Admiralty and Maritime Law
Author:
Schoenbaum, Thomas J.
Edition:
6th
Copyright Date:
2019
25 chapters
have results for admiralty and maritime law
Chapter 3 Admiralty and the General Maritime Law 89 612 results (showing 5 best matches)
- With admiralty jurisdiction comes the applicability of substantive maritime law. This is true even for maritime cases brought under diversity jurisdiction or in state court. Maritime law is generally coextensive with admiralty jurisdiction, although there are gaps and some concepts of substantive maritime law are not well-developed. Maritime law deals primarily with contracts and torts within admiralty jurisdiction. What is called the general maritime law is the federal common law of maritime matters, often borrowed directly from state law. federal legislation, the general maritime law applies. The general maritime law is the product of the maritime jurisprudence of the federal courts. As the Supreme Court has stated, “Drawn from state and federal sources, the general maritime law is an amalgam of traditional common law rules, modifications of those rules, and newly created rules.”
- Damages in admiralty are awarded on the basis of both the general maritime law and federal statutory law. Admiralty damage law is federal law; state laws concerning damages are generally not relevant, although admiralty employs similar damage categories to those employed under state law.
- The duties, rights, and liabilities of shipbuilders and ship repairers will continue to be very much affected by express and implied warranties and exculpatory clauses—known as red letter clauses—in their contracts. The validity and rights under such clauses will be judged according to state law for ship building and other contracts outside admiralty jurisdiction, and under the federal general maritime law for repair contracts. In most cases, the applicable state law will be Article 2 of the Uniform Commercial Code (UCC), which is in effect in 49 states. Some jurisdictions, however, interpret ship construction contracts as service contracts, in which case the UCC does not apply. However, traditional state common law contract principles are likely to produce the same outcome as under the UCC. Ship repair contracts, of course, are maritime and the court will apply the general maritime law; however, the court in admiralty jurisdiction will also rely on UCC concepts even in admiralty.
- The general maritime law of contracts covers contracts such as charter parties, tug and tow, and other maritime agreements not addressed by statutes. Freedom of contract is the norm in admiralty law; thus, contract rights, duties, and liability depend primarily upon the substance of the parties’ agreement. The general maritime law of contracts allows reformation of a maritime contract for mutual mistake as long as parole evidence is admissible to prove the matter. The general maritime law of contract also comprehends many doctrines peculiar to admiralty, such as general average.
- From this beginning the maritime tort of negligence has developed into an all-purpose maritime law cause of action that cuts a wide swathe across all the specialized areas of admiralty law. The negligence cause of action may be invoked by virtually anyone who suffers injury or loss in an admiralty setting. The contexts of the maritime negligence cause of action are virtually endless; a non-exhaustive list includes collision, contamination and loss of use of a vessel, and losses caused by marine contractors such as surveyors, and stevedores. Even the two categories of maritime workers who benefit from federal statutory comprehensive liability schemes, seamen and longshore workers, may assert causes of action for negligence under the general maritime law against persons other than their employers. The Supreme Court has ruled that a cause of action for negligence under the general maritime law lies for death as well as personal injury.
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Chapter 1 Admiralty Jurisdiction 1 435 results (showing 5 best matches)
- (1) It empowered Congress to confer admiralty and maritime jurisdiction on the “Tribunals inferior to the Supreme Court” which were authorized by Art. I, § 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 the development of this law within constitutional limits. (3) It empowered Congress to revise and supplement the maritime law within the limits of the Constitution.
- If a claim for relief is within the admiralty or maritime jurisdiction and also within the court’s subject-matter jurisdiction on some other ground, the pleading may designate the claim as an admiralty or maritime claim for purposes of Rules 14(c), 38(e), and 82 and the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions. A claim cognizable only in the admiralty or maritime jurisdiction is an admiralty or maritime claim for those purposes, whether or not so designated.
- Fourth, the key determination in the application of the PLT test is usually whether maritime law applies “of its own force,” that is, if the applicable tests for admiralty jurisdiction are met. For admiralty jurisdiction (and therefore admiralty substantive law) may apply in both the federal and state continental shelf areas. It is important to note, therefore, that neither the OCS Lands Act nor the Submerged Lands Act supplants admiralty and maritime law in offshore areas.
- The second part of the test for admiralty tort jurisdiction—the maritime “nexus” or significant relationship to traditional maritime activity—was elucidated in and in subsequent cases in the lower federal courts. In , the Supreme Court mandated consideration of the history and purpose of admiralty law to decide this issue:
- The substantive law applicable in admiralty cases is, in general, the federal maritime law, which in many respects is distinct from state law and the common law. The federal maritime law comes both from statutes passed by the Congress and from judge-made law. The federal judiciary both constitutionally and traditionally plays a much greater role in the development of maritime law than in the development of non-maritime common law. State law plays a diminished and secondary role.
