Admiralty & Maritime Law

Admiralty & Maritime Law: The Law of The Sea
2008 Clark D. Silliman, J.D. All Rights Reserved.
Admiralty & Maritime Law is:

The great body of law regulating the
activity of carrying cargo and passengers over water. One of the worlds oldest bodies of law, tracing its origin to the Mediterranean Sea where mankind is thought to have first gone down to the sea in ships thousands of years ago!
Origins of Admiralty & Maritime Law

Special maritime courts were established in
seaports to resolve controversies among those engaged in the transportation of goods and passengers by sea among different nations. From these courts a body of general maritime law developed which was, and is, in many respects uniform among the seafaring nations.
Development of American Admiralty Law

The U.S. Constitution provides in Art. III,
2, cl. 3:
The judicial Power of the United States shall . . . extend . . . to all Cases of admiralty and maritime Jurisdiction . . . The U.S. Supreme Court has construed this clause as conferring upon the federal government the power to determine what courts will hear maritime cases and the power to prescribe the substantive law governing the disposition of such cases.
Jurisdiction of Admiralty & Maritime Cases

28 U.S.C. 1333 provides:
[T]he district courts shall have original jurisdiction, exclusive of the courts of the States, of (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled. Under this savings to suitors clause, state courts may exercise jurisdiction in some maritime cases, but must apply the substantive admiralty and maritime common law developed by the federal judiciary, unless there is no uniform federal law, in which case they may apply state substantive law. This is called the maritime but local doctrine.
Jurisdiction of Admiralty & Maritime Cases (Contd.)

If an admiralty case is brought in federal
court there is no right to a jury trial unless there is some basis of federal jurisdiction other than 28 U.S.C. 1333. But if the case is brought in state court the parties may have a jury trial if they are otherwise entitled to it under state law.
Jurisdiction of Admiralty in the United States:

Is NOT limited, as in England, to the high seas,
but extends to all navigable waters of the United States, which include many inland rivers and lakes capable of floating vessels carrying cargo and passengers in interstate and foreign commerce (e.g., Lake Washington which connects via the Ship Canal with Puget Sound and the oceans of the world).
What Is a Vessel?
Whether a dispute is in admiralty depends upon
whether it has a sufficient relationship to a vessel. But there is no settled definition of what is a vessel: Congress defined a vessel as including every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water. 1 U.S.C. 3. The Supreme Court defined it as all navigable structures intended for transportation. Cope v. Vallette Dry-Dock Co., 119 U.S. 625 (1887).
What Is a Vessel? (Contd.)

The issue whether a structure is a vessel usually arises in cases involving, for example, ships under construction, ships which have been withdrawn from navigation (dead ships) and certain special function structures like oil drilling platforms, floating dry docks and anchored gambling casino boatsnone of these is a vessel. But the following have been classified as vessels: canning barges, houseboats, dredges, rafts, seaplanes when waterborne, jet skis, canoes, and rowboats.
What Are Navigable Waters?

For purposes of determining admiralty jurisdiction, the traditional definition
of navigable waters inherited from England was those subject to the ebb and flow of the tide. The U.S. Supreme Court expanded that definition, however: Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or capable of being used, in their ordinary condition as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the acts of Congress . . . when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries. The Daniel Ball, 77 U.S. 557 (l870)(emphasis added).
What Is Maritime Flavor?

Admiralty jurisdiction rests in whole or in part upon a
finding that the event or occurrence which gives rise to a claim has maritime flavor.
In admiralty contract jurisdiction, the key inquiry is whether the subject of a contract is maritime. For most maritime contract cases, special rules have developed that place the contract either within or without admiralty jurisdiction, so there is no longer a need for a general inquiry into maritime flavor (e.g., contracts to build or sell a vessel are not maritime, but contracts to insure, supply, load or unload, tow, pilot, dock or lease (charter) a vessel and to employ a seaman are maritime!).
What Is Maritime Flavor? (Contd.)

In most maritime tort cases, however, the court
must still determine if the tort has sufficient maritime flavor to warrant the exercise of admiralty jurisdiction. Courts generally find maritime flavor in events which have an effect upon maritime shipping and commerce substantial enough to justify the exercise of federal power, I.e., a substantial relationship to traditional maritime activity.
Jurisdiction over Maritime Torts
The test of maritime tort jurisdiction:

1. That the tort occurred on navigable waters; and, 2. That the activity which gave rise to the tort claim had a maritime flavor. 3. Under the Admiralty Extension Act of 1948, 46 U.S.C. 740, maritime tort jurisdiction extends to all damage caused by a vessel on navigable water, notwithstanding that such damage . . . be done . . . on land.
Jurisdiction over Maritime Torts (Contd.)

4. Under the Death on the High Seas Act (DOHSA), 46 U.S.C. 761 et seq., maritime tort jurisdiction extends to any tort occurring on the high seas resulting in death, even though that tort does not have a maritime flavor. Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249 (1972).
Jurisdiction over Worker Injury Claims

Claims by maritime employees (e.g., either seamen
or maritime workers) are in admiralty and thus governed by maritime law, NOT state law. Who is a seaman? A worker who has a sufficient employment-related connection with a vessel in navigation. maritime-related activities who does not qualify as a seaman.
Who is a maritime worker? A worker engaged in
Jurisdiction over Worker Injury Claims (Contd.)

The injured seamans remedies:
Seek traditional tort damages against his/her negligent employer under the Jones Act (to which attaches a right to a jury trial); and/or Seek damages from the operator of the vessel in which he/she is employed as a seaman under the maritime doctrine of unseaworthiness (as to which there in no right to a jury trial) Seek maintenance and cure (i.e., the expenses of medical treatment and living expenses while undergoing treatment) from his/her employer

The injured maritime workers remedies:
The exclusive remedy is provided by the Longshore & Harbor Workers Compensation Act (LHWCA), 33 U.S.C. 901-950. The LHWCA has the attributes of the usual workers compensation laws enacted by most states. Persons covered by the LHWCA include: Employees injured on the Outer Continental Shelf in the course of mineral exploration and production (e.g., oil drilling platform workers); and Maritime workers who come within the LHWCAs definition of maritime worker (33 U.S.C. 902) and who are injured on navigable waters.

Employees who qualify neither as
seamen nor maritime workers ordinarily will recover from their employers through state workers compensation laws (e.g., Washingtons industrial insurance act, RCW 51).
Contracts for the Carriage of Goods

Generally:
Contracts involving the operation and management of merchant vessels and the carriage of goods and passengers by water are maritime contracts within the admiralty jurisdiction, governed by a comprehensive body of statutory and case law. These contracts include:
Charter Parties (leases in land-based law terminology) Bills of Lading Contracts for the furnishing of repairs, supplies and other services
to vessels.
Charter Parties
A charter is an agreement in which a shipowner
places his/her/its ship at the disposal of another. The written instrument by which a vessel is leased is a charter party. Types of charter parties:
Demise Time Voyage
Demise Charter
The essence of this type of charter is the owners
surrender of possession and control of the vessel to the charterer (the lessee in land-law terminology), who then succeeds to many of the rights and obligations of the owner; thus the demise charterer is usually called the owner pro hac vice. In many demise charters, the charterer also obtains the services of the owners master and crew, who become the employees of the charterer during the term of the charter. If the owner does not furnish the master and crew, such a demise is called a bareboat charter.
Demise Charter (Contd.)

To create a demise charter, the vessel
owner must completely and exclusively relinquish possession, command and navigation of the vessel to the charterer. It is therefore tantamount to, but just short of, an outright transfer of ownership of the vessel.
Demise Charter (Contd.)

Unless the parties agree otherwise, the obligations of the
charterer are to pay the charter hire (the rent in landlaw terminology) and to return the vessel to her owner at the end of the charter term in the same condition as received, ordinary wear and tear excepted. Thus a demise charter is a type of bailment. Once the demise charter is perfected, the vessel owner is relieved of liability for the contracts and torts of the master, crew and vesselthose obligations fall upon the charterer in personam and the vessel in rem.
Time Charter
Under a time charter, the vessel owner retains
the management and control of the vessel, but the time charterer determines the ports of call and the cargo carried. The vessel owner provides the crew, equips and maintains the vessel, makes repairs, and pays normal operating expenses. The term of a time charter is measured by the duration of one or more voyages. The amount of charter hire will thus vary by the length of time of a particular voyage.
Time Charter (Contd.)

