Admiralty in a Nutshell
Authors:
Maraist, Frank L. / Galligan, Thomas C. / Maraist, Catherine M. / Sutherland, Dean A.
Edition:
7th
Copyright Date:
2017
27 chapters
have results for admiralty and maritime law
Chapter XVII Joint and Several Liability, Indemnity and Contribution 12 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.
- 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...
- 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 the Supreme Court, reviewing the jurisprudence, declared that there was a “well-established maritime rule allowing contribution between joint tortfeasors.” , where the maritime employee’s exclusive remedy against his employer was the compensation benefits provided by the Longshore and Harbor Workers’ Compensation Act. The rule derived from and is that where a party against whom contribution is sought in an admiralty claim cannot be held liable to the plaintiff, the basis for mutual responsibility, and thus...
- Tort indemnification in maritime law may arise when the indemnitor’s negligence “triggers” the indemnitee’s liability (such as vicarious liability, or a shipowner’s absolute liability for an unseaworthy condition or for maintenance and cure). comparative contribution, maritime law also provided tort indemnification when the negligence of one joint tortfeasor was “slight” and that of another was “gross.” After adoption of contribution between joint tortfeasors on the basis of percentages of fault, indemnification under the “gross-slight” rule appears to serve no useful purpose and may no longer exist in maritime law.
- Maritime law will enforce a contractual provision by which the indemnitor agrees to indemnify against the indemnitee’s negligence, if the intent to do so is unequivocal. . Thus state laws which invalidate such indemnity provisions in contracts involving mineral exploration have increased the importance of distinguishing between maritime and non-maritime contracts for offshore mineral development.
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Chapter I Introduction 29 results (showing 5 best matches)
- Although Congress has been sparing in the exercise of its power to prescribe substantive rules governing “cases within the admiralty and maritime jurisdiction,” some areas of maritime law, such as the carriage of goods under bills of lading, maritime liens, ship mortgages, and worker’s compensation for non-seaman maritime workers, have been the subject of comprehensive legislation. However, Congress has said little or nothing about what rules govern most admiralty tort or contract claims. Thus the federal judiciary, fashioning a “federal admiralty common law,” has provided much of the substantive law of admiralty. Some of this judge-made law has been handed down by the Supreme Court, but for the most part the prevailing law is a consensus of decisions by the lower federal courts. These decisions usually reflect a synthesis of the general maritime law of nations, analogies from Congressional pronouncements, and the courts’ own views of what ...needed to promote American shipping and...
- 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, sometimes referred to in a shorthand way as “maritime nexus” or “flavor,” is of ascending importance. In the past, the geographical factors ...the bounds of admiralty jurisdiction, frequently at the cost of...
- Article III, § 2, cl. 1 (3d provision) of the Constitution and section 9 of the Act of September 24, 1789, have from the beginning been the sources of jurisdiction in litigation based upon federal maritime law. Article III impliedly contained three grants. (1) It empowered Congress to confer admiralty and maritime jurisdiction on the “Tribunals inferior to the Supreme Court” which were authorized by Art. 1, § 8, cl. 9. (2) It empowered the federal courts in their exercise of the admiralty and maritime jurisdiction which had been conferred on them, to draw on the substantive law “inherent in the admiralty and maritime jurisdiction,” , and to continue development of this law within constitutional limits. (3) It empowered Congress to revise and supplement the maritime law within the limits of the Constitution.
- 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 on or over water.
- The British crown established in its American colonies vice-admiralty courts to which it granted power over maritime disputes. After the Revolution, the Articles of Confederation gave the Congress the power to regulate prizes and piracies, and to establish an appeals court for dealing with prizes and captures. Original jurisdiction over these cases, however, was vested in the state courts. It was an unhappy experience. Some state courts employed procedures foreign to admiralty. Some states prohibited appeals and refused to comply with decrees of the federal appellate tribunal which reversed state court decisions. This history undoubtedly prompted the inclusion in the United States Constitution of federal power over admiralty and maritime matters, and the resulting establishment of special federal courts and substantive laws to resolve maritime disputes. It is these courts and substantive laws—American admiralty law—that are the focus of this work.
