Admiralty LawAdmiralty LawProfessor SchmidtProfessor Schmidt

Autumn 2008Autumn 2008

I. GENERAL JURISDICTION ISSUES: TORTS, K’S, AND SAVING TO SUITORS..........2II. PROCEDURAL JURISDICTION: IN REM, IN PERSONAM, SUPPLEMENTAL J, REMOVAL, VENUE, FORUM NON, & APPEALS........................................................6III. SOURCES OF SUBSTANTIVE LAW................................................................8IV. PERSONAL INJURY & DEATH.......................................................................8V. LIMITATION OF LIABILITY............................................................................12

I.I. GENERAL JURISDICTION ISSUES: TORTS, GENERAL JURISDICTION ISSUES: TORTS, K’S, ANDK’S, AND SAVING TO SUITORS SAVING TO SUITORS A. GenerallyB. Tort Cases (83-89, 110-18)

i. Navigable Waters of the U.S.1. Old Law: used to use the English rules, but those would exclude from FJ

incidents/transactions involving the Great Lakes and inland waterways.2. Navigable waters = navigable in fact

a. Includes waters used, or capable of being used, as waterborne highways for commerce, including those presently sustaining, or capable of sustaining, the transportation of goods/passengers by watercraft.

b. To qualify, “must form in their ordinary condition by themselves, or by uniting w/ other waters, a continued highway over which commerce is or may be carried on with other states or foreign countries in the customary modes in which such commerce is conducted by water.” (The Daniel Ball)

3. What is not navigable?a. Land-locked bodies of waterb. Obstructions, natural or man-made, preclude commercial traffic

from using the waters as an interstate/international highway or link thereto. (LeBlanc v. Cleveland)

i. Removal of the obstruction may then make the waters navigable.

ii. The fact that a body of water was historically navigable doesn’t mean it will remain so in the future. A once-navigable body of water may be rendered non-navigable by dams or other obstructions. If the obstruction precludes interstate/foreign commerce, it’s non-navigable.

4. Need not flow b/w states or into the sea to be navigable.a. Need only be a link in the chain of interstate/foreign commerce.

(The Daniel Ball)i. As long as its physical characteristics ∅ preclude it from

sustaining commercial activity.5. Commercial activity doesn’t have to be presently occurring as long as the

body of water is “capable” of sustaining commercial activity. (LeBlanc v. Cleveland)

6. Different meanings in different contexts. a. Four separate purposes underlying definitions of “navigability”:

(Kaiser Aetna v. U.S.)i. (1) To delimit the boundaries of the navigational

servitude; (2) to define the scope of Congress’s regulatory authority under the Commerce Clause; (3) to determine the extent of the authority of the Army Corps of Engineers under the Rivers & Harbors Act; and (4) to establish the scope of federal AJ.

7. Man-made bodies of water (canals) may qualify if they’re capable of sustaining commerce and may be used in interstate/foreign commerce.

8. Seasonal navigability: Need not be navigable at all times.ii. The Admiralty Locus and Nexus Requirements

1. P must allege the tort occurred on navigable waters AND that the tort bore some relationship to traditional maritime activity. (Grubart v. Great Lakes Dredge & Dock)

2. Maritime Locus/Location

a. “Maritime locus” is satisfied by showing the tort occurred on navigable waters. (The Plymouth)

i. When someone on shore shoots someone on a boat on navigable waters (((Kelly v. Smith)))

ii. Person injured on a vessel dies after surgery on land. (((Motts v. M/V Green Wave)))

b. The Admiralty Extension Act (AEA)i. Expanded the maritime location test

ii. Confers on federal courts AJ over torts committed by vessels in navigable waters even if injury/damage was on land.

1. Ex: Booze cruise passenger injured in car accident caused by drunk driver of another drunk cruise passenger. (Duluth Superior Excursions v. Makela)

iii. Injury must emanate from vessel in navigable waters. iv. P who invokes J under AEA must show vessel negligence,

e.g., defective appurtenances or negligent navigation, tortuous conduct of the crew while on board.

3. Maritime Nexus/Connectiona. Policy rationale: federalism, desire to confine AJ to situations

implicating national interests.b. Maritime nexus” is satisfied by demonstrating: (1) that “the

incident has ‘a potentially disruptive impact on maritime commerce’” and (2) that “’the general character’ of the ‘activity giving rise to the incident’ shows a ‘substantial relationship to traditional maritime activity.’” (Grubart v. Great Lakes Dredge & Dock)

c. Nexus Requirement Evolved from 4 SCOTUS Cases:i. Executive Jet Aviation, Inc. v. City of Cleveland :

federal courts lacked AJ over aviation tort where plane crashed in Lake Erie.

1. Although maritime locus was present, the Court excluded AJ b/c the incident was “only fortuitously and incidentally connected to navigable waters” and bore “no relationship to traditional maritime activity.”