Unless the parties agree otherwise, the vessel owner
warrants to the time charterer that the vessel is seaworthy at the beginning of each voyage, and that the vessel is reasonably fit to load, carry and unload the charterers cargo. Most time charters are effected on standard forms and any disputes that arise are resolved through arbitration, not judicial litigation. Should the vessel be out of service for repairs during the term of the time charter, the charterers obligation to pay the charter hire (rent) is suspendedthe vessel is then said to be off hire.
Time Charter (Contd.)

The master of a vessel under a time charter is the agent
of the vessel owner for purposes of the safe navigation of the vessel, and is the agent of the charterer in the handling of the cargo and the selection of loading and discharging ports and berths. As an agent of both the vessel owner and the charterer for some purposes, conflicts of interests may arise. If the charterer orders the master to do an act which constitutes, in the masters opinion, an unreasonable risk to the vessel, the master may register a protest with the charterer. If the charterer nevertheless orders the master to proceed, the risk of loss or damage resulting therefrom falls on the charterer, NOT the vessel owner.
Voyage Charter
Under the voyage charter, the vessel owner provides a
vessel, master and crew at the disposal of the charterer for the carriage of cargo to a designated port. The voyage charterer may charter (lease) all of the vessel, or only a part of her, for one or a series of voyages. The charterer is obligated to pay the freight, i.e., the rental charge for the voyage. Most charters provide that disputes arising between the vessel owner and the charterer be resolved by arbitration.
Bills of Lading
Background: A shipper who ships a small volume of goods not
justifying chartering all or a portion of a vessel usually ships the goods on ships which make regular voyages to designated ports on fixed schedules. Such vessels are called liners or common carriers. When a common carrier receives goods for shipment, it issues a bill of lading to the shipper. The bill of lading serves several functions:
It is a receipt for the goods shipped. It is usually a negotiable instrument, i.e., the shipper may use it to borrow money on the goods while they are in shipment, using the bill of lading as collateral to secure the loan; may use it to obtain payment for the goods from the consignee (the person to whom the goods are to be delivered at the port of destination), by forwarding and tendering it to the consignees bank.
Bills of Lading (Contd.)

It serves as the contract of carriage, allocating the risks of the voyage between the carrier and the shipper. Such allocation of risks is largely controlled by statute: the Harter Act, 46 U.S.C. 190 et seq. and the Carriage of Goods By the Sea Act (COGSA), 46 U.S.C. 1300 et seq.
Bills of Lading - The Harter Act & COGSA

On a voyage between an American port and a foreign port, the
Harter Act applies from delivery to the shipper until loading, and from unloading at the port of destination until delivery to the consignee; COGSA applies between loading and unloading. On a coastwise voyage between two American ports, the Harter Act applies at all times between delivery and redelivery of the cargo. Both Acts require the carrier to use due diligence in sending out a seaworthy vessel at the commencement of the voyage and the carrier must properly and carefully load, handle, stow, carry, keep, care for and discharge the cargo .
Bills of Lading The Harter Act & COGSA (Contd.)

If such duties are met, the carrier is not responsible for
cargo damage resulting from faults or errors in navigation or in the management of the vessel (e.g., running aground, collision with another vessel, etc.) nor for losses resulting from the perils of the sea, Acts of God (e.g., storms, etc.), acts of war and public enemies, restraint of princes, strikes or lockouts and riots. The shipper bears the risk of insufficiency of packing,, i.e., the cargo must be packed in such a manner to be fit to endure the ordinary hazards of the voyage. The carrier is exempted from liability for loss caused by fire, unless such fire was caused by the carriers design or neglect.
Bills of Lading-The Harter Act & COGSA (contd.)

COGSA also contains a catch all exception relieving the carrier from liability for any other cause arising without the actual fault and privity of the carrier. The Burden of Proof in Cargo Damage Claims The shipper must show prima facie the cargo was damaged or lost while in the possession of the carrier. This is typically proved by showing the cargo was delivered to the carrier in an undamaged condition at the commencement of the voyage (the bill of lading usually recites the receipt of the cargo in apparent good order and condition) and was redelivered in a damaged condition at the port of destination. If the consignee fails to give written notice to the carrier of damage to the cargo at the time of delivery of the goods to the consignee at the port of destination, it is prima facie evidence of the delivery of the cargo as described in the bill of lading. If the damage is not apparent at the time of redelivery, the shipper may give notice to the carrier of damage within three days of redelivery. A marine surveyor may be retained by the shipper to inspect the cargo for damage at the port of destination.
Bills of Lading-The Harter Act & COGSA (Contd.)

The burden then shifts to the carrier to prove the damage or loss resulted from a cause for which the carrier is statutorily not responsible (liable).

At the common law, a carrier is liable for the market value of lost
cargo at its destination, or, if the cargo is damaged but not lost, then for the difference between market value and the damaged value at the destination of the cargo. COGSA (46 U.S.C. 1304(5) provides: Neither the carrier nor the ship shall in any event become liable for any loss or damage . . . in an amount exceeding $500 per package . . .or in case of goods not shipped in packages, per customary freight unit . . .unless the nature and value of such goods have been declared and inserted in the bill of lading . . . [i]n no event shall the carrier be liable for more than the amount of damage actually sustained.

With the advent of containerized maritime
shipping, the issue becomes, What is the package? The entire container? The individual packages within the container? Most courts have not found an entire container to be the relevant package, UNLESS the shipper delivers a sealed container and does not reveal its contents to the carrier.

Deviation: The bill of lading specifies the voyage upon which
the cargo will be carried and often designates the method of stowage during the voyage. At the common law, deviation by the carrier from the specified voyage or method of stowage made the carrier liable for damage to the cargo, regardless whether such deviation was a cause of the damage. The weight of authority is that an unreasonable deviation deprives the carrier of the $500 package limitation. COGSA provides that certain deviations are per se reasonable i.e., those for the purpose of attempting to save life or property at sea, 46 U.S.C. 1304(2)(l).
Maritime Liens
Liens on Cargo: a vessel and her operator
have a lien upon a charterers/shippers cargo for the freight due for carriage of the cargo. This lien is often described as possessory, i.e., the lien is lost once the cargo is unloaded from the vessel, unless the parties intend that it continue after unloading. Such intention may be inferred from the conduct of the parties.
Maritime Liens (Contd.)

Liens on Vessels: a lien on a vessel may
be either express (as in a mortgage contract), or implied by the occurrence of a maritime tort (e.g., a vessel allides with a fixed object on or adjacent to navigable waters, such as a bridge) or the performance of a maritime service to the vessel (e.g., furnishing repairs or necessaries to a ship).

Nature of the Implied Maritime Lien: the implied
maritime lien is unique to admiralty lawit arises at the moment of the occurrence of the debt or damages which it secures, exists without recordation (i.e., it is secret), does not require possession of the vessel, last in time is first in right, and can be judicially discharged only by an in rem action in admiralty court. The rationale for this implied lien is to enable a vessel to obtain supplies or repairs necessary to her continued operation by giving a temporary underlying security which will obtain until payment can be made or more formal security given.

The lien may arise even though the vessel owner is not
personally liable for the debt as when a demise charterer incurs voyage debts, or the vessel may be liable for the torts of a compulsory pilot. This has been called elevating a vessel to the status of a juridical person or the personification of the vessel. In every case in which a vessel is liable in rem, however, some person, be it the owner, charterer or pilot, for example, is also liable in personam. Typically the vessel is sued in rem as a defendant together with any co-defendants who may be liable to the plaintiff in personam.

Occurrences Giving Rise to the Implied Maritime
Lien: a seaman (including the master) has a lien on the vessel for his/her wages. a maritime tort committed in the operation of a vessel gives rise to a lien against the offending vessel. there is no lien for the breach of an executory maritime contract.

a person who provides necessaries (e.g., repairs, supplies, towage, the use of a drydock, etc.) to a vessel on the order of the owner or a person authorized by the owner has a maritime lien on the vessel, 46 U.S.C. 31342(a)(1) and must be relying upon the credit of the vessel for payment. since a contract to build a vessel is not maritime, there is no maritime lien for building a vessel nor for supplying materials for her original construction.

Liens in custodia legis: a lien cannot arise against a
vessel when she is in the custody of the court (e.g. after her arrest by the U.S. marshal); thus liens for seamens wages, moorage and similar continuing services to a vessel are limited to the period before her seizure by judicial process. The court which authorized the arrest of the vessel may allow such expenses incurred in custodia legis to become payable as expenses of the administration of justice and with the same ranking as other court costs (clerks filing fee, marshals fee for arresting the vessel, etc.)