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Chapter XIX Jurisdiction and Procedure in Maritime Claims 59 results (showing 5 best matches)
- Litigation of a matter as an admiralty claim in federal court frequently provides a judge who is skilled in and sympathetic to maritime concerns, but, except when 28 U.S.C.A. § 1873 applies, it does not provide trial by jury. When a maritime matter is brought in state court, there may be trial by jury (depending upon state law), but the state judge is not likely to be as attuned to federal admiralty concerns or as conversant with the intricacies of maritime law, as his federal counterpart. Understandably, a maritime litigant may want to present his maritime common law claim to a jury in federal court. There is one important way in which that goal may be attained. While a litigant in federal court whose claim is premised solely upon admiralty common law may not demand trial by jury, there is no constitutional or statutory bar to a jury trial of such a claim. If the maritime claim is the only claim before the court, trial by jury is inappropriate; the federal policy generally favoring...
- 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.”
- A general maritime law claim (within the admiralty power but not arising out of a federal statute) may be brought as an admiralty claim under , and, unless the litigant seeks enforcement of a claim , it also may be brought in state court under the “savings to suitors” clause. It may not be brought as a law claim in federal court unless there is diversity jurisdiction (complete diversity of citizenship and an amount in controversy exceeding $75,000). . The Supreme Court has rejected the contention that a maritime common law claim may be brought in federal court as a law claim because it “arises under” the Constitution (Art. III, Sec. 2). Although the federal power to prescribe general maritime law stems from the Constitution, a general maritime law remedy does not “arise under” the Constitution within the meaning of the statute conveying “federal question” jurisdiction, ...these kinds of claims which may not be brought as law claims in federal court unless there is diversity...
- 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. . . .
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Preface to the Seventh Edition 5 results
- 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.
- Joining us in this Seventh Edition of the Admiralty Nutshell is Dean Sutherland, a coauthor of our casebook in Maritime Law. We welcome him and his valuable contributions to this publication.
- Dean Thomas 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 twenty years ago that it would be wise for Galligan, as a Torts teacher, to also teach a course in Admiralty. Dean Galligan, Professor Maraist and Catherine Maraist are pleased that Dean Sutherland is joining the authorial team. Professor Maraist taught Dean Galligan about Admiralty, Torts and teaching. And, Dean Galligan was lucky to have Catherine Maraist as a student. Catherine Maraist also no doubt learned much from her father, Frank Maraist, so perhaps the educational loop comes full circle. Our newest coauthor, Dean Sutherland, has taught and practiced admiralty and maritime law for decades. 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 sixth edition was published.
- In this seventh 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. One significant change was the renumbering of Title 46 of the U.S. Code; in this edition we provide the new citations and, where appropriate, reference to the prior citations. Generally, however, we have tried to preserve the inherent strengths of the previous editions (three of which Professor Maraist crafted until Dean Galligan joined him on the fourth edition and Catherine Maraist joined them in the sixth edition).
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Chapter V Liens on Maritime Property 61 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 in admiralty, but the Supreme Court subsequently held that such liens could not be enforced in that manner. Thereafter, the Maritime Lien Act was adopted. The Lien Act permits home port liens under admiralty law and provides that the federal lien for necessaries supersedes any state liens that otherwise would be enforceable in admiralty. . The result is that state law liens on vessels have limited utility. A state may establish a lien upon a vessel that will be 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 proceeding brought by a maritime lienholder. The admiralty court may enforce a non-lien claim in the foreclosure, but such a claim obviously would rank behind all maritime liens.
- 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 , on a vessel and for its enforcement in an proceeding in admiralty. The Act was met with the objection that it was unconstitutional because a ship mortgage was not a maritime contract, and thus Congress could not provide for such a contract under its admiralty , ruled that ship mortgages are within the federal admiralty power and that earlier decisions, such as meant only that the maritime common law did not permit enforcement ...’s mortgage. The Ship Mortgage Act has become a vital part of the financing of American maritime shipping; predictably, it was amended after World War II to facilitate its...