2. The Court supplemented the maritime locus test by adding a nexus requirement that “the wrong bear a significant relationship to traditional maritime activity.”

ii. Foremost Insurance Co. v. Richardson : extended AJ to collision b/w pleasure boats. Made nexus criterion a general rule of admiralty tort J.

iii. Sisson v. Ruby : vessel need not be engaged in commercial activity or be in navigation. Exnteded tort J to a fire on a pleasure boat at a pier.

iv. Grubart v. Great Lakes Dredge & Dock : workers on barge in Chicago River replaced wooden pilings but undermined a tunnel that ran under the river, leading to the tunnel collapsing and a flood of the Loop. Latest version of nexus criterion:

1. P must show the tort arose out of a traditional maritime activity. This requires a showing that:

a. the tort have a potentially disruptive effect on maritime commerce, AND

i. Not applied literally to the facts at hand; facts viewed at an “intermediate level of possible generality.” Focus on “general features” of the incident .

ii. here, “damage done by a vessel on navigable water to an underwater structure.” Damage to structure beneath a waterway could disrupt the waterway itself and disrupt navigational use of the waterway. Could adversely affect river traffic, as it did here.

b. the activity was substantially related to traditional maritime activity.

i. Focus on whether the general character of the activity giving rise to the incident reveals a substantial relationship to maritime activity. “We ask whether a tortfeasor’s activity, commercial or noncommercial, on navigable waters is so closely related to activity traditionally subject to admiralty law that the reasons for applying special admiralty rules would apply in the suit at hand.”

ii. observing that this relationship was found in Foremost (navigation of vessel) and Sisson (docking of vessels), the Court similarly found that repair and maintenance work on a navigable waterway performed from a vessel met the test.

iii. Case Law1. The Admiral Peoples2. (Grubart v. Great Lakes Dredge & Dock)3. Duluth Superior Excursions v. Maleka

C. Contracts (38-82, 1113-19)i. Focus on SM of the K, not locus and nexus.

ii. “True criterion is the nature and subject-matter of the K.” (New England v. Dunham)

iii. Preliminary Ks are not maritime Ks1. Executory Ks may satisfy, even though breaches of such Ks ∅ give rise to

maritime liens. (Terminal Shipping v. Hamberg)2. When a K necessitates/contemplates the formation of a subsequent K that

will directly affect the vessel, the first K is characterized as preliminary.a. Includes Ks to supply a crew, Ks to procure insurance.

iv. Agency Ks can be maritime Ks.1. Exxon v. Central Gulf Lines : Carrier’s failure to pay for fuel oil was a

breach of maritime K, even though the obligation to supply fuel stemmed from a “requirements” K and the supplier (an oil company) contracted w/ another oil company to supply the oil in question. The oil company had undertaken to supply oil to a vessel, and it didn’t matter how the oil company arranged to satisfy it’s contractual obligation.

a. Case-by-case basis.2. Ks that obligate provision of services directly to a vessel may be maritime

Ks, as opposed to ones obligating procurement of another to provide services to a vessel.

v. Mixed Ks1. Old Rule: A mixed K is not a maritime K unless the non-maritime aspect

of the K is merely incidental to the maritime aspect, or the maritime and

non-maritime aspects are severable and the dispute only involves the maritime aspect.

2. Kirby Rule: Admiralty J over “mixed K” if admiralty part is not insubstantial. (Norfolk Southern v. Kirby)

vi. Case Law1. Norfolk Southern v. Kirby2. New England Mutual Marine Ins. Co. v. Dunham3. La Reunion Francaise SA v. Barnes4. North Pacific Steamship Co. v. Hall Bros.5. Terminal Shipping v. Hamberg6. Hyundai Heavy Industries v. M/V Saibos FDS7. Exxon v. Central Gulf Lines8. Herman Family Revocable Trust v. Teddy Bear9. WTA Marin v. Antin-Quealy 10. Seven Resorts v. Cantlen

D. The “Saving to Suitors” Clause (141-58)i. Admiralty Cases in State Courts

1. Federal courts have AJ, “saving to suitors” whatever non-admiralty “remedies” they are entitled to. (28 USC § 1333)

a. Ps may pursue remedies available under the CL or other laws in state courts.

b. When Ps seek $ damages for tort/contract claims w/i AJ, they have a choice of bringing suit in admiralty in federal court or bringing suit in state court.

i. One advantage of state court is trial by jury.2. Limitations on remedies Ps may pursue in state court

a. Admiralty remedies, such as in rem actions, may only be brought in an admiralty action in federal court (The Hine v. Trevor).

ii. Admiralty Actions at Law in Federal Courts1. Originally worded, the clause saved “the right of a CL remedy where the

CL was competent to give it.” (Judiciary Act of 1789)a. Today, it just saves “all other remedies to which they are

entitled.”b.

2. Even in diversity. P may seek CL remedy in state court where diversity of citizenship is present.

a. Diversity cases are filed under 28 USC § 1332.b. In such cases, both P and D may demand a jury trial.

iii. Law Applicable1. Where P invokes “saving to suitors” clause to bring an action in state

court or federal court under diversity, issues are usually resolved by applying substantive rules of admiralty/maritime law, whether enacted by Congress or as part of the general maritime law.

