemnification clause in a contract to unload a vessel is governed by admiralty law, since the underlying contract is maritime, but an indemnification provision in a shipbuilding contract is regulated by state law because an agreement to construct a vessel is non-maritime. Similarly, tort indemnification and contribution generally are governed by admiralty law if the underlying tort is maritime.
- Initially, admiralty law enforced contribution among joint tortfeasors only in collision cases; if two or more vessels were at fault, the damages were divided equally between or among them. . In other cases, maritime law generally followed the common law rule barring contribution among joint tortfeasors, although the rule was not always followed by lower courts. The case often cited for the proposition that admiralty law did not permit contribution in non-collision cases was , in which a vessel owner was denied contribution from a ship repairer for damages paid to the repairer’s employee. In the Supreme Court, reviewing the jurisprudence, declared that there was a “well-established maritime rule allowing contribution between joint tortfeasors.” , the Court noted, did not support the opposing view, but merely represented an exception to the rule: contribution may not be enforced against a negligent party who is immune from tort liability to the victim, such as in ...a party... ...in...
- 1 Schoenbaum, Admiralty & Mar. Law § 5:15 (describing the warranty of workmanlike performance as “one of the most ambiguous and controversial concepts in all of admiralty law”).
- However, there has been a radical shift in American law regarding joint and several liability in tort cases. Once the clear majority rule was that joint tortfeasors (tortfeasors who caused indivisible injuries) were jointly and severally liable. However, many jurisdictions, either through legislative enactment or judicial decision, have moved toward several or modified several liability for joint tortfeasors. While state law has moved away from joint and several liability, maritime law has held the traditional course, preserving joint and several liability. Consequently, maritime law may be quite appealing to the plaintiff seeking full recovery. Maritime law is even more appealing when one considers the holding of Chapter III, that admiralty jurisdiction over a maritime joint tortfeasor will also provide maritime jurisdiction over a land based joint tortfeasor. This raises the intriguing possibility that the land based-joint tortfeasor may be exposed to joint and several liability...
- Maritime law also has recognized an implied contractual indemnity, as an outgrowth of the seaman doctrine. Prior to the 1972 amendments to the LHWCA, a longshoreman employed by a stevedore could recover damages from the vessel owner caused by an unseaworthy condition of the vessel, even though the condition was caused by the stevedore’s negligence. In , the Supreme Court provided the vessel owner with a remedy against the stevedore in such a case. The Court ruled that a stevedore impliedly warranted that it would perform its services in a workmanlike manner; if breach of that warranty caused the vessel owner damage, such as the doctrine changed in 1972, when Congress substituted a negligence action, 905(b), for the maritime employee’s unseaworthiness remedy against the vessel, and also provided that the maritime employer was not liable to the vessel owner for the employee’s damages, either “directly or indirectly,” and that “any agreements or warranties to the contrary shall be...
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Chapter III. Scope of the Maritime Jurisdiction 54 results (showing 5 best matches)
- In , the Court ruled that admiralty jurisdiction extended to claims arising out of a fire on a pleasure yacht that damaged both the marina at which the yacht was docked and several neighboring vessels. In an AEA case, the Court concluded that admiralty jurisdiction applied to claims for building damage in downtown Chicago resulting from a tunnel flood caused by a vessel’s activity in driving piles from a barge into a riverbed and by the city’s improper maintenance of the tunnel. In finding admiralty jurisdiction in both instances, the Court developed in and refined in the following test for the maritime “connection” (flavor) necessary for admiralty jurisdiction over tort claims: (1) using “an intermediate level of possible generality,” a court first must “assess the general features of the type of incident involved” to determine whether the incident has “a potentially disruptive impact on maritime commerce,” and, if so, (2) the court must determine whether “the general character”...
- Under the Admiralty Extension Act (AEA), maritime tort jurisdiction extends to all damages “caused by a vessel on navigable water, notwithstanding that such damage . . . be done . . . on land.” Two important questions in applying the statute are (a) does the AEA require “maritime flavor,” and (b) how far inland does the AEA extend admiralty jurisdiction?
- The third area in which the federal admiralty power has had a great impact upon private American law is in worker injury claims, i.e., claims by employees against their employers or the vessels on which they are employed, or both, for injuries arising out of the employment relationship. Such claims are “in admiralty” and thus governed by maritime law if the employee is either a “seaman” or a “maritime worker.” Otherwise, the claims ordinarily are governed by state law.