Property to Which Liens Attach: the
vessel herself and all equipment which is an integral part of the vessel and is essential to her navigation and operation, even though such equipment be owned by a third person!

Enforcement of Liens in rem: plaintiff must name the vessel in the
complaint as a defendant in rem. The court clerk then issues a warrant for the arrest of the vessel which is executed by the U.S. Marshal who plasters the vessel (i.e., affixes a copy of the arrest warrant to the vessels mainmast or other conspicuous place), delivers a copy to the person in possession of the vessel or his agent, and seizes her (takes her into his possession). The vessel is then in custodia legis and any attempt to retake possession from the marshal without a court order is punishable as a contempt of court and perhaps also as a crime. The parties may stipulate to the vessels release from the marshals custody upon the posting of a bond sufficient to cover plaintiffs claimed damages. If the vessel owner fails to appear in the action, a default judgment may be entered against the vessel and her owner, the vessel may be sold at auction and the maritime liens satisfied out of the sale proceeds.

Extinction of Liens: a judicial sale in an in rem action

extinguishes all existing liens i.e., all liens are scraped off like barnacles from a vessel hull. If the claim which a maritime lien secures becomes timebarred, the lien is lost. A court may apply the equitable doctrine of laches to bar enforcement of a maritime lien, even though the underlying claim is not time-barred, particularly where the lien holder foregoes reasonable opportunities to enforce the lien.

Ranking of Maritime Liens: maritime liens are
ranked by class and time.
By Class: 1. Expenses of justicecourt costs and other expenses
incurred for the care of the vessel while she is in custodia legis. 2. Seamans wages. 3. Salvage. 4. Tort liens (both property and personal injury damages). 5. Contract liens (for the furnishing of necessaries). 6. Preferred ship mortgage.

By Time: within the same class of maritime liens the
general rule is that last in time is first in right.
One exception is the ranking of liens for necessaries. Under the voyage rule, the liens of all suppliers of necessaries for a particular voyage are ranked equally, those for the most recent voyage ranking ahead of those for earlier voyages. For vessels, like tugs and other harbor vessels that typically do not sail on voyages, courts apply a forty day or in some jurisdictions a calendar year rule, in place of the voyage rule.
The Seamans Employment Contract

Before entering the service of a vessel, a seaman usually signs a
contract, called articles. 46 U.S.C. 10301 et. seq. The articles must be signed in the presence of the master or other individual in charge, specify the capacity in which the seaman is to serve and obligate him to report for duty at a designated time and place, to stand by the ship, and to obey the master until the voyage is completed. By signing on in a specific capacity, the seaman impliedly warrants s/he is competent to perform the duties of that position. If the master determines the seaman is incompetent or has committed misconduct, the master may disrate the seaman. In that event the seaman may demand discharge from the service of the vessel or accept a new position for the remainder of the voyage.
The Seamans Employment Contract (Contd.)

Seaman are said to be wards of admiralty
who must be protected from overreaching by the shipowner or master. This special status is reflected in many federal statutes:
a person must have basic qualifications to sign on as a seaman, 46 U.S.C. 7301 et. seq. the hours and conditions of the seamans employment, 46 U.S.C. 8104 the living conditions which the seaman must be provided aboard ship, 46 U.S.C. 11101 et. seq. the seamans maritime lien for wages is of the highest rank and the claim is exempt from limitation of liability
The Seamans Employment Contract (Contd.)

a seaman may enforce his claim for wages in federal court in a summary proceeding without prepayment of the civil filing fee (now $350) a seaman may recover double wages (also called penalty wages) if the shipowner fails to pay wages without sufficient cause a seamans wages are exempt from attachment by creditors, except for support of the seamans spouse and children A seamans compromise of his claims is liberally construed to protect him/her
Marine Insurance
A contract insuring maritime property or a
maritime risk is a maritime contract, and ordinarily would be governed by admiralty law. However, in Wilburn Boat Co. v. Firemans Fund Insurance Co., 348 U.S. 310 (1955), the Supreme Court held that most marine insurance issues are to be determined by state law. The governing law is that of the state with the most significant relationship to the insurance dispute.
Marine Insurance (Contd.)

Marine insurance developed in England
and was in full use there by the sixteenth century. The American marine insurance industry developed in New England seaports (e.g., Hartford, CT).

Types of Marine Insurance Policies:
Hull Policy insures the vessel against certain risks for a stated period of time: from accidents in navigation or loss caused by
extraordinary action of the sea, fire, theft or battery (marine risks) from loss caused by acts of war (war risks) From marine and war risks in a single policy (all risks)

Protection and Indemnity (P&I) Policy:
provides public liability coverage to the shipowner against claims for personal injury or wrongful death and claims for non-collision damage to other vessels or property. It also insures against cost of removing a wrecked vessel, salvage, pollution and damage to cargo. The P&I policy insures the vessel owner against personal injury and wrongful death claims by seamen, including claims for maintenance and cure, but excludes liability for claims from maritime employees who are covered by worker compensation acts.

Cargo insurance: covers those risks that
maritime law imposes upon the shipper/consignee. Maritime common law provides that an insurer who pays a covered loss under a marine insurance policy is subrogated to the insureds claim against third parties.
Towage
A significant part of American maritime
commerce is the transportation of cargo by non self-propelled barges. A boat which pushes a barge is called a towboat; a boat which pulls a barge is called a tugboat; both are called tugs. A contract under which a tug owner agrees to tow anothers barge is a contract of towage, governed by special maritime contract rules.
Towage (Contd.)
The contract of towage may be, and often is, an
oral one. Absent express contractual promises, the tug owner warrants it will furnish a seaworthy tug and crew and that it possesses sufficient skill and knowledge to perform the tow safely. The owner of the towed vessel must furnish a seaworthy vessel with proper equipment and lighting and, if the tow is manned, with a crew that is competent and sufficient in number. The tug owes the tow a duty to exercise reasonable care in towing and mooring the tow.
Towage (Contd.)
The towage contract is not one of bailment; thus,
proof by the tow of delivery of the tow in good condition and redelivery in a damaged condition does not give rise to a presumption the tug was at fault. The tow can use the doctrine of res ipsa loquitur in meeting its burden of proof, however. Claims between tug and tow arising out of the towage contract are secured by maritime liens on the offending vessels.
Pilotage
Pilot:
one who has specialized knowledge of conditions of navigation in specific waters (e.g., Puget Sound Pilots, Grays Harbor Pilots, etc.) and who goes aboard a vessel to direct her safely in those waters. Both federal and state law compel the use of licensed pilots (compulsory pilots) in specified waters (e.g., RCW 88.16, 46 U.S.C. 8502). A shipowner is not vicariously liable in personam for the negligence of a compulsory pilot, but the vessel is liable in rem for that pilots torts.
Pilotage (Contd.)
But maritime law does not allow the vessel
master to abdicate his authority and responsibility for the safe navigation of his vessel to a pilot; therefore, through the doctrine of respondeat superior, the shipowner may be liable in personam for the masters negligence in failing to assert command when the compulsory pilots conduct is obviously negligent. The unincorporated association through which most pilots operate is not liable for a member pilots torts (e.g., Puget Sound Pilots).
Salvage
Salvage, the rescue of property from a maritime peril,
dates to Roman times. Such rescue may occur pursuant to express contract (contract salvage) between the owner and the salvor. In many cases, however, the salvor acts to save maritime property without any preexisting agreement with the owner for the compensation to be paid by the owner. In such cases of voluntary or pure salvage, maritime law imposes a quasicontractual obligation upon the property and its owner to compensate the salvor for his efforts. The salvors claim is secured by a maritime lien on the property salvaged.
Salvage (Contd.)
Contract Salvage presents few issues for litigation, and when
they arise, the law of contracts applies.
Quasi-Contract Salvage has generated much more litigation.

