Admiralty Outline Fall 2016
I.
The Scope of Admiralty Jurisdiction
a. The Constitutional and Statutory Bases of American Maritime Law
i. Definition- body of law governing contracts, torts and workplace injuries occurring in the
course of maritime commerce and other maritime activities
ii. Sources
1. United States Constitution
 Article III, Section 2- “The judicial power shall extend to all cases. . . to all cases of
admiralty and maritime jurisdiction. . .”
o Not only grants power to establish courts, but also power to prescribe the
substantive law in maritime cases pending in federal law preempts state
law in maritime cases, but is subordinate to congressional statutes
2. Maritime Federal Statutes
 28 U.S.C. A. §1333- “The district courts shall have original jurisdiction, exclusive of
the court of the State, of: any civil cases of admiralty or maritime jurisdiction,
saving to suitors in all cases all other remedies to which they are otherwise
entitled”
o “Savings to Suitors” clause has been interpreted as allowing state courts
some, if not most, maritime claims
o So, this provides state and federal courts with concurrent jurisdiction over
maritime matters
 Note: in rem proceedings (actions brought against a vessel) are subject to
exclusive federal jurisdiction
 Note: Congress has also statutorily granted exclusive admiralty jurisdiction
in suits under the LSLA, SAA, PVA, and actions to foreclose preferred ship
mortgages
3. Federal Judge-Made Law
4. State Law
iii. Dean Sutherland Methodology
1. Who are the parties involved in the dispute, and what are their relationships to each
other? Different laws could apply to the same injury—someone could be a seaman
and a longshore worker
2. What remedies are available?
3. When it happens? Important to consider because the law changes often.
4. Where did the injury occur? Some remedies based on the status of the injured
persons regardless of where, but some based solely on location of where accident
happened
5. How did the injury occur?
6. Why? Nature of the injury could affect recovery.
iv. The Judicial Interpretations
1. Southern Pacific Co. v. Jensen- Jensen, an employee of Southern Pacific, was killed
while driving a truck of off a steam ship that was loading materials (longshoreman).
The Workman's Comp Commission of NY awarded compensation to his wife.
 Could NY law require Southern Pacific to secure payment of compensation by
validly applying its law to a death case that occurred in navigable waters?
Admiralty Outline Fall 2016
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No, NY WC could not apply because the injury occurred over navigable waters
- admiralty jurisdiction. NY's WC law conflicts with the general maritime law;
uniformity is needed for maritime throughout the country.
o Savings to suitors did not apply to a WC remedy because it is not a common
law remedy (i.e. any “in personum” remedy) & requiring vessel owners to
comply with state WC would put improper burden and interfere with
uniformity; but, do not construe this as to mean when AJ results, then federal
law must apply state law can apply when:
 Does not contravene the essential purpose expressed by an act of
Congress
 Does not work material prejudice to the characteristic features of general
maritime law
 Does not interfere with the proper harmony and uniformity of that law in
its international and interstate relations
o Note: dicta in this case that when Congress doesn’t speak, equivalent to
declaration that “commerce shall be free;” wrong, dissent was right: mere
silence of Congress does not exclude the statute or common law of a state
from supplementing the general maritime law (ex. he could’ve brought a
wrongful death suit under NY law, but chose not to because the accident was
solely his fault)
2. Chelentis v. Luckenbach- Plaintiff was knocked to the ground and broke his leg while
in service to a steamship in rocky waters, claiming fault of superior's orders. He wants
to apply NY negligence law to create the action through the “savings to suitors
clause.”
 The Osceola:
o Seaman who is sick/wounded can recover maintenance & cure and wages, so
long as the voyage is continued
o Vessel must be seaworthy (reasonably fit for intended purposes)—if
unseaworthy, full tort damages
o Fellow servant rule seaman cannot recover for injuries sustained through
negligence of another member of the crew
o Cannot get full tort remedy for negligence of vessel master
 Following Jensen’s uniformity principle, there is no negligence under general
maritime law, so direct conflict with the Osceola—cannot be circumvented by NY
tort law
 Recapitulation of Jensen and Chelentis: “savings to suitors” clause allows state
courts to entertain “in personum” maritime causes of action, but the extent to
which the state law may be used to remedy maritime injuries is limited;
substantive remedies afforded by state law must (1) conform to governing federal
maritime standards, or (2) at least not conflict with them, pursuant to Jensen’s
preemption test
 Yahama- could the family successfully seek punitive damages for daughter’s jet ski
death, assuming they could prove requirements for maritime wrongful death
action under PN law?
Admiralty Outline Fall 2016
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Court said no federal statute on point, nor is there a need for a uniform
national rule to protect maritime commerce (not a seaman, recreational
vehicle, etc.); let the state law apply
 Amtrak- boat/train collision, but court said no recovery under Alabama law;
Yamaha does not embody an unspoken rules that state interests must always
trump competing admiralty principles when the two collide in state and territorial
waters, but provides that conflicts of this type must be resolved with a healthy
regard for the needs of a uniform maritime law
o MAIN INQUIRY: DOES THE APPLICATION OF STATE LAW DIRECTLY CONFLICT
WITH ANY MARITIME LAW PRINCIPLE WHERE ITS IMPORTANT IN MARITIME
COMMERCE FOR THERE TO BE UNIFORMITY?
3. Wilburn Boat Co. v. Fireman’s Fund- Plaintiffs bought houseboat for the commercial
carrying of passengers on an inland lake, which was insured by the defendant for fire
and other marine perils. The boat was destroyed by a fire, but the insurer-defendant
denied liability because of the breach of a term (needed to be used only for private
purposes). The plaintiff argued that Texas law would find the provision invalid, while
defendant argued state law can't govern a marine insurance contract.
 Is there a general maritime law of insurance that deals with warranties, or should
TX law apply?
o The Court held that the regulation of insurance has been typically left to
the states (Mccerran Ferguson Act), and as such, state law can regulate
the terms and conditions of marine insurance contracts. The critical
questions are:
 Is there a judicially established federal maritime rule governing
these warranties? Here, no.
 Should we fashion one? Considering:
 Whether federal maritime law is entrenched in federal
precedent, which is consistently used
 State’s substantial and legal interest
 Whether state rule is materially different from proposed
federal rule
o Note, scope of admiralty jurisdiction for contracts, depends on subject
matter and nature & character of the contract; location doesn’t
necessarily matter. For example, in contracts with both land and maritime
elements, need to look to what the PRIMARY PURPOSE was—if maritime,
maritime law will cover all of it, including non-maritime elements; if land,
maritime law can apply to any severable maritime elements
4. Garrett v. Moore- Plaintiff was injured while working as a seaman aboard the
defendant's vessel. Company had injured worker sign release a few days after incident
in hospital (on drugs) and gave him $100. He thought the $100 was wages. Plaintiff
sues in PA state court under M&C and Jones Act theories. Supreme Court of PA said
that burden of proof is a procedural right, so if you bring an action under “savings to
suitors” in state court, we will apply our own procedure.
Admiralty Outline Fall 2016
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II.
Supreme Court said the burden is on the vessel owner (who sets up the release)
to show that it was executed freely, without deception or coercion, and that it
was made by the seaman with full understanding of his rights. Such an
understanding can be proven using the adequacy of consideration, nature of the
medical and legal advice available to the seaman at the time of signing, etc.
o This doesn’t mean that federal procedural law would always apply in state
courts (ex. when maritime claim filed in state court, state rules relating to
forum non conveniens apply), but if the federal maritime procedural law is
inherent in the cause of action, then it follows the substantive maritime
law to state court
o In PA, the burden of proof would be on the seaman, beyond a reasonable
doubt; in federal maritime law, would put the burden on the vessel
owner; Jones Act requires uniform application throughout the country
unaffected by local views & uniformity requirement extends to burden of
proof necessary for judgment
 Note 2- Why should we care in what court or under what jurisdictional grant a
case is heard? One important reason is a trial by jury:
o If matter brought in federal court & SMJ based solely on admiralty power
(1333), not entitled to a trial by jury trial by jury is not considered to be
an integral part of federal maritime rights
o If brought in federal court under 1331 or 1332, right to trial by jury; if
brought in state court & state law provides for trial by jury, may have a
trial by jury
Navigable Waters
a. Hassinger v. Tideland- Plaintiffs beached their sailboat in an inland lake, the mast hit a power
line, and three of the men were electrocuted. The defendant challenged on the grounds of
subject matter jurisdiction claiming it was not on navigable waters
 Supreme Court has held that for admiralty jurisdiction to exist in a federal court, the
alleged wrong must (1) occur on or over navigable waters, and (2) bear a significant
relationship to traditional maritime activity
 The boundary of admiralty jurisdiction in tidal areas does not ebb and flow with the tide,
but extends to the mean high water mark (middle number, not the average)
o The Court held that a substantial part of the boat was in or over the water
because the boat was below the mean high water mark
 The Extension of Land Doctrine prevents recovery in admiralty for damages to piers,
dock, wharves, and similar structures extending over navigable waters and for personal
injuries unless caused by a vessel on navigable waters
o Didn’t apply here because talking about boats, but just know things that are
permanently affixed to sea or river bed through pilings are deemed artificial
islands and part of land (ex. oil rig)
b. The Daniel Ball
 A water is navigable in fact when they are used, or susceptible 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 over water
Admiralty Outline Fall 2016
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III.
Ex. Shreveport Red River- trees knocked down & blocking navigation; this does
not make it non-navigable because it is only a temporary condition, which can be
removed and restored to ordinary condition
o Ex. Land-locked lake, all in one state- this is NOT navigable; it has to form a
continued highway of commerce, which can be carried on between states
o Ex. Most bodies of water are deeper in the middle, than the sides- does that
make it non-navigable because parts of it cannot be navigated through?
 NO look to whole body of water, as opposed to “navigable channel;”
this is because it is too difficult to tell
 Most courts require capability of transporting meaningful maritime commerce; seasonal
navigability arguably makes the stream navigable.
Vessels
a. Introduction
 1 U.S.C. §3 vessel includes every description of watercraft or other artificial
contrivance used, or capable of being used, as a means of transportation on water; could
probably even include three men in a tub
 The classic jurisprudential guideline depends upon the purpose for which the craft was
constructed and the business in which it is engaged—was it created for facilitating work
or movement on navigable waters?
 The principal considerations in determining vessel status are
o (1) whether a structure has acquired, maintained, or lost its “vessel” status for
maritime law purposes, and
o (2) whether the purpose for which the structure was crafted involves facilitating
work or movement on navigable waters
 Note: lots of litigation on whether “special purpose” structures used in
offshore mineral production, “work floats” from which harbor
construction and repair is effected, and floating gambling casinos are
“vessels” for maritime purposes—see Stewart v. Dutra
 Because a contract to build a vessel is not a maritime contract, a question that comes up
a lot is whether a vessel “under construction” is sufficient to be a vessel for general
maritime purposes. General rule is that a construction becomes a vessel when its
launched; but some cases hold that for admiralty purposes, a structure becomes a vessel
when “capable of being used as a means of transportation on water”
o There is no single point between construction and being put to final use where a
structure earns “vessel” status—leaves room for arguments
o Note: 5th circuit said that Stewart did not effect any change in its jurisprudence
holding that a structure under construction remains a non-vessel until complete
& ready for duty upon the sea (Cain)
 A completed vessel may lose its status temporality or permanently if it is withdrawn from
navigation
b. Wixom v. Boland- At the time of the plaintiff's injury, the ship had been out of service for
three years, no captain/crew during this time, major structural changes, huge bill, engine and
propeller inoperable; requirement under JA that vessel must have been in navigation at the
time the seaman was injured
Admiralty Outline Fall 2016
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To determine navigation, court should look to the extent and nature of the repair
operations, whether the owner remains in control of the vessel, and whether the repairs
require an invasion of the “watertight integrity” of the vessel
 Big point vessel can be withdrawn from navigation, if taken out of service & significant
changes being made. Minor repairs usually will retain vessel status, but major repairs
that take a long period of time will usually be "withdrawn" from navigation
c. Goodman v. 1973
 Court distinguished between “dead ship doctrine” and “withdrawn from navigation,”
even though they have the same effect. Dead Ship Doctrine takes a vessel out of
navigation where it has been so changed that it has no navigational purpose/ability—this
is reserved for more extreme cases (so, not when a ship needs repairs, or registration
expires, etc.)
o Ex. those ships in “mothballs,” i.e. connected to shore-side utilities or
transportation facilities, those in use of floating wharves, and SOME casino boats
 The Court held that admiralty jurisdiction did exist because it still had navigable function.
Difference between Wixom, here just because dry docked and needed some repairs, not
withdrawn from navigation
o Ex. after WWII, US turned out lots of so-called “liberty ships” to get cargo and
supplies over to Europe; after the war ended, we had a bunch of ships leftover,
navy fleeted them because of ongoing issues in Korea (tied them up to safe
harbors) are these still vessels?
 They have every capability to be used as a vessel under 1 U.S.C. §3, but
the purpose for which they were built is no longer in existence; 5th circuit
court said even though you met statutory definition, withdrawn from
navigation
 THIS WOULD NOT BE THE CASE AFTER DUTRA AND LOZMAN
d. Stewart v. Dutra- The world's largest dredge, The Super Scoop, was used to construct the
Ted Williams tunnel through Boston Harbor. It was a massive floating platform, had limited
means of self-propulsion, and at time of the accident, it wasn’t moving at all because one
scow was broken & the other was in use. A scow collided with the Scoop causing a jolt that
injured Stewart. Is a dredge, such as The Scoop, a vessel for purposes of obtaining admiralty
jurisdiction?