- American admiralty courts will enforce liens arising in foreign countries. The law governing maritime liens arising in foreign countries may be summarized in this fashion: American courts (1) will uphold any choice-of-law clause selected by the parties, and (2) in the absence of such a clause, will apply the law of the nation with the most significant contacts with the controversy, with special weight given to protection of an American lienholder. Significant conflict of law issues may arise. In , a foreign necessaries provider sued a foreign-flagged vessel and its owner under the Federal Maritime Lien Act for bunkers sold to the vessel’s charterer in a foreign port. The court held that: Malaysian law governed contract formation; a choice of law clause in the provider’s standard terms and conditions was incorporated into the bunker contract, and that the provider obtained a maritime lien under the federal act.
- A maritime lien may be enforced only by a federal court sitting “in admiralty.” Supplemental Rules C and E, Admiralty and Maritime Claims, provide the basic procedure. The claimant must file a verified complaint naming the vessel as defendant and describing it “with reasonable particularity.” The clerk then issues a warrant for the arrest of the vessel, and the marshal seizes the vessel.
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Chapter II Indicia of Jurisdiction 30 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...maritime
- 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.
- While “maritime flavor” is incapable of precise definition, certain observations may be helpful. Generally, courts find “maritime flavor” in those events and transactions which are major concerns of the shipping industry. This is tempered by the realization that exercise of federal control will not necessarily promote maritime shipping with the same vigor as control by a coastal or predominantly maritime state. Since federal law will not necessarily be more favorable, courts may find “maritime flavor” only when there is a perceived need for a uniform national rule, which, of course, can only be provided by the federal sovereign. Even if there is maritime flavor and maritime jurisdiction, a court may nevertheless apply state law in particular cases ( ). In such cases, the conclusion that an incident or relationship has sufficient maritime flavor to justify admiralty jurisdiction but does not present a need for a uniform maritime rule may prove frustrating. Notably, the mere fact that...
- Having examined the three criteria—“vessels,” “navigable waters,” and “maritime flavor”—by which the boundaries of admiralty jurisdiction are ascertained, we next look to the manner in which those criteria are applied to determine whether contracts, torts, and other legal relationships fall within the federal maritime power.
- 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 (
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Chapter III Scope of the Maritime Jurisdiction 47 results (showing 5 best matches)
- 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 matter of the contract, not the place of its making or performance, govern. If the contract is maritime, it is subject to maritime jurisdiction.
- 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.
- Contracts with both maritime and non-maritime elements, sometimes called “mixed contracts,” have caused much difficulty. The general rule is that a “mixed” contract is not within admiralty jurisdiction unless it is “wholly maritime.” that is maritime, the contract is treated as “wholly maritime,” despite its non-maritime elements. Even if the “primary” or “principal” purpose is non-maritime, the court may exercise maritime jurisdiction over the contract if the maritime and non-maritime portions are “separable” (“severable”) from each other. . One frequently occurring “mixed” contract is a lease-purchase agreement on a vessel. Since the contract to lease (charter party) is in admiralty and the contract to sell is not, courts have experienced difficulty in the enforcement of these agreements.
- , 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 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 river bed 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” of the “...
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Chapter XI Maritime Tort Law 32 results (showing 5 best matches)
- 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. . Among the more frequently occurring maritime torts are those arising out of collisions between vessels, injuries to seamen resulting from conditions of the vessels on which they are serving, and claims by maritime workers against vessels and their operators pursuant to section 905(b) of the Longshore and Harbor Workers’ Compensation Act. Each of these kinds of maritime tort, and the seamen’s negligence action against his employer (the Jones Act claim), are regulated by distinct and fairly comprehensive bodies of law which are the subject of independent treatment in this work. ( Chapters XII and XIII). However, in collision, Jones Act, and 905(b) cases, some issues arise in which those special bodies of law do not provide a...