The premise underlying an award is that when maritime property is in peril, the potential rescuers are few, the risks in rescue are great, and the temptation of the rescuer to appropriate the property as his own is strong. Accordingly, the seagoing Good Samaritan must be given added incentive to undertake rescue efforts and to return the rescued property to its owner. Under American maritime law, the salvor is entitled to an award which is commensurate with the value of the property, the risk involved and the effort expended.
Salvage (Contd.)
Salvors of human life are entitled to a fair share of the salvage
award to the salvors of the vessel and cargo; if there is no concurrent property salvage, (thus a pure life salvage), a rescuer of persons in peril at sea possibly may recover the expense of rescue from the vessel in which the imperiled persons were passengers or members of the crew under the doctrine of unjust enrichment. Persons who are under a duty to aid a vessel or other property in peril, may not recover salvage, since their efforts are not voluntary; thus the master and crew are not entitled to salvage for saving their own vessel. If the vessel has been abandoned, however, a crew members duty to aid his own vessel has terminated, and his subsequent salvage efforts may qualify for a salvage award.
Salvage (Contd.)
Generally, neither the owner nor the master and crew of a vessel
which negligently collides with another vessel is entitled to salvage for saving the other vessel imperiled by the collision. 46 U.S.C. 2303, imposes a duty upon a vessel master involved in a marine casualty to render assistance to persons endangered by the casualty if he can do so without serious danger to his own vessel and the persons onboard her, and 2304 imposes upon a master the duty to render assistance to any individual found on navigable waters in danger of being lost if he can do so without serious danger to his own vessel and the persons onboard here. Thus where there is a statutory duty to save lives in peril on the sea, the aid to the imperiled is not voluntary, and hence there is no right to salvage. Similarly, public employees whose duty it is to save life and property in peril on navigable waters (e.g., the U.S. Coast Guard, harbor firefighters, etc.) are not entitled to salvage awards.
Salvage (Contd.)
If property is derelict, i.e., it has been abandoned at sea by
its owner without hope of recovery or intention to return, the salvor may save the property without the owners permission; however, if the owner or his agent remains on board the imperiled vessel, he may refuse a proffered rescue, even if a reasonable person would not have done so under the circumstances. A salvor is entitled to a salvage award only if the salvage efforts are successful. If the property ultimately perishes in the peril, salvage is not owed. Anyone who performs an act which contributes to the safety of imperiled property (e.g., the person who aids a vessel by transmitting an SOS message, by warning of an impending peril, or even by simply standing by), even though not the person who effects the rescue, may be entitled to share in the salvage award.
Salvage (Contd.)
Amount of the Salvage Award: will rarely exceed onehalf the value of the property saved, although there is no absolute rule. A costly salvage effort that rescues property of historical and archeological value may justify an award approaching 100% of the value. The salvor is held to a duty of reasonable care under the circumstances, and any breach of that duty will diminish the amount of the award. American maritime law requires the salvor maintain the most scrupulous fidelity to the salvaged property (i.e., to not embezzle the property) and a breach of this duty forfeits the right to a salvage award. Statute of Limitation: suit for a salvage award must be brought within two years after the salvage.
Salvage (Contd.)
Finds: if the owner expressly disclaims ownership, or
the property has been abandoned at sea for a long period of time, maritime law may classify such property as found and under the doctrine of finds, the rescuer of such property may be awarded ownership rather than a lesser award of salvage. Prize: is a sovereigns capture at sea of an enemys vessel or other property during time of war. The captor takes the vessel to a prize court (e.g., U.S. District Court [28 U.S.C. 1333]) which orders the vessel sold and the proceeds paid to the captor.
Particular Average
In the typical voyage, a vessel, her cargo and
the freight (the vessels fee for carrying the cargo) are said to be at risk; if the voyage is unsuccessful because, for example, the vessel sinks and is lost during the voyage, the owner of one or more of these interests suffers a loss that may be borne by such owner, the owners insurer, or a third party wrongdoer. The allocation of loss is called particular average.
General Average
When the perils of the sea endanger a
vessel whose master and crew are free from fault, it may become necessary to sacrifice one of the interests, a principle of maritime law dating from the Roman Empire (!) requires that the loss occasioned for the benefit of all must be made good by the contribution of all. This is called general average.
General Average (Contd.)

General Average applies only when:
1. there is a danger to which both the vessel and her cargo are exposed; 2. the danger is imminent and apparently inevitable, which means there is no probable escape except by inflicting loss upon one of the interests;

3. there is a voluntary sacrifice, such as jettisoning cargo (jettisoned cargo that floats is called flotsam; and if it sinks, jetsam; and if a buoy is attached to it to aid in later retrieval if it sinks, is it called lagan) or stranding the vessel; 4. the attempt to avoid the common danger is successful; and 5. the party seeking contribution from the owners of the other interests is free from fault.

The sacrifice need not be destruction or damage
to property. It may be the incurring of extraordinary expenses for the joint benefit of vessel and cargo. When general average applies, the loss is transferred from the owner of the interest that is sacrificed, to the owners of all the interests at risk; the owners of the saved interests pay to the owner of the sacrificed interest their pro rata share of his loss.

Example of General Average: assume a vessel valued at
$800,000 is carrying cargo worth $150,000, for a freight charge of $50,000. Assume that two-thirds of the cargo (valued at $100,000) is jettisoned, and the sacrifice qualifies for general average. The total of the interests at risk is $1,000,000, the cargo loss is $100,000 and the vessel owner represents 85% (the value of the vessel and the freight) of the value of the maritime venture (the voyage) saved from the peril. The vessel owner must reimburse the cargo owner for 85% of the latters loss, or a total of $85,000.00; the cargo owner bears the remainder of his loss ($15,000), which is the percentage of the total loss (15%) equal to his percentage in the maritime venture.

A claim for general average is secured by
a maritime lien on the property saved. In the vast majority of cases, the interests at risk are insured against, and general average is computed and paid through informal proceedings among the insurers.

The issue of general average is now addressed in bills of
lading. With the enactment of the Harter Act and COGSA, both of which relieve the carrier from liability to the cargo owner for damage caused by errors in the management and navigation of the vessel by her master and crew, vessel owners argued they could recover in general average when their negligence was that from which they were relieved by those statutes. The U.S. Supreme Court has approved clauses in bills of lading that allow the vessel owner to recover in general average, notwithstanding the cause of the loss suffered was a negligent act from which a carrier is relieved from liability under Harter and COGSA. Such clauses are called Jason clauses, after the name of the Supreme Court decision that permitted their use: The Jason, 225 U.S. 32 (1912).
Maritime Tort Law

The most frequently occurring maritime torts are
those arising out of collisions between vessels, allisions between moving vessels and stationary objects, injuries to seamen and claims by harbor workers against vessels and their operators under the LHWCA. General maritime tort law has been fashioned for the most part by the U.S. District Courts and Courts of Appeal, rather than by the U.S. Supreme Court.
Maritime Tort Law (Contd.)

In most general maritime tort cases, liability is predicated
upon negligence and/or strict liability. The maritime common law has borrowed from and added to the general common law of torts. Judge Learned Hands famous formula defining negligence was stated by him in a maritime tort case, United States v. Carroll Towing Co., 159 F.2d 169 (2nd Cir. 1947). Duty in maritime negligence turns upon the foreseeability of the risk (proximate cause). Maritime law rejects the land-law premises liability classifications of trespasser, licensee and invitee and instead imposes a duty of reasonable care to all persons who come aboard a vessel for purposes not inimical to those of the interests of the vessel owner/operator.

In allision/collision cases, where the alleged
wrongdoer has violated a statutory rule of the road, the Pennsylvania Rule (The Pennsylvania, 86 U.S. 125 (1873) places the burden upon the violator vessel to show that such statutory violation not only did not, but could not have contributed to the cause of the loss! The doctrine of comparative negligence has always obtained in maritime law; a plaintiffs contributory negligence never barred recovery as it did under land-based common law.

46 U.S.C. 763a provides a three year statute of

limitations for maritime tort actions. General maritime law recognizes a cause of action for the wrongful death of the victim of a maritime tort. An important element of damages in maritime tort claims is recovery for loss of future earnings, or, when the victim dies, recovery by his wrongful death beneficiaries of the financial support they would have received from the victim. Just as in land-based tort law, such future earnings must be reduced to present value. The Supreme Court has held that the trier of fact in determining damages for loss of future earnings may consider the taxes the worker would have paid on such earnings and the effect of inflation on such earnings. The Court also has held the jury may be instructed that its award for loss of future earning capacity is not subject to federal income taxation.