 Court refers back to §3—a vessel is any watercraft practically capable of maritime
transportation, regardless of its primary purpose or state of transit at a particular
moment; added “practically” to continue exceptions and keep old case law as good law
o Things that are not a vessel: a drydock, a wharf-boat attached to the mainland not practically capable of being used to transport people, freight, or cargo from
place to place.
 Court says that dredges have been recognized as vessels even before the
passage of JA and LHWCA, mainly because they serve a waterborne
transportation function (in performing work, carry machinery,
equipment, and crew over water)
Admiralty Outline Fall 2016
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So, dredges have been recognized as vessels in general maritime law,
section 3, and now, JA and LHWCA by adoption since they follow section
3
o A ship does not move in and out of vessel status depending on whether the ship
is at anchor, docked for loading/unloading, or berthed for minor repairs, in the
same way that ships taken permanently out of the water as a practical matter do
not remain vessels merely because of the remote possibility that they may one
day sail again (Cope and Evansville- drew a distinction between temporary
station and permanent affixment—this goes towards “practical”)
 In other words, we don’t take a “snapshot” to determine vessel status;
that is inconsistent with the statute
o Note: SCOTUS’s inconsistency- on page 48, they say that Title 1 (passed in 1873)
codified judge-made maritime definition of “vessel,” but then cite cases for
support that came AFTER 1873; such language could be helpful or harmful to
your case
 TEST- whether the watercraft's use as a means of transportation on water is a practical
possibility or merely a theoretical one; “practical” inquiry is whether the vehicle at issue
is capable of serving as a means of maritime transportation?
 Subsequent case, Holmes v. Atlantic Sounding (5th)- due to Stewart, 5th circuit reversed
previous holding that a quarterbarge (unpowered, floatable structure) was NOT a vessel
for JA purposes; stated that Stewart’s expansive definition gave the court less leeway in
defining “vessel” differently for different purposes
o Note: SCOTUS inconsistency- in Lozman, the Court mentions that the “anything
that floats” test is wrong, but one of the cases they cite is Holmes?
e. Lozman v. City of Riviera- involved a floating home that had no rudder or steering
mechanism, incapable of self-propulsion, etc.; we aren’t looking to owner intent anymore,
look to design intent—court said this was not a vessel, so no maritime lien, wrongful seizure,
and Lozman could get damages
 A structure does not qualify as ‘‘vessel,’’ as that term is defined in the Rules of
Construction Act, unless… “an observer, looking to the structure's physical characteristics
and activities, would consider it designed to a practical degree for carrying people or
things over water” (outlier case, Dutra is the test to use in real life, cases pay homage to
this though)
o Court emphasized that the home had no rudder or other steering mechanism,
hull unraked, rectangular bottom, no special capacity to generate or store
electricity, non-maritime living quarters, lack of propulsion, had to be towed—no
feature that suggested it was designed to transport over water anything other
than its own furnishings and related personal effects
 Note: Deanie says that 80% of vessels in this country are unmanned
barges that don’t have these characteristics!
o Court compared Stewart’s dredge and Evansville’s wharfboat- dredge was
regularly, but not primarily used to transport workers and equipment over water,
while the wharfboat was not designed to serve a transportation function to any
practical degree & did not do so
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Grubart- barge sometimes attached to river bottom to use as a work
platform remains a “vessel” when at other times, it was used for
transportation
 Armand- work platform permanently affixed to river bottom and
bank; primary purpose was to provide a platform to nunload
barges, bringing materials to an employer’s facility; 3rd circuit
said not designed to any practical degree to serve a
transportation function and did not do so—not a vessel
o Dean Sutherland says this is a barge though—after
Stewart and Lozman, don’t look at owner intent, look to
capability via original design purpose?
 Bernard- work punt lacking features objectively indicating a
transportation function not a “vessel” because decisions make clear that
a mere capacity to float or move across navigable waters does not
necessarily make a structure a vessel
 Schoenbaum- courts have found floating dry docks, floating platforms,
barges or rafts used for construction or repair of piers, docks, bridges,
pipelines and other similar facilities were not “vessels”
 Note: SCOTUS inconsistency citing this, but then also cited
Grubart, which said these work barges were a vessel?
Casino gambling boats after Stewart and Lozman- Harrah’s had a monopoly with the
state on having the only land casino.
o Gambling boats that were built for the purpose of moving, now cannot sail due
to the legislature changing the law; even though the boats can move during
hurricane season, it’s attached to land, although practically capable of moving
o Note: most of the post-Stewart cases involving the vessel status of a dockside
casino have found that dockside casinos are NOT vessels (ex. Pavone)
 Dean Sutherland said this is NOT clarified though! See Booten v. Argosy,
dockside casino had full crew and navigational equipment and left its
mooring for dedrifting approximately 5x a year; because the boat sailed
regularly, it was a vessel (IL COA)
 Lemelle v. St. Charles Gaming Co. Inc. (2012) - a riverboat casino was not
a vessel for the purposes of admiralty jurisdiction; SCOTUS vacated,
remanded for reconsideration in light of Lozman= so, they must think it is
a vessel under the reasonable observer test
Jack-up rigs (no motive power, can be towed, when in use for oil or gas drilling, the
barge/portions of it rest on the water bottom) have been held to be a vessel because
non-maritime equipment that is mounted on a barge or other floating structure, has
traditionally been classified as a vessel
Floating dry docks are NOT vessels because usually not capable of transporting vessels or
other property over water
o But, see Northern Pacific- this dry dock had engines & moved vessels onto land
for repairs; was a vessel
A jet ski is a vessel for purposes of the Limitation of Liability Act
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IV.
A helicopter engaged in ferrying offshore workers from shore to platforms on Outer
Continental Shelf was not a “vessel” in the 5th circuit, although the crash of such a
helicopter may give rise to maritime tort jurisdiction
 Hunting and fishing camp, which had living quarters built on top of a steel deck mounted
on pontoons, w/ rake end welded onto ends of the pontoons- Eastern District said this
wasn’t a vessel because any transportation function was incidental to the primary
purposes of sporting and pleasure (Dean doesn’t know if this is right because Stewart
rejected the “primary purpose” tests)
Jurisdiction Over Contracts
a. Maritime Contracts Generally
 Consequences flow from classifying a contract as “maritime” may be enforced in
federal court without any other basis of SMJ; usually secured by a maritime lien, which
can only be enforced with an in rem action in federal court; validity and interpretation
covered by federal maritime law
 Two rules have developed to determine whether maritime:
o English rule- contract not maritime unless it was made on and was to be
performed on navigable waters
o American rule- the nature and subject matter of the contract, not the place of
making or performance, govern whether a contract is maritime—examples:
 Contracts within admiralty: carriage of goods and passengers, loading
and unloading of vessels, towage, pilotage, wharfage, vessel supplies,
insurance, salvage, and services of seamen and officers.
 Contracts outside admiralty: contracts to procure services to a vessel
(but see Exxon Corp.,) and contracts to build & sell ships.
i. North Pacific v. Hall Bros.- owner of vessel and shipyard had agreement that vessel would
be towed from point A to Point B; vessel owner didn’t pay the shipyard all that it owed,
they assert a maritime lien, wanting to recover—ship owner tried to say that this was not
a maritime contract because the services rendered weren’t primarily maritime services
 Court said there is a distinction between a contract to buy/sell a ship and one to repair
a severely damaged vessel (non-maritime v. maritime)—rationale is that the structure
doesn’t become a vessel until completed and launched (there is debate over this
though—could be when it is completed to the point at which it can serve its intended
purpose)
o Express rejection of the English rule—we look to nature and subject matter of
the contract
ii. American President Lines v. Green- contract between the parties for defendants to load
aluminum cables into plaintiff’s containers. Defendant was to load the containers in a
fashion suitable for ocean carriage; question was whether cargo shipping containers
loaded and secured onto a ship by the defendant, that shifted and caused damage during
voyage, should arise as a claim under admiralty jurisdiction
 Court said boundaries of AJ over contracts do not depend on where the breach took
place; character of the work determines the question—generally, a contract relating
to a ship in its use as such, or to commerce or navigation on navigable waters, is
subject to maritime law and the case is one of AJ
Admiralty Outline Fall 2016
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Court said loading of containers in a manner suitable for ocean carriage could be
viewed as the functional equivalent of loading cargo on a ship, even though
performed onshore; claim falls in admiralty DS thinks this has been overrule by
Kirby
iii. Exxon Corporation v. Central Gulf- dispute arose over unpaid fuel; question was whether
admiralty jurisdiction extends to claims arising from agency contracts, particularly where
Exxon supplied Waterman with fuel, who charted a vessel owned by Central Gulf
 Court rejected Minturn, which had a per se rule excluding agency contracts from AJ—
this is inconsistent with the principle that nature and subject matter of the contract
govern
 Lower courts should look to the "subject matter" of the agency contract and
determine whether the services performed under the contract are maritime in nature;
jurisdiction does extend in this case because the value of fuel received by the ship is
maritime in nature (without fuel, a ship cannot sail)
b. Mixed Contracts
 Old law if a contract is mixed, look to see what the primary function is; if maritime,
maritime law governs the whole; if land, but maritime elements severable, maritime
law applies to severable elements
i. Norfolk v. Kirby- train, carrying machinery on its final inland leg, derailed causing
extensive damages. The railroad wants to seek shelter in liability limitations contained in
contracts that upstream carriers negotiated. Contract is mixed—large part ocean-going,
but also, a train portion. Default liabilities rules are contained in the Carriage of Goods by
Sea Act (indemnity- $500 per package limit) and the Himalaya Clause (extends protections
to other people involved in transportation of cargo beyond the tackles)
o Choice of law issue Court said when a contract is a maritime one, and the dispute is
not inherently local, federal law governs; even if strong local interest, federal
substantive law governs where the state interest cannot be accommodated without
defeating the federal interest
o Court did not apply state law because this was overall, a maritime contract &
application would interfere with uniformity and harmony of general maritime
law
o We don’t look to contract’s place of formation or performance, so the fact that
damage occurred while performance was on land is immaterial—nature and character
of the contract are relevant
o As long as maritime element was a substantial portion of the contract,
maritime law applies to the whole contract; no need to account for miles over
land vs. miles over water
 Note: SCOTUS does not define substantial, so we must look to the
purpose of admiralty jurisdiction
o The fundamental interest giving rise to maritime jurisdiction is the protection
of maritime commerce; a maritime contract's interpretation may also
implicate local interests as to beckon interpretation by state law
o "Conceptually, so long as a bill of landing requires substantial carriage of goods by sea,
its purpose is to effectuate maritime commerce - and thus it is a maritime contract."
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V.
It is not defeated because it provides for some land carriage, geography is
only useful in a limited sense. ("If a bill's sea components are insubstantial,
then the bill is not a maritime contract.")
o In this case, it is important to note that because of standardized containers,
cargo can move easily from one mode of transport to another.
o Note 1- much of the jurisprudence on “mixed” contracts has arisen out of offshore
mineral exploration, where a single contract may combine the maritime element of
transportation by water and the non-maritime element of mineral production from a
fixed platform; many of these contracts contain indemnity clauses—valid under
maritime law, but sometimes invalid under otherwise applicable state law; see page
86 for elements court considers when the contracts are “blanket” and provide for
specific “work orders”
ii. Grand Isle Shipyard v. Seacor- maritime personal injury claim and contractual indemnity
claim; question is when the event that triggers indemnity occurs on navigable waters, but
contract calls for majority of work to be performed on stationary platforms on
intercontinental shelf, is it a maritime contract?
o Court emphasizes the separate nature of the analysis in these circumstances; for
contracts, doesn’t matter where tort arose to determine which law applies to
indemnity claims arising from such tort
o 5th circuit test for validity of indemnity agreement in master/servant contract:
o FOCUS OF THE CONTRACT, as opposed to the actual language; if majority of
the performance called for is on stationary platform, then situs is law of
adjacent state; if aboard vessel, maritime law applies (so under these facts,
Louisiana law applies)
o Question- is this a geographical spatial analysis of the type rejected in Kirby?
DS says this seems like a rejection of SCOTUS because what’s the difference
between # of miles, as opposed to # of times work done on fixed platforms v.
vessel; seems like the 5th circuit is putting a numeric value on “substantial,”
which again, is rejected spatial analysis
Jurisdiction Over Torts
a. General Maritime Tort Jurisdiction—The Jurisprudential Rule
 Requirements for maritime tort jurisdiction:
o Situs
 (1) tort occurred on navigable waters?
 (2) if injury suffered on land, using AEA, was tort proximately caused by
vessel on navigable waters? (Grubart and Guttierez)
o Nexus
 (1) that the relevant activity had a maritime connection or flavor
(Executive Jet)
 (a) considering the general features of the type of incident—at
an intermediate level of generality—does the type of incident
involved have the potential to disrupt maritime commerce?
(Foremost) and
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(b) considering the general character of the activity, as opposed
to actual activity, giving rise to the incident, is there a substantial
relationship to traditional maritime activity? (Sisson)
i. Executive Jet- A jet aircraft struck a flock of seagulls on takeoff and sank in the navigable
waters of Lake Erie near the runway. The airline sues the City for negligence in air traffic
control. The previous law, the strict locality test, any tort that happened over water would
be considered maritime.