2. Reverse Erie Doctrine: application of federal law in saving to suitors cases.

a. State courts are required to apply substantive maritime law even if a case is properly brought in state court. (Grubart v. Great Lakes Dredge & Dock)

i. Grubart : “the exercise of AJ does not result in the automatic displacement of state law.”

b. Federal courts, in some circumstances, may apply state substantive law even where the case before them falls under AJ. (Yamaha v. Calhoun)

iv. Removal1. Under certain circumstances, Ds may remove a case from state to federal

court. (28 USC § 1441)a. Once properly removed, it proceeds thru fed court as thought it

were originally filed there.b. Most common basis for removal: case could’ve originally been

filed in federal court, so it meets constitutional and statutory jurisdictional criteria.

2. Exception to Removal: Where a suit is commenced in state court, and could’ve been brought in federal court under 28 USC § 1333 (a/m J), the case may NOT be removed to federal court if AJ is the only basis for federal J. (Romero v. Int’l Terminal Operating)

a. Ps who exercise their option under s2s clause and sue in state court can keep their cases in state court unless there is diversity or some statutory basis other than § 1333 to support federal J.

v. Case Law1. The Hine v. Trevor2. C.J. Hendry Co. v. Moore3. Rounds v. Cloverport Foundry & Machine Co.4. Sellick v. Sun Harbor Marina

II.II. PROCEDURAL JURISDICTION: IN REM, INPROCEDURAL JURISDICTION: IN REM, IN PERSONAM, SUPPLEMENTAL J, REMOVAL,PERSONAM, SUPPLEMENTAL J, REMOVAL, VENUE, FORUM NON, & APPEALSVENUE, FORUM NON, & APPEALSA. In General

i. 9(h) Designation: When P has multiple bases, including admiralty, for invoking federal court J, he must specifically designate the claim as an admiralty claim; otherwise it will be treated as a non-admiralty claim. (FRCP 9(h))

ii. No right to a jury trial. (FRCP 38(e))1. Except in Jones Act cases.

B. Types of Actions: In Personam, In Rem, Quasi In Rem

i. In Rem (248-75)1. Governed by Supplemental Rule C

a. The vessel—not the owner—is the D. Need not be based on the personal liability of the property owner.

i. Not merely a means of obtaining personal J over a nonresident or creating security over an owner’s asset.

b. May only be brought in federal court.c. Initiated by “arresting” (seizing) the property.d. Property must be subject to the J of the court.e. Arrest procedure is authorized only to enforce a maritime lien or

as otherwise permitted by statute—not available to all admiralty disputes.

i. May be brought to enforce maritime liens under the Federal Maritime Lien Act, to enforce other maritime liens under general maritime law, and as authorized by statute.

2. Arrest Proceduresa. P must file a complaint that describes the property subject to the

action and states that such property is or will be in the court’s district during the pendency of the action.

i. If property ∅ w/i the district where the action is commenced and no immediate prospect of it entering the district, complaint will be dismissed.

b. Complaint and supporting documentation must be reviewed by a court. If conditions for in rem action exist, court issues order authorizing a warrant for arrest of property.

c. No notice other than execution is required. i. If property not released w/i 10 days, P must give public

notice of the action and the arrest in a newspaper of general circulation.

ii. Notice must specify the time w/i which answer is required to be filed.

d. Owner must file a statement of right or interest w/i 10 days after process has been executed, unless the court allows additional time.

e. Owner/claimant must file an answer w/i 20 days after filing its statement of right or interest.

f. Commences when the property is physically seized w/i the J of the court.

i. Seizure is essential to give the court J over the property. 1. Not enough for the property to be present in the

judicial district where the court is located.2. Presence of owner w/i district is insufficient.

g. Court officer (U.S. marshal) must physically seize the property, actually or constructively, and take it into custody if possible.

i. Vessels: service of arrest papers on the master and the placing of a “keeper” on the vessel will suffice.

3. Notice and Hearing4. Notice to Lienors; Intervention5. Security; Release; Sale6. Case Law

ii. In Personam (285-96)1. claim is based on the personal liability of the other party, as is usually the

case in an ordinary tort or breach of contract situation → IPJiii. Attachment and Garnishment (275-84)

1. Commenced by seizure of property, but is based on the personal liability of the owner of the property.

2. Governed by Supplemental Rule B: an in personam maritime action in federal court by seizing D’s property.

a. Authorizes attachment or garnishment of D’s property.i. P who has asserted an admiralty/maritime claim in

personam may include in her complaint a request for process to attach D’s goods and chattels, or credits and effects, in the hands of garnishees named in the process for up to the amount sued.

b. Only available where P has asserted a maritime claim.c. Property must be w/i the geographic boundaries of the federal

judicial district where the action is brought.3. Permissible ONLY “if D shall not be found w/i the district.” (FRCP Supp

Rule B(1))a. P must submit an affidavit stating D cannot be found w/i the

district.b. 2 dimensions: (a) D not present for jurisdictional purposes; AND

(b) D not present for service of process.i. To defeat attachment and secure release of property, D

must show BOTH that he is present in the district in the jurisdictional sense (minimum contacts) AND that he is amenable to service of process personally or through an agent authorized to accept service.