- When punitive damages are recoverable in admiralty, the standards for such recovery, and the imposition of vicarious liability for punitive damages, all remain unsettled. The Supreme Court’s decision in left open the question of when and whether non-pecuniary damages, and by implication, punitive damages, were available for seaman and non-seaman claims. (a corporation may be liable for punitive damages although the Court could not agree on the appropriate standard) and (allowing punitive damages for the willful and wanton failure to pay maintenance and cure) make clear that punitive damages are recoverable under general maritime law at least in instances where such damages were traditionally available. More recently, a divided Fifth Circuit has held that punitive damages are not available in a seaman’s claims under the Jones Act or under the general maritime law for unseaworthiness. ...in maritime tort claims is recovery for loss of future earnings or, when the victim... ...and (2...
- Most general maritime tort cases, however, involve theories of negligence and strict liability. The maritime common law has borrowed from and has supplied the general common law of torts. Indeed, the famous “Learned Hand” formula defining negligence was first crafted in a maritime case. . Duty in maritime negligence, as in land torts, turns primarily upon the “foreseeability” of the risk. . One important aspect of maritime common law is the duty that the owner or operator owes to passengers and guests aboard his or her vessel. (The special duties which are owed to seamen and to other maritime workers are discussed in Chapter XIII). Maritime law rejects the “trespasser,” “licensee,” and “invitee” distinctions drawn in many common law jurisdictions and ...is similar to the duty owed by an employer to his seaman, according to at least one court that has addressed the issue; that court rejected a higher standard of care adopted by other courts and that the court itself had adopted... and
- 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 . Moreover, the better and widely accepted view is that the so-called economic harm rule does not apply to bar the recovery of economic loss by commercial fisherman who suffer lost earnings due to a maritime tort.
- Post-judgment interest on maritime claims is governed by the law of the forum. When the admiralty claim is brought in federal court, post-judgment interest accrues from the date of entry of judgment. The amount of the interest is governed by distribute to all federal judges notice of the rate and any changes in it.
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Chapter XIII Worker Injury Claims 240 results (showing 5 best matches)
- 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
- The maritime employer may attempt to recover the LHWCA benefits it has paid from the third party whose tort caused the compensable injury to the employee. If the underlying tort is maritime, admiralty law should apply. But what law applies if the underlying tort is non-maritime, such as where the LHWCA worker is injured on the dock or on a fixed platform? One can argue that since federal law imposes the compensation obligation upon the maritime employer, that law should govern his right to recoupment from third persons. The counter-argument is that because the employer’s claim is based upon subrogation, he may exercise only those rights that his employee has. Thus if the employee’s tort claim is non-maritime, the subrogation claim also should be governed by the applicable state law. The cases have not provided a clear answer.
- Claims by seamen and maritime workers against third persons are governed either by maritime tort law or state law, depending upon whether maritime tort jurisdiction attaches. However, the seaman or maritime worker’s claim against a third party often is affected by the maritime law discussed in this chapter, and decisions defining the rights of seamen and other maritime workers often may impact the rights of non-maritime workers. For example, decisions involving the proper standard of causation and the types of damages available to seamen in claims against their employers have been applied, rightly or wrongly, by the lower courts in determining the similar issues in claims by seamen against third parties and tort claims by non-maritime workers. Noteworthy decisions are discussed specifically in the following sections.
- The employer’s liability under the Jones Act, and the absolute duty imposed upon a vessel operator by American maritime law to furnish his seamen with a seaworthy vessel, are among the most liberal theories of recovery for maritime personal injuries. Thus frequently, a foreign seaman whose shipboard injury has some connection with the United States may institute his action in an American court and ask that American law be applied to the controversy. If the suit is brought in an American court exercising admiralty jurisdiction, and jurisdiction over the person of the defendant can be obtained, the issues become choice of law and . If American law applies, the court ordinarily will retain jurisdiction, but if foreign law applies, the court may dismiss under . This has led to a two-step analysis in which the court first determines the applicable law and then considers
- Since Congress instructed the courts to fashion a new body of negligence law in implementing the section 905(b) action, a logical conclusion is that the maritime worker’s negligence action against the vessel “arises under” the Act and not under pre-existing maritime common law. The Supreme Court has remarked, quite ambivalently, that the
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Chapter XVIII Limitation of Liability 31 results (showing 5 best matches)
- 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.