- Congress spoke to this problem in 1948 in the Admiralty Extension Act, now , extending maritime jurisdiction to “all cases of damage or injury caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.” Even after the adoption of the Admiralty Extension Act, considerable protest against the “locality alone” test developed in the lower courts. And, some courts held that a tort was not “in admiralty” unless it had both “locality” and a maritime “flavor” or “nexus.” The leading case was
- When is a contract “maritime”? The early English rule—an aftermath of the defeat of the admiralty courts in a seventeenth-century struggle with courts of law and equity—was that a contract was not maritime unless it was made on and was to be performed on navigable waters. The English rule was not generally applied in the colonies and modern American jurisprudence rejects this stringent geographical test in favor of a conceptual approach. In American admiralty law, the nature and subject
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Copyright Page 6 results (showing 5 best matches)
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Chapter II. Indicia of Jurisdiction 29 results (showing 5 best matches)
- The boundaries of American admiralty jurisdiction sometimes are fixed solely by the relationship of an event or occurrence to a vessel, navigable waters, or to the high seas. In most cases, however, the existence of admiralty jurisdiction rests in whole or in part upon a finding that the event or occurrence has “maritime flavor,” sometimes referred to as maritime “nexus.” In maritime contract jurisdiction, the key inquiry is whether the subject of the contract is maritime. Although this determination technically involves maritime flavor, for most maritime contract cases, special rules have developed that place the contract either inside or outside admiralty jurisdiction, and thus there is no need for a general inquiry into maritime flavor. However, in most maritime tort cases, the court must determine if the tort has a sufficient maritime flavor to justify the exercise of admiralty jurisdiction. Technically, the question in tort cases is whether the activity involved bears a... ...a...
- Unique historical developments limited admiralty jurisdiction in England to matters occurring on navigable waters. The English admiralty courts were drawn into the conflict between the law and equity courts. During that struggle, writs of prohibition issued by the common law courts blocked or hindered admiralty courts from exercising jurisdiction over acts or transactions that did not take place on navigable waters. Out of this struggle grew the limitation of the jurisdiction of British admiralty courts to matters occurring on navigable waters. While the colonial admiralty courts were not always subjected to the same restrictions as their English counterparts, the concept of “navigable waters” as a limitation upon some aspects of admiralty jurisdiction carried over into American maritime law.
- A vessel or other structure afloat on navigable waters is treated as a part of “navigable waters” for the purposes of admiralty jurisdiction. However, piers, jetties, bridges, ramps, railways running into the sea, and other structures firmly attached to land are “extensions of land” and are not “navigable waters” for the purpose of admiralty jurisdiction, unless they are used primarily in aid of navigation. This “extension of the land” doctrine also applies to fixed structures that are used in the production of minerals and are completely surrounded by water, but which are firmly attached to the sea bed or other ...definition of navigable waters produces the anomaly that drilling platforms constructed on the sea bed or subsoil of navigable waters constitute land for the purposes of admiralty jurisdiction, although some are located many miles from the nearest shore, while movable drilling structures, temporarily attached to the seabed or subsoil and performing the same function...
- In many cases, whether a matter is “in admiralty” depends upon whether it has a sufficient relationship to a “vessel.” Maritime liens and preferred ship mortgages attach only to “vessels,” and limitation of liability (which may drastically reduce a person’s liability for maritime claims; Chapter XVIII) is available only to the owner or demise charterer of a “vessel.” An injured employee may qualify as a seaman, thereby gaining the benefits of maintenance and cure, the Jones Act, and the warranty of seaworthiness ( Chapter XIII), only if his employment has the requisite connection with a “vessel.” The Admiralty Extension Act applies to damages caused by a “vessel” on navigable waters, even if the harm is sustained on land (
- Under the concept of “future navigability,” a stream which is not now navigable in fact and has not been so in the past nevertheless is navigable if it may be made navigable in fact by the expenditure of resources which would be reasonable in relation to the benefits anticipated. This concept has been applied in classifying water as “navigable” for some purposes, such as federal regulation of the construction of dams, bridges and other structures, but it should not be applied in determining the bounds of American admiralty jurisdiction.
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Chapter V. Liens on Maritime Property 65 results (showing 5 best matches)
- During the nineteenth century, implied maritime liens could not arise for services or supplies furnished in the vessel’s home port. The rationale was that because the owner presumably was present at the home port, the supplier could look to the credit of the owner, making it unnecessary to pledge the credit of the vessel to assure that a voyage would be undertaken or completed. To fill the obvious need, states passed laws providing for home port liens. These state law liens at first were recognized as enforceable
- Where the claim is not secured by a maritime lien, such as a non-lien maritime claim or a state law claim, the claimant nevertheless may seek payment of his claim out of the proceeds of a sale resulting from an
- A maritime lien may be enforced
- In the mid-nineteenth century the Supreme Court, in , ruled that a ship mortgage was not a maritime contract. The result was that ship mortgages could not be enforced
- The lack of an adequate device by which a shipowner could borrow on the credit of the vessel undoubtedly discouraged private financing of vessels. In 1920, Congress, in an effort to develop a stronger American merchant marine and, perhaps, to facilitate disposal of the merchant vessels which the federal government had acquired during World War I, passed the Ship Mortgage Act, now et seq., providing for a “preferred mortgage,” now , on a vessel and for its enforcement in an
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Chapter XIII. Worker Injury Claims 284 results (showing 5 best matches)
- [w]here recovery is denied . . . in a suit brought at law or in admiralty to recover damages in respect of injury . . . on the ground that such person was an employee and that the defendant was an employer within the meaning of this chapter . . . the limitation of time prescribed in [the LHWCA] shall begin to run only from the date of termination of such suit.