4. Constitutional Considerationsa. Presence of D’s property w/i a state is sufficient to constitute

“minimum contacts” under the DP Clause.b. Seizure of property sufficient to satisfy the service of process

requirements.5. Where a D fails to submit to the personal J of the court, judgment is

limited to the value of the property. 6. Rationale: compel the D to personally appear to defend against the claim.

iv. Attachment v. ArrestC. Supplemental JurisdictionD. Removal

E. VenueF. Forum Non ConveniensG. Appeals

i. Governed by 28 USC §1292: 1. (a) - interlocutory appeals as a matter of right2. (b) - permissive interlocutory appeals

ii. Final Order1. Traditional notion of finality applies in maritime, too.2. Final judgment is “one which ends the litigation … and leaves nothing for

the court to do but execute the judgment.” (Catlin v. U.S.)3. Examples:

a. Admiral decree of restitution ∅ final order until damages report was acted upon. (The Palmyra)

iii. Liberalization of Finality applies in admiralty1. Collateral Order Doctrine

a. Allows appeals from 'a small class [of orders] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.

b. Things that have been held appealable:i. Order dissolving an attachment. (Swift & Co. Packers v.

Compania)ii. Denial of a claim of sovereign immunity. (Marx v. Guam)

iii. Order releasing D’s security for P’s claims. (Incas v. M/V Sang Jin)

1. BUT: Order denying motion to vacate an attachment is not appealable. (Construction Exporting v. Nikki)

2. Practical Finality Doctrine:a. Sometimes applied where remand is inefficient and doesn’t serve

the purposes of justice in a maritime case. (Gillespie v. U.S.)3. Rule 54(b): permits DCt to enter as final judgment an order in a multi-

claim or multi-party case disposing of one or more, but fewer than all, claims.

iv. Appeal from Interlocutory Orders1. 1292(a)(1)2. May be reviewed under Rule 54(b), which allows the trial court to convert

into a final judgment an order disposing of all of the claims of one party in a multiparty suit, or several claims b/w the same parties.

3. When injunctions are granted in admiralty, 1292 usually applies.4. Order providing for the trial of an equitable defense (against a K claim)

and staying the action at law was the equivalent of an injunction and appealable. (Enelow v. NY Life Ins.)

v. Controlling Questions of Law1. 1292(b): permits DCt to certify controlling Qs of law as to which there’s

reasonable doubt and the early settlement of which may “materially advance the ultimate termination of the litigation; and the CtApp, in its discretion, to grant leave to appeal, is also applicable in maritime cases.

vi. Appellate Procedure1. Notice of appeal must be filed w/i 30 day limit imposed by FRAP 4(a),

which supercedes the 90 day provision in admiralty cases found in 28 USC § 2107.

vii. Special Provisions for Admiralty1. § 1292(a)(3): CtApps given J of “interlocutory decrees of such DCts or the

judges thereof determining the rights and liabilities of the parites to admiralty cases in which appeals from final decrees are allowed.”

2. Reflected a practice of trying liability and entering an interlocutory decree, w/ damages left to determination by commissionerse.

viii.

III.III. SOURCES OF SUBSTANTIVE LAWSOURCES OF SUBSTANTIVE LAW A. Sources of Substantive Law (350-404)B. Sea Law as a Body of International Custom; The Codes and the Text Writers

i. Case Law1. Thompson v. The Catharina2. 1 Molloy, De Jure Maritimo XIX-XXIV3. 1 Hay & Marriott XI4. Swinney v. Tinker

C. CL as a Source of Substantive Lawi. Case Law

1. The Sea Gull2. DeLoach v. Companhia de Navegacao Lloyd Brasileiro

D. Problems of Federalism: State Courts and Federal Rights; Federal Courts and State Rights

i. Case Law1. Kalleck v. Deering2. Southern Pacific Co. v. Jensen3. Chelentis v. Luckenbach, S.S. Co.4. Yamaha Motor Corp v. Calhoun5. Diesel “Repower”, Inc. v. Islander Investments Ltd.