Prejudgment interest on maritime tort
claims, formerly discretionary with the court, is mandated by recent case law, unless circumstances make it inequitable to do so (e.g., plaintiff was dilatory in filing suit, or made an unreasonable settlement demand, etc.)
Collision Law--Liability
Maritime collision law regulates the
navigation of vessels and imposes liability for negligent navigation that causes injury or damage. In this sense, it is analogous to land-based auto accident law; many of the same principles apply, and there is much statutory regulation.
Collision LawLiability (Contd.)

Maritime collision law also provides for apportionment of
damages among the vessels involved for injuries/damage to crew, passengers and cargo. Passengers and crew members injured in a collision of two or more vessels usually sue only the vessel in which they were serving or being carried. That vessel, if at fault, may be a joint tortfeasor and thus will be liable to her passengers and crew for the full amount of their damages. The vessel owner may then seek contribution from the other vessels at fault so that ultimately each vessel pays its percentage share (based upon degree of fault) of the total damages sustained by all persons in the collision.

A vessel is liable in rem for her collision torts. Her
owner/demise charterer (owner pro hac vice) usually will be liable in personam under respondeat superior for the negligence of the master or crew in causing the collision. The owner is NOT liable in personam for the torts of a compulsory pilot, but the vessel is liable in rem. The general test of fault is whether the person navigating the vessel acted as a reasonably prudent mariner at the time of the accident. Because there is a plethora of statutes and regulations whose purpose is to minimize or eliminate the risk of collision, violation of these statutes or regulations constitutes statutory fault, the maritime equivalent of negligence per se.

Vessels, because of their size and lack of friction, are
unable to quickly decrease speed, stop, or change course. Collision between them frequently can be avoided only if the mariners in charge discover any risk of collision at the earliest possible time and promptly take measures to avoid collision with which both mariners are familiar. The efforts they must undertake to discover the risk of collision and the measures they take to avoid collision after the risk is discovered are prescribed with precision by the Rules of the Road.

There are two sets of Rules of the Road:
The Collision Regulations (COLREGS) (formerly the International Rules of the Road) which apply to all vessels on the high seas beyond American territorial waters (codified at 33 C.F.R. 81.1 et seq.); and The Inland Rules of the Road which apply to all vessels upon the inland waters of the U.S. and on Canadian waters of the Great Lakes (codified at 33 C.F.R. 2001(a)).

The U.S. Coast Guard and Corps of Engineers have
adopted regulations affecting navigation. Failure to comply with these has the same effect as violation of a Rule of the Road. Occasionally, a violation of a custom may constitute fault, e.g., the point and bend rule on the Mississippi River which provides that an ascending vessel navigate to the point side of the river, and the descending vessel to the opposite or bend side of the river where the current is stronger).

The Rules of the Road prescribe the speed at
which a vessel should proceed, the lights and shapes she must exhibit, the sounds or signals she must emit and the maneuvers she must take when coming upon another vessel in meeting, overtaking or crossing situations. There is a special rule for vessel conduct during fog or other conditions of limited visibility. Both sets of Rules of the Road generally prescribe similar conduct in similar situations.

Lighting Rules: large vessels underway at
night must show five running lights; three white lights, a masthead, range and stern light, and a red light amidships on the port side, and a green light amidships on the starboard side. (Rule 23).

Steering Rules: prescribe which vessel has the right of
way in a given situation.
If the vessels are meeting, neither has the right of way, but must steer so as to pass each other port to port. (Rule 14). If one vessel is overtaking the other, the overtaking vessel is the burdened/give way vessel, the one being overtaken is the privileged/stand on vessel. The burdened vessel must execute the maneuver safely. The privileged vessel must maintain her course and speed, making only such changes as are fairly to be expected in the normal course of navigation. (Rule 13)

If the vessels are in a crossing situation, the vessel on the right has the right of way (i.e., is the privileged/stand on vessel). The other vessel, as the burdened/give way vessel, must maneuver to effect the crossing safely. (Rule 15) The burdened/give way vessel must signal her course change intentions with sound signalsblasts on the ships whistle. The privileged/stand on vessel responds with appropriate sound signals to indicate her assent. (Rule 34) Vessels operating in American waters equipped with radio telephones also communicate their intentions in a crossing situation via that medium. 33 U.S.C. 1201 et seq.

The Fog Rule (Rule 19): when underway in conditions
of limited /restricted visibility, a vessel hearing the fog signal of another vessel forward of her beam, must reduce speed to a minimum at which she can maintain her course, and if necessary, take all way off and navigate with extreme caution until danger of collision is over. While strict adherence to the Rules of the Road is ordinarily required, circumstances may arise in which a reasonably prudent mariner can avoid collision only by deviating from the precise conduct mandated by the Rules. Will statutory fault be found against such mariner? No, not if the mariner can prove that special circumstances existed which mandated such departure from the Rule(s).

Presumptions of Fault:
In an allision between a moving vessel and a stationary object, the vessel is presumed to be at fault. An unexpected and unexplained sheer by one vessel into another raises a presumption of negligent steering by the sheering vessel. A drifting vessel was set adrift by the negligence of those in control of her.

The Lookout Rule: Rule 5 of the
COLREGS (and a similar Inland Rule of the Road) requires every vessel maintain a proper lookout by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions.

Navigation in narrow and congested
channels of rivers and harbors is particularly perilous and there are special rules that attempt to reduce the risk of collision. Both sets of Rules of the Road have provisions that apply in such situations (Rule 9 of the COLREGS and 33 U.S.C. 2009 of the Inland Rules).

In the absence of statutory fault, collision liability turns
upon the reasonably prudent mariner standard. If a mariner is free from fault when an emergency arises (i.e., the vessel becomes in extremis), his/her subsequent actions are not judged by the reasonably prudent mariner standard (because one is not expected to act with the same rational and calm consideration with which one would be expected to act in a less stressful situation). This is similar to the land-based tort law doctrine of discovered peril or sudden emergency.
Collision Law - Damages

When a vessel is lost as a result of a collision
(or is a constructive total loss because the cost of repairs exceeds her valuein land-based terminology, she is totalled), her owner may recover her fair market value together with the net freight (gross freight less expenses of the voyage, i.e., lost profits). If a vessel is damaged, her owner is entitled to recover the cost of repairs and for loss of use or profits, sometimes referred to as detention or demurrage damages.
Collision Law Damages (Contd.)

The Wreck Act, 33 U.S.C. 409, imposes two
affirmative duties upon the owner of a vessel that is wrecked or sunk in a navigable channel: the duty to mark the wreck and the duty to remove her. The owner of the sunken wreck may be liable to third persons who are injured as a result of the failure to mark or to remove the vessel.

P&I insurance insures against the cost of
wreck removal when removal is compulsory by law (as is the case under the Wreck Act).

Marine Pollution: The Oil Pollution Act of 1990, 33
U.S.C. 2701 et seq., makes the owner of a vessel from which pollution emanates, strictly liable for the cost of restoring natural resources damaged by the pollution (this legislation is a direct response to the Exxon Valdez disaster in Prince William Sound in 1989!) There are but three statutory defenses to liability under the Act: that the discharge of pollutants was caused solely by an act of God, act of war, or act or omission of a third party. Discharge of hazardous substances other than petroleum and related products is governed by CERCLA, 42 U.S.C. 9601-9675.

Oil and other forms of pollution are also regulated by the
Clean Water Act, 33 U.S.C. 1251-1397, and the Outer Continental Shelf Lands Act, 43 U.S.C. 1811 et seq. Negligent or intentional discharge of pollutants from a vessel into navigable waters is a maritime tort. Maritime tort law may afford a remedy to private persons damaged through pollution of navigable waters, but such remedy may be preempted by the Oil Pollution and Clean Water Acts which may also preempt some but not all remedies provided by state law.
Maritime Worker Injury Claims

The remedies available to an employee against his/her
employer and a vessel in which the employee is working are determined by the employees status as a seaman, a maritime worker or a nonmaritime worker. Two of the seamans major claims, negligence of his/her employer and unseaworthiness of the vessel, are governed by maritime tort principles. The other, the right to maintenance and cure, is akin to workers compensation, but is governed by judicially developed principles of maritime law, not statute.
Maritime Worker Injury Claims (Contd.)

The maritime workers usual recovery is
against the employer through the LHWCA, but he/she also may have a remedy against the vessel in which he/she is working under maritime tort law principles. The nonmaritime workers recovery for workrelated injuries is usually through a state workers compensation scheme, except where the injury is caused by the employers maritime tort.
Maritime Worker Injury Claims (Contd.)