- An action for maintenance and cure may be brought
- If the third party is a “vessel defendant,” recovery against the maritime employer apparently is barred. Contribution is not available because the rule of prohibits recovery of contribution in admiralty from a party who is immune from direct tort recovery by the victim ( Chapter XVII). One exception is where the employer is liable to the worker in tort under section 905(b). In that case, the employer is not immune from the employee’s tort action and is also not immune from a contribution action.
- General tort principles govern the maritime worker’s tort action against a third party. If the tort is maritime, admiralty law governs; otherwise, state law applies. However, federal law rigidly regulates
- An unseaworthiness claim may be urged in the same manner as a claim for maintenance and cure. The jurisprudence requires joinder of the unseaworthiness and Jones Act claims; if there is no joinder, the omitted claim is waived. . This rule developed at a time when the shipowner who was liable for unseaworthiness and the employer who was liable for Jones Act negligence were usually the same person, and it may have been a simple application of the “might have been pleaded” rule. A different result may be reached if, as is now often the case, the shipowner and the seaman’s employer are not the same person. When the unseaworthiness claim brought as an admiralty claim is joined in federal court with a Jones Act claim in which trial by jury is sought, the seaman is entitled to a jury trial of the unseaworthiness claim, under the
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Chapter XVIII. Limitation of Liability 40 results (showing 5 best matches)
- When a cause of action exists under the law of a foreign country for death by wrongful act, neglect, or default on the high seas, a civil action in admiralty may be brought in a court of the United States based on the foreign cause of action, without abatement of the amount for which recovery is authorized.
- When a voyage or event subjects the owner of a vessel to liability, maritime law sometimes permits him to limit his liability arising out of the voyage or event to the value of his vessel (and “pending freight”) at the conclusion of the voyage or event. This remedy, called limitation of liability, is found in the maritime law of many nations and was adopted by Congress as part of American admiralty law in the mid-nineteenth century.
- Supplemental Admiralty Rule F(8) provides that “the fund . . . shall be divided pro rata, subject to all relevant provisions of law, among the several claimants in proportion to the amounts of their respective claims, duly proved, saving, however, to all parties any priority to which they may be legally entitled.” The uncertainty of lien rankings thus carries over into the distribution of the limitation fund. Some courts have used equitable principles in distributing an inadequate limitation fund.
- If the vessel owner who has failed to seek limitation in admiralty within the six-month period is sued in state court, he encounters the additional argument that a state court may lack jurisdiction to apply limitation, even as a defense. . However, the better view seems to be that limitation should be available as a defense in either state or federal court. . There is, of course, another danger to the shipowner who permits the six-month period to elapse without commencing a limitation concursus proceeding; even if he is permitted to urge limitation as a defense in separate suits, he may be required to make separate deposits of the total amount of the limitation fund in each of the suits.
- Since jurisdiction over a limitation proceeding is within the exclusive jurisdiction of the admiralty “side” of federal court, limitation issues are not triable to a jury. Thus, limitation conflicts with the maritime policy of granting a claimant the option of trial by jury, a policy espoused by Congress (the Chapter XIX. What has emerged in the jurisprudence is an accommodation in which a claimant is permitted to obtain a jury trial (as a law claim in federal court, or in state court) on the issues of liability and damages if such a trial would not undermine the protection to which the shipowner is entitled under limitation. Thus, a claimant may obtain a modification of the injunction against “other proceedings” provided by Supplemental Rule F(3) so that he may prosecute his claim in state court or at law in federal court if (1) his claim is the only claim against the vessel owner, . In such cases, one of the reasons for the concursus or interpleader in limitation is absent:...
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Chapter IV. Substantive Maritime Law: Contracts for Carriage of Goods 85 results (showing 5 best matches)
- The carrier is not responsible for loss arising from “act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship.” 46 U.S.C. § 1304(2)(a), Sec. 4, COGSA. The distinction between negligence in the stowage and handling of cargo, for which the carrier is responsible, and error in the operation and management of the vessel, for which it is not, is sometimes elusive. Gilmore & Black suggest that the distinction should turn upon whether the negligent act imperils only cargo, or whether it places both cargo and vessel in danger. Gilmore & Black, Benedict on Admiralty suggests that the issue may hinge upon whether the negligent act also would be an ordinary incident of storage on land; if not, then the negligence properly should be classified as that in management of the vessel. Michael F. Sturley, 2A Benedict on Admiralty § 136 at 13–20.
- Most charters provide for arbitration of the disputes between the owner and the charterer. If the arbitration clause is in writing, it may be enforced in federal court. 9 U.S.C. §§ 1 et seq. A special statute, , permits a claimant with a maritime lien to provoke seizure of the vessel or other property in admiralty court, and then compel arbitration, with the admiralty court retaining jurisdiction over the seized property for subsequent enforcement of the arbitration award.