IV.IV. PERSONAL INJURY & DEATHPERSONAL INJURY & DEATH A. General Issues

i. Damagesii. Statute of Limitations

iii. Federal & State Courts1. Removal

iv. In Personam and In Rem ActionsB. SEAMEN’S REMEDIES (910-1024)

i. Who is a Seaman?1. Case Law

a. Chandris v. Latsisii. Maintenance and Cure

1. Seamen who suffer injuries or become ill while in service of the ship are entitled to maintenance and cure. (Warren v. U.S.)

a. Periods of recreation such as shore leave are customarily viewed as service to the vessel. (Warren)

b. Applies where seaman is injured or falls ill, regardless of whether that occurs on board the vessel or on land. (Warren)

c. BUT, where ∅ subject to the call of the ship, M&C is denied.2. Who is liable?

a. Obligation to provide M&C payments is imposed on an seaman’s employer—usually the owner of the vessel on which the seaman works. (Warren v. U.S.)

b. Demise charterer assumes both full control of the vessel and the owner’s responsibility for M&C. (____)

c. Where seaman employed by one who provides K services to a vessel owner, vessel owner may also be liable for M&C under traditional principles of agency law. (_____)

d. The vessel is liable in rem. (_____)3. Not a fault-based remedy.

a. Based on the employment relationship.b. Seaman need not prove employer negligence. c. Seaman’s own fault or contributory negligence is irrelevant, and

the award ∅ diminished under the comparative fault rule.

d. Forfeited only by a seaman’s willful misbehavior or deliberate act of indiscretion. (Aguilar v. Standard Oil Co.)

4. Doctrine of M&C is part of the general maritime law and encompasses 3 distinct remedies: (1) maintenance; (2) cure; and (3) wages. (The Osceola)

a. Maintenancei. Amount of money to which seaman is entitled for daily

living expenses associated with his recovery (i.e., room and board).

1. Designed to provide seaman w/ food and lodging comparable to that received aboard the ship—thus, the obligation to provide maintenance ∅ arise until seaman actually leaves the vessel.

2. Maintenance only includes those expenses attributable to the seaman himself and does not encompass family members’ expenses.

ii. Prima facie case for maintenance made by offering testimony as to the cost of obtaining reasonable accommodations w/ respect to room/board w/i the community he lives.

iii. Amount of maintenance must be reasonable, and seaman’s employer may offer rebuttal ev that the proffered maintenance costs are excessive.

b. Curei. Reasonable medical expenses incurred in the treatment of

the seaman’s condition.ii. Duty to mitigate: employer will only be obligated to pay

those expenses associated w/ the seaman’s treatment that are reasonable and legitimate.

iii. Duty ends when seaman reaches the point of maximum medical cure—when condition ∅ improve despite further medical treatments. (Farrell v. U.S.)

1. Obligation exists only to improve condition rather than alleviate the condition.

2. No onligation to provide palliative treatments that arrest further progress of the condition or relieve pain once seaman reaches point of total disability. (Farrell v. U.S.)

3. BUT, where seaman reached point of max medical cure and M&C payments have been discontinued, seaman may reinstitute a demand for M&C where subsequent new curative medical treatments become available. (Farrell v. U.S.)

c. Wagesi. Employer must also pay wages that would’ve been earned

during the remainder of the voyage. (Farrell v. U.S.)ii. “Double Wages” Penalty: applies where an employer, w/o

sufficient cause, fails to pay seaman’s wages that are due. (46 USC § 10504(c))

1. Mandatory for each day payment is withheld.2. Applies to all wages due to seaman, not just those

triggered by M&C.5. Statute of Limitations dispute: some courts apply 3 year SoL, others

apply doctrine of laches.6. Case Law

a. Warren v. U.S. (340 US 523, 1951)b. Koistinen v. American Export Lines (194 Misc. 942, 1948)c. Farrell v. U.S.d. Vaughan v. Atkinson

iii. The Jones Act: Negligence 1. Statutory Provisions

a. Provides seaman w/ negligence-based CoA against his employer.b. Right to trial by jury.c. Incorporates the provisions of the Federal Employers’ Liability

Act, which provides a right of action for injures RR workers, as well as wrongful death and survival actions.

2. Seaman Statusa. Available to “any seaman.”b. Chandris Test: Employee claiming such status: (Chandris v.

Latsis):i. (1) Must have a connection to a vessel in navigation (or

identifiable fleet of vessels) that is substantial both in duration and nature; AND

1. Court rejects “snapshot” approach: doesn’t look merely at what seaman was doing at time of injury or during particular voyage when injury occurred, but looks at entire employment history w/ employer. (Chandris)

2. 30% Rule: Employee who spent less than 30% in the service of a vessel in navigation does not qualify as seaman. But just a rule of thumb—departure is sometimes appropriate, e.g., when employee’s basic assignment changes. (Chandris)

3. Vessel in Navigation: claim is dependent upon the existence of a vessel.

a. Congress defines vessel as “every description of watercraft or other artificial contrivance used or capable of being used as a means of transportation on water.” (1 USC § 3)

b. A “structure whose purpose or primary business is not navigation or commerce across navigable waters may nonetheless satisfy the Jones Act’s vessel requirement if, at the time of the worker’s injury, the structure was actually engaged in navigation.” (DiGiovanni v. Traylor Bros.; Stewart)

c. “Vessels undergoing repairs or spending a relatively short period of time in drydock are still considered to be ‘in navigation’ whereas ships being transformed through ‘major’ overhauls or renovations are not.” (Chandris)

ii. (2) Must contribute to the function of the vessel or to the accomplishments of its mission.