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Chapter 2 Admiralty and Federalism 65 161 results (showing 5 best matches)
- A second distinctive feature of admiralty preemption is that the judge-made general maritime law, when in conflict with state law, is supreme. This distinctive maritime law doctrine is sometimes called the “reverse held that federal courts do not have the authority to fashion federal common law rules when considering state law claims in diversity jurisdiction, the admiralty rule is that with respect to cases in admiralty jurisdiction, federal courts have the authority to apply and fashion federal common law rules known as the general maritime law, and state law rules that conflict or that infringe upon the essential characteristics or the national uniformity of the general maritime law are inapplicable. Therefore, established rules of the general maritime law may override state statutory and decisional law just as do acts of Congress.
- First, admiralty is characterized by both federal statutory law and judicially-created general maritime law. In the case of a conflict between the two, it is the statutory law that prevails. Thus, admiralty recognizes “horizontal” preemption of the federal general maritime law by federal statutory law.
- First, since the body of federal maritime statutes and judicially created general maritime law is not a complete system, judges in admiralty cases frequently adopt state law rules through a process of “borrowing,” thereby incorporating state law doctrines into the general maritime law. This borrowing process may be extensive; for example, much of general maritime tort law is borrowed state law. be more limited. For example, the general maritime law borrows state agency law. Employing this borrowing process, the federal courts prefer generally applicable common law doctrines rather than particular state law because this promotes the uniformity of the general maritime law. Borrowing state law must not be allowed to contravene a clearly established rule of general maritime law or impair the national uniformity that underlies the federal and maritime admiralty law.
- The general maritime law is not a complete or all-inclusive system. When new situations arise that are not directly governed by legislation or admiralty precedent, federal courts may fashion a rule for decision by a variety of methods. Federal courts may, and often do, look to state statutory law and to precepts of the common law which they “borrow” and apply as the federal admiralty rule.law, as such, to a case with the admiralty jurisdiction, if the occurrence is “maritime but local,” and there is no need to fashion a uniform admiralty rule. Finally, federal courts may apply state law and regulations to supplement the general maritime law when there is no conflict between the two systems of law, and the need for uniformity of decision does not bar state action.
- thus established the principle that the general maritime law governs maritime occurrences and that state law must yield to the required uniformity of the maritime law. This uniformity is mandated whether the suit is brought in the admiralty forum, on the “law side” of the federal court in diversity jurisdiction, or in state court.
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Chapter 16 Admiralty Practice and Procedure 831 563 results (showing 5 best matches)
- How Designated. If a claim for relief is within the admiralty or maritime jurisdiction and also within the court’s subject-matter jurisdiction on some other ground, the pleading may designate the claim as an admiralty or maritime claim for purposes of Rules 14(c), 38(e), and 82 and the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions. A claim cognizable only in the admiralty or maritime jurisdiction is an admiralty or maritime claim for those purposes, whether or not so designated.
- The Federal Rules of Civil Procedure govern civil procedure in civil actions, including admiralty actions, in U.S. district courts. Title XIII of the Federal Rules contains what are termed “Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions.” These Rules have letter denominations, Rules A-G. The Supplemental Admiralty Rules cover procedures unique to admiralty law, such as ship arrests, attachments, actions in rem, possessory, petitory and partition actions, and limitation of liability. In the event of conflict or inconsistency between the Supplemental Admiralty Rules and the Federal Rules of Civil Procedure, the former prevails. Many federal district courts have also promulgated local admiralty rules that constitute further procedural rules for admiralty or maritime claims.
- If, however, the claim is cognizable not only in admiralty but also on some ground of federal jurisdiction (such as diversity), the pleader may be put to an election whether to invoke the special admiralty procedures and remedies. To plead an admiralty or maritime claim in such a case, the pleading must, in addition to the admiralty
- * * * The third-party complaint, if within the admiralty and maritime jurisdiction, may be in rem against a vessel, cargo, or other property subject to admiralty or maritime process in rem, in which case references in this rule to the summons include the warrant of arrest, and references to the third-party plaintiff or defendant include, where appropriate, the claimant of the property arrested.
- A federal court sitting in admiralty must apply federal choice of law rules. it fully applies in admiralty, including cases of maritime arrest and attachment. Choice of law and personal injury and death, and transnational tort litigation; this subject is treated elsewhere. This section will concentrate on its application in other admiralty contexts.
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Chapter 7 Maritime Liens and Ship Mortgages 411 300 results (showing 5 best matches)
- For comprehensive treatment of maritime liens see symposium, Maritime Liens and Securities, Ship Sails, and Finance, 47 Tul.L.Rev. 489–805 (1973); 2 Benedict on Admiralty, ch. II-VI (§§ 21–73) (7th Ed. by A. Sann, S. Bellman, and B. Chase, 1982); G. Gilmore & C. Black, The Law of Admiralty, ch. IX (2d Ed., 1975) (cited hereafter as Gilmore & Black); G. Robinson, Handbook of Admiralty Law in the United States, ch. 10 (1939); W. Tetley, Maritime Liens and Claims (1985); D. Thomas, Maritime Liens (14 British Shipping Laws) (1980).