- Since the owner and charterer are deemed to possess equal bargaining power, an agreement allocating risks between them ordinarily is enforced. In the absence of agreement, admiralty law provides that the owner impliedly warrants that the vessel is seaworthy, i.e., reasonably fit for its intended use, at the commencement of the charter. This warranty may be negated by plain, clear terms in the charter party. In addition, the owner may not be responsible for a defect in the vessel which exists when the vessel is delivered to the charterer, if the charterer inspects the vessel and either discovers or should discover the defect. Descriptions of the vessel in the charter party may constitute warranties if they tend to induce the charterer to enter into the agreement.
- Contracts involving the operation and management of merchant vessels and the carriage of goods and passengers by water are maritime contracts. Consequently, they are within admiralty jurisdiction, and are governed by a comprehensive body of maritime law, both statutory and jurisprudential. These contracts include the lease of a vessel (charter party), the carriage of goods under a bill of lading (regulated by the Harter Act and the Carriage of Goods by Sea Act), and the furnishing of repairs, supplies and other services to vessels. The general principles of these areas of maritime law are discussed in this chapter and in Chapter V.
- This work does not provide details of the Rotterdam Rules but continues the discussion of the governing American law: the Harter Act and the Carriage of Goods by Sea Act. Even such discussion, however, has been complicated. In 2006, the substantive provisions of the codified American admiralty law were reenacted from the appendix of Title 46 of the U.S. Code to the main portion of Title 46. The Harter Act was generally recodified as 46 U.S. Code Sec. 30701 et seq. The Carriage of Goods by Sea Act, formerly located in 46 U.S. Code Secs. 1300–1315, was not codified with new section numbers, but a “historical note” to ...the original provisions of the Carriage of Goods By the Sea Act, listing them by section numbers (1 through 16 of the original act). An appended comment states that although the Harter Act was recodified, Secs. 1300 to 1315 were not recodified but “were not repealed, omitted or restated by” the codifying act. COGSA’s viability as uncodified law was recognized by the...
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Chapter VI. The Seaman’s Employment Contract, Wages and Compromise of Claims 11 results (showing 5 best matches)
- Seamen are “wards of admiralty” who must be protected from “overreaching” by a ship’s owner or master. The rationale for the “wardship” principle was expressed by Justice Joseph Story in these words:
- An agreement by which the settling defendant retains an interest in the plaintiff’s claim against the nonsettling defendant—sometimes called a “Mary Carter” agreement—is common in admiralty. Since such an agreement may provide a seaman with funds with which to pursue claims against other defendants, maritime courts permit the use of a “Mary Carter” agreement in a seaman’s claim. However, full disclosure of the agreement is required, and the court has the power to refuse to enforce an agreement which abuses the seaman’s rights.
- The protections afforded a seaman also extend to a seaman’s compromise of his or her claims. . A settlement with a seaman is liberally construed to protect the seaman. . “One who claims that a seaman has signed away his rights to what in law is due him must be prepared to take the burden of sustaining the release as fairly made with and fully comprehended by the seaman.” (quoted with approval by the Supreme Court in ). This burden of proof is an integral part of substantive admiralty law and must be applied even when the release is pleaded as a defense in state court. The operative test for determining the validity of the seaman’s release appears to be whether under all of the circumstances the seaman made an intelligent choice to effect the settlement and forego litigation. Adequacy of consideration, although relevant, is not controlling. However, a seaman’s release may be invalid as a matter of law if the consideration is “grossly inadequate,” , and when a seaman is signing a...
- Generally, in the absence of a contract providing to the contrary, a seaman is an “at will” employee who may be discharged for “good cause, for no cause, or even in most circumstances, for a morally reprehensible cause.” . Since the 1980s, however, the courts and Congress have imposed some important limitations on the “at will” status of a seaman. In , the Fifth Circuit found that a seaman may have an action for the tort of wrongful discharge if his or her termination is in violation of an important public policy, such as in retaliation for the seaman’s filing of a personal injury action against the employer. This remedy is available to a worker whose seaman status arises after his or her injury but before his or her termination.
- The specific protections afforded seamen are best illustrated by the remedies available for payment of wages. The owner and master are both liable for the payment of wages. The seaman also has a lien on the vessel, usually of the highest rank, for payment of wages, and his or her claim is exempt from limitation of liability. A seaman may enforce the claim for wages in a summary proceeding in federal court, without prepayment of court costs. 46 U.S.C. § 603, . A seamen’s wages must be paid periodically upon demand and upon termination of the seaman’s employment. 46 U.S.C. §§ 10313, 10504, 11105, 11106. The penalty of “double wages” applies if the shipowner fails to pay a seaman’s wages without sufficient cause. . In , the Supreme Court ruled that a court does not have discretion to limit the period during which the penalty wages accrue, even though the result was that a seaman would recover several hundred thousand dollars in penalties for nonpayment of a few hundred dollars in wages...