1. Employee need not contribute to navigation/transportation functions; simply “must be doing the ship’s work.” (((McDermott v. Wilander)))

3. Situs of Injury a. Where Ps meet test for seaman status, need only show that they

were in the course of their employment at the moment of the accident, regardless of whether the injury occurs on territorial waters, the high seas, or on land.

4. Jones Act Employera. Jones Act only gives seamen a right against their “employers.”b. Burden of proof as to whether there was an employment

relationship is on the P.c. Vessel ownership ∅ a prerequisite. Consider “right to control.”

i. “Borrowed servant doctrine”: individual may be a crewmember, and thus a seaman, even if employed by independent contractor rather than vessel’s owner.

ii. Liability on actual rather than nominal employer.iii. Where employed by a charterer or concessionaire, vessel

owner generally ∅ employer for Jones Act purposes.5. Standard of Care and Causation

a. CoA is predicated upon a showing of employer negligence. (Gautreaux v. Scurlock Marine)

b. Duty of care: duty to exercise reasonable care under the circumstances; also reasonable care standard in evaluating contributory negligence. (Gautreaux v. Scurlock Marine)

c. Three factors: right to jury trial; nature of maritime employment; reduced burden on causation.

d. Negligence per se: Where employer violates statutory duty and such violation injures seaman, employer liable regardless of negligence. Irrelevant whether seaman is w/i class of persons the statute is designed to protect, or that H is the type the statute was designed to prevent.

6. Application to Foreign Seamena. Foreign seaman may maintain CoA where, after a choice-of-law

analysis, sufficient contacts are present to allow application of the statute.

b. Where claimant is foreign seaman employed in the production of offshore energy and mineral resources of a country other than the U.S., no recovery unless no other remedy available. (46 USC § 688(b))

7. Case Lawa. Nicol v. Gulf Fleet Supply Vesselsb. McAleer v. Smithc. Colon v. Apex Marine Corpd. Gautreaux v. Scurlock Marinee. Horsley v. Mobil Oil Corp.

iv. Unseaworthiness v. 109 in chap3

1. Case Lawa. Hughes v. ContiCarriers and Terminalsb. Usner v. Luckenbach Overseas Corp.

vi.vii. Case law

1. Traditional Seamen’s Remedies (Case law)a. The Osceola

2. Chesapeake and Ohio Ry. v. SchwalbC. Death

i. Intro1. CL Rule: General maritime law once followed CL rule that tort CoAs died

w/ the injured person. (The Harrisburg)2. Maritime But Local Doctrine: SCOTUS ameliorated that holding by

allowing admiralty courts to apply state wrongful death statutes for deaths in state territorial waters. (The Hamilton)

3. Congressional Action:a. DOHSA: provides statutory wrongful death remedy for those

killed on the high seasb. Jones Act: provides remedy in the case of death of a seaman.

4. Now there are many remedies, but they depend on the status of the decedent and where decedent was killed:

a. Death on the High Seas Actb. State wrongful death statutesc. General maritime lawd. Jones Act (for seamen)

ii. Death on the High Seas Act (DOHSA)1. Gives a remedy to the beneficiaries of all decedents who die as a result of

tortious acts committed beyond state territorial waters, generally more than 3 miles from shore.

a. Provides: i. When the death of an individual is caused by wrongful act,

neglect, or default occurring on the high seas beyond 3 nautical miles from the shore of the U.S., the personal representative of the decedent may bring a civil action in admiralty against the person/vessel responsible. The action shall be for the exclusive benefit of the decedent’s spouse, parent, child, or dependent relative. (§ 30302)

b. Excludes deaths that result from commercial aviation accidents 12 miles or closer to the shore of any state; such deaths are subject to the rules applicable under any federal, state, or other law.

2. Situs of tort when it impacts the decedent is controlling, not actual place of death.

3. Theory of Argumenta. May be predicated upon any tort theory, including: intentional

tort, negligence, and strict products liability.b. Must prove proximate cause.

4. Beneficiary Classa. Provides CoA to clearly defined class, including wife, husband,

child, parent, or dependent relative.b. Listing of beneficiaries ∅ preclusive.

5. Recoverya. Ps may recover only for their pecuniary losses:

i. loss of supportii. loss of services (Sea-Land v. Gaudet)

iii. loss of nurture, guidance, care, and instructioniv. loss of inheritancev. funeral expenses

b. Nonpecuniary damages (loss of society, consortium, and punitive damages) are not available under DOHSA.

i. But authorized nonpecuniary damages in cases where death occurs beyond 12 miles from the shore of any state. But not punitive.

c. SCOTUS refused to create a “survival” action to supplement DOHSA.

6. DOHSA is preemptive of state law and a claimant cannot append a state law claim to an action under DOHSA in order to supplement damages available under the Act. (((Offshore v. Tallentire)))

7. May be brought in state court.iii. Wrongful Death under the General Maritime Law

1. Moragne v. States Marine Lines : Created a wrongful death remedy under general maritime law for deaths occurring within territorial waters.

a. P was widow of a longshoreman killed on a vessel in navigable waters, based on an unseaworthiness theory.