- A maritime lien is a privileged claim upon maritime property, such as a vessel, arising out of services rendered to or injuries caused by that property. As one court stated, “[a] maritime lien is [a] special property right in a ship given to a creditor by law as security for a debt or claim subsisting from the moment the debt arises.” The lien attaches simultaneously with the cause of action and adheres to the maritime property even through changes of ownership until it is either executed through the legal process available in admiralty or is somehow extinguished by operation of law. A maritime lien is thus a proprietary interest in a that is independent of possession and is not extinguished by transfer of ownership even to a good faith purchaser. It is both a right in the maritime property ( ) and a right against the property ( ). The theoretical basis of the maritime lien goes to the heart of all that is distinctive about admiralty law: it is a right based upon the legal fiction...
- A maritime lien is created by various transactions and occurrences in admiralty jurisdiction that give rise to a maritime claim. Many maritime liens arise by operation of the general maritime law, but some are created by statute, such as the Commercial Instruments and Maritime Liens Act and the Federal Maritime Lien Acts). Under United States law, a more extensive array of maritime liens is recognized than under the laws of other nations, and the United States is not a
- in 1920, a mortgage on a vessel and a proceeding to enforce it were not maritime matters that could be litigated in admiralty Such mortgages could be created under state law and enforced in state court, but since the mortgages did not enjoy the status of a lienholder under federal maritime law, the security of a state law mortgage was often worthless. Accordingly, in order to improve the lienholders’ security and to encourage the establishment of a strong U.S. merchant marine, the Congress enacted the Ship Mortgage Act, which provides for a “preferred ship mortgage” that creates a maritime lien against the mortgaged vessel. The provisions of a preferred ship mortgage are enforceable in admiralty.
- of the Commercial Instruments and Maritime Liens Act (CIMLA, formerly known as the Federal Maritime Lien Act) provides any state statute conferring a lien on a vessel is “supersede[d] * * * to the extent the statute establishes a claim to be enforced by a civil action in rem against the vessel for necessaries.” The meaning of the word “superseded” has caused difficulty. First, the CIMLA does not wholly preempt state statutes creating liens on vessels, and a state law security interest on a vessel is valid and enforceable. Second, the CIMLA does, however, by its terms preempt the enforcement in admiralty lien may be recognized under state law for something furnished to a vessel that is not accorded lien status under the CIMLA. Such state legislation, maritime in nature but applicable to subjects not covered by federal maritime law, may be enforced in admiralty, but because of the expansive nature of the CIMLA, such cases are virtually non-existent. ...state law obviously...
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Preface iii 14 results (showing 5 best matches)
- With great pleasure I present the Sixth Edition of the Hornbook on Admiralty and Maritime Law. It is gratifying to hear from so many judges, lawyers, students and others working in the field of admiralty that this treatise is a principal tool for their work and that they regularly consult this book. I note with particular pleasure the many times this treatise is cited in judicial decisions. For this edition I have worked over several years to present as clear a picture as possible of the law of admiralty and maritime law as a distinct field, stemming from the reach of admiralty jurisdiction and covering the substantive law of ships and shipping.
- In the almost eight years since the last edition of Admiralty and Maritime Law, new developments have occurred in virtually every area of this field of law. While the fundamental outlines of the law remain the same, new, often technical details are added by courts facing new issues and problems.
- I am indebted to the numerous lawyers, judges and industry people who have called my attention to developments and with whom I have had the pleasure to discuss aspects of admiralty and maritime law. Elena C. Oguiza kindly read the entire work and offered valuable suggestions. I thank especially Jessica L. McClellan of the admiralty practice division of the U.S. Department of Justice for her kind assistance.
- In three areas major changes have occurred. First, we seem to be in a new era of international litigation concerning important issues regarding the international law of the sea. While for many years nations hesitated to file cases in international tribunals concerning the law of the sea, in the last five years cases have been filed in several international tribunals concerning jurisdiction, navigation, marine pollution, fishing and sovereignty issues. Of course, since the United States is not a party to the United Nations Convention on the Law of the Sea, U.S. participation in this process is minimal. Full treatment of these developments may be found in the Practitioners’ Edition of this treatise. Second, decisions of foreign courts have increasing significance for maritime law in the United States. Since shipping is an international industry, decisions of foreign courts in such matters as bankruptcy, contracts of affreightment and maritime liens increasingly affect admiralty...