Claims by seaman and maritime workers against
third parties are governed either by maritime tort law or state law, depending upon whether there is maritime tort jurisdiction. Nonmaritime worker tort claims against third parties will be governed either by maritime tort law or state law, or some combination of the two.
Maritime Worker Injury Claims (Contd.) Seamans Remedies

Maintenance and Cure: a seaman who incurs
illness or injury in the service of the vessel is entitled to his/her wages to the end of the voyage and to maintenance (an allowance for living expenses while undergoing medical treatment) and cure (the cost of reasonably necessary medical care until attainment of maximum cure), even though the seamans employer was free from fault in the cause of the illness or injury.
Unseaworthiness of the Vessel: a

vessel owner/operator owes to the crew the duty to furnish a safe place to work and live aboard the vessel. Breach of this duty gives rise to a claim for general damages.
Negligence of the Employer: Congress

in 1920, through the Jones Act, 46 U.S.C. 688, extended the provisions of the Federal Employers Liability Act (FELA), 45 U.S.C. 51 et seq. (which granted interstate railroad workers a claim against their employer for negligence) to seaman, granting them the right to sue their maritime employer for negligence.
Maritime Worker Injury Claims Seamans Remedies (Contd.)

Who are Jones Act seamen? A seaman is a
member of the crew of a vessel who
(1) has a more or less permanent connection with, or performs a substantial part of his/her work aboard (2) a vessel (3) in navigation and (4) is aboard the vessel to contribute to her function or to the accomplishment of her mission.
The following have been held to be Jones

Act seamen:
a hairdresser, a bartender, a masseuse and a musician on a cruise ship a waiter and an entertainer on a casino vessel a painter on a paint boat

The duration of a workers connection to a vessel and
the nature of the workers activities, taken together, determine whether he/she is a seaman, i.e., the quantity and quality of a workers duties aboard a vessel. A judicially developed rule of thumb (Chandris, Inc. v. Latsis, 515 U.S. 347 (1995)) is that a worker must spend at least 30% of his/her working time aboard a vessel in navigation to be a seaman. A workers status as a seaman is a mixed question of law and fact for the jury.

Maintenance and Cure for seamen aboard
oceangoing vessels, the right to maintenance and cure is virtually absolute; all injuries/illnesses aboard ship are covered, as well as injuries/illnesses incurred while off the vessel on shore leave. Thus in Koistinen v. American Export Lines, Inc., 83 N.Y.S.2d 297 (N.Y. City Ct. 1948), a seaman who was injured in a foreign port when he jumped out of a prostitutes window to avoid mayhem at the hands of her pimp was held entitled to maintenance during his period of recuperation.

A seaman in not entitled to maintenance and cure if
his/her injury or illness occurred through his/her own willful misconduct. This term means something more than mere negligence. Two classic examples of a seamans willful misconduct are injuries/illnesses incurred while intoxicated or incurring sexually transmitted diseases (STDs). From 1791 to 1981, the U.S. Government provided free medical care for disabled seamen, first through special seamens hospitals and later through Public Health Service hospitals. Congress closed these. Now the seamans employer may designate the physicians and medical facilities that he/she will supply the seaman.

The daily rate of maintenance may be established by a
collective bargaining agreement (CBA) between the seamans union and employer, or, in the absence of a CBA, by the court based upon the seamans evidence of actual living expenses ashore while undergoing treatment for a qualifying illness/injury. An action for maintenance and cure can be brought against the vessel owner in personam and against the vessel in rem. If a claim for maintenance and cure is joined with a Jones Act negligence claim, the seaman is entitled to a jury trial on the maintenance and cure claim, as well as the negligence claim.

If the employer fails to provide prompt and
adequate medical treatment that causes the seamans condition to worsen, the employer may be liable for compensatory damages, including pain and suffering. If such failure is willful, the seaman is also entitled to recover actual attorney fees, Vaughan v. Atkinson, 369 U.S. 527 (1962).

Unseaworthiness usually joined with a Jones
Act claim by the seaman against his/her employer. Since an unseaworthy condition of a vessel is usually caused or contributed by the negligence of a crew member, hence allowing recovery of damages under a Jones Act negligence claim, the unseaworthiness remedy is often unnecessary, EXCEPT when:
1) an unseaworthy condition arises without employer negligence (the employers breach of the warranty to provide a seaworthy vessel results in strict liability);

2) the seaman must establish a maritime lien against the vessel (Jones Act liability does not give rise to a maritime lien against a vessel, only in personam liability of the vessel owner for negligence); 3) the seaman is not an employee of the vessel owner (the Jones Act gives a remedy only against the seamans employer).

Warranty of Seaworthiness: the shipowner is
not required to furnish an accident-free vessel, only one reasonably fit for her intended use while she is in navigation. The difference between unseaworthiness and negligence is that in the former, the seaman need not prove the vessel owner knew or should have known of the unreasonably dangerous condition that caused the seamans injury.

While the damages recoverable for breach of
the warranty of seaworthiness and for Jones Act negligence are nearly the same, there are two important differences: punitive damages are recoverable from a shipowner who willfully breaches the warranty of seaworthiness (but are not recoverable upon a Jones Act negligence claim), and a seaman can recover for loss of consortium under unseaworthiness, but not under the Jones Act.

Jones Act Negligence: applies only if a
seaman is injured or killed in the course of his/her employment, and most commonly arises when the seaman is injured by the negligence of a co-employee. The Jones Act employer owes a duty to rescue a seaman who has jumped or fallen overboard without antecedent employer negligence.

The statute of limitation on Jones Act claims is
three years, 46 U.S.C. 56. A Jones Act claim may be brought as an admiralty claim in federal court, or in state court, and, because it arises under an Act of Congress, it may also be brought as a law claim in federal court. A Jones Act claim filed in state court may not be removed to federal court. 28 U.S.C. 1445(a).
Maritime Worker Injury Claims Maritime Workers

Maritime Workers include longshoremen, shipbuilders,
ship repairers, ship breakers and others whose work on or near navigable waters facilitates the waterborne transportation of cargo and passengers. Since these workers are not seamen, they are not covered by the Jones Act and hence have no cause of action against their employers for negligence. Congress enacted the LHWCA in 1927, a comprehensive workers compensation scheme for maritime workers who do not qualify as seamen. As subsequently amended, the LHWCA covers: 1. claimants engaged in maritime employment 2. injured on navigable waters or any adjoining pier, wharf or similar structure customarily used in loading, unloading, repairing or building a vessel.
Maritime Worker Injury Claims Maritime Workers (Contd.)

Those not covered include those employed: 1. exclusively to perform office, clerical, secretarial, security or data processing work; 2. by a club, camp, recreational operation, restaurant, museum or retail outlet; 3. by a marina and not engaged in construction, replacement or expansion of the marina; 4. by suppliers, transporters or vendors; 5. aquaculture workers; and 6. to build or repair recreational vessels under 65 feet in length. 33 U.S.C. 902(3)(A)-(F).

The Outer Continental Shelf Lands Act, 43 U.S.C.
1333(b), extends LHWCA coverage to oil production workers aboard fixed platforms located on the outer continental shelf, unless they qualify as seamen through their connection with some vessel. The Supreme Court held that production of minerals from a fixed platform is not maritime employment. Herbs Welding, Inc. v. Gray, 470 U.S. 414 (1985). Thus oil production workers on fixed platforms within state territorial waters (24 miles seaward (formerly three miles)) are excluded from LHWCA coverage, and instead are covered by the appropriate state workers compensation scheme.

LHWCA Benefits:
1. Disability - 2/3 of average weekly wage before injury/occupational disease for total disability, either temporary or permanent. If the disability is partial, (either temporary or permanent) the compensation is 2/3 of the difference between the average weekly wage before the injury/occupational disease and the wage earning capacity after the injury/occupational disease. 2. Medical Services claimant may select her/his own health care provider and may be required to submit to an IME by a physician selected by her/his maritime employer. 3. Wrongful Death Benefits payable to statutorily designated survivors

Processing LHWCA Claims: initially through the U.S.
Dept. of Labor. A claimant must give notice of claim within thirty days of its occurrence and must file a formal claim within one year of the occurrence. Failure to give such notice may not bar recovery of benefits if the maritime employer knew about the injury or otherwise was not prejudiced by the failure, or if the deputy commissioner excuses the failure. The time periods for giving notice begin to run when the claimant reasonably should have known of the existence of a work-related injury/illness.