2. Also encompasses negligence claims based on the death of a maritime worker. (Norfolk Shipbuilding and Drydock v. Garris)

iv. Case Law1. Miles v. Apex Marine Corp.2. Norfolk Shipbuilding & Drydock v. Garris

V.V. LIMITATION OF LIABILITYLIMITATION OF LIABILITY A. Generally

i. Governed by the Limitation of Vessel Owner’s Liability Act of 1851. (46 USC §§181-89)

ii. Permits a shipowner to limit its liability following maritime casualties to the value of the owner’s interest in the vessel and pending freight, provided that the accident occurred w/o the privity or knowledge of the owner. (§183(a))

iii. Owner of a sea-going vessel involved in marine casualty that results in the loss of life or personal injuries may be required to set up an add’l fund if the value of the vessel and pending freight is insufficient to pay such losses in full. (§183(b))

B. Practice and Procedurei. Proceedings laid out in the Limitation Act and FRCP Supp Rule F.

ii. To initiate: shipowner must file a complaint w/i 6 months of receipt of a claim in writing. (§185)

1. The date the shipowner receives notice of a claim controls, not the date of the casualty.

2. Complaint may seek “exoneration” as well as limitation—owner may plead not liable at all, and in the alternative that if it is liable that it is entitle to limit its liability. (FRCP Supp F(2))

3. Complaint seeking limitation may only be filed in a federal DCt.iii. After filing complaint: owner must “deposit w/ the court, for the benefit of

claimants, a sum equal to the amount/value of the owner’s interest in the vessel and pending freight.” (FRCP Supp F(1))

1. Alternatively, owner may transfer its interest in the vessel and freight to a trustee.

a. If owner transfers interest, owner must include in its complaint any prior paramount liens and existing liens that arose upon any voyages subsequent to the marine casualty. (FRCP Supp F(2))

b. Owner must also provide security for costs. If chooses to post security, must include interest rate at 6%/year from date security is posted. (FRCP Supp F(1))

c. No requirement that other liens be satisfied by owner as a precondition to limitation.

i. Lien claimants may seek to intervene and file their claims in the limitation proceeding.

2. Any claimant to the fund may file a motion to have the fund that has been deposited w/ the court increased, on the ground either that it’s less than the value of the owner’s interst in the vessel and pending freight OR that the fund is insufficient to meet all of the claims against the owner in respect to loss of life or bodily injury. (FRCP Supp Rule F(7))

3. Upon filing such a motion, burden of proof is on the movant.iv. Once owner complies with F(1) requirements: the court “shall” enjoin all claims

and proceedings against the owner of the vessel or its property w/ respect to the matter in question. (FRCP Supp F(3))

v. Notice: the court must then give notice to all parties asserting claims, advising parties to file their claims in the limitation proceeding.

1. Owner of vessel is also required to mail a copy of the notice to all persons known to have made claims against the owner.

vi. Results in a Single Proceeding: in which all suits arising out of the marine casualty must be litigated.

1. BUT 2 exceptions, where claimant may maintain claim outside of the limitation proceeding:

a. First: When the owner has deposited with the court an amount in excess of all claims, not necessary b/c no possibility that owner would be held liable in an amount in excess of the limitation amount.

i. In such circumstances, claimants must be allowed to pursue their actions in the forum of their choice.

b. Second: Originally applied to situations where there was but a single claimant who stipulated that (1) the admiralty court had exclusive J to adjudicate the limitation issues, and (2) claimant would not seek to enforce a damage award in excess of the limitation fund established by the federal court.

2. The right of a claimant to sue in a state court cannot be undermined by a shipowner’s filing a limitation proceeding if the shipowner’s protection under the Limitation Act is not in jeopardy. (Lewis v. Lewis & Clark Marine)

a. Court reaffirms these exceptions. (Lewis)b. The fact that a shipowner is permitted to plead exoneration in a

limitation proceeding ∅ mean it has the right to compel the adjudication of that issue in a federal court. (Lewis)

vii. Supposition that the limitation fund will be insufficient to pay all claims in full.1. If the owner is held liable but is allowed to limit liability, the funds

deposited w/ the court, or the proceeds from selling the vessel, are distributed by the court on a pro-rata basis among claimants in proportion to the amount of their respective claims.

a. Subject to relevant provisions of law, e.g., priorities among claimants. (FRCP Supp F(8))

viii. May not be filed in state court. C. The Limitation Fund

i. Generally equal to the amount of the owner’s interest in the vessel and pending freight. (46 USC § 183(a))

1. “Pending freight” refers to owner’s total earnings for the voyage. (The Main v. Williams)

a. Includes both prepaid earnings, which by K are not to be returned to shippers should the voyage not be completed, and uncollected earnings. (The Main v. Williams)

ii. The value of the vessel is determined at the termination of the voyage or marine casualty.