- . Although § 30505(a) permits the owner of any “vessel” to limit liability, the Loss of Life Amendments apply only to owners of “seagoing vessels,” the definition of which excludes pleasure yachts, tugs and towboats, fishing boats and other vessels usually not engaged in carrying passengers for hire. The statutory and jurisprudential definitions would exclude most pleasure boats, creating the anomaly that a water venture which bears a minimum relationship to maritime shipping and commerce may be treated by admiralty law more favorably than oceangoing commercial vessels.
- This provision is jurisdictional; thus the right to limit liability through a concursus or interpleader proceeding in federal admiralty court is lost if the owner does not seek the relief within six months after receipt of the first claim in writing against him arising out of the occurrence. Supplemental Rule F(1), Admiralty and Maritime Claims, 28 U.S.C.A.;
- , Supplemental Rule F, Admiralty and Maritime Claims, and by local court rules. The shipowner provoking limitation must surrender title to the vessel, or file a bond in the amount of the value of the vessel. The posting of the bond probably is not jurisdictional and thus the failure to file it within the six-month period is not fatal. . When a petition for limitation is filed, the court enjoins the commencement or continuation elsewhere of claims arising out of the voyage or event for which limitation is sought and fixes a time for the filing of claims in the limitation proceeding. Notice is given to the known claimants and is published. Claimants must file their answers and claims within the designated delay. When that delay has expired, each claimant who has filed a claim is notified of the other claims that have been filed, and the matter proceeds to trial in the normal course of litigation. The delay for filing claims is not jurisdictional; the court may excuse a late filing....and
- While limitation is a generally accepted principle of maritime law, there are no uniform international rules. Many nations adhere to the 1957 Brussels Convention rules, while the United States and Great Britain each has its own limitation scheme, with differing methods of calculating the limitation fund. For example, American law is more favorable to the death or personal injury claimant than British law.
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Chapter IV Substantive Maritime Law: Contracts for Carriage of Goods 75 results (showing 5 best matches)
- 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.
- 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. , 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.
- A merchant who ships a large volume of goods over water can charter a vessel for the carriage of its goods. As they ordinarily enjoy equal bargaining power, maritime law permits the shipper and carrier to allocate between themselves the risks of the voyage. Their contract, the charter party, governs, and maritime law is primarily concerned with interpreting and enforcing the contract and with allocating the risks about which the contract is silent.
- A later version of certain rights and obligations of parties involved in maritime shipping, called the Rotterdam Rules, has been signed by a number of nations, including the United States. These rules will become international law upon ratification by 20 nations. The United States Senate has not yet ratified the Rotterdam Rules, which make substantial changes in the law, including increasing the limitation amount of carriers, defining “packages” for purposes of the limitation of the carrier’s liability, and providing greater details for the liability for losses, claims procedures and the obligations of the various parties involved in maritime shipping.
- The evidence may establish that the goods were damaged by risks chargeable to both carrier and shipper. In such a case, if the damages are divisible—a rare occasion—liability should be imposed upon each for that damage caused by the risk chargeable to him. But if, as in nearly all cases, the damages are indivisible, maritime law imposes upon the carrier liability for the full amount of the damages. . The suggestion that this rule should be modified, because of the “pure” comparative negligence which now pervades maritime law, apparently has gone unheeded.
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Chapter XII Collision Law 37 results (showing 5 best matches)
- 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. ...state law...
- Two other rules of maritime collision law merit mention. Admiralty courts have recognized a doctrine of “last clear chance.” . 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 adoption of comparative contribution in maritime collision cases has brought into question the future of the “ ,” “Major/Minor” and “last clear chance” doctrines. The “Major/Minor” rule, designed solely to avoid the “all or nothing” approach of the “divided damages” rule, apparently has not ” rule, aimed primarily at encouraging compliance with the Rules of the Road, has survived the advent of comparative contribution in maritime collision law.