- Small but important changes in the law have occurred in every area of admiralty and shipping law as hundreds of new admiralty law decisions have been handed down by the Supreme Court of the United States and lower federal courts. Some statutory changes have also occurred, such as the new removal statute, that affect admiralty cases. The Sixth Edition of this book updates the law by focusing on the new decisions and developments that move the law forward. Some examples of these new developments are:
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Chapter 6 Wrongful Death 393 103 results (showing 5 best matches)
- Admiralty wrongful death law is a composite of different federal statutory, general maritime law and state law remedies. Recovery of damages for wrongful death occurrences within admiralty jurisdiction varies somewhat with each applicable wrongful death regime. Neither Congress nor the courts has addressed maritime wrongful death in systematic fashion; the law of maritime wrongful death has been fashioned on an ad-hoc basis in response to immediate concerns. As a result, different causes of actions and measures of damages apply, depending on a number of variables: the employment status of the decedent; how far from shore the death incident occurs, whether the death resulted from an airplane accident, a vessel accident, or an accident on an offshore drilling rig, and whether the defendant was the employer of the decedent.
- The law of wrongful death in admiralty begins with in 1886. In that case the Supreme Court, relying on common law analogies, held that the general maritime law does not recognize wrongful death or survival causes of action for survivors of persons killed on the high seas or in navigable waters. After this decision, some courts in admiralty applied state wrongful death and survival statutes to allow recovery of damages for deaths, particularly those occurring in state waters, but also those occurring on the high seas.
- The battle in admiralty wrongful death cases is frequently not over liability but over damages. In this regard, rational policy concerns are frequently irrelevant. Litigants and courts alike are trapped in an overly legalistic and even contradictory system of law. Three unique problems have long bedeviled the law of maritime wrongful death: First, three quite different federal statutory schemes exist to provide compensation for wrongful death, the Death on the High Seas Act for deaths beyond three miles from shore; the Jones Act applies for seaman in a lawsuit against his/her employer; and the Longshore and Workers’ Compensation Act creates a workers’ compensation remedy against the employer. Second, since 1970, with the Supreme Court’s decision in there has been a general maritime law of wrongful death; how should we reconcile the federal statutory remedies with judge-made “common law” standards? Third, states have long provided wrongful death and survival actions by statute;...
- wrongful death action was intended to displace state wrongful death statutes in areas of admiralty jurisdiction. however, only created the cause of action for wrongful death under the general maritime law; the decision left many questions—including the damages recoverable—open, to be decided after “further sifting through the lower courts in future litigation.”
- and the Jones Act, an “unjustifiable anomaly in the present maritime law” and that the application of state wrongful death statutes in admiralty jurisdiction was insufficient:
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Chapter 14 Salvage 771 310 results (showing 5 best matches)
- The law applicable to marine salvage in the United States is the general maritime law, as modified by relevant statutes, treaties and international obligations. What is now the general maritime law of salvage originated as part of the of ancient Rome. After the fall of the Roman Empire, this body of law became customary international law. When the U.S. Constitution was adopted, the customary international law of salvage became U.S. domestic law, a part of the general maritime law. The Admiralty Clause of the U.S. Constitution authorizes the further development of this body of law by the federal courts. Inconsistent state laws affecting salvage, such as a scheme of licensing and compensating salvors, will accordingly be preempted by the general maritime law.
- “Treasure” salvage cases have been a feature of salvage law only since the 1970s, presenting new sets of admiralty law issues to the courts. Many cases involved novel questions of law, and the courts have adapted the rules of salvage law to new realities. As a result, the federal courts, exercising their constitutional duty to fashion rules of the general maritime law, have transformed the law of salvage into an instrument that not only rewards salvors of valuable maritime property, but also serves the public interest by fostering the preservation of the underwater cultural heritage. “Treasure” salvage law, therefore, exhibits patterns of change and growth, reflecting gains in judicial understanding and expertise dealing with the novel issues of law presented. The Fourth Circuit Court of Appeals, which has decided many important “treasure” salvage cases, has led this transformation. At the trial court level, Judge Rebecca Beach Smith, Chief Judge of the Eastern District of Virginia,...
- See G. Gilmore & C. Black, The Law of Admiralty § 8–10, at 563 (2d ed. 1975). Arbitrators generally use the same methods as the courts to calculate salvage awards. See G. Brice, Maritime Law of Salvage 63 (2d ed. 1983).
- An unresolved question is whether or to what extent the general maritime law of salvage preempts state laws asserting ownership or control over shipwrecks within their territory having historical or archaeological value. Two federal district courts have decided this question, coming to diametrically opposite results. In
- The Sindia Expedition, Inc. v. Wrecked and Abandoned Vessel, Known as “The Sindia,” 895 F.2d 116, 1990 AMC 305 (3d Cir. 1990)
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Chapter 4 Seamen 197 576 results (showing 5 best matches)
- litigation, holding that federal law does not preempt state doctrines of in admiralty cases filed in state courts. The effect of this holding is that plaintiffs in admiralty personal injury and wrongful death cases may avoid court had to overcome the hurdle of maritime law’s uniformity requirement. Although the Court recognized that a state courts might reach differing results, the requirement of maritime uniformity is not absolute. The Court reasoned that two distinct characteristics of the doctrine of distinguish it from other aspects of general maritime law requiring uniformity: the fact that is procedural rather than substantive, and the fact that application of the doctrine is unlikely to produce uniform results. The Court ruled that the uniformity requirement does not apply to such procedural matters.