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Chapter VII. Marine Insurance 29 results (showing 5 best matches)
- Some courts recognize a presumption against creating a federal admiralty rule. Whether the Court would adhere to on insurance policies covering vessels engaged in international trade, or even those regularly utilized in significant domestic maritime commerce, is questionable because there may be a significant need for uniformity of laws governing the validity and interpretation of such policies.
- , Admiralty and Maritime Law
- In the United States, the question of what law governs the validity or interpretation of a marine insurance contract is not easily answered. An agreement insuring maritime property or a maritime risk is a maritime contract, and ordinarily would be governed by admiralty law. However, in , the Supreme Court ruled that the marine insurance contract in that case was governed by state law because there was no directly applicable federal statute or settled maritime common law rule governing the issue and no need to articulate a uniform maritime rule. The insurance policy in insured a houseboat used to carry passengers on an artificial lake between Texas and Oklahoma.
- The general rule in admiralty is that attorney’s fees are not recoverable in the absence of statute or contract. . However, it is not clear whether a court may apply against a marine insurer a state statute subjecting an insurer to an award of attorney’s fees.
- Where there is an established admiralty common law rule, its roots usually are in British law. The development of insurance in England was closely related to maritime shipping and commerce, and marine insurance was in full use there by the sixteenth century. The American marine insurance industry developed slowly, and at first, British insurers dominated the American market. Although the British dominance has waned, English marine insurers and English law [ ] still are significant factors in American marine insurance market.
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Center Title 2 results
Chapter XVI. Sovereign Immunity 13 results (showing 5 best matches)
- This disjointed approach to the waiver of sovereign immunity resulted in one hiatus: a ship under federal control which was neither a “merchant vessel” nor a “public vessel” did not come within the waiver of immunity in either statute. To eliminate this loophole, Congress in 1960 amended the SAA to extend the waiver of immunity to all cases “where if such vessel were privately owned or operated . . . or if a private person or property were involved, a proceeding in admiralty could be maintained.”
- The limitations periods, along with the administrative claim requirements for the SAA, PVA and FTCA, present a trap for the unwary. Under the FTCA, filing an administrative claim (which is required) tolls the statute of limitations, as long as the administrative claim is filed within the two-year statute of limitations set forth in . In contrast, under the SAA, while the statute of limitations is two years, . Thus, if a plaintiff with a maritime tort claim against the government files an administrative claim after 18 months from the alleged tort, any suit will subsequently be dismissed for failure to exhaust the prescribed administrative remedies (i.e., failure to wait six months from presentation of the claim) or time barred if the suit is filed outside the two-year limitations period. Such problems may occur when a plaintiff who mistakenly believes that the claim is non-maritime (i.e., falls within the Federal Torts Claim Act), and, thus fails to file suit within two years upon...
- Sovereign immunity generally prohibits suits against governmental entities, including federal state and local governments, foreign governments, and vessels and cargoes owned by them, unless immunity has been waived by the governmental entity. Prior to 1916, the doctrine of sovereign immunity barred suits against the United States on maritime claims. In that year, in the Shipping Act, Congress made a limited waiver of immunity; however, the waiver permitted the arrest
- Some political subdivisions and departments perform such functions, and their finances are so intertwined with the general state treasury that they fall under the umbrella of the state’s sovereign immunity under the Eleventh Amendment. The immunity of lesser governmental bodies probably will be determined by application of the general tort law governing immunity. In , the Supreme Court held that a county that does not qualify for sovereign immunity under the “arm of the state” test does not qualify for sovereign immunity from suit in admiralty.
- The immunity of foreign states from maritime (and non-maritime) claims in American courts is governed by the Foreign Sovereign Immunities Act, adopted in 1976. The act provides sovereign immunity for claims arising out of noncommercial activities but does not provide immunity for claims based upon commercial activities carried on in, or having a direct effect in, the United States, or to acts performed in this country in connection with commercial activity et seq. The Act permits foreclosure upon a maritime lien
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Chapter IX. Salvage 32 results (showing 5 best matches)
- American admiralty law sanctions a “pure” salvage award only if the salvage efforts are successful; if the property ultimately perishes in the peril, salvage is not owed. The Convention apparently would not change the result, except where the salvage operations avert threatened damage to the environment. Articles 12, 14. A person claiming the salvage award need not effect the rescue, if the property is saved and he or she has performed an act which contributed to its ultimate safety. Thus, a salvor who aids a vessel by transmitting a radio message, by warning of impending peril, or even by simply standing by, may be entitled to an award.