 The Court here holds that the wrong should still occur over navigable waters, but that
it should also bear a significant relationship to maritime activity. Unless that
relationship exists, they are not in admiralty. (note: this is when no statute exists)
o Rationale: strict locality alone can sometimes include things in maritime that
shouldn’t be there & disinclude things that should—weird cases resulted where
courts had to stretch to find tort jurisdiction for things that had nothing to do
with maritime commerce
 Ex. two swimmers in navigable waters hurt each other; is this really the
kind of case a federal court wants to waste resources and time on?
o There is no federal admiralty jurisdiction over aviation tort claims arising from
flights by land-based aircraft between points within the U.S.; exception being
statutes like DOHSA—court did locality “plus” because wanted to keep things out
that weren’t related to maritime commerce; also, reviewed historical practice
and concluded that Congress extended AJ outside of locality in unseaworthiness,
maintenance & cure, DOHSA, etc.
ii. Foremost Ins.- whether the collision of two pleasure boats on navigable waters falls
within the admiralty jurisdiction of the federal courts
 Court found a significant relationship to traditional maritime activity because
potential to disrupt maritime commerce the crash itself would block the river; if
this occurred at mouth of the Great Lakes, it would disrupt commerce
 Also, rules of the road passed by Congress apply to ALL vessels on navigable waters—
we need uniformity because if not, will affect maritime commerce
iii. Sisson v. Ruby- Does federal admiralty jurisdiction extend to a limitation of liability suit
brought in the connection of a vessel fire that destroyed a marina? Found maritime nexus
because:
 This had the potential to disrupt maritime commerce (LOOKING TO GENERAL
CONDUCT OF WHICH ACTIVITY AROSE, AS OPPOSED TO SPECIFIC ACTION)—a fire like
this could have spread and destroyed places to get fuel on docks, affecting
commerce look beyond the particular facts of the circumstances at hand
 Also, the second half of the Foremost test requires a showing that there is a
substantial relationship between the general features and general character giving
rise to the incident (NOT THE ACTUAL ACTIVITY) and traditional maritime activity
o Dean Sutherland thinks pretty much anything will meet this test
 So, we know that to invoke judge-made federal maritime law, need the location and
nexus, but the Court didn’t decide whether AEA is an individual basis for jurisdiction in
those claims—don’t know if we also need to meet location/nexus test too
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o
Argument for Congress adopted AEA to eliminate anomalies of the strict
locality test; same rationale in Executive Jet. In essence, they accomplish the
same goal, so shouldn’t need both to qualify for AJ
o Argument for if what the Court said in Executive was true, nothing else
should be at issue when Congress speaks
 Note 3- what if there is strong maritime flavor, but the locality requirement is missing
and the AEA does not apply?
o Carroll (1st circuit) and Dashwood Shipping (9th circuit) reached opposite
conclusions; DS thinks Carroll is wrong because the Jones Act would have
provided AJ in that case anyway
b. Death on High Seas by Wrongful Act
 46 U.S.C.A. 30302. Cause of Action:
o When the death of an individual is caused by wrongful act, neglect, or default
(likely referring to products liability) occurring on the high seas beyond 3 nautical
miles from the shore of the United States, the personal representative of the
decedent may bring a civil action in admiralty against the person or vessel
responsible.
o The action shall be for the exclusive benefit of the decedent's spouse, parent,
child, or dependent relative.
 Look to the state law to see who can bring wrongful death claim
 Congress can, when they so choose, create AJ via statute; a relationship to traditional
maritime activity is not a prerequisite to the exercise of AJ pursuant to DOSHA—all that is
needed is an accidental death occurring more than one maritime league offshore (don’t
know if this reasoning also applies to AEA)
 DOSHA applies to post-accident negligence and pre-accident negligence—can apply even
though the death ultimately occurred on land
c. Admiralty Extension Act
 46 U.S.C.A. § 30101. Extension of Jurisdiction to Cases of Injury on Land:
o In general. The admiralty and maritime jurisdiction of the United States extends
to and includes cases of injury or damage, to person or property, caused by a
vessel on navigable waters, even though the injury or damage is done or
consummated on land.
o Procedure. A civil action in a case under subsection (a) may be brought in rem or
in personam according to the principles of law and the rules of practice
applicable in cases where the injury or damage has been done and consummated
on navigable waters.
o Actions against United States—
 (1) Exclusive remedy. In a civil action against the United States for injury
or damage done or consummated on land by a vessel on navigable
waters, chapter 309 or 311 of this title, as appropriate, provides the
exclusive remedy.
 (2) Administrative claim. A civil action described in paragraph (1) may not
be brought until the expiration of the 6-month period after the claim has
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i.
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ii.
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been presented in writing to the agency owning or operating the vessel
causing the injury or damage.
Gutierrez- A longshoreman slipped on loose coffee beans on the dock and suffered
personal injuries. Under the strict locality test, there would be no admiralty jurisdiction
because the injury occurred on the dock.
The Court held that the case was in maritime jurisdiction because the passage of the
Admiralty Extension Act made vessels on navigable water liable for damage or injury on
land; this was before all the maritime nexus stuff.
Case is within maritime jurisdiction under AEA when (1) alleged that ship-owner commits
a tort while or before the ship is being unloaded, and (2) the impact of which is felt
ashore at a time and place not remote from the wrongful act (see Grubart)
o So, cite this on exam to make argument that there should be strict application of
clear language of the AEA, without the need for maritime nexus, etc.
Grubart- A crane driving piles into the river bed above a tunnel underneath the Chicago
river caused a flood in the downtown area. The issue is whether there is admiralty
jurisdiction over the case to determine the limit and extent of Great Lake's tort liability.
Limitation of Liability Act would limit the company’s liability to the value of the vessel and
freight in regards to the incident. Purpose of limitation was to get people to invest in the
shipping industry.
Court talked like they were applying the AEA, but they weren’t—really using the general
maritime law test from Executive Jet, Sisson, etc.
"After Sisson, a party seeking to invoke federal admiralty jurisdiction pursuant to 28
U.S.C. § 1333 over a tort claim must satisfy conditions both of location and of connection
with maritime activity."
Location- barge sat in navigable waters—so even though injury occurred on land, AEA
says AJ extends to cases where injured was caused by a ship or other vessel on navigable
water (this was a vessel- appurtenance attached to a vessel)
o Court ultimately answered the question of “how far inland” the AEA extended
AJ the traditional “proximate cause” concept should be applied to determine
whether the damage was “caused by a vessel” within the meaning of AEA, rather
than any temporal or spatial limitation
o Special issue is whether and what extent the AEA extends AJ to “garden variety”
land-based torts caused by patrons who overindulge on commercial pleasure
vessels—“dramshop” acts cause problems because LA insulates sellers of
alcoholic beverages from liability & GML continues full joint and several liability
Two test of connection:
o Whether the incident has a potentially disruptive impact on maritime
commerce. It turns on a description of the incident at an intermediate level of
possible generality.
 Dissent basically says what the hell is “intermediate level of possible
generality?” Go back to bright-line locality rule because no clarification
on how to achieve adequate level of generality
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o
VI.
Whether the general character of the activity giving rise to the incident shows a
substantial relationship to traditional maritime activity; such that reasons for
applying special admiralty rules would fit.
 The substantial relationship test is satisfied when at least one alleged
tortfeasor was engaging in activity substantially related to traditional
maritime activity and such activity is claimed to have been a proximate
cause of the incident.
 Admiralty jurisdiction over one tortfeasor, there is over all.
 Concurrence- use ancillary jurisdiction under the federal rules of
civil procedure
 Dean Sutherland says from a practice standpoint, it doesn’t
matter
 Court held there was admiralty jurisdiction & noted, that although not every tort
occurring in navigable waters will fall into AJ, they normally will
 "Contrary to what the city suggests, exercise of federal admiralty jurisdiction does not
result in automatic displacement of state law."  you must adhere to Jensen, but
limitations still leave states with opportunity to apply their own law
 Note: SCOTUS declined to rule that the AEA is an independent basis for admiralty
jurisdiction; SCOTUS also did not decide whether the LLA provides an independent basis
for federal jurisdiction (every circuit court who has considered the question has rules that
the LLA does NOT confer independent basis for federal jurisdiction)
o If AEA is independent, why did SCOTUS go through all the nexus stuff?
 Note: Executive Jet stated that maritime nexus requirement only applies
in the absence of a statute to the contrary; made clear that DOSHA was
such a statute
o 5th circuit said “maritime flavor” is required to sustain jurisdiction in an AEA case
 Note: 5th circuit in Green, resorted to a multi-factor Kelly like test, even though Grubart
rejected this & Coats (a year earlier) said that Grubart rejected this
iii. Makela- After a booze cruise, one of the participants who was intoxicated struck a
pedestrian in a car immediately after leaving the trip. The Court held that admiralty
jurisdiction should apply under the AEA because the wrongs occurred on the water and
damage consummated on land.
 Court seems to have purely applied the AEA, without regard to the jurisprudential test
 Note 5- Doe v. Celebrity Cruise—court found AJ over a cruise ship passenger’s tort
claim arising out of alleged sexual assault by a crew member, even though alleged
assault occurred on shore in a port-of-call. Court held that the stop in port was
integral part of on-going cruise, and parties’ encounter would not have occurred byt
for ship-board events, occurred very close to docked ship, and ended with parties
return to ship—unclear why Court did not find AJ pursuant to AEA.
o Dean Sutherland thinks the focus on satisfaction of the locational requirement
here was unnecessary because this was an admiralty jurisprudential tort &
should’ve been handled under AEA
General Maritime Tort Law
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
Special rules govern certain maritime torts (ex. JA, LAHWCA, etc.); but, where the tort is
maritime and there is no special rule, GM tort law provides rules of decision
o If there is already GML on the subject, then it applies, if nothing yet, court can
fashion a substantive maritime rule which preempts state law, or may apply tort law
of the state in which tort occurred
a. Negligence
i. Kermarec- Plaintiff, who boarded vessel to visit a friend, tripped on a runner attached to a
stairway. District Court applied NY tort law that barred recovery if there was contributory
negligence.
o The Court held that because this was a case under AJ, GML applied, not state law
o This is an old case—before Grubart where SCOTUS said that the attachment of
AJ doesn’t always warrant automatic use of GML
o Standard of care under GML, the owner of a ship in navigable waters owes to all
who are on board for purposes not inimical (hostile) to his legitimate interest the duty
of exercising reasonable care under the circumstances.
o Note: this standard of care does not apply to stowaways—they are owed humane
treatment while he necessarily remains on board
o Note: maritime common carriers frequently are said to owe a higher duty of care
toward their passengers—but, this is not characterized correctly; reasonable care
under the circumstances is the only standard of care, but because common carrier
occupies such a position, it should exercise extreme caution
o Note: a carrier owes a duty of reasonable care to furnish medical treatment to its
passengers; if the carrier supplies a competent doctor, it is not liable through
respondeat superior for the malpractice of the doctor
o THIS IS DIFFERENT FOR SEAMEN!
b. CIF- general rule is that defendant’s substandard conduct must be a cause-in-fact of the
plaintiff’s harm, i.e. a but-for cause of, or a substantial factor in producing the harm
o Note: for JA seamen, the defendant’s fault need only play some part in causing the
plaintiff’s harm!
c. Limited Duties and Legal Cause
o Although an actor’s conduct is wrongful and is a CIF, the law may not want to impose
liability upon the actor to this particular plaintiff for these particular damages which
occurred in this particular manner
o The most significant issues in maritime law are usually loss of consortium, mental
anguish accompanied by contemporaneous impact & economic harm caused by
damage to property of a third party
i. American Export Lines, Inc.- Alvez lost an eye while working aboard the vessel in navigable
waters; the question is whether GML authorizes the wife of a harbor worker non-fatally
injured to recover damages for loss of society.
o The Court had previously held in Gaudet that a wife could recover loss of society
in a wrongful death action, so here it held that it made sense to extend to nonfatal & the wife had a cause of action.
Admiralty Outline Fall 2016
o
"Within this single body of judge-formulated law, there is no apparent
reason to differentiate between fatal and non-fatal injuries in authorizing
the recovery of damages for loss of society."
 HYPO: I get hurt as a passenger on navigable waters—can my
spouse recover non-pecuniary damages citing this case, even
though I am not a longshoreman?