- The principles of contribution and indemnity are well established in admiralty and, although the general maritime law of contribution and indemnity is set out in an earlier chapter, the essentials will be outlined here as they apply to seamen’s cases. For an analysis of indemnity and contribution for maintenance and cure, see infra.
- General maritime law claims as well as pendent claims may be joined to a Jones Act claim. Claims for unseaworthiness and for maintenance, cure, and wages may be joined to a Jones Act suit. In cases involving joined claims of Jones Act negligence, unseaworthiness, and maintenance, cure, and wages, the plaintiff can obtain a jury trial for all three claims if she sues at law and makes a jury demand. , the Supreme Court justified the necessity for a jury determination even as to the general maritime law claims on the ground that “only one trier of the fact should be used for the trial of what is essentially one lawsuit to settle one claim that has been split successfully into separate parts because of historical developments.” In contrast, where the plaintiff brings the action as a maritime claim, whether , there is properly no right to a jury trial. The Jones Act by its terms requires a jury trial only when suit is brought “at law.” When the plaintiff elects to bring the action as a
- The protection of seamen is one of the principal reasons for the development of admiralty as a distinct branch of law. Traditionally the work of a seaman was difficult and extremely dangerous, requiring long stays away from home and exposure to the perils of the sea. From earliest times maritime powers, therefore, enacted special protections for seamen as features of their maritime codes.and Britain these protections go back over 200 years.
- and in more detail in the Chapter on the General Maritime Law. Suffice it to say here that and may be reconciled on the basis that non-pecuniary damages—punitive damages and loss of society—are available in admiralty only for those general maritime law causes of action that are unmixed with a statutory cause of action limiting non-pecuniary damages. Punitive damages are available in causes of action to recover maintenance and cure because of the distinctive history, scope and character of this general maritime cause of action. Maintenance and cure stands apart; this remedy has always had an autonomous character. In contrast, the cause of action for unseaworthiness is invariably closely tied to a corresponding Jones Act claim. Where Congress has legislated damages by statute in a claim closely associated with a general maritime law cause of action, the statutory damage provision should control. This is the teaching of , and the Court in
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Chapter 5 Longshore and Harbor Workers 303 524 results (showing 5 best matches)
- Before 1972, * * * marine related injuries fell within one of three jurisdictional spheres as they moved landward. At the farthest extreme, Jensen commanded that non-local maritime injuries fell under the [Longshore Act]. Maritime but local injuries upon the navigable waters of the United States * * * could be compensated under the [Longshore Act] or under state law. And, injuries suffered beyond navigable waters—albeit within the range of federal admiralty jurisdiction—were remediable only under state law.
- The present state of the law relating to workers’ compensation for shore-based maritime workers known as longshore and harbor workers is the product of historical development. In the early years of the twentieth century states began to experiment with laws providing a no-fault administrative remedy for injured workers against their employers. Litigation over the constitutionality of these laws reached the Supreme Court in 1917, and in involving the death of a longshore worker, the Court held that a New York workers’ compensation statute could not be constitutionally applied to maritime workers in admiralty jurisdiction. To allow state compensation awards in such cases, the court ruled, would destroy “the very uniformity in respect to maritime matters which the Constitution was designed to establish.”
- If there is admiralty jurisdiction under traditional tests, the cause of action will lie under the general maritime law. If not, the suit may be filed as a state law claim in state court or in federal court if there is a non-admiralty basis of jurisdiction.
- decision meant that a longshore worker injured on navigable waters was denied a no-fault remedy against his or her employer. He or she could bring a maritime tort action for negligence, but this was subject to the traditional defenses of the time that barred recovery: contributory negligence, assumption of risk, and the fellow-servant doctrine. To correct this failing, Congress enacted an amendment to the saving to suitors clause to make available to land-based maritime claimants “the rights and remedies under the workmen’s compensation law of any state.” ground that Congress may not delegate legislative authority to the states for matters falling within the admiralty jurisdiction of the United States.
- Section 905(b) claims are admiralty claims. Section 905(b) does not create a new admiralty remedy but merely codifies existing non-statutory general maritime negligence remedies against vessel owners. In addition, the claim must meet the tests for admiralty tort jurisdiction and the injury must have occurred on navigable waters.
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Chapter 8 Carriage of Goods 455 890 results (showing 5 best matches)
- the Supreme Court ruled, first, that admiralty jurisdiction extended over both the ICC and Hamburg Sud carriage contracts despite the fact that they were “mixed” contracts requiring some performance on land, the railroad leg of the journey. The Court reasoned that the determination of admiralty jurisdiction depends not on the place of performance, but rather its nature and character, meaning whether the contract has reference to a maritime service or maritime transactions. Applying that test, the Court accepted admiralty jurisdiction, holding that the multimodal bills of lading were admiralty contracts.