- Prize is a sovereign’s capture at sea of a vessel or other property of an enemy belligerent during time of war. The captor takes the vessel to a prize court, where the issue of “prize or no prize” is adjudicated in an
- Salvage contracts present few uniquely maritime issues for litigation. The property which is the object of the contract must be maritime property, or the contract will not be treated as one of salvage within admiralty jurisdiction. The Convention applies to contract salvage unless the contract “otherwise provides expressly or by implication.” Article 6. The agreement between the parties to enter into a salvage contract must be clear. The contract may provide that the salvor will be reimbursed at a temporal rate, regardless of the outcome of the salvage attempt. Frequently, however, the contract salvor is engaged on a “no cure, no pay” basis and is entitled to compensation only if successful. This type of contract often provides for substantial recovery in the event of success. When the property is saved quickly, the owner may attempt to avoid payment of the full contract price by contending that the contract was induced by fraud or that the owner’s consent was given under duress. If
- The operative principle under American maritime law is that one who directly and voluntarily rescues maritime property which is derelict, or is in a position of “peril,” is entitled to an award, determined by the court, which is commensurate with the value of the property; the risk involved; and the effort expended. In the Court said that a salvor must show: (1) that the salved property faced a marine peril; (2) that the salvor’s services were voluntarily rendered without an existing contractual duty; and (3) that the salvage efforts were successful, in whole or in part. Under the Convention, salvage is “an act or activity undertaken to assist a vessel or any other property in danger” in water, Article 1(a), and which has a “useful result.” Article 12.
- in rem
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Index 21 results (showing 5 best matches)
Chapter XV. Platform Injuries 37 results (showing 5 best matches)
- Query, does the Fifth Circuit’s focus-of-the-contract test, which is based on the location(s) where a majority of the contractor’s work is performed, conflict with the Supreme Court’s rejection of “spatial” analysis in , which held that boundaries of admiralty jurisdiction over contracts . . . [are] “conceptual rather than spatial” and “depend[ ] upon the nature and character of the contract”, and the true criterion is whether the contract has reference to maritime service or maritime transactions? Was this issue resolved in
- One such law is the Admiralty Extension Act (AEA), 46 U.S.C. § 740 which applies only if the tort was “caused by a vessel on navigable waters.” However, the AEA may not apply to the platform injury because the accident is not due to a defect in an appurtenance of the vessel but is caused by personnel performing service for the vessel. . For a thoughtful criticism of . Similarly, a wrongful death occurring in connection with a platform may fall under the Death on the High Seas Act, if the wrongful act occurs on the high seas and, perhaps, has “maritime flavor.” ( ). Otherwise, torts occurring on a platform ordinarily do not fall within maritime tort jurisdiction since the maritime common law treats the platform as an “extension of the land” (and thus lacking in “locality”) and deems exploration for oil and gas from fixed platforms as lacking in “maritime flavor.” . The same result may attain when an injury occurs on the water near a platform because of negligence in the platform...
- Exploration for minerals beneath navigable waters is conducted from movable drilling structures or from stationary platforms constructed over water and permanently attached to the subsoil and seabed. Maritime law treats the movable structures as vessels, and thus within admiralty jurisdiction, even when the structures are temporarily attached to the seabed. The stationary or “fixed” platforms, however, are treated as land, . The large number of accidents occurring on these stationary platforms has led to the development of a unique body of law which is intertwined with maritime personal injury law.
- If the exploration for minerals is conducted from a fixed platform as opposed to a movable rig that qualifies as a vessel, a worker ordinarily will not attain seaman status. A seaman must have the requisite connexity with a vessel, and in maritime law a fixed platform is land, not a vessel.
- Arguably, these provisions establish a federal statutory action for damages caused by unsafe conditions or the violation of federal safety regulations on platforms located on the Shelf; however, this view has yet to find judicial support. . Even if the amendments did not create a new federal cause of action, a stronger argument now can be made that a federal cause of action should be implied from violation of the duties imposed upon lease holders by the provisions of the OCSLA and by regulations adopted pursuant to the Act. Applying the test provided by the Supreme Court in to the original version of the OCSLA, the Fifth Circuit concluded that a federal damage action for maritime workers could not be implied. . However, the 1978 amendments added the provisions cited above and other sections that reflect a strong Congressional purpose of promoting the safety of workers on the Shelf, an important ingredient in the ...of a federal cause of action. As noted, lawyers and... ...and in...
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Chapter XI. Maritime Tort Law 42 results (showing 5 best matches)
- For non-seamen, in , an equally divided Supreme Court left undisturbed the Ninth Circuit’s decision on vicarious liability for punitive damages, so the Court left open the question of what was the appropriate standard for imposition of punitive damages in admiralty against a corporation.
- The traditional common law and maritime law rule is that a claimant may not recover damages for economic harm, such as loss of income or profits, unless there has been some injury to the claimant or his property. This general common law rule arises from the seminal admiralty case of . Although admiralty courts generally adhere to the , there is some indication that there will be exceptions to the rule, such as in a case where the damaged party is a seaman whose compensation is dependent upon the earnings of his employer’s vessel, or where the damaged party is a demise charterer whose liability for charter hire continues while the damaged vessel is out of service.
- The doctrine of “avoidable consequences” (duty to mitigate) predictably and logically applies in admiralty.