The maritime employer must controvert the
claim or commence voluntary disability payments within 14 days after the occurrence of the injury/illness. The claimant is then relieved of the duty to give notice and the one year statute of limitations upon filing a formal claim is tolled. If the employer controverts the claim, the claim first undergoes a conciliation process in which the deputy commissioner seeks to promote an amicable settlement.

If conciliation fails to produce a settlement, the claim
goes to a contested hearing before an ALJ for decision. The ALJs decision is appealable first to the Benefits Review Board (BRB) and then to the U.S. Circuit Court of Appeals in the circuit in which the case arose. The BRB must uphold the ALJs findings of fact (F/F) if they are supported by substantial evidence which may consist only of the credible evidence of the claimant. The Court of Appeals review of the BRBs decision is limited to questions of law and whether the BRB adhered to its scope of review of the ALJs F/F.

A maritime employer who fails to timely pay LHWCA benefits
is subject to penalties (an additional 10% if any installment of compensation payable without an award is not paid within fourteen days after it becomes due; and an additional 20% if an installment of compensation payable under the terms of an award, is not paid within ten days after it becomes due). Claimants attorney fee must be fixed by the Office of Worker Compensation Programs (OWCP); however if the employer unsuccessfully contests liability, it must pay a reasonable attorney fee to claimants counsel. An LHWCA compensation award is modifiable if there is a change in the degree of claimants disability or wage-earning capacity.
When a maritime worker is negligently injured while working aboard a vessel in navigation, s/he has a cause of action against the vessel and her owner for negligence. The warranty of seaworthiness does not extend to maritime workers. The vessel owners duty of care owed to the maritime worker aboard the vessel under the LHWCA (33 U.S.C. 905(b)) has been stated by the Supreme Court (Scindia Steam Navigation Co., Ltd., v. De Los Santos, 451 U.S. 156 (1981) to be: 1. the turnover duty, i.e., to warn maritime workers of latent defects (those not known to the maritime worker and which would be neither obvious nor anticipated by a skilled maritime worker) in the cargo stow and cargo. 2. the active operations duty, i.e., a continuing duty to exercise reasonable care to make the vessel safe once the maritime workers begin their activities if the vessel owner actively participates in the activities or it maintains control over the area where the activities are conducted. 3. the "duty to intervene, i.e., if the vessel owner knows of an unsafe condition and reasonably believes the maritime employer will not remedy it, then the vessel owner must intervene to halt the activities, eliminate the unsafe condition, or make the maritime employer eliminate it.

The Maritime Employers Rights against
Third Parties: the employer has a right of subrogation against a third party tortfeasor whose negligence proximately caused the injury for which LHWCA compensation has been paid.
If the maritime worker has sued the third party tortfeasor (such as the vessel in which the injury occurred and her owner), the maritime employer may intervene to enforce its subrogation rights.

The maritime worker may settle the claim against the third party without the maritime employers approval, even if that defeats such employers subrogation rights. But any settlement without the employers approval discharges the employer from liability to pay future compensation. If the maritime worker does not sue the third party tortfeasor within six months after acceptance of an award of compensation, the employer may sue the third party tortfeasor to enforce its subrogation rights.
Maritime Worker Injury Claims Public Employees

The exclusive remedy of seaman and maritime
workers employed by the United States is compensation under the Federal Employees Compensation Act, 5 U.S.C. 8101 et seq. State and local government employees who qualify as seamen (e.g. seamen employed aboard Washington state ferries) are entitled to all the traditional seamans remedies. They are expressly excluded from the LHWCA and the Outer Continental Shelf Lands Act.
Wrongful Death
Death on the High Seas Act (DOHSA): created a
cause of action for the exclusive benefit of a decedents surviving spouse, parent, child or dependent relative when the death was caused by a wrongful act occurring on the high seas beyond a marine league (three nautical miles). 46 U.S.C. 761 et seq. Recovery of damages is limited to pecuniary loss only, i.e., for monetary or other material benefits received from decedent while alive, but not for loss of society and companionship.
Wrongful Death (Contd.)

In commercial aviation accidents, DOHSA
applies only beyond 12 miles from shore, and the wrongful death beneficiaries (those who were dependent upon decedent before death) may recover BOTH pecuniary and nonpecuniary damages .

Remedies Available to Wrongful Death
Beneficiaries of Seamen:
1. If a seaman is killed by employer negligence ANYWHERE upon navigable waters, his/her beneficiaries may recover both pecuniary and nonpecuniary damages (decedents pain and suffering damages survive to the beneficiaries); 2. If a seaman is killed beyond territorial navigable waters by an unseaworthy condition, his/her beneficiaries may recover only pecuniary damages under DOHSA.

3. If a seaman is killed upon territorial navigable waters by an unseaworthy condition, his/her beneficiaries may recover wrongful death pecuniary damages and perhaps nonpecuniary damages (the law is unsettled) under general maritime common law. Moragne v. States Lines, Inc., 398 U.S. 375 (1970). 4. In all other maritime wrongful death actions where death occurred upon territorial navigable waters, the wrongful death beneficiaries may recover under Moragne.

Wrongful Death Beneficiaries:
Jones Act beneficiaries take by class: a surviving spouse or child precludes recovery by a more remote surviving class of relative such as a dependent parent or other dependent relatives. DOHSA and Moragne beneficiaries all share in the recovery, regardless of class. In either of the above cases, the beneficiaries must have been financially dependent upon decedent in order to be entitled to recover wrongful death damages.

All such wrongful death actions are subject to a three-year statute of limitation. Decedents personal representative is the proper party plaintiff and controls the litigation. Jurisdiction of such wrongful death actions lies either in federal court under its admiralty jurisdiction or its law jurisdiction under diversity of citizenship, or in state court.

The LHWCA provides wrongful death
benefits to designated beneficiaries of a maritime worker whose work-related injury causes death.
Platform Injuries
Maritime law treats movable drilling structures as
vessels, stationary or fixed platforms (those more than temporarily attached to the seabed) as land. Torts occurring on fixed platforms are ordinarily governed by state law, unless preempted by some federal law. One such law is the Admiralty Extension Act, 46 U.S.C. 740, which would apply if a vessel negligently allides with a fixed platform causing injury to those on the platform. DOHSA might also apply in some cases. Otherwise, the maritime common law treats the fixed platform as an extension of the land thus lacking locality (not upon navigable waters) and maritime flavor (not involving a vessel in navigation).
Platform Injuries (Contd.)

Claims against employers by non-seamen
working on fixed platforms will be governed by either the LHWCA or by a state workers compensation scheme, depending upon the geographical area in which the injury occurs: if the platform is located on the Outer Continental Shelf Lands, LHWCA applies; if within territorial waters, the applicable state act applies.
Sovereign Immunity of the United States as Vessel Owner

In the Suits in Admiralty Act, 46 U.S.C. 741 et seq.,
Congress authorized suits in personam against the United States as the owner/operator of a merchant vessel. Similarly, in the Public Vessels Act, 46 U.S.C. 781 et seq., Congress authorized actions in personam against the United States for torts committed by public vessels, including warships. Both acts expressly prohibit in rem actions against vessels owned/operated by the United States.
Joint and Several Liability, Indemnity and Contribution

Maritime law imposes joint and several liability upon joint

tort feasors. State tort reform legislation in recent years has moved toward several liability, or modified joint liabilitynot so admiralty law! When one tort feasor is held jointly and severally liable with one or more tort feasors, issues of indemnity and contribution may arise. Maritime law allows indemnity where the indemnitors negligence triggers the indemnitees liability (e.g. vicarious or strict liability). Maritime law allows contribution among joint tort feasors based upon percentage of fault.
Limitation of Liability
When a voyage or events subject a vessel owner to
liability, maritime law, 46 U.S.C. 183, may permit him to limit his liability arising out of the voyage to the value of the vessel and freight then pending, but if death or personal injury results from an occurrence involving a seagoing vessel (a passenger vessel operating on the high seas), the owners liability is increased to $420 per ton. The vessel owner entitled to limitation need surrender only the vessel or its value after the occurrence; if, as is often the case, the vessel is sunk or heavily damaged, the limitation fund available to claimants may be insignificant.
Limitation of Liability (Contd.)

The vessel owner may commence a single (all
claimants suits will be consolidated in this one action though they may have been commenced separately in a number of different courts) limitation proceeding in federal court (where, because it is on the admiralty side, there is no right to a jury trial) without admitting liability; if he is exonerated (found to be without fault) he owes nothing, but if he is found at fault, he may limit his liability to the value of the vessel (usually NOTHING, if the vessel is lost!)