- If the cargo owner’s claim is based on contract, an action for cargo damages is in admiralty jurisdiction even if the loss occurred on land because both an affreightment contract and a stevedoring contract are maritime contracts. However, actions in tort against non-carriers for damages occurring while the cargo was in a warehouse or on a pier are non-admiralty state law claims.
- The bill of lading commonly serves as the contract of affreightment between the shipper and the carrier, and its terms and conditions bind the shipper and all connecting carriers. Contracts for the carriage of goods are construed by the courts like any other contract, by their terms and according to the intent of the parties. Contracts of affeightment that include transportation by sea are maritime contracts in admiralty jurisdiction even if they include substantial carriage of goods by land using rail or truck transportation.
- . The Rotterdam Rules prescribe a “door-to-door” period of responsibility that begins at the place of receipt of the goods and ends with delivery (art. 12). However, the substantive defenses and limits of liability under the Rules apply only to contract carriers and maritime performing parties (art. 4). Thus, except for rail and truckers operating within a port area, inland carriers will be subject to liability under whatever forum law applies to such carriers. In States that have accepted international conventions for non-maritime modes of transport, such conventions will apply to determine the liability of non-maritime performing parties (arts. 26 and 82). Maritime performing parties, who, on the other hand, may rely on the substantive law of the Rules, are broadly defined as all persons who undertake to perform the contract carrier’s obligations at the port of loading and the port of discharge (art. 1(7)). All maritime performing parties, therefore, enjoy automatic “Himalaya”...
- Where COGSA applies, it is the exclusive remedy of the parties to a contract of carriage and is completely preemptive of state law. Nevertheless, when COGSA is inapplicable to a particular party or under certain circumstances state law and/or the general maritime law may apply. For example, in a case where no bill of lading was issued, the court refused to recognize the carrier’s “standard” bill of lading to cover the theft of cargo from a warehouse and ruled that a state law negligence claim was not preempted.
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Chapter 12 Collision and Marine Casualty 691 315 results (showing 5 best matches)
- American law differs in many respects from the collision law of the Brussels Convention and the laws of other countries. Some of these differences are: (1) American law recognizes joint and several liability, while the Brussels Convention recognizes joint liability only; (2) American law differs somewhat on the apportionment of damages; (3) American law differs on allowance of recovery of cargo from the non-carrying vessel; (4) American law recognizes the compulsory pilotage defense; (5) American law recognizes many presumptions that are not available under the Brussels Convention or in foreign courts; and (6) American law differs substantially in the area of maritime liens and admiralty practice.
- Actions involving negligence or fault giving rise to a collision are tortious under the general maritime law. Thus, the jurisdiction of U.S. courts is tested by admiralty principles of tort jurisdiction. These are explained in detail in an earlier chapter and will not be repeated here. It is evident, however, that, drawing upon applicable legal tests, U.S. courts enjoy broad jurisdiction and virtually unlimited venue with respect to collisions and incidents of navigation occurring anywhere in the world, including on the high seas. The applicable substantive law in most cases will be U.S. collision (and limitation of liability) law, although a court has discretion to apply substantive foreign collision law in appropriate circumstances.
- See Chapter on the general maritime law. See generally
- Numerous international collision conventions have been promulgated under the auspices of the International Maritime Organization (IMO) and the Comité Maritime International (CMI). There are conventions dealing with rules of navigation, substantive law of collision, and criminal jurisdiction, and even the assessment of damages in maritime collisions.
- thus in admiralty law a thus in admiralty law an is the violent encounter of a moving vessel and a stationary object such as another vessel, a bridge, a pier, a wharf, or other shore side installation.
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Chapter 9 Charter Parties 607 309 results (showing 5 best matches)
- Charter parties are maritime contracts in admiralty jurisdiction subject to the general maritime law. All charter parties contain representations concerning the condition of the vessel. Lawyers commonly refer to these representations as “warranties.” However, such representations are commonly construed by the courts, not as true warranties, the breach of which allows the innocent party to avoid the contract, but as covenants, the breach of which gives rise to damages.
- As a contract between the owner of a vessel and the charterer, a charter party is subject generally to the rules and requirements of contract law. But, although charter party law and interpretation are contract law, state contract law principles do not apply, except by analogy. Charter party contract law and the interpretation of charter parties come under the general maritime law. Since the governing law is federal maritime law, state law rules such as the statute of frauds do not apply. Although freedom of contract prevails between the parties, in practice charter parties are concluded on highly standardized forms suited to particular trades and business needs. Much of charter party law is a matter of parsing and interpreting the language of the particular charter party involved. As a general rule, provisions of the charter are to be strictly construed against the drafter. ...almost all male) whose decisions reflect business practices and customs. Considering the widespread use...
- Where issues arise concerning the formation of a charter party, they are resolved by applying federal maritime law, not the law of particular states. However, the federal maritime law includes general principles of contract law and agency. A charter comes into being and is binding and enforceable when the parties agree to its essential terms. and ambiguous provisions are to be construed against the drafter.