 The court NEVER mentioned this fact as a necessity to
recover, just so happened to be wife of a longshoreman;
arguably, they recognized this as a right of GML
 But, note: Scarborough (5th Cir. 2004)—neither a Jones
Act seaman or his survivors may recover non-pecuniary
damages from a non-employer 3rd party (only law in 5th
Cir.!)
o Following this case, lower courts permitted seaman’s spouse to recover
for loss of consortium if the seaman was injured by an unseaworthy
condition—such recovery precluded though if JA claim because no nonpecuniary
o It reasoned that "[a] remedial omission in the Jones Act is not evidence of
considered congressional policymaking that should command adherence."
o Just because DOSHA and JA do not allow non-pecuniary damages, the
liability scheme in these should not be afforded ideological weight in
forming remedies for GML; no attempt by Congress to preempt the field
o Note: possible for state tort law to apply in maritime tort situation under savings
to suitors—perhaps that would extend loss of consortium damages to children,
other relatives, etc.
o IMPORTANT- RECONSIDER THIS CASE AFTER READING MILES—some question of
the extent to which non-pecuniary damages & particularly punitive damages and
loss of consortium may be recovered under GML
o Note: a vessel owner may limit liability for emotional distress under 46 USCA
30509, except for sexual offenses, when mental injury is:
o Result of physical injury caused by negligence/fault of crewmember or
owner/master/manager/agent/operator (will refer to as “or friends”)
o Result of claimant having been at actual risk of physical injury & risk was
caused by negligence or fault of a crewmember or friends OR
o Intentionally inflicted by a crewmember or friends
ii. Testbank- Two carriers collided in the Mississippi River Gulf outlet causing a chemical spill,
the Coast Guard shut down the channel, and parties sued for the economic loss that
resulted, i.e., commercial fishing, shrimping, etc. without physical damage to the property
o Robins Dry Dock held that there can be no recovery for economic loss absent
physical injury to a proprietary interest. The court reaffirmed that holding.
o Denying recovery for pure economic losses is a pragmatic limitation on
the doctrine of foreseeability, a limitation both workable and useful.
Further, this is a clear-cut test & ya’ll didn’t come up with anything better.
Also, if we do away with Robins, effects on insurance (first party- you buy
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to cover your losses v. third party); cost of third party liability insurance
would skyrocket, you can cover economic losses without propriety
damage via first party insurance, which is cheaper anyway
th
o 5 circuit reaffirmed this in Corpus Christi Oil- because of a drifting barge collision,
platform owner required to shut down wells and to flare gas to save the well.
Court held that platform owner could recover costs incurred in flaring the gas to
save its wells, but couldn’t get damages resulting from inability to produce & sell
during repair period
d. Vicarious Liability
i. Stoot- Stoot, a seaman aboard a jack-up rig (note, everyone aboard a vessel is owed a duty
of seaworthiness under the Osceola, but for JA, need employer/employee relationship),
had his fingers chopped off by a cook aboard the vessel that was employed by D&D.
Porter, the cook, was upset that Stoot had to eat at different times. Conflict caused Stoot
to tell Porter to kiss his ass. Issue is whether the vessel owner is vicariously liable for the
actions of the cook for the catering company.
 The Court held that D&D had no vicarious liability for the wrongful acts of its
employee, because it related to Stoot's personal profane statement to Porter rather
than for reasons related to her employment; intentional torts that are not within
employer’s interest may take the act out of the course & scope of employment, even
if she is on the clock.
 Note: this case is more like the exception, rather than the rule; not every admiraltybased “brawl” will have same result
o Beech v. Hercules Drilling- Co. did not allow firearms on the rig, an employee
accidentally shot another employee while showing him the gun; owner was
not vicariously liable—DS thinks this was because of the “substantial
evidence” rule where the appellate court cannot overturn the district court’s
decision if substantial evidence to support their finding
 Note: Cases are divided on whether a cruise ship is vicariously liable for the medical
malpractice of the ship's doctor—Congress has enacted legislation regarding vicarious
liability for doctors regarding crew members
o 46 USCA Sec. 30510- in a civil action by any person in which the owner or
operator of a vessel or employer of a crewmember is claimed to have
vicarious liability for medical malpractice with regard to a crew member
occurring at a shore-side facility, and to the extent the damages resulted from
the conduct of any shore-side doctor, hospital, medical facility, or other health
care provider the owner, operator, or employer is entitled to rely on any
statutory limitations of liability applicable to the doctor, hospital, medical
facility, or other health care provider in the State of the United States in
which the shore-side medical care was provided.
e. Products Liability
i. East River S.S. Corp- Turbines built by Transamerica caused damage to multiple vessels;
whether a cause of action in tort is stated when a defective product purchased in a
commercial transaction malfunctions, injuring only the product itself and only economic
loss. Three issues:
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
Is there a tort cause of action when defective product purchased in a commercial
transaction malfunctions, but only injures itself & only damage is pure economic
harm?
o Court recognized that a manufacturer in a commercial relationship has no
duty, under negligence or strict liability COA, to prevent a product from only
injuring itself emphasizing a limited duty
 Note: the problem with the test in East River is that it does not answer
the question of what is “itself?” Is it the turbine or the vessel? It could
be argued that the turbine is broken into multiple parts, and only one
part caused the injury to the rest of it.
 Does admiralty law include products liability?
o Yes, the Court recognizes products liability, including strict liability, as a part of
the general maritime law
 Is this the kind of injury that should be protected by products liability law, or contracts
law?
o This should be handled under warranty law because only claim is economic
loss; on the other hand, a tort claim is available if the defective product causes
injury not to itself, but to other property
 Note: what is “other property?” Saratoga Fishing Co.- in determining
whether property was the product itself or other property,
determined by reference to the product that the manufacturer
initially sold; property added to that initial product by any prior buyer
would be “other property” to a downstream buyer
 Note: maritime law recognizes limited types of absolute liability—one is the liability of
a tortfeasor for destruction or damage to navigation or flood prevention structures
built by the U.S.—another is liability for pollution in violation of the Oil Pollution Act of
1990
f. Damages
 Generally, damages in maritime tort cases are consistent with common law tort
damages; however, some important differences
o Liepelt- trier of fact may consider when determining projected loss of income,
that a worker would’ve paid taxes on loss of income so cannot recover full
amount of “gross loss” (applies to JA because adopted FELA)
o Pfeifer- inflation cannot be ignored in determining the loss of future earnings in a
maritime worker’s action against a vessel on which he was injured
o Also, pre-judgment interest is awarded from the date of the incident, whereas,
LA for example, is from the date of filing; maritime law does not give prejudgment interest on future losses
i. Exxon Shipping Co. v. Baker- Exxon Valdez oil spill; captain was drunk; vicarious liability;
three issues:
 Whether vessel owner can be liable for punitive damages without acquiescence in action
that caused harm—another question of vicarious liability
o Trial court held that a corporation is responsible for the reckless acts of those
employees who are employed in a managerial capacity while acting in the scope
Admiralty Outline Fall 2016
of their employment & captain was a managerial employee—so Exxon was
potentially liable for punitive damages; 9th circuit upheld the instruction
o SCOTUS upheld 9th circuit, but only because equally divided on the question;
thus, if judges are divided, reversal cannot be had, and no order can be made
 NO PRECEDENTIAL VALUE THOUGH!
 Whether punitive damages are barred by federal statutory law implicitly, where there is
no provision for recovery
o The Court held that the Clean Water Act did not preempt maritime common law
on punitive damages; no clear indication of congressional intent to occupy the
entire field of pollution remedies (because they did not pass a comprehensive
scheme of liability and recovery)
 Whether award of 2.5 billion is > than maritime law should allow
o In maritime law & cases like this where substantial compensatory damages, 1:1
ratio for punitive damages based on compensatory damages that are awarded—
this is not based on the Constitution, but rather, judge-made common law
o So, this award was cut down
 Note: the decision in Baker is arguably inconsistent with the holding in Miles; which
provided that since the Jones Act did not allow for loss of society damages, then such
damages shouldn't exist for unseaworthiness under general maritime law to a seaman.
o Atlantic Sounding Co., Inc. v. Townsend: Punitive damages are available to
seamen for the employer's willful failure to pay maintenance and cure.
g. Defenses
 General maritime common law rejects contributory negligence as a bar to recovery and
applies a doctrine of "pure" comparative negligence.
 The doctrine of assumption of the risk has had little impact on maritime law, especially as
it relates to carriage of passengers by sea.
 Civil action for damages for personal injury/death arising out of a maritime tort must be
brought within 3 years after the cause of action arose.
i. Kornberg v. Carnival Cruise- plaintiffs filed class action suit against cruise line seeking
damages caused by an alleged failure of the sanitary system on a one-week cruise; 3
disclaimers at issue, are they valid so as to provide a defense to Carnival because as a
general rule, disclaimers are valid if customers given valid notice & they don’t violate
some public policy?
 Disclaimer of liability for negligence
o Invalid because of 46 USCA 183(c)- expressly invalidates contract provisions
purporting to limit a ship’s liability for negligence to its passengers
 Note: exception in (b) regarding emotional distress DS said plaintiff
could’ve argued emotional distress as a result of actual risk of physical
injury; would put on expert testimony
 Disclaimer of any warranty of unseaworthiness
o A ship’s passengers are NOT covered by warranty of unseaworthiness, so it
can’t really be interpreted as operating as a disclaimer for the duty to provide
adequate accommodations to passengers
Admiralty Outline Fall 2016
o
Even if it did apply, against public policy because law doesn’t allow disclaimers
when it amounts to rejection of essential duties of employment—providing
adequate sanitary system is an essential function
 Alternatively, failure to warn involves negligent conduct, which is
already barred by the statute mentioned above
 Failure to warn isn’t an issue of customer satisfaction, so it’s not a
warranty claim; rather, relates to type of conduct which tort law
governs as a matter of social policy
 Disclaimer of obligation to perform voyage
o Not directed at carrier’s duty, so wasn’t addressed
 Bottom line common carrier has a duty to provide passengers with comfortable
accommodations, UNLESS contract to the contrary or fair understanding otherwise
AND carrier must subject his passengers to no suffering/inconvenience which can be
avoided by reasonable care and effort; breach of such duty is a maritime tort
ii. Reliable Transfer- dealt with the “divided damages” rule, where property damages are
divided equally whenever both parties are found to be guilty of contributing fault,
whatever the relative degree of their fault may have been been—this should be changed:
 The Court holds that when two or more parties have contributed by their fault to
cause property damage in a maritime collision or stranding, liability for such damages
is to be allocated among the parties proportionately to the comparative degree of
their fault.
 This abrogated the previously existing "divided damages" rule & all of the rules
created to try to get around strict application (major/minor rule, Pennsylvania rule,
etc.)
o Public policy calls for a change because someone 1% at fault with little to no
damages will have to pay for someone 99% at fault, with a lot of expensive
damages
o Also, consensus among maritime nations & America the only one left—from
an economic standpoint, putting out ships and ship owners at a disadvantage
o Note: divided damages rule still exists in two situations: (1) 50/50 fault
scheme OR (2) unable to determine the person who is at fault
 Note: after this case, lower courts have been unanimous in holding that comparative
contribution applies in non-collision cases (ex. maritime products liability case)
 Note: in admiralty, the release of one tortfeasor does not release all other joint
tortfeasors absent an agreement to effect such a release
iii. National Marine Service, Inc.- plaintiff had a problem with product defendant provided—
issue was whether comparative fault or assumption of the risk applied in a maritime
products liability case?
 The Court extended Reliable Transfer, maritime principle of comparative fault to
maritime cases that urge strict liability, such as products liability cases.
 While consumer may be at fault, doesn’t relieve manufacturer of obligation to pay for
damages caused by the defect the plaintiff's fault must be compared with the fault
of a strictly liable defendant.
Admiralty Outline Fall 2016
o
Assumption of the risk and contributory negligence that bar recover are
inequitable in failure to distribute responsibility.
iv. Sofec, Inc.- vessel broke away from single point mooring system; about 30 minutes later,
captain failed to plot fixes on navigational charts, didn’t realized reef right in front of him,
collision resulted
 The Court holds that the requirement of legal or "proximate" causation, and the
related "superseding cause" doctrine, apply in admiralty notwithstanding our
adoption of comparative fault principle.
o If the damages are a natural consequence of the original negligent act, then
no intervening/superseding cause; but, where superseding cause blocks
proximate causation of other tortfeasors, enough to be a cause of the damage
itself
o Note: here, this applied in a maritime contract case, but this would also apply
in tort
 Where the injured party is the sole proximate cause of the damage complained of,
that party cannot recover in contract from a party whose breach of warranty is found
to be a mere cause in fact of the damage.
o Thus, the captain’s failure to plot the navigation charts was the sole,
proximate cause of the accident because from the time the emergency
conditions ended, he had enough time to act as a reasonable captain in
plotting fixes
 Bell v. Jett Wheelblast- LASC case—“table saw is required to have guard over the
blade; where manufacturer’s duty is to prevent negligent person from getting hurt, it
subsumes the fault of the negligent person!”
o Concept is where one party’s duty totally subsumes another party’s duty—in a
situation like this, no comparative fault; DS uses this example because it’s
relevant here, even though overruled by legislation if scope of the duty is
broad enough to subsume another’s duty, then they are the cause
h. Joint & Several Liability, Contribution and Indemnity
 The maritime rule is that joint tortfeasors are jointly and severally liable for all of the
plaintiff’s damages
o For example, the employer whose negligence jointly causes an injury to his
employee and who is not immune from tort suit is liable to the employee for the
full amount
o Maritime jurisprudence relating to joint & several liability focuses upon (1) the
right of a joint & several obligor who pays more than his share to recover from
co-obligors and (2) the effect of a plaintiff’s settlement with one of the joint &
several obligors
i. Cooper Stevedoring- Longshoreman injured his back when he stepped into a gap between
crates while loading a vessel; sued vessel owner. 2 different companies at issue—(1)
Cooper Stevedoring Houston and (2) Mid-Gulf Stevedoring. Vessel owner filed 3rd party
claim against both of these companies. Mid-Gulf settled with indemnity agreement.
 District Court found vessel liable for general maritime negligence & unseaworthiness,
Cooper was liable for negligence as well. Judgment allowed Sessions to recover 38k from
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ii.