- An important element of damages in maritime tort claims is recovery for loss of future earnings or, when the victim dies, recovery by his beneficiaries for the loss of the support that they would have received from the victim. Two important issues arising in the determination of such damages are whether the trier of fact may consider (1) the amount of income tax that the worker would have paid on his future earnings, and (2) whether and how to reduce the lost future earnings stream to present value. In earlier days, federal courts generally excluded consideration of income tax effects and employed market interest rates in reducing to present value. However, in , the Supreme Court held that under the federal common law of admiralty, the trier of fact in fixing damages for loss of future earnings may consider that the worker would have paid taxes on the income he would have earned. The Court also ruled that a jury may be instructed that its award for loss of earning capacity or future...
- Where a tort is “in admiralty” (i.e., there is maritime tort jurisdiction), federal maritime law provides the rules of decision, unless the controversy is deemed “maritime but local,”—i.e., there is no need for a uniform maritime rule—and state law is applied.
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Chapter X. General Average 6 results (showing 5 best matches)
- A claim for general average may be brought in admiralty and is secured by a maritime lien on the property saved. In the overwhelming number of cases, the interests at risk are insured against, and general average is computed and paid through informal proceedings among insurers. Thus, the resolution is private and there is little resulting recent “law.” The basis for most settlements is the decision of a “general average adjuster,” who investigates the occurrence and the values involved and determines the adjustment that should be made between the interests at risk in the maritime venture. Some cases do reach the courts, however. Many of these raise questions of whether the voyage actually was in peril or whether the sacrifice was “voluntary” and was for the purpose of saving the voyage. Some courts have required some imminent peril, whereas more modern courts have required less. Most of the precise issues in both adjustment and litigation of general average cases are resolved
- In the typical maritime voyage, a vessel, its cargo and the freight (the vessel’s fee for carrying the cargo) may be said to be “at risk”; if the voyage is unsuccessful, the owner of one or more of these interests may suffer loss. Ordinarily, the damages will be borne by the owner of the interest which is lost or damaged, the owner’s insurer, or a third party (or its insurer) whose fault caused the damages. The allocation of loss in such a maritime case is called “particular average” although it is merely a simple allocation of risk with a fancy maritime name.
- In some cases, damage to one or more of these three interests—vessel, cargo, and freight—may be inflicted deliberately by the master or operator of the vessel in an effort to save the entire voyage (and thus the other interests) from loss or damage from an impending maritime peril, or at least a real and substantial danger. . If the vessel was at fault in incurring the peril, it may be liable to the owner of the property lost in the peril. But such is often not the case; the “perils of the sea” may endanger a vessel whose master and crew are free from fault. When these circumstances exist—a maritime peril, a lack of vessel fault, and a voluntary “sacrifice” of one interest to save the voyage—maritime law dictates that “the loss occasioned for the benefit of all must be made good by the contribution of all.” 2 The Digest of ...average, which is unique to maritime law, applies only when: (1) there is a danger to which both vessel and cargo are exposed; (2) the danger is imminent...
- Under maritime common law, a carrier who is guilty of fault cannot claim general average. However, federal legislation (The Harter Act and COGSA) relieves the carrier from liability to the cargo owner for some of the consequences of his fault, such as those incurred in the navigation and management of the vessel. Carriers initially contended that the Harter Act automatically removed the bar to the recovery of general average when their negligence was that from which a carrier is relieved by the Act. After the Supreme Court rejected this contention, carriers began inserting clauses in bills of lading providing that general average is payable if it arises through negligence of the carrier for which he is exculpated by the Harter Act. The enforceability of these clauses was upheld by the Supreme Court; they were termed “Jason clauses,” from the case in which the Court sanctioned their use. . A similar clause (the New Jason Clause) generally has been in use since the adoption of COGSA.
- Losses which give a claim to general average are usually divided into two great classes: (1) Those which arise from sacrifices of part of the ship or part of the cargo, purposely made in order to save the whole adventure from perishing. (2) Those which arise out of extraordinary expenses incurred for the joint benefit of ship and cargo.
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Chapter XII. Collision Law 39 results (showing 5 best matches)
- When a vessel is lost as a result of a collision or other tort (or is a “constructive total loss” because the cost of repairs exceeds the value), the owner may recover the fair market value of the vessel, together with net freight (gross freight, less the expenses of the voyage). . Fair market value usually is determined by comparable sales of similar vessels. Where comparable sales are not available, a court may determine the value from opinion testimony or from such factors as reproduction cost less depreciation, the condition of repair of the vessel, the uses to which the vessel could be put, its insured value, and its mortgage value. The general rule is that there can be no recovery for loss of use of a vessel which has been lost or destroyed. However, there is authority that such damages should be awarded if the plaintiff establishes his inability to obtain an immediate replacement and can demonstrate that the award of “loss of use” damages will not result in “double recovery,”...
- For over a hundred years, admiralty law embraced the rule of “divided damages” in collision cases. In 1975, in , the Supreme Court jettisoned that sometimes inequitable and often illogical rule in favor of proportionate allocation of fault among joint tortfeasors in collision cases. . Each vessel now is liable to the other offending vessel in contribution for that part of the total damages proportionate to its fault and is liable for its per capita (virile) share only when the respective faults of the vessels are equal, or when proportionate fault cannot be determined.