- The term charter is used synonymously with “charter party.” For rich and still useful collections of articles on charter parties, see Tulane Admiralty Law Institute, Symposium on Charter Parties, 49 Tul.L.Rev. 743–1092 (1975); and Charter Party Symposium, 25 Tul. Mar. L. J., Summer 2001.
- Gilmore and Black say yes. G. Gilmore and C. Black, The Law of Admiralty 517 n. 103 (2d ed. 1975). See also Robinson, Handbook of Admiralty Law in the United States, 401–04; 635–36 (1939). The Second Circuit has agreed in
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Chapter 15 General Average 817 71 results (showing 5 best matches)
- General average is a concept that applies to certain types of losses incurred in a maritime venture and to the unique legal consequences that result. The purpose of general average is to redistribute the burden of marine casualties and sacrifices incurred for the common safekeeping of interests in a marine voyage. The term “average” means loss in maritime insurance and shipping law. In most cases when a loss occurs on a voyage either to the vessel or cargo, it is borne by the party that suffers it. Of course, under recognized doctrines of admiralty tort or contract, the party suffering loss may recover over against another who is liable, such as an insurance underwriter or a person who is a wrongdoer in tort or in breach of a contract. Such a situation is referred to as “particular average.”
- This example is taken from G. Gilmore and C. Black, The Law of Admiralty 247 (2d ed. 1975).
- Requirements of a General Average Loss: General Maritime Law and the York-Antwerp Rules
- Requirements of a General Average Loss: General Maritime Law and the York-Antwerp Rules
- Rule C: General average recovery is limited to those damages and expenses that are the maritime law.
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Summary of Contents 7 results (showing 5 best matches)
Index 1001 201 results (showing 5 best matches)
- For Supplemental Admiralty Rules, see Practice and Procedure, Maritime Attachment.
- ; Supplemental Admiralty Rule C; Maritime Attachment; Practice and Procedure.
- See also In Rem; Maritime Attachment; Supplemental Admiralty Rules B, C, D, E.
- Supplemental Admiralty Rule E, see Supplemental Admiralty Rule E.
- Supplemental Admiralty Rule E, see Supplemental Admiralty Rule E.
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Table of Contents 117 results (showing 5 best matches)
- Admiralty and the General Maritime Law89
- § 16–2.Rule 9(h) Election: Pleading Admiralty and Maritime Claims832
- § 16–1.The Supplemental Rules for Admiralty or Maritime Claims831
- § 15–2.Requirements of a General Average Loss: General Maritime Law and the York-Antwerp Rules818
- § 1–1.The Constitution and the Statutory Basis of Admiralty Jurisdiction1
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Chapter 13 Limitation of Liability 741 166 results (showing 5 best matches)
- For reviews of the law of limitation of liability, see especially 3 Benedict on Admiralty (7th ed. 1986) and Admiralty Law Institute, 53 Tul.L.Rev. 999–1419 (1979).
- Limitation of liability is an important theme of admiralty law. The justification was that running a ship was an inherently risky business, a fact well known to all parties to a marine venture, and the imposition of full and one-sided liability on a shipowner would discourage maritime commerce. It was also considered unfair to impose liability on a shipowner for circumstances beyond his control, such as the acts of his agents and servants, not to mention the perils of the sea.
- For an excellent symposium, see “Maritime Casualties and the Limitation of Liability Act,” Vol. 32, No. 2, April 2001 of the Journal of Maritime Law and Commerce.
- The pro rata distribution called for includes all claims subject to limitation, both personal injury and property claims. The pro-rata distribution may be modified by the court, however, since a limitation proceeding is “the administration of equity in an admiralty court.” Two guiding principles determine the court’s pro-rata distribution of the fund: maritime lien priorities and equitable subordination. The court may rank the claims according to lien priorities and certain claims may be paid first with the remainder of the fund pro-rated to other claimants. Salvage claimants, for example may be given a preference. In some cases, however, courts, applying equitable principles, have simply decreed a pro-rata distribution of the fund whether or not claims were supported by a maritime lien. the court adopted the principle of equitable subordination and held that a negligent vessel owner and its subrogated insurer could share in the fund only after innocent personal injury and cargo...
- For good law review commentary on the differences between English and American law, see Violino, The Continuing Conflict Between United States and English Admiralty Law on Limitation of Liability: Whose Privity Binds the Corporate Shipowner?, 10 Ford.Int’l L.J. 388 (1987).
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Chapter 10 Towage 657 121 results (showing 5 best matches)
- The contract of towage is an admiralty contract that is judged according to the standards of the general maritime law. State statutes of fraud do not apply to towage contracts so there is no requirement of a writing; in fact many towage contracts are oral. The general rules of contract law apply to the formation of towage contracts. The master of a vessel has authority to contract for towage services that are reasonably necessary, and parties have a right to full disclosure of all facts within the knowledge of
- Gilmore and Black extensively criticize this rule. See G. Gilmore and C. Black, The Law of Admiralty 915 to 918 (2d ed. 1975).