1. If a vessel is a total loss, it’s value is zero.2. Insurance proceeds received by a vessel owner as result of marine

casualty, such as where vessel is a total loss, are not included in the limitation fund. (The City of Norwich)

3. Question as to what constitutes a voyagea. Depending on the circumstances, a round-trip voyage may be the

equivalent of a single adventure (which requires earned freight to be surrendered for the entire round-trip), or it may be broken into distinct units (with freight considered pending for the particular leg of the voyage in which the marine casualty occurred). (Caribbean Sea Transport)

iii. If there are personal injuries or death, and the limitation fund ∅ adequate to cover such losses in full, shipowner must increase that portion of the fund allocable to personal injury/death claims up to a maximum of $420/ton of the vessel’s tonnage. (46 USC app. § 183(b))

1. The limitation fund only needs to be increased where owner of a “sea-going” vessel seeks limitation.

2. “Sea-going vessel” is defined in the statute; it excludes, among other vessels, pleasure yachts, tugs, and towboats. (§ 183(f))

iv. 2+ vessels in a tug-and-tow situation1. “Pure Tort” Situation: only the vessel actively at fault is valued or

surrendered for purposes of the fund. (Liverpool, Brazil, & River Plate Steam Navigation v. Brooklyn E. Dist. Terminal)

2. “Flotilla Rule”: where a K relationship exists b/w vessel owner and party seeking damages, both the active vessel and vessels in tow must be included in the computation of the fund. (Brown & Root v. Marine Zapata Co.)

D. Parties and Vessels Entitled to Limiti. Owner of any vessel may petition for limitation.

1. Both American and foreign vessel owners. (§ 183)2. Demise or bareboat charterers. (§ 186)3. The U.S., when a vessel owned by the gov is involved in a marine casualty.

(Dick v. U.S.)ii. Exceptions

1. Time charterers.

2. A shipowner’s insurer. (Md. Cas. Co. v. Cushing)a. Direct Action Statutes: Louisiana and Puerto Rico provide a

statutory right to proceed directly against the insurer. They have survived constitutional challenges. (Cushing)

b. Might not matter, b/c a marine insurer may indirectly limit its liability by K.

c. Might include provision in insurance policy stating no liability for any amount greater than that for which its insured owner could be liable under the Limitation Act. (Crown Zellerbach v. Ingram; Rogers v. Texaco)

E. Grounds for Denying Limitation: Privity or Knowledgei. Limitation denied of owner had “privity or knowledge” of the act/condition that

caused the marine casualty. (§ 183(a))ii. Individual owner: privity or knowledge refers to the owner’s personal

participation in the act or awareness of the condition that led to the marine casualty. (Coryell v. Phipps)

iii. Corporation: limitation denied only if a managing officer or supervisory employee had knowledge or privity. (Great Lakes Dredge & Dock v. Chicago)

1. Usually ∅ include the mater of the vessel in the corporate context.2. But when claim for personal injury/death, mater’s privity or knowledge

prior to and at the beginning of the voyage of an act or condition that led to the harm will be attributed to the owner of a “seagoing vessel.” (§ 183(e))

iv. Owner will be denied limitation if individual or corporate owner was negligent in that it failed to provide adequate procedures to ensure the maintenance of equipment, failed to provide competent master/crew, or failed to use reasonable diligence to discover the act/condition that caused the harm. (Coryell v. Phipps)

F. Claims Subject to Limitationi. Limitation Act states owner may limit liability “for any embezzlement, loss, or

destruction … of any property, goods, or merchandise … or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned or incurred.” (46 USC § 183(a))

ii. A shipowner may limit liability for debts. (§ 189)iii. No limitation for:

1. Shipowner, for wages owed to its employees or for M&C. (§ 189)2. Liability for wreck removal under the Wreck Act.3. Pollution damages under federal law.4. Personal K Doctrine: no limitation for failure to perform K obligations

that the owner personally undertakes to perform, e.g., breach of charter party. (Cullen Fuel v. W.E. Hedger)

a. But owner allowed to limit where K is breached by negligence of vessel’s master or crew.

G. Choice of Lawi. High Seas: Limitation is a procedural device, and when a foreign shipowner

seeks limitation in a limitation proceeding brought in U.S. court, U.S. law determines the amount of the limitation fund. (The Titanic)

ii. Territorial Waters of a Foreign Country: if a limitation proceeding is filed in federal district court based on a casualty that occurred in the waters of a foreign country, the court should ascertain whether the law of that country classifies the right to limitation as procedural or substantive. (The Norwalk Victory)

1. Procedural → U.S. law determines the limitation amount. 2. Substantive → limitation law of the foreign country applies.

H. Case Lawi. The Yacht Julaine

ii. In re Marine Recreational Opportunities, Inc.iii. Lady Jane, Inc., Lim Procs.iv. Cullen Fuel v. W.E. Hedgerv. Petition of Kinsman Transit Co.

vi. Farrell Lines v. Jonesvii. Coryell v. Phippsviii. British Transport Commission v. U.S.

ix. Lewis v. Lewis & Clark Marinex. Cincinnati Gas & Elec v. Abel

I.