- Collision law also may provide the rules by which all of the damages arising out of a collision—including those of crew, passengers and cargo—are apportioned among the vessels involved. A brief explanation of this latter function is necessary. Maritime law imposes a duty upon the vessel and its operator to protect the vessel’s seamen and passengers from harm. Often, crew and passengers injured in a collision of two or more vessels are likely to find it simpler to proceed first against the vessel on which they were serving or being carried. That vessel, if at fault, may be a joint tortfeasor with the other vessels and will be liable to its passengers and crew for the full amount of their damages. This joint and several liability may make it expedient for the victim to proceed first and most aggressively against the easiest defendant to identify and prove at fault. When a vessel owner makes his claim for the damages to his vessel against the other vessels involved in the collision, he...
- 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.
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Chapter VII Marine Insurance 22 results (showing 5 best matches)
- 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 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 a lake between Texas and Oklahoma. Despite harsh criticism ( . Although the lower courts have found and applied some “judicially fashioned” federal rules, they have disposed of most marine insurance questions by applying state law. (no established maritime rule on insurability of liability for punitive damages). Some courts recognize a presumption against creating a federal
- 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 (particularly the Insurance Act of 1906) still are significant factors in American marine insurance.
- “domestic” maritime insurance cases focus upon which state’s law applies in a marine insurance dispute in which there are multi-state contracts. This federal maritime “choice-of-law” rule apparently differs little from the traditional choice-of-law rule for contracts, i.e., the governing law is that of the state with the “most significant relationship” to the insurance dispute. Emphasis is placed upon such contacts as the place of making (where the policy was issued and delivered), the place of performance (where the vessel is employed and the premiums are paid), and the domiciles or places of business of the parties.
- Maritime liability insurance may clearly be excess, as when coverage only begins above a specified amount of loss. In some cases, however, two or more policies may cover the same loss. In such cases, the ranking of policies is made by interpretation of the “other insurance” clauses in the policies, and perhaps by applying state law rules of interpretation.
- Cargo insurance covers those risks which maritime law imposes upon the shipper or consignee. ( ). In addition to the normal perils of the sea, cargo insurance may extend to consequential losses resulting from some commercial happenings, such as delays in production and diversion of shipments.
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Chapter XIV Wrongful Death 33 results (showing 5 best matches)
- 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 common 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) no federal statute specifies the appropriate relief and the decedent was not a seafarer (seaman, longshore worker or person otherwise engaged in a maritime trade); (2) there was no Congressionally enacted comprehensive tort recovery regime; and (3) the death occurred in territorial waters, state remedies may remain applicable and not displaced by . 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...
- Where the maritime tort causing death occurred on territorial or inland waters, then, except in cases falling under the Jones Act, there was no federal statute permitting wrongful death recovery; there were no survival action statutes; and there was no maritime common law remedy. Recovery for wrongful death in such cases sometimes could be obtained by “borrowing” the applicable state wrongful death statute, but when that occurred the admiralty claimant took the state law with all of its restrictions, including its statute of limitations and, in many instances, the rule that contributory negligence barred recovery. , the Supreme Court held that the Jones Act was the exclusive remedy of the seaman and his beneficiaries against his employer; hence the beneficiaries could not “borrow” the state wrongful death statute where the seaman’s death was caused by some wrongful act other than negligence, such as unseaworthiness.
- 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) , indicate that jurisdiction over a DOHSA claim is concurrent between the admiralty court and state court.
- 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 maritime common law, regardless of whether a statute of the state in which the accident occurred permitted such recovery. provides a remedy whenever the defendant’s conduct constitutes a maritime tort, including both negligence and unseaworthiness.
- , the Court ruled that the general maritime law wrongful death remedy includes nonpecuniary damages for loss of society but not for grief. In the wake of , some courts authorized recovery of nonpecuniary damages in admiralty wrongful death cases but only where the plaintiff beneficiary also was financially dependent upon the decedent. Additionally, cases arose in which the victim was killed beyond three miles from shore and the beneficiaries sought recovery for loss of society. These cases presented two other post- issues: whether the general maritime wrongful death remedy applied beyond territorial waters and, if so, whether the benefits it provided could be used to supplement recovery under the Death on the High Seas Act. When one of these cases,
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Chapter XV Platform Injuries 28 results (showing 5 best matches)
- , 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?
- 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.
- One such law is the Admiralty Extension Act (AEA), . 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.”
- 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.