- Conflicts of law in towing contracts are generally resolved according to the intent of the parties and an analysis of the relative interests involved. The general maritime law conflicts rules are applicable.
- If the tug and the tow are separately owned, the negligence of the tug cannot be imputed to the tow, and there is neither Consequently, the third party has no maritime lien on the tow unless the fault of the tow is independently established or unless an agency relationship exists between the tug and the tow. This immunization of the tow from liability has been criticized as unfair to third parties and against the policy of the general maritime law. The impact of the rule is diminished, however, in view of the trend of modern cases to disregard the “dominant mind” theory and to find an independent basis of fault on the part of the tow in third party casualty cases.
- See G. Gilmore and C. Black, The Law of Admiralty, 516 (2d ed. 1975). The rule of Sturgis v. Boyer appears to be inconsistent with the rule of
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Chapter 11 Pilotage 677 85 results (showing 5 best matches)
- The obligation on the captain to take a pilot, or be responsible for the damages that might ensue, was prescribed in Roman Law. The Hanseatic ordinances, about 1457, required the captain to take a pilot under the penalty of a mark of gold. The maritime law of Sweden, about 1500, imposed a penalty for refusing a pilot of 150 thalers, one-third to go to the informer, one-third to the pilot who offered, and the residue to poor mariners. By the maritime code of the Pays Bas the captain was required to take a pilot under a penalty of 50 reals, and to be responsible for any loss to the vessel. By the maritime law of France, ordinance of Louis XIV, 1681, corporal punishment was imposed for refusing to take a pilot, and the vessel was to pay 50 livres, to be applied to the use of the marine hospital and to repair damages from stranding. In England (3 George I, ch. 13), if a vessel were piloted by any but a licensed pilot, a penalty of £20 was to be collected for the use of superannuated...
- There is confusion as well over the maritime status of a pilot who suffers personal injury or death. A long-standing interpretation issued under the Longshore and Harbor Workers’ Compensation Act (LHWCA) holds that a river pilot is excluded from coverage under the LHWCA because she is, in effect, a member of the crew of a vessel. This interpretation does not comport with current law. A pilot will usually meet the status and situs tests of the LHWCA. Her duties are clearly maritime in nature; and, if she is injured in the scope of employment, the situs test will virtually always be met as well.
- or the Longshore and Harbor Workers’ Act according to the circumstances involved. If these are not applicable, suit may be maintained under the general maritime law or for wrongful death. The ship owes the pilot a duty of due care while aboard the vessel and safe transit to and from the vessel.
- An excellent law review article is
- There are distinctions between a pilotage and a towage exemption clause which make it entirely reasonable to hold one valid and the other invalid. A pilotage clause exempts for the negligence of all towage employees. Pilots hold a unique position in the maritime world and have been regulated extensively both by the States and Federal Government. Some state laws make them public officers, chiefly responsible to the State, not to any private employer. Under law and custom they have an independence wholly incompatible with the general obligations of obedience normally owed by an employee to his employer. Their fees are fixed by law and their charges must not be discriminatory. As a rule no employer, no person, can tell them how to perform their pilotage duties. When the law does not prescribe their duties, pilots are usually free to act on their own best judgment while engaged in piloting a vessel. Because of these differences between pilots and towage employees generally, contracts...
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Table of Cases 915 308 results (showing 5 best matches)
- Cruise and Maritime Services Int’l Ltd. v. Navigators Underwriting Agency Ltd. (The Marco Polo), 134
- Golden Fleece Maritime, Inc. v. ST Shipping & Transport, Inc. (The Elli and the Frixos), 629
- Maritime Underwater Surveys, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 797
- Plaquemines Port Harbor and Terminal Dist. v. Fed. Maritime Comm’n, 461
- Admiralty Lines, Ltd., In re, 417
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- Professor of Law, Chancellor and Dean Emeritus University of California, Hastings College of the Law
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- 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
- Professor of Law, Yale Law School
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Copyright Page 3 results
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
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- Publication Date: November 1st, 2018
- ISBN: 9781634596886
- Subject: Admiralty
- Series: Hornbooks
- Type: Hornbook Treatises
- Description: This Hornbook is a handy, streamlined one-volume abridgement of Schoenbaum’s comprehensive Practitioners’ treatise on Admiralty and Maritime Law. The Hornbook covers the essential topics of jurisdiction, admiralty rules and practice, maritime torts, seamen’s remedies, maritime workers’ compensation, carriage of goods by sea in international trade, charter parties, towage, pilotage, salvage, collision and limitation of liability. Ideal for students and those wanting an introduction to this important field of law, this book places emphasis on the international aspects of maritime law. For this edition the author has reorganized and rewritten most of the sections as well as added important new sections. Every effort was made to analyze and cite every new and recent case on admiralty law up to the time of publication. This work is generally regarded as the definitive academic work on admiralty and maritime law.