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iii.
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vessel, and in turn, vessel could recover 19k from Cooper. Cooper appealed, saying could
not have contribution in a non-collision maritime case, COA said this prohibition was
inapplicable where joint tortfeasor against whom contribution is sought is not immune
from tort liability by statute.
o SCOTUS agreed and said Sessions could have proceeded directly against Cooper
because he was not his employer and therefore, not shielded by the LHWCA—as
a result, no considerations detract from the well-establish maritime rule allowing
contribution between joint tortfeasors
o Note: court also indicates that a joint and several obligor whose fault was based
upon negligence could not recover contribution from a co-obligor whose fault
was unseaworthiness
McDermott- After construction accident in the Gulf, the plaintiff settled with three of the
defendants. The respondents did not settle and the case went to trial—they want dollarfor-dollar reduction based on settlement, whereas plaintiff wanted % of fault (which
clearly would’ve been higher)
Under GML, particularly Reliable Transfer, every defendant who’s at fault pays its % of
fault “x” the total damages; the fact that there have been settlements is irrelevant,
unless plaintiff and settling defendants agree otherwise (non-settling defendant will pay
% of fault determined by trier of fact)
o When you settle, damages plaintiff couldn’t recover from settling defendant are
GONE from the lawsuit—non-settling defendants are still jointly and severally
liable for portion of fault attributable to them
 Proportionate Approach: "The money paid extinguishes any claim that
the injured party has against the released tortfeasor and also diminishes
the claim that the injured party has against the other tortfeasors by the
amount of the equitable share of the obligation of the released
tortfeasor."
Marathon Pipe Line- A jack-up drilling rig ruptured a pipeline lying on the seabed of the
outer Continental Shelf; owner of rig settled with pipeline owner, including damages
caused by the defective part. What law will apply to three potential claims?
Initial claim under AEA general maritime law will apply, even though the injury
occurred on land, because vessel in navigable waters caused the damage
Pipeline company claim against land-based manufacturer because this happened off
the coast of LA, LA law will apply—Intercontinental Shelf Lands Act, where there is no
federal law applicable, law of adjacent state is adopted as surrogate federal law
Vessel owner claim against land-based manufacturer the Court holds that Rowan may
seek indemnity from Hydro Tech, the manufacturer, under general maritime law,
because the law that applies to the obligation of first defendant applies to other
defendants, and the action is not time barred because of laches.
o How much could they recover from manufacturer? Responsible to vessel owner
for 100% of money spent ONLY on Hydro Tech’s failure—in other words, solidary
liability is for tortfeasors who are all proximate cause, and in this case, the defect
didn’t cause damage to the pipeline
Admiralty Outline Fall 2016
o
VII.
Laches- if claim barred after expiration of analogous statute of limitations, not
automatically barred but, plaintiff must prove (1) no unreasonable delay and
(2) no undue prejudice; if within the expiration period, defendant has to prove
the above two elements, just opposite (undue delay & undue prejudice); in
essence, shifting burden of proof depending on when the claim is brought
iv. Cities Service- three theories of tort indemnity:
 Based on relationship and duties b/t parties- an employer and a ship owner liable for
injuries, ship owner owes the employer a duty of care not to injure its employees
(longshoreman), rendering the employer liable for compensation benefits. Burnside
 Based on active/passive fault- where an owner’s liability was based on passive conduct,
allowing the unseaworthiness condition to continue, and the contractor's liability was
premised on active conduct, installing a defective elevator, the owner was entitled to
indemnity from the contractor. Delta Marine Drilling
o Note: this is probably gone after Loose, which held the concepts of active and
passive negligence have no place in comparative fault apportioning damages
among joint tortfeasors according to degree of responsibility.
 The introduction of comparative fault into maritime law, after Reliable
Transfer, required the reconsideration. Remember, there is a difference
between tort indemnity and contractual indemnity.
 Based on difference in character of duty owed to injured party- where a seaman's
employer is required to make maintenance and cure payments because the seaman is
injured by a third party, the otherwise innocent employer is entitled to indemnification
from the negligent third party. Savoie
 DS says the only time tort indemnity exists in maritime law is when no fault defendant
whose obligation only exists because of relational responsibility has to pay something, no
fault employer can get fully indemnified from tortfeasor
 Note: because a seaman may not sue a co-employee for negligence resulting in personal
injury, the vessel owner/employer has no claim for indemnity or contribution against the
injuring co-employee
o IMPORTANT: contribution/tort indemnity presumes that the person could’ve
sued the tortfeasor directly! Where there is immunity, no contribution claim can
be made against such immune party
 Note: nothing in maritime law that prohibits two parties from agreeing that one will
indemnify the other for tort damages, even if solely caused by the fault of the person
seeking indemnity; such contracts are valid if (1) clearly expressed and (2) unequivocal
language
Worker Injuries: Seamen
a. Determination of Seaman Status
i. Wilander- plaintiff worked on a paint boat, injured upon a fixed platform— does a seaman
have to aid in navigation in order to be a “seaman” under the JA? Circuits had different
tests: (1) Johnson test (7th)—narrowly defined seamen. Job had to relate to navigating the
vessel/transportation (2) Robison test (5th circuit, which court adopted)—seaman must
contribute to the function of the vessel or to the accomplishment of its mission
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
The Osceola affirmed seaman’s general maritime right to maintenance and cure,
wages, and to recover for unseaworthiness, but excluded seamen from the general
maritime negligence remedy
o Congress passed two, mutually exclusive statutes:
 LHWCA- provides recovery for land-based maritime workers but
excludes from its coverage, “a master or member of a crew of any
vessel”
 So, the definition for “seaman” is neither in The Osceola or
the JA itself—does not include land-based workers; however,
nothing in cases or LHWCA to suggest members of the crew
are required to navigate
 JA- restricted to “master or member of a crew of any vessel”
o Note: pressure on employer to make correct determination of longshoreman
or JA seaman because until determination made, have to pay enough to cover
obligation under both if it could be either one
 Ex. LHWCA benefits paid found to be a seaman under JA, those
benefits will go towards maintenance and cure, but you don’t get
surplus back if plaintiff doesn’t win; if he does, some courts allow
employers credit
 The Court holds that there is no requirement that a seaman aid in navigation because
of the thinking at the time of The Osceola; at the time of the Jones Act's passage,
there was no requirement that a seamen aid in navigation & Jones Act “seaman”
definition follows the general maritime law
o Court says that "the only purpose of the Jones Act was to remove the bar
created by The Osceola, so that seamen would have the same rights to
recover for negligence as other tort victims."
 SCOTUS adopted 5th circuit test in Robison- it is not the employee’s particular job that
is determinative, but the employee’s connection to a vessel; the seaman’s duties have
to contribute to the function of the vessel or to the accomplishment of its mission
o Declined to define the connection in all detail, but held that necessary
element of the connection is that a seaman perform the work of a vessel (this
will be fact-specific inquiry, will depend on nature of vessel & employee’s
relation to it)
o Note: workers aboard vessels which are NOT in navigable waters are not
seamen
ii. Chandris- ship’s doctor diagnosed detached retina but failed to follow appropriate care
procedure; when he finally got to a land doctor, had to go into surgery and lost 75% of his
vision—issue is what does “employment related connection to a vessel in navigation”
mean?
 The Court held that a seamen can recover under the Jones Act whether they are on
the vessel or not; they don’t lose seamen status simply because the injury in the
course of employment occurs on shore. JA is status-based, as opposed to title of the
job or snapshot of the actual activity—need to look to overall employment scheme:
Admiralty Outline Fall 2016
o
First, duties must contribute to the function of the vessel or to the
accomplishment of its mission AND
o Second, a seaman must have a connection to a vessel in navigation (or
identifiable group of such vessels) that is substantial in terms of both (1)
duration and (2) nature
 The Court states the 5th Circuit identified the proper rule: a worker
who spends less than about 30% of his time in the service of the
vessel in navigation should not qualify as a seaman under the Jones
Act.
 Note: this often determines whether goes to jury or dismissed
on MSJ—for example, DS says if I am plaintiff’s lawyer & 70%
of his work is on vessel, move for summary judgment and take
away uncertainty of jury verdict on the issue
 Note: LHWCA lists employment types, but don’t think that
because a person falls within one of those enumerated
occupations, he cannot fit under the JA as well—as a practical
matter a plaintiff’s lawyer might one test over the other
because JA requires proof of negligence & comparative fault
reduces recovery, whereas LHWCA is no-fault based
 Exception to 30% rule- where worker has been permanently
reassigned to a different job
iii. Papai- Papai was painting the housing structure of a tug when the ladder moved and he
fell injuring his knee; he seeks remedies from both the Jones Act and LHWCA. Two issues:
(1) Could a reasonable jury conclude that Papai was a JA seaman? (2) Does administrative
ruling that :HWCA applies to a claim preclude JA recovery? (court never reached this issue
because Papai was not a seaman)
 Specific issue here is what the Court meant in Chandris by “identifiable fleet of
vessels”
o In deciding whether there is an identifiable group of vessels of relevance for
JA seaman status determination, the question is whether the vessels are
subject to common ownership or control—requisite link is NOT established by
mere use of the same hiring hall which draws from the same pool of
employees
 Here, Papai worked in a union hall for all the ships in the port; all of
these vessels were owned by different people—did deckhand work on
all of the ships in the port
o DISSENT IMPORTANT HERE—not fair that vessel owners can avoid liability
through eliminating the common ownership/control element by indirectly
hiring people through unions
 Note: LASC refused to follow Papai; if the worker is doing 100%
maritime work, we are going to allow him to maintain a JA claim as a
“seaman,” and we don’t care about identifiable fleet element
 DS says bring claim in state court under savings to suitors if you know
federal court will be against you on the issue
Admiralty Outline Fall 2016

Example- a compulsory pilot may not be a seaman because he lacks a permanent
attachment to an identifiable fleet of vessels, and even if he is a seaman, may be an
independent contractor, i.e. not an employee of the vessel operator and thus, may
not maintain a JA claim against the vessel owner
 Note: DS says not to take the “perils of the sea” language from Chandris and Papai too
literally because a ferry boat worker for example, never goes out to sea; about 80% of
people who work on vessels would not be seaman if we took this literally
b. Seaman’s Remedies
 The Osceola:
o Maintenance and Cure - the vessel and her owners are liable, in case a seaman falls
sick, or is wounded, in the service of the ship, to the extent of his maintenance and
cure, and to his wages, at least so long as the voyage is continued.
 Form of absolute or strict liability for limited benefits to a seaman who suffers
injury or illness while “in the service of” his ship—include wages, medical
treatment, and amount to cover the seaman’s living expenses; M&C only owed
until “maximum medical improvement”
 When the voyage ends depends on whether blue-water or brown-water
seamen—brown-water is arguably the end of the pay period
 Seamen are not entitled to palliative care, only medical care up until the
condition can no longer improve.
 Considered a contractual obligation of his employer, a fact which sometimes
results in treatment different from the other remedies
o Unseaworthiness - liable to an indemnity for injuries received by seamen in
consequence of the unseaworthiness of the ship, or a failure to supply and keep in
order the proper appliances appurtenant to the ship.
 This is a fault based remedy, but is an instantaneous condition - not negligence.
The vessel must be reasonably fit for its intended purpose.
 It is strict liability claim with no temporal requirement; frequently it is paired
with a Jones Act negligence claim.
 This is in contrast to the duty of shipowners due diligence to provide a seaworthy
vessel for cargo - was negligence, now strict liability.
o The Jones Act was passed to overrule the third and fourth points of the Osceola, to
create a negligence action against the employer and abolish fellow-servant rule.
 Note: There is a duty under the Jones Act to provide medical treatment to an
injured seaman, just like under maintenance and cure (called "found")
 The difference is that fault matters under Jones Act; in order to maximize
recovery a lawyer would want to just file M&C action because there is no
reduction for comparative fault of the seaman.
i. Maintenance and Cure
1. Who owes maintenance and cure?
a. Solet- if the vessel owner is not the employer, a situation not uncommon in
offshore mineral production, the vessel owner will not be personally liable for
maintenance and cure, but the vessel maybe liable in rem
Admiralty Outline Fall 2016

So, even if a seaman is unable to win an in personum action against vessel
owner or employer for maintenance and cure, also has an in rem action
against the vessel (maritime lien, no barred by laches)
2. When is a seaman in the service of the ship?
a. Warren- Messman went ashore on leave to sight see, drank a bottle of wine, and
fell off of a ledge. Vessel owner said you were on shore leave, not in service of the
ship or performing duties of ship. The Court held that the employer still had to pay
M&C because it was not willful misbehavior.
 Three defenses under Liability Convention, which are operative under GML
even without Congress passing them by statute:
o Injury incurred otherwise than in the service of the ship
 M&C extends to injuries that occur while the seamen is
departing, leaving, or on shore leave.