- When state law governs, the litigants take that law in its entirety, including a state statute of limitations which may be shorter than the federal maritime statute, 46 U.S.C.A. § 763a, or that provides a time bar different from that which would result through application of the maritime doctrine of laches. . In short, platform injury claims are a trap for the unwary law student, lawyer, or judge.
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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 makes a determination of 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 ...and litigation of general average cases are resolved...
- 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 .... 1909, Digest 14.2.1. This principle is called “general average,” as distinguished from “particular average.” General average, which is unique to maritime...
- 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.
- 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 that 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.
- captures the basic idea. Assume that a vessel valued at $800,000 is carrying cargo worth $150,000, for a freight charge of $50,000. Assume further that two-thirds of the cargo (valued at $100,000) is jettisoned, and the sacrifice qualifies for general average. The total of the interests at risk is $1,000,000, the cargo loss is $100,000, and the vessel owner represents 85% (the vessel plus the freight) of the marine venture which was saved from the peril. The vessel owner must reimburse the cargo owner for 85% of the latter’s loss, or a total of $85,000; the cargo owner bears the remainder of his loss ($15,000), which is the percentage of the total loss (15%) equal to his percentage in the maritime venture.
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Chapter IX Salvage 32 results (showing 5 best matches)
- Salvage, the provision of a financial reward for the rescue of property from a maritime peril, dates back to Roman times. The rescue may occur pursuant to an express contract (contract salvage) between the owner and the salvor. In many cases, however, the salvor acts to save maritime property without any pre-existing agreement as to the compensation to be paid by the owner. In such cases of voluntary or “pure” salvage, maritime law imposes a quasi-contractual obligation upon the property and its owner to compensate the salvor for his efforts. The salvage claim is secured by a maritime lien on the property salvaged. This general maritime law right to recover for rescue is markedly different from the common law where, at best, a “thanks” is the most the rescuer can legally expect.
- Only maritime property may be the object of salvage, but there is no standard definition of maritime property for these purposes. In , the Supreme Court held that a floating drydock was not subject to salvage because it was neither a ship, ship’s furnishings, nor cargo. Similar reasoning would preclude salvage claims for the rescue of offshore mineral production platforms and similar structures which maritime law treats as extensions of land. Since the purpose of rewarding a salvor is to encourage the limited number of potential rescuers, one important inquiry should be whether the rescuer necessarily is subjected to maritime peril in effecting the rescue. Under that approach, some offshore platforms and dry docks could be treated as maritime property for salvage purposes. However, the application of the Convention may produce a different result. The Convention describes “property” for salvage purposes as “any property not permanently and intentionally attached to the shoreline,”...
- The American maritime law rule is that if the salvage is effected by a vessel, the owner of the salvaging ship and that ship’s cargo share the award with the master and crew. The portion allotted to the master and crew usually is divided in this manner: the master and each member of the crew receive a basic share, and additional shares are allotted to those among them who directly participated in the rescue operations. The Convention relegates the allocation among salvors to the law of the appropriate nation. Article 15.
- 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. 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.
- 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...
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Chapter XVI Sovereign Immunity 13 results (showing 5 best matches)
- The limitations periods, along with the administrative claim requirements for the SIAA, PVA and FTCA, present a trap for the unwary. Under the FTCA, the 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
- 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 elsewhere. et seq. The Act permits foreclosure upon a maritime lien . A claimant may not obtain trial by jury against a foreign sovereign, even though he or she would otherwise be entitled to jury trial under federal maritime law. . Jurisdiction over claims against foreign sovereigns is concurrent between federal and state courts, , and for the exercise of “long arm” jurisdiction over foreign sovereigns.
- 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 of vessels under federal control, and for that reason proved unsatisfactory. In 1919 Congress adopted the Suits in Admiralty Act (SIAA), now codified at
- A more important issue is whether the SIAA applies to maritime but non-vessel negligent acts of the federal sovereign. In 1946, Congress made a general waiver of tort immunity through the Federal Tort Claims Act (FTCA), now et seq. From 1946 until the 1960 amendment to the SIAA, maritime tort claims against the United States that were not caused by a vessel, either “merchant” or “public,” were brought under the FTCA. The 1960 amendment to the SIAA, however, can be read as encompassing all maritime tort claims against the federal sovereign, including non-vessel torts which between 1946 and 1960 were brought under the FTCA. It is generally accepted that the SIAA and PVA now preempt the FTCA in all maritime torts claims against the federal sovereign.