- Negligent or intentional discharge of pollutants into navigable waters constitutes a maritime tort under general admiralty principles. Damage to the water and to vessels on the water has the “locality” and “flavor” required for maritime tort jurisdiction; damage to shoreside property caused by a vessel “spill” arguably lacks “locality,” but should fall within maritime jurisdiction through the provisions of the Admiralty Extension Act, . It thus would appear that maritime tort law may afford a remedy to private persons damaged through pollution of navigable water and may also supplement recovery by the United States where such additional recovery is not prohibited by the federal legislation, including the recovery of punitive damages. (allowing, but reducing, punitive damages in maritime oil spill case and holding that maritime punitive damages are not preempted by the Clean Water Act). The Oil Pollution and Clean Water Acts may preempt some but not all state remedies.
- Two other rules of maritime collision law merit mention. Admiralty courts have recognized a doctrine of “last clear chance.” applied. Another doctrine much akin to “last clear chance” is the “condition, not cause” rule: if one vessel is initially at fault, but the second vessel could thereafter have avoided the accident, the initial fault of the first vessel is said to be a “condition” of the accident but not a “cause.” . These rules have not survived the general adoption of comparative fault in maritime law, and their passing should mean a simpler, more cohesive body of law.
- The Rules of the Road prescribe the speed at which a vessel should proceed, the lights and shapes which it must exhibit, the sounds or signals it must emit, and the maneuvers it must take when encountering another vessel in meeting, overtaking or crossing situations. In addition, a special rule provides for vessel conduct during fog or other extremely inclement weather. The International and Inland Rules generally prescribe similar conduct in similar situations; thus, a general understanding of the rules can be gleaned from a brief discussion of the key provisions of the International Rules.
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Chapter VIII. Towage and Pilotage 16 results (showing 5 best matches)
- . Bailment has been defined as “a delivery of goods or personal property, by one person to another, in trust for the execution of a special object upon or in relation to such goods, beneficial either to the bailor or bailee or both, and upon a contract, express or implied, to perform the trust and carry out such object, and thereupon either to redeliver the goods to the bailor or otherwise dispose of the same in conformity with the purpose of the trust. . In the simplest of terms, bailment is basically storage. An admiralty bailment does not arise unless delivery to the bailee is complete and the bailee has exclusive right to possession of the bailed property, even as against the owner. Considering the foregoing, because a towage contract is not considered bailment, proof by the plaintiff of delivery of the tow in good condition and redelivery in a damaged condition does not give rise to a presumption that the tug was at fault. The finder of fact, however, may infer negligence on...
- Generically, a pilot is the person aboard ship who is in charge of the helm and the vessel’s route. However, “pilot” is used more frequently to describe a person with specialized knowledge of conditions in a specific geographic area, such as a harbor or an inland stream, and who goes aboard the vessel to direct it to safety in those conditions.
- has been weakened by a Supreme Court decision validating an exculpatory clause which was part of a tariff filed with the Interstate Commerce Commission, , and another upholding the validity of a clause in a towage contract requiring that all disputes be resolved by a designated foreign court, i.e. a forum selection clause. . In , a German corporation had contracted with a U.S. corporation to transport an oil rig from Louisiana to the Adriatic Sea. When the rig was damaged during transport, the U.S. corporation filed suit in Florida. In response, the German corporation argued that the forum selection clause, which mandated England as the chosen forum for disputes, must be enforced and the case dismissed. The Supreme Court agreed and held that the forum selection clause would be enforced, because the U.S. corporation could not show that enforcement would be unreasonable and in analyzing forum selection clauses in maritime and non-maritime contracts.
- The towage contract need not be in writing. In the absence of express contractual provisions, the tower warrants that it will furnish a seaworthy vessel and crew and that it possesses sufficient skill and knowledge to perform the contract safely. The owner of the tow must furnish a seaworthy vessel, with proper equipment and lighting; where the tow is manned, the crew of the tow must be competent and sufficient in number.
- Under the “flotilla doctrine,” the owner of a “fleet” (two or more tugs or a tug and tow) involved in a marine disaster may be required to surrender both vessels in seeking limitation of liability.
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Outline 25 results (showing 5 best matches)
Table of Cases 65 results (showing 5 best matches)
- Publication Date: February 25th, 2022
- ISBN: 9780314290755
- Subject: Admiralty
- Series: Nutshells
- Type: Overviews
- Description: Addresses maritime tort law, collision law, worker injury claims, wrongful death, and platform injuries. Explores maritime property liens and the seaman’s employment contract, wages, and compromise of claims. Discusses marine insurance, towage and pilotage, salvage, and general average. Also covers sovereign immunity; joint and several liability, indemnity, and contribution; liability limitations; and jurisdiction and procedure in maritime claims.