If the vessel owner has been
compensated for loss of his vessel by his insurers, those proceeds are not part of the limitation fund available to claimants! The vessel owner retains those proceeds, even though those damaged by his vessel recover little or nothing!

Even the owner of a pleasure boat or of an
18-foot rowboat is entitled to limit his/her liability so long as the occurrence causing injury to others occurred on navigable waters.

A vessel owner may only limit his liability for tort or contractual
obligations incurred without his knowledge or privity. In the tort context, this means: 1) the owner did not personally participate in the negligence or fault which caused injury. He is not required to supervise the vessel in port or at sea. As long as he selects competent personnel and gives them adequate instructions, he will not be found with knowledge or privity of the later negligent acts of the master and crew, EXCEPT when personal injury or death is the result of tortious conduct of the vessel masterthen the vessel owner IS charged with knowledge or privity of the master. 2) if the owner delegates ALL management and control of his vessel to another such that the delegate can be said to be the owners alter ego, the owner may be charged with knowledge and privity of the delegates negligence or fault.

3) if the owner is aboard his vessel and is in active
control of her, then he is charged with knowledge and privity. 4) if the owner is a corporation which necessarily must act through human beings, that corporation is generally charged with knowledge and privity of the acts of its high level management personnel (which may include the master).

In the contract context, the vessel owner remains liable for his personal contracts, e.g., contracts for supplies and repairs, seamans wages and maintenance and cure. There are cases holding that claims for damage to cargo through voyage deviation are not subject to limitation, nor are claims that arise under the Wreck Act and the Rivers and Harbors Act.

The vessel owner must petition for limitation in federal court within six months after receipt of a written claim against him arising out of the occurrence. This period of limitation may not necessarily begin when the owner receives the first written claimit may not begin until the owner realizes the aggregate of all the claims arising from an occurrence exceed the value of his vessel. The owner may assert limitation as an affirmative defense in actions brought against him in both federal and state court. He usually will also deny liability, pleading limitation in the alternative.
Procedure in Limitation of Liability

The owner who seeks limitation must surrender title to the vessel and file with the court a bond in the amount of the value of the vessel. Since jurisdiction of limitation is exclusively in the admiralty side of federal court, there is no right to a jury trial.
Jurisdiction and Procedure in Maritime Claims

In the early days of our federal judiciary, there were
History
three sides (involving separate dockets) in federal court: law, equity and admiralty. A single judge presided over all three sides. In 1938 when the Federal Rules of Civil Procedure (F.R.Civ.P.) were adopted, the law and equity sides were unified. Thus today it is fair to say the United States District Court has two remaining sides: law and admiralty. The F.R.Civ. P. still provide special rules for admiralty proceedings, e.g., Rules 14(c), 38(e) and the Supplemental Rules for Certain Admiralty and Maritime Claims.
Jurisdiction and Procedure in Maritime Claims (Contd.)

Admiralty and maritime claims may be asserted in either federal or
Subject Matter Jurisdiction
state court: the same maritime substantive law applies in both court systems. However, only a federal court, sitting in admiralty, may adjudicate an in rem action against a vessel to foreclose maritime liens and to grant limitation of liability. Where plaintiff brings a maritime claim only in personam in federal court, it may be brought on the law side (where there is a right to a jury trial) only if the diversity of citizenship jurisdictional requirements are met otherwise it must be brought on the admiralty side where there is no right to a jury trial except when the matter arises out of navigation upon the Great Lakes, 28 U.S.C. 1873. Additionally if plaintiff brings a federal question claim on the law side of federal court (where there is a constitutional right to a jury trial) and a maritime claim on the admiralty side, and both arise from the same transaction or occurrence, plaintiff may obtain a jury trial of both matters.

If a maritime claim is brought in state court, there is a
Subject Matter Jurisdiction (Contd.)
right to a jury trial if granted by state or federal law (e.g., the Jones Act). If brought in state court, however, the defendant may remove the case to federal court if there is diversity of citizenship between plaintiff and defendant and the requisite amount in controversy (>$75,000), except that a Jones Act claim brought in state court is not removable to federal court even if there is diversity of citizenship jurisdiction. One reason a plaintiff might elect federal court over state court is that federal judges generally are more skilled in and sympathetic to maritime concerns.

There is no general venue requirement for
an action brought on the admiralty side of federal court: if the court has personal jurisdiction over an in personam defendant, venue is proper.
Venue
Crimes Committed at Sea

The U.S. Constitution provides in Art. I,
8(10): The Congress shall have Power . . . To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.
Crimes Committed at Sea (Contd.)

The relevant portions of the United States criminal code re piracy
on the high seas are found at 18 U.S.C. 1651-1653.
1651. Piracy under law of nations Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life. Jurisdiction to try persons charged with the crime of piracy on the high seas under this statute lies exclusively in the United States District Court . As with any other federal crime, the alleged pirate has a right to a speedy and public trial, by an impartial jury . . .to be informed of the nature and cause of the accusation; to be confronted with witness against him, to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. U.S. Const., Amend. VI.
Researching Maritime Law

Primary Authorities
United States Code Annotated (U.S.C.A.) American Maritime Cases (A.M.C.)
Secondary Authorities
Admiralty and Maritime Law Guide, www.admiraltylawguide.com
Gilmore, Grant and Black, Charles L., Jr., The Law of Admiralty (2d.ed. 2001) Jury Instructions
Schoenbaum, Thomas J., Admiralty and Maritime Law (3d ed. 2001)
Conclusion
I leave you with the sailors traditional farewell:
May you have fair winds and following seas!

Admiralty &amp; Maritime Law

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Admiralty & Maritime Law: The Law of The Sea

2008 Clark D. Silliman, J.D. All Rights Reserved.

Admiralty & Maritime Law is:

Origins of Admiralty & Maritime Law

Development of American Admiralty Law

Jurisdiction of Admiralty & Maritime Cases

Jurisdiction of Admiralty & Maritime Cases (Contd.)

Jurisdiction of Admiralty in the United States:

What Is a Vessel? (Contd.)

What Are Navigable Waters?

What Is Maritime Flavor?

What Is Maritime Flavor? (Contd.)

Jurisdiction over Maritime Torts

The test of maritime tort jurisdiction:

Jurisdiction over Maritime Torts (Contd.)

Jurisdiction over Worker Injury Claims

Who is a maritime worker? A worker engaged in

Jurisdiction over Worker Injury Claims (Contd.)

Jurisdiction over Worker Injury Claims (Contd.)

Jurisdiction over Worker Injury Claims (Contd.)

Contracts for the Carriage of Goods

Demise Charter (Contd.)

Demise Charter (Contd.)

Time Charter (Contd.)

Time Charter (Contd.)

Bills of Lading (Contd.)

Bills of Lading - The Harter Act & COGSA

Bills of Lading The Harter Act & COGSA (Contd.)

Bills of Lading-The Harter Act & COGSA (contd.)

Bills of Lading-The Harter Act & COGSA (Contd.)

Bills of Lading-The Harter Act & COGSA (Contd.)

Bills of Lading-The Harter Act & COGSA (Contd.)

Bills of Lading-The Harter Act & COGSA (Contd.)

Maritime Liens (Contd.)

Maritime Liens (Contd.)

Maritime Liens (Contd.)

Maritime Liens (Contd.)

Maritime Liens (Contd.)

Maritime Liens (Contd.)

Maritime Liens (Contd.)

Maritime Liens (Contd.)

Maritime Liens (Contd.)

Maritime Liens (Contd.)

Maritime Liens (Contd.)

The Seamans Employment Contract

The Seamans Employment Contract (Contd.)

The Seamans Employment Contract (Contd.)

Marine Insurance (Contd.)

Marine Insurance (Contd.)

Marine Insurance (Contd.)

Marine Insurance (Contd.)

Quasi-Contract Salvage has generated much more litigation.

General Average (Contd.)

General Average (Contd.)

General Average (Contd.)

General Average (Contd.)

General Average (Contd.)

General Average (Contd.)

Maritime Tort Law

Maritime Tort Law (Contd.)

Maritime Tort Law (Contd.)

Maritime Tort Law (Contd.)

Maritime Tort Law (Contd.)

Admiralty & Maritime Law

Admiralty & Maritime Law