- Federal employees sustaining injuries in a maritime setting usually are relegated to proceedings against their employer under the Federal Employees Compensation Act, . However, a seaman employed by a private party who is under contract with the United States for the operation of one of its vessels may recover damages against the United States. In such a case, the exclusivity provision of the SIAA, incorporated by reference in the PVA, allows the seaman to recover damages under the Jones Act and general maritime law.
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Chapter VI The Seaman’s Employment Contract, Wages and Compromise of Claims 10 results (showing 5 best matches)
- 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 his claim 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.
- . “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.” ). 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 release without benefit of counsel, “(a)t the very least” the seaman should be told that he or she has “an unbeatable right of action under the maritime law for maintenance and cure.”
- 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:
- . Since the 1980s, however, the courts and Congress have . Under the Act, a seaman may bring suit against his employer for discharge or other discriminatory acts based on (1) the seaman’s report or plan to report a violation of a federal maritime safety law or regulation, and (2) the seaman’s refusal to perform duties ordered by the employer based on the seaman’s reasonable apprehension or expectation that performing such duties would result in serious injury to the seaman, other seamen, or the public. In the case of the latter, the seaman must seek unsuccessfully the correction of the unsafe condition from his employer in order to maintain an action under the statute. Where the seaman is successful in establishing his claim, a court may order restraining violations, reinstatement with back pay, and costs and attorney’s fees. The Seaman’s Protection Act does not preempt traditional state whistleblower laws or other state law claims for wrongful discharge.
- Before entering into the service of a vessel, a seaman generally signs a contract of employment (“articles”). Federal law, et seq., requires articles for seamen on American-owned vessels engaged in voyages from ports in the United States to foreign ports (with certain exceptions), and for seamen on some vessels engaged in coastwise trade (voyages between ports in the United States). et seq. The articles, which must be signed in the presence of the master or “individual in charge,” specify the capacity in which the seaman is to serve aboard the vessel and obligate him to report for duty at a designated time and place, to stand by the ship, and to obey the master until the voyage is completed. By “signing on” in a specific capacity, the seaman impliedly warrants that he or she is competent to perform the duties of that position. If the master determines that the seaman is incompetent or has been guilty of misconduct, he may “disrate” the seaman. In that event, the seaman may demand...
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Outline 34 results (showing 5 best matches)
Chapter VIII Towage and Pilotage 13 results (showing 5 best matches)
- An important part of American maritime commerce is transportation of goods by barges that lack motive power but are propelled by tugboats or towboats. A boat which pushes a barge is a towboat, and one which pulls a barge is a tugboat; in common parlance, however, the barge is referred to as the tow, and both the towboat and the tugboat are called the tug. A contract by which the owner of a tug (towboat or tugboat) agrees to expedite the voyage of a tow (barge) belonging to another is a contract of towage, governed by special maritime contract rules.
- Federal law requires the use of federally licensed pilots during certain coastwise voyages. . In other cases, the use and licensing of pilots is left to the states. (requiring that pilots on vessels navigating Alaska’s Prince William Sound be licensed by the state of Alaska) and (exempting dredges from the federal license requirement). A shipowner is not vicariously liable for damages caused by the fault of a pilot he is compelled by law to employ. However, the vessel is liable for the torts of the compulsory pilot. In addition, maritime law does not permit the ship’s master to abdicate his authority and responsibility to a pilot.
- 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.
- 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.
- . Where one person owns both tug and tow and agrees to carry the goods of another, the contract is one of affreightment, governed by the rules applicable to charters or bills of lading. . Where the owner of a tug obtains a tow from another for use in the business of the tug or its owner, the contract is one of charter, and not of towage.
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- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law and Dean Emeritus,
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
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- Publication Date: March 17th, 2017
- ISBN: 9781634603119
- 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.