 Aguilar- shore leave is an elemental necessity in
sailing of ships, a part of the business as old as the art,
no merely a personal diversion
o Injury or sickness due to the willful act, default or misbehavior of the
sick, injured, or deceased person
 Court notes that some cases say “intoxication” as a sole cause
of injury can be a defense & person asserting defense has
burden of proving that person was intoxicated
 However, three seamen splitting a bottle of wine is
not enough to meet that burden
 The standard is not negligence, but some “vicious
conduct”
o Sickness of infirmity intentionally concealed when the engagement is
entered into
b. Koistinen- Plaintiff injured while jumping from brothel window in Yugoslavia; the
Court holds he was entitled to M&C because messing with the pimp could’ve
resulted in more injuries, and even death; had this happened during or after
consummating original bad act, then would be considered “vicious conduct,” but
here, his leap was not a reasonably foreseeable risk of his original bad decision
that he later abandoned
 Willful misconduct defense has to be direct, proximate cause of the injury—
body guard in this case was an intervening/superseding cause
c. Vincent- Seamen was injured in car wreck while driving to work; vehicle provided
by employer because no land based facility to live in Venice, LA. This is a JA case,
but Court said that “course and scope of employment” element is the same as “in
service of the vessel” for M&C
 The Court held this standard was met, and the seamen was entitled to
maintenance and cure; he was "answerable to the call of duty" and the
transportation was provided by the employer.
o This would’ve been easy if JA seaman involved in land-based accident
(remember, not locational inquiry), at the direction of employer—
Admiralty Outline Fall 2016
clearly in course and scope; however, the tougher issues are when
accident happens not on direct instructions of employer, but he has
an interest
o This wasn’t a gratuitous benefit because the employer wouldn’t have
gotten a crew at all without providing these services; due to
employer’s interest, within course and scope of employment for JA
and in service of the vessel for M&C
 Note: even though courts generally equate “service of the ship” with “course
and scope,” not always synonymous; for example, employer sends JA seaman
to fix up duck blinds for client hunting trip & gets injured; he probably won’t
get M&C because arguably not in service of the vessel, but could get JA
benefits because in course and scope
d. Baker- A brown-water seamen injured at bar when he got in a fight while he was
on call; is he entitled to M&C benefits while playing pool in crossroads lounge &
gets hit over the head with a pool stick? (i.e. is he in service of the ship?)
 (1) The Court held that the seaman was not in the service of the ship during
his injury because he was under no obligation to answer the call of duty, such
was discretionary because he had day off.
o MUST BE A LEGAL OBLIGATION ON PART OF SEAMAN TO SERVE IF
CALLED DURING HIS TIME OFF
 (2) By contrast, a blue-water seamen would have been required to respond to
call of duty and would be in service of the ship.
 Note: right to recover M&C extends to an illness which, although not caused
by the employment, manifests itself during employment; also extends to an
illness which caused symptoms during employment, even though the illness
was not diagnosed until after employment terminated
 Note: a shipowner who owes a duty to provide cure under maintenance and
cure also owes a JA duty to provide medical treatment to an injured or ill
seaman-employee; these duties are not coextensive (JA may extend further
than “maximum medical improvement”)
o Example- a seaman has 100k medical expenses & you know that he
will be 50% at fault—get M&C because no reduction, whereas JA
would only allow ½ recovery
o Example—a seaman participates in “vicious conduct” so as to take
him out of M&C benefits; shipowner-employer may still owe a JA duty
to provide treatment
3. Misconduct barring recovery
a. McCorpen- seaman diagnosed with diabetes, found fit for duty after saying no to
having any illnesses on questionnaire, and then during hot work conditions,
diabetes injured him. (note: at this time, seamen entitled to go to public health
hospitals for free care)
 Two types of misconduct:
Admiralty Outline Fall 2016
o
Concealment- where employer directly asks about this on
employment application or sends employee to get pre-employment
physical & they don’t disclose information
 In these situations, need causal link between concealment
and condition for which he seeks maintenance and cure
 Exception to causal requirement- where seaman is so ignorant
that it could not be said they knowingly concealed pertinent
medical facts (ex. where the person barely speaks English)
o Nondisclosure- where employer doesn’t ask and doesn’t send him to
fill out application/physical
 Only time seaman will be barred from recovery is if he knows
this is something the employer needs to know about &
consciously decides not to tell him
 Court said he couldn’t recover because he concealed his diabetes—A
SEAMAN’S SUBJECTIVE BELIEF THAT HE’S ABLE TO WORK IS NOT ENOUGH
o Seaman’s defenses:
 Inquiry wasn’t specific enough to expect him to conceal
controlled diabetes court rejects because he had clear
knowledge of this condition (13 years), admitted a back injury
on another part of the form, and enough intelligence to
understand what was being asked of him
 Doctor would’ve passed him, even if he did conceal this
although this is a valid defense because would’ve defeated
causal link, under these circumstances, this assumes that the
diabetes was actually under control
 Note: split in federal circuits—8th and 3rd follow McCorpen, while 2nd does not
(DS thinks that 2nd’s reason for not following McCorpen is a straw man
argument & doesn’t hold weight)
 Note: McCorpen doesn’t bar JA negligence claim, although recovery may be
reduced under comparative fault
 Note: no requirement that employee’s injury or illness be identical to previous
injury, but you have to have a causal link between concealed information and
alleged illness that you’re seeking M&C for
 Note: intoxication defense only bars M&C if employer makes clear that
intoxication is misconduct and is treated as such; in other words, if shipowner
permits drinking and drunkenness on board, then condition is not “willful
misconduct” so as to bar M&C
 Note: if a fraudulent situation (ex. obtaining able-bodied seaman
endorsement to obtain employment), such fraud has to be related to the
injury to bar M&C
 Note: the McCorpen defense negates duty to provide M&C, but does not
create a reimbursement right for employer to recover M&C he already paid
b. Coulter- After sustaining back injuries on barge, seaman sent to rehab program for
obesity; after being discharged he stopped doing the program. The employer
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argues that the failure to follow the physician's instructions forfeited right to
M&C.
 The general rule is that a seaman's right to maintenance and cure is forfeited
by a willful rejection of the recommended medical aid.
o Exceptions exist when reasonable grounds for refusing care or failing
to follow instructions are shown.
 The Court holds the seamen is entitled to M&C because employer improperly
terminated benefits without doctor’s opinion stating that he reached
maximum improvement & without subsequent investigation; this contributed
to his difficulty and failure to continue dieting and losing weight
o Bottom line- employer needs factually supported basis for
termination
4. Maintenance and cure benefits
a. Caulfield- The defendant, employer claims the maintenance at the rate of $15 a
day is unsupported and clearly erroneous and the plaintiff's rejection of tender of
cure forfeited his claim to recover medical expenses.
 The Court first holds that the maintenance award was not clearly erroneous
because evidence showed food/lodging was close to that number - fair and
reasonable estimate of living expenses ashore.
o Per diem is a question of fact for the jury—plaintiff’s own testimony
about costs of food & lodging in the area is sufficient to establish
appropriate maintenance rate
 The Court then held that the burden was appropriately placed on the
defendant to show that the cost of the plaintiff's treatment unnecessarily
exceeded that which the employer would have incurred had the employee
followed the employer's recommendation regarding the choice of physician.
o If there is available public, free medical treatment, and seaman goes
to private physician seaman has burden to show that the public
treatment wasn’t sufficient because he has a duty to mitigate the
costs of cure
o If private physician employer provides, and seaman goes to another
private physician (as we have here) employer has burden to prove
that costs of employer’s physician would be less
 If employer proves this, seaman gets only up to that amount
& they have to pay the deductible
 Note: availability of free medical care to an injured seaman under Medicare
may satisfy the owner’s obligation to furnish care; because it’s free, burden of
establishing program ineligibility and incompetency of provider is on seaman
o But, a private healthcare policy that seaman paid for doesn’t count for
employer—still has to pay full value of cure
 Note: Davis v. Odeco—employer established a medical plan to pay for nonwork related injuries; the employee paid less than 10% of the premiums—
employer tried to say we paid for the bulk of the plan, so our M&C duty is
Admiralty Outline Fall 2016
satisfied; court said because seaman paid for even a little, this is collateral
source & you still owe M&C
o An employer cannot offset an injured seaman’s right to M&C by
claiming credit for worker’s compensation payments
o Appropriate cure rate is the amount the healthcare provider actually
received, not what they charged
 Note: a collective bargaining agreement may fix the amount of maintenance
to which a union member-seaman is entitled; the majority of courts hold that
seaman is bound by amounts fixed in such agreements, while other courts
hold that it is not controlling
 Note: maintenance is permissible where family care is not purely gratuitous
and expenses attributable are actually proven—in other words, seaman must
actually incur expenses
 Note: purpose of M&C is to provide a seaman with something comparable to
vessel conditions—however, 5th circuit allowed blue-water seaman living at
his home while injured to recover mortgage note
o Courts have also allowed maintenance for brown-water seamen, even
though they never sleep or eat aboard the vessel—this shows that
courts are realistic and don’t necessarily adhere to the original
purpose of M&C
 Note: an award of maintenance, in addition to general damages award that
includes past and future wages, is proper; however, maintenance is
duplicative of “found,” the amount due to a seaman under the JA for the
value of living expenses while at sea
b. Vella- once doctor claims that endpoint has been reached (whether (1) maximum
cure or (2) permanent condition), that’s when M&C duty stops; employer has duty
to show that it is permissible to stop payments
 Note: M&C does not include palliative damages (something to just take away
pain & increase comfort, but doesn’t improve the condition)
 If at the time of trial, seaman is still receiving medical treatment, the court has
two options to award future maintenance and cure:
o Lump sum
 If he awards lump sum, surgery doesn’t work & doctor says
further treatment will improve condition seaman can come
back and get more money than the lump sum already
awarded, but the burden shifts to seaman
o Continuance of payments until order of the court
5. Penalties for failure to provide maintenance and cure
a. Vaughan- Seamen fell ill with tuberculosis and the employer failed to pay
maintenance and cure.
 Although the American Rule is that everyone pays own attorney’s fees, in
absence of contract or statute, SCOTUS held that the seaman could recover
attorney's fees as damages in equity—because misconduct was willful and
wanton
Admiralty Outline Fall 2016

Dissent in the case wanted to award punitive damages, but they didn’t ask for
it
b. Morales- The Court upheld an award of compensatory damages, but vacated
award of attorney's fees because the evidence in this case was insufficient to
prove unreasonable and arbitrary.
 If the shipowner, in failing to pay maintenance and cure, has not only been
unreasonable but has been more egregiously at fault, he will be liable for
punitive damages and attorney's fees; this higher degree of fault is described
as callous, arbitrary, capricious, willful, or persistent.
 Court sets three different levels of recovery:
o (a) Denial of obligation to pay M&C, but reasonable - receive only
M&C
o (b) Denial of obligation to pay M&C, and unreasonable, but not
willful/wanton - M&C and compensatory damages
 Vaughn- would compensatory damages include attorney’s
fees? Because 5th circuit awarded them as damages—on the
other hand, could be more along the lines of punitive because
willful/wanton conduct
 So, if plaintiff, cite Vaughn and say compensatory; if
defendant, cite Vaughn and say punitive
o (c) Denial of obligation to pay M&C, and unreasonable &
willful/wanton - M&C, compensatory, punitive, and attorney's fees.
c. Townsend- Issue is whether punitive damages are available under GML. The Court
held that seamen could recover punitive damages for their employer's willful and
wanton failure to pay maintenance and cure.
 In Miles v. Apex Marine, SCOTUS emphasized that the JA adopted FELA, which
only allowed for pecuniary damages—so JA, by affiliation, does not allow for a
claim of non-pecuniary damages against employer; Guevera overruled Merry
Shipping, which allowed recovery for punitive damages in claims of
unseaworthiness—Townsend vacated Guevera, so that question is still up in
the air
o We don’t know if this means that Merry Shipping is revived or not; see
McBride 5th circuit
 The common law tradition of punitive damages extends to maritime law and
punitive damages were historically available to seamen.
 Under Article III, section 2—Court can take land-based common law
developments & apply to maritime law:
o Before passage of JA, GML approved punitive damages on behalf of
passengers and seamen—although they were rarely upheld on
appeal, that does not draw into question their availability (McBride
disagrees with this)
 As a result, if the remedy existed prior to the Jones Act - the statute did not
take away pre-existing remedies available to seamen.
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o
Note: SCOTUS never talked about unseaworthiness though—so we
know that you can get punitive damages for M&C, but 5th circuit en
banc has said you cannot (McBride)
 Bottom line the reasoning of Miles remains sound because Miles did not
preempt the field of M&C, which is totally separate from damages because
no-fault system; both unseaworthiness and JA negligence actions are faultbased, where comparative fault applies—it is not right to say that Miles
precludes any action or remedy for personal injury beyond that made
available under JA
o Note: the holding of Miles does not apply to wrongful withholding of
M&C benefits under GML, when it could’ve also been brought under
the JA! The fact that a seaman could recover under the JA for
wrongful withholding of M&C, does not mean that the JA is the only
available remedy for M&C claims—seaman can choose among
overlapping statutory and common-law remedies for injuries
sustained by denial of M&C
 So, if looking to get punitive damages, do not bring it under
JA; bring it under GML & cite Townsend
 Dissent- cited Guevera where it’s an illness & not a personal injury, punitive
damages would not be appropriate
6. Employer’s or shipowner’s claim against third party for maintenance payments
a. Savoie- A seaman's innocent employer is entitled to 100% reimbursement from a
third party for maintenance and cure payments made necessary by the third
party's negligence, even though the seamen himself was partially responsible—in
other words, seaman’s negligence is not imputed to employer when employer is
innocent
 Seaman- 10% at fault, 3P- 90%; Employer gets 100% of M&C back from 3P
b. Adams v. Texaco- A shipowner whose negligence has contributed to the injury,
has paid maintenance and cure benefits to an injured (and contributorily
negligent) seamen, that shipowner is entitled to contribution for M&C from a
third party tortfeasor whose negligence likewise contributed to the injury.
 Seaman- 10%, Employer- 10%, 3P- 80%; where JA employer at fault and
seaman at fault, JA employer gets imputed seaman’s portion too; so he can
only recover 80% in this case
ii. Unseaworthiness
1. Colon v. Trinidad- The duty is absolute, but it is a duty only to furnish a vessel and
appurtenances reasonably fit for their intended use; concept of “reasonably fit” is that
vessel owner cannot delegate duty, but doesn’t have to be perfect or accident-free
2. Vargas v. McNamara- Unseaworthiness may arise from the employment of an unsafe
method of work such as the shipowner's failure to provide adequate equipment for
the performance of an assigned task or necessary safety equipment (can also be owed
if inadequate crew); liability is not dependent upon fault—employer doesn’t have to
know or have had a chance to fix the condition. If the condition causes the vessel to
Admiralty Outline Fall 2016
be not reasonably fit for its intended purpose, then unseaworthy & tort claims arise if
it causes damage
 EXAM: duty of seaworthiness is NOT owed to passengers; unseaworthiness
damages owed by vessel owner to members of the crew of that vessel only—
does not extend to other vessels! (exception- flotilla)
o Example- seaman going out to crew boat & injured because of crew boat’s
unseaworthy condition he’s not a member of the crew boat, so crew
boat owner does not owe duty to passengers, even if JA seaman on a
different vessel; possible remedies:
 M&C from employer
 Employer may recover from crew boat owner if at fault too,
contribution; if not at fault, indemnity and damages
 Remember: in order to recover indemnity or contribution, person
from whom trying to get $ back had to have had potential tort
liability to injured person—in other words, they cannot be
immune
 GML negligence claim against vessel owner
 GML negligence claim against crew boat owner
 Pecuniary and non-pecuniary damages
 Potential JA claim against employer because crew boat may be agent
of employer
 Only pecuniary damages
3. Usner v. Luckenbach- Unseaworthiness is not the same as negligence. Negligence may
or may not render the vessel unseaworthy, but negligence is an ACT and
unseaworthiness is a CONDITION—here, an instantaneous, negligent act of a
longshoreman was not an unseaworthy condition
4. McBride- 5th circuit held that a seaman may not recover punitive damages from an
unseaworthiness claim
iii. Negligence (The Jones Act)
1. The employer’s liability
a. Relevant statutes
(1) 46 U.S.C. § 30104: A seaman injured in the course of employment or, if the
seaman dies from the injury, the personal representative of the seaman may
elect to bring a civil action at law, with the right of trial by jury, against the
employer. Laws of the United States regulating recovery for personal injury to,
or death of, a railway employee apply to an action under this section.
1. Seaman can bring this claim in state court; the plaintiff has the right to
elect whether they have a trial by jury or not. Jones Act claims are not
removable.
2. The substantive law governing the Jones Act is FELA (45 U.S.C. § 51)
3. Personal representative: state law governs, so under Louisiana law this
person is not always the spouse, but personal administrator of estate.
They still have a fiduciary duty to everyone else entitled to recover.
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b.
c.
d.
e.
(2) FELA: "… shall be liable in damages to any person suffering injury while he is
employed by such carrier in such commerce, or, in case of the death of such
employee, to his or her personal representative, for the benefit of the
surviving widow or husband and children of such employee; and, if none, then
of such employee's parents; and, if none, then of the next of kin dependent
upon such employee, for such injury or death resulting in whole or in part
from the negligence of any of the officers, agents, or employees of such
carrier, or by reason of any defect or insufficiency, due to its negligence, in its
cars, engines, appliances, machinery, track, roadbed, works, boats, wharves,
or other equipment."
Johansen- The Federal Employees Compensation Act was enacted to provide for
injuries to Government employees in the performance of their duties; it is the
exclusive remedy for civilian seamen on public vessels & Jones Act does not apply.
(1) Dean Sutherland does not think that FECA would preempt claims for
unseaworthiness or M&C because these are deeply-rooted common law
remedies
Volyrakis- The express language of the Jones Act requires that an employeremployee relationship exist before liability may be imposed; the employer need
not be the owner of the vessel, but there must be a task associated with vessel.
(1) Independent contractors may be liable under the act
(2) Borrowing employer doctrine- borrowing employer considered to be the JA
employer for purposes of a tort action (there can only be one JA employer)
1. But, big factor is control- payment, direction, supervision of employee,
and power to hire/fire
(3) Note 1- Cox, court concluded that under the Jones Act an employer may be
liable for the negligent automobile driving of a crewmember that injures
another crewmember although the crewmember-driver was not in the course
and scope of employment under vicarious liability principles
1. “the Jones Act is a departure from common law and common law
theories, such as respondeat superior, do not apply in cases involving the
Jones Act—the only person whose employment status this court should
be concerned with is that of the seaman who suffered personal injury
during the course of his employment. The employment status of all others
who may be involved is irrelevant”
Standard of Care
(1) Gautreaux v. Scurlock- The court held that seamen are obligated under the
Jones Act to act with ordinary prudence under the circumstances, which is
basically a reasonable person standard.
1. SCOTUS approved this case
(2) CSX v. McBride (2011) held that to establish liability under FELA, a railroad
worker need not satisfy the common-law proximate cause standard but,
instead, need only demonstrate that the railroad's negligence played a part,
no matter how small, in bringing about the injury - feather light causation.
Negligence Per Se
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f.
(1) Kernan v. American Dredging- Open-flame kerosene lamp on deck ignited
highly inflammable vapors that injured the seaman, but rule of Coast Guard
required such a lamp to be eight feet above the water - this lamp was only
three feet above.
1. The Court held that in the absence of any showing of negligence, the
Jones Act, incorporating section 4 of FELA, permits recovery resulting from
a violation of a statutory duty through negligence per se.
a. Defendant tried to argue that the lighting requirement was for
navigation & a fire is not within scope of the statutory duty—court
rejected and said that negligence per se is not limited to situations
where injury is caused by conditions that the statute is designed to
address
b. Any violation, no matter the intent or the scope of the statute, under
FELA and JA, results in negligence per se against the employer
c. LIMIT: still have to have slight causation—but, doesn’t have to relate
to statutory intent
2. Note: section 4 of FELA if the employer violates a statute enacted for
the safety of the employee, can be no comparative fault and plaintiff gets
100% of the recovery
Negligent Infliction of Emotional Distress
(1) Consolidated Rail Corp. v. Gottshall- The Court held that negligent infliction of
emotional distress is a part of the duty to use reasonable care to furnish
employees with a safe place to work, and that the test is the "zone of danger."
1. Such test limits recovery for emotional injury to those plaintiffs who
sustain a physical impact as a result of the defendant’s negligent conduct,
or who are placed in immediate risk of physical harm by that conduct
2. Note: a seaman’s spouse cannot recover loss of consortium under the
Jones Act –may still be recoverable under unseaworthiness claim though
a. So, a seaman’s spouse can get non-pecuniary damages for an
unseaworthiness claim, but a seaman cannot under McBride in the 5th
circuit?
(2) Hopson v. Texaco- The Court held that when an employee's injury is caused in
whole or in part by the fault of others performing, under contract, operational
activities of his employer, such others are "agents" of the employer within the
meaning of the statute. Here, employer is liable for injuries sustained in
automobile wreck where they contracted with taxi driver for transportation;
taxi cab was vital part of ship’s operation because getting sick seamen to
Consul to receive proper care (vessel cannot leave port until those people are
taken care of—so benefits employer)
1. Note 2- where the employer’s crewmen are supervised by independent
contractor hired by the employer to do work which furthers the
employer’s enterprise or operational activities, the liability of
independent contractor is imputed to the employer for purposes of JA
negligence
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a. However, employer not responsible for injuries sustained by one of
his employees in the course of work performed for an independent
contractor in furtherance of the contractor’s business or interests
2. Defenses
a. Comparative fault
(1) 45 U.S.C. §53 Contributory negligence; diminution of damages
1. In all actions brought against any such common carrier by railroad under
or by virtue of any of the provisions of this chapter to recover damages for
personal injuries to an employee, or where such injuries have resulted in
his death, the fact that the employee may have been guilty of
contributory negligence shall not bar a recovery, but the damages shall
be diminished by the jury in proportion to the amount of negligence
attributable to such employee: Provided, That no such employee who
may be injured or killed shall be held to have been guilty of contributory
negligence in any case where the violation by such common carrier of any
statute enacted for the safety of employees contributed to the injury or
death of such employee.
(2) Norfolk Southern Railway v. Sorrell- the Court held that the causation
standard under FELA should be the same for both categories of negligence,
employer negligence and employee comparative fault.
b. Negligence per se
(1) Roy Crook & Sons, Inc.- If there is a violation of the employer of a safety
statute intended to protect the employee, then comparative fault does not
apply.
c. Assumption of the risk
(1) 45 U.S.C. §54 Assumption of risks of employment
1. In any action brought against any common carrier under or by virtue of
any of the provisions of this chapter to recover damages for injuries to, or
the death of, any of its employees, such employee shall not be held to
have assumed the risks of his employment in any case where such injury
or death resulted in whole or in part from the negligence of any of the
officers, agents, or employees of such carrier; and no employee shall be
held to have assumed the risks of his employment in any case where the
violation by such common carrier of any statute enacted for the safety
of employees contributed to the injury or death of such employee.
(2) Tolar v. Kinsman Marine Transit- no risk that can be reasonably controlled by
the vessel owner can be assumed by the seaman—assumption of the risk is
not a defense in these situations. As far as comparative fault, to determine
whether he contributed, focus on seaman’s actions after he assume the risk of
working with defective equipment
1. In other words, defense of contributory negligence requires evidence of
some negligent act or omission by the employee, other than
knowledgeable acceptance of a dangerous condition; burden is on
employer to make that showing in order to mitigate damages
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(3) Socony-Vacuum Oil Co.- It is consistent with maritime law to apply the rule of
comparative negligence, rather than assumption of the risk to a seaman who
makes use of a defective appliance knowing that a safe option is available.
1. In other words, can be a reduction of employee’s recovery, but cannot
operate a complete bar, relieving the employer of responsibility to pay
damages—this is because sometimes a seaman has to deal with an unsafe
condition & doesn’t have a choice; nature of the industry
2. Court left open the issue of whether an employee would be completely
barred from recovery when he knowingly encounters a safe condition,
ordered not to do it, and then does it anyway
3. Note: In a Jones Act claim, an employer who claims that the employee
was partially responsible for the accident may assert a counterclaim for
damages to its vessel sustained in the accident.
d. Contractual exemptions prohibited
(1) 45 U.S.C. §55 Contract, rule, regulation, or device exempting from liability;
set-off
1. Any contract, rule, regulation, or device whatsoever, the purpose or
intent of which shall be to enable any common carrier to exempt itself
from any liability created by this chapter, shall to that extent be void:
Provided, That in any action brought against any such common carrier
under or by virtue of any of the provisions of this chapter, such common
carrier may set off therein any sum it has contributed or paid to any
insurance, relief benefit, or indemnity that may have been paid to the
injured employee or the person entitled thereto on account of the injury
or death for which said action was brought.
(2) Note also: forum selection clauses in JA cases are unenforceable because FELA
doesn’t enforce them
e. Primary duty doctrine- holds that a ship's officer whose breach of duty to maintain
a safe ship caused his injury by an unseaworthy ship may not recover damages
from the shipowner for his injuries caused by the breach of his duty.
(1) It applies only when the injured officer actually knew of the existence of the
unseaworthy condition before the accident and the injury was not caused in
part by the independent negligence of the employer through others.
(2) The courts aren't going to call this assumption of the risk, but they're saying
that if your injury is caused by your own breach, no recovery
1. Northern Queen (9th circuit)- court concluded captain consciously
assumed, as a term of employment, the duty to operate the vessel safely
& he violated duty by failing to respond appropriately to weather
conditions
(3) Sometimes, courts will not use this, but rather, will say “no recovery” because
employer not negligent & vessel not unseaworthy
1. Park v. Stockstill (5th circuit)- court rejected JA and unseaworthiness claim
of a captain who slipped and fell after standing guard for over 24 hours
after he ran his boat into a sandbar in waters of which he was unfamiliar
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f.
Statute of limitations- a seaman's Jones Act and unseaworthiness claims are
subject to a prescription of three years (note that maintenance and cure is not a
maritime tort for personal injury or death, although the consequential injuries
are)
(1) Sanchez v. Loffland Brothers Co. (5th Cir. 1980): Widow contends that action
for wrongful death of Jones Act seaman can be maintained under DOHSA after
statute of limitations expired for the Jones Act.
1. Laches: the equitable principle of estoppel prevents a defendant whose
representations or other conduct have caused a plaintiff to delay filing
suit until after the running of the statutory period from asserting that bar
to the action; equitable estoppel is applicable to claims under the Jones
Act.
a. However, to create an estoppel, the conduct of the defendant must
be so misleading as to cause the plaintiff's failure to file suit.
b. The Court held that the action was time barred because there was no
evidence of misrepresentations, prejudice, or unreasonable delay.
c. Note: laches also applies where plaintiff’s delay in bringing suit is
unreasonable and defendant was prejudiced by the delay
i. In determining unreasonable delay, courts look to analogous statute
of limitations
ii. If suit filed after SOL has expired, presumption of laches created,
and plaintiff has burden of proving (1) no unreasonable delay in
bringing suit and (2) defendant was not prejudiced
(2) Note: 3-year statute of limitations applies to in rem actions
(3) Note: when does JA/GML statute of limitations begin to run? Two options:
1. When the harmful event occurs
2. On the date plaintiff discovers, or reasonably should have discovered the
injury & its cause (only applies in limited cases where plaintiff doesn’t find
out about injury till long after event)
(4) Note: Jones Act statute of limitations is not tolled by the claimant's pursuit of
a LHWCA claim which ultimately is denied on jurisprudential grounds; the
employers notice of administrative proceedings under the LHWCA does not
adequately put it on notice of defending against a Jones Act claim.
(5) Note: A timely suit on a Jones Act claim filed in a state court of improper
venue will interrupt the running of prescription even though service is not
made within the limitation period, so long as service is effected within a
reasonable time after the suit is filed.
iv. Other seaman’s claims
1. Note: non-resident, non-alien, non-citizen over navigable waters (not in the US)—
cannot bring Jones Act claim in US, unless place where injury occurred doesn’t offer a
remedy
2. Smith v. Atlas- issue is whether a seaman who’s at-will employment is terminated
because he filed suit against his employer under the Jones Act has an action in
admiralty for wrongful discharge.
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3. The Court held that the seaman is entitled to maintain such an action under general
maritime law and recover compensatory damages; an employer may not with
impunity discharge a seaman in sheer retaliation for the seaman's filing of a personal
injury claim - contravenes established public policy.
a. The employer's discharge of the at-will seamen-employee, while it is essence a
lawful act, should not be used as a means of effectuating a purpose ulterior to
that for which the right was designed.
4. Limitations:
a. Seaman must affirmatively establish that the employer's decision was motivated
in substantial part by the knowledge that the seaman either
(1) Intends to file a personal injury action against the employer
(2) Has already filed a personal injury action against the employer
b. No punitive damages, only compensatory and no double recovery.
c. Seaman still has a duty to mitigate damages, such as find another job.
(1) Because this is such a limited defense in these at-will employment
arrangements, try to find another defense
v. Compromise of seaman’s claims
1. Wink v. Rowan Drilling- After doing a friendly Jones Act suit, the π wanted it set aside
the settlement and bring a new action. Π was struck on the head by a pipe and
sustained a serious head injury. Π claims that ∆ committed a fraud by misleading the
court as to the extent of seaman's injury, his mental competence, and guarantee of a
lifetime job. Defendant prepared all the pleadings and filed the suit; π didn't have
counsel, there was opportunity for π to be taken advantage of.
a. "The burden is upon the party claiming settlement as a defense to prove that it
was entered into by the seaman with a full understanding of his rights."
(1) *THESE ARE THE BUZZ WORDS; KNOW THIS
(2) Some Factors: The adequacy of consideration, the nature of the medical and
legal advice available to the seaman at the time of signing the release
b. Court held that the previous judgment approving the settlement must be set aside
and the new action could be brought
(1) Court said that the ∆ can claim the prior settlement as a defense, but it must
bear the burden of proving that π had an informed understanding of the
significance of the settlement when he signed it.
1. Dean Sutherland said as a practice tip to meet this burden: record it, have
a witness, court reporter, give plaintiff list of rights, let them know that
they are waiving any worsening of the condition, suggest hiring an
attorney
2. Bass v. Phoenix Seadrill- After injury, seaman compromised his claims against Phoenix
in a Mary Carter settlement, the rebate and veto provisions were voided by the trial
court. Appellate court reversed.
a. A Mary Carter settlement is the release of a plaintiff's cause of action in return for
a settlement payment, along with a provision providing that the settling
defendant would be reimbursed to some specified degree from any recovery the
plaintiff received in a suit against another non-settling defendant.
Admiralty Outline Fall 2016
b. The Court held that there was no basis for setting aside the veto and rebate
provisions because such is a consequence that flows from settlement.
vi. Special jurisdictional and procedural problems in seamen’s claims
1. Jury trials
a. Fitzgerald v. United States- The Court held that a maintenance and cure claim
joined with a Jones Act claim must be submitted to the jury when both arise out
of one set of facts; unseaworthiness also must be joined to jury.
(1) Only one trier of fact should be used for the trial of what is essentially one
lawsuit to settle one claim split conceptually into separate parts because of
historical developments.
1. Sutherland argues that M&C could likely be severed if there are exigent
circumstances requiring a decision earlier – example, need surgery now.
2. Note: Could you get the judge to determine whether M&C is owed, then
send the determination of punitive damages for willful and wanton failure
to pay M&C to a jury?
a. Probably not, you would need to get the judge to determine it all.
(2) A jury verdict finding a vessel seaworthy but also finding an employer liable
for negligence under the Jones Act is not fatally inconsistent. See Trawler
Racer.
b. Comeaux v. TL James- case was submitted to the jury under Jones Act and
unseaworthiness; jury found negligence on the part of James and no
unseaworthiness of the vessel as proximate cause.
(1) Verdict fixed damages at $150K, but the jury determined that Comeaux was
contributorily negligent to the extent of 75% and judgment was reduced
accordingly.
(2) Contributory negligence for purposes of Jones Act Negligence (feather light
causation is sufficient) is not necessarily equivalent to that when the basis for
liability is unseaworthiness & thus, must be retried by the jury.
1. In other words, causation standards differ & now must be retried
2. Interest on claims (not on the final)
a. General concepts
(1) Post judgment interest is determined by the applicable law of the forum
1. In federal court, calculated from the date of the entry of the judgment
(2) Pre-judgment interest generally is allowable on admiralty claims from the
date of the loss. However, pre-judgment interest is not recoverable in a Jones
Act claim tried to a jury.
1. No pre-judgment interest for future losses/damages under general
maritime/admiralty law.
2. In admiralty, the jury can be notified that future earnings are not taxed
under the federal tax code and can discount accordingly.
b. Wyatt v. Penrod Drilling- Plaintiff was trying to get pre-judgment interest under
state law. He couldn't get it because he joined general maritime claims with Jones
Act claim.
Admiralty Outline Fall 2016
VIII.
(1) If the court may not award prejudgment interest on a Jones Act claim, there is
no separate pure admiralty item on which to allow interest.
(2) The plaintiff may not claim the benefits of a jury trial on an unseaworthiness
claim completely merged with a Jones Act claim as to quantum and then
attempt to unscramble the verdict after he prevails.
c. Monessen Southwestern v. Morgan- on an award of future damages, jury has to
discount award to present value (to avoid overpaying to plaintiff)
(1) Two holdings:
1. Part I- states cannot take the issue of what is a proper “discount rate”
away from the jury—cannot say, as a matter of law, must do X
2. Part II- no pre-judgment interest in FELA cases
(2) As long as there is rational basis for trier of fact to assign numbers, trial should
not be a graduate seminar on economic forecasting
(3) Judge can recommend a method of evaluating, as long as judge doesn’t
preempt jury function
1. The jury instruction here that the zero discount rate was to be applied as
a matter of law was improper because the appropriate rate is factual
question at which to discount the FELA award to present value.
(4) Concurrence- under federal law, there’s no pre-judgment interest in FELA
cases; but, perhaps there should be to account for past and future lost wages
& past and future pain and suffering
1. Court recognizes pain & suffering damages are pecuniary losses for
purposes of FELA, despite language that bars non-pecuniary
d. 5th Circuit- came up with their own method, while paying lip service to SCOTUS
(1) Colvert- possible that economist and mathematicians can figure out real rate
of inflation—take out inflation from both discount rate and gains to get real
rate of interest
1. Practically get opponent’s economic report, ask your economist “did
the opposing side follow Colvert?” & if not, expose on cross
Worker Injuries: Maritime Workers
a. LHWCA Coverage Beyond 3 Miles
i. Introduction
1. Workers injured while performing their workplace duties on or near navigable waters
who are not seamen may be entitled to benefits from their employers under the
Longshore Harbor Worker's Compensation Act ("LHWCA").
2. It is a comprehensive worker compensation scheme administered through the Office
of Worker Compensation Programs of the Department of Labor.
a. Examples: offshore platform workers (primarily those employed on platforms on
the Outer Continental Shelf.)
b. The larger group is "longshoreman" are workers who load and unload vessels and
workers who build and repair ships.
(1) Note: those who do not qualify for seaman remedies, not LHWCA benefits,
generally entitled to state worker’s comp, but may also have a GML tort claim
Admiralty Outline Fall 2016
against employer—remember, if you bring LHWCA, that is exclusive remedy!
(but, not fault-based, so there’s a tradeoff)
3. Relevant legislation
a. Submerged Lands Act - extended state lands out three-miles into the Gulf of
Mexico to cover offshore drilling, everything else on the shelf is federal.
b. Outer Continental Shelf Lands Act (OCSLA) - if fixed platforms are attached to the
shelf or seabed. 43 U.S.C. § 1333.
(1) An employee injured as a result of operations conducted on the Outer
Continental Shelf for the purposes of exploring for, developing, removing, or
transporting by pipeline the natural resources of the Shelf is covered under
the LHWCA.
(2) While oil production workers on floating platforms are seamen, those on fixed
platforms are entitled to LHWCA benefits; that is, unless they are within a
state's territorial waters, which would entitle the worker to state worker's
compensation.
c. So, as between employee & employer, two different basis LHWCA can apply:
(1) Independently
(2) Through OCSLA—still apply LHWCA, but different way to qualify for it
ii. Pacific Operators Offshore v. Valladolid (2012)- OCSLA extends the federal workers'
compensation scheme established in LHWCA to injuries “occurring as the result of
operations conducted on the outer Continental Shelf” for the purpose of extracting
natural resources from the shelf.
1. Circuit split
a. 5th circuit - despite language in OCSLA, the injury had to happen on the shelf for
LHWCA to be adopted through OCSLA
b. 3rd circuit- but for causation test—even though injured in traffic accident, entitled
to OCSLA offshore benefits
c. 9th circuit- both wrong; there is no geographical requirement the person be
injured on fixed platform on shelf; however, “but for” test is too broad
(1) Substantial nexus- somewhat different than proximate cause, but not as loose
as “but for”
2. The Court agreed with 9th circuit and held that coverage extends to an employee who
can establish a substantial nexus between his injury and his employer's extractive
operations on the Outer Continental Shelf—SCOTUS intentionally declines from giving
“substantial nexus” a definition
a. Note: no indication in statute that OSCLA excludes OSC workers from LHWCA
coverage when they are also eligible for state benefits; to the contrary, LHWCA
incorporated by OSCLA anticipates that injured employees might be eligible for
both state and federal benefits
(1) Offset provision- there is a deduction because we don’t permit double
recovery; so, if under state comp you get 10k, and under LHWCA you get 15k,
you only get to recover 5k for LHWCA purposes
Admiralty Outline Fall 2016
iii. Reynolds v. Ingalls (5th, 1986)- Reynolds worked as a ship-fitter that had to carry out sea
trials. He was working as a cook on a vessel, water on-board, slipped and fell; given comp
benefits under LHWCA, but argued Jones Act negligence and unseaworthiness.
1. General rule- exclusive remedy in a claim by an injured longshoreman against
employer is LHWCA benefits
a. Exception- where maritime employer is also a vessel owner (dual capacity)—can
sue him under GML concepts in that capacity; injured employee can sue third
person vessel owner, so why shouldn’t they be able to sue employer who
operates in same capacity as such vessel owner
b. He was a shipbuilder, but Congress, in 1984, specifically amended the LHWCA to
say that dual capacity exception doesn’t apply to shipyards?
(1) Didn’t apply here though because court could not apply this amendment
retroactively—the law that would’ve applied on the date of the injury is the
law used in litigation
2. Employee argues:
a. Injury occurred more than 3 miles offshore, so LHWCA doesn’t apply to me
(1) 5th circuit rejects this—LHWCA extends
b. Even if LHWCA did extend, wasn’t working in capacity as a shipbuilder when injury
occurred—stewart on the vessel; so shouldn’t be limited to LHWCA benefits
(1) Relevant status inquiry is occupational; don’t want people to walk in and out
of coverage based on the job they happen to be doing at the time of the
injury—once you achieve status, that’s it
1. Note: ORVA- precludes scientific personnel from recovering under certain
statutory provisions, including the Jones Act and LHWCA
b. LHWCA Coverage Within Three Miles
i. Introduction and history
1. Prior to 1927, maritime workers who didn't qualify as seamen could recover under
state compensation only if the injury occurred on land; if it occurred on water, the
worker's only recourse against his employer was a tort action, which was often barred
by worker's own contributory negligence or assumption of the rick.
2. In International Stevedoring Co. v. Haverty (1926), the Court held that maritime
workers engaged in loading, unloading, or repairing vessels on navigable waters were
entitled to the protection afforded seamen.
3. Shortly after that decision, Congress enacted LHWCA, which provides the remedy for
non-seamen engaged in maritime employment within American territorial waters.
4. The essentials for coverage under the LHWCA are:
a. A covered employer
b. An injured employee who meets both the "status" and "situs" requirements.
ii. Status
1. 33 U.S.C. §902
a. When used in this chapter—
(1) The term “person” means individual, partnership, corporation, or association.
(2) The term “injury” means accidental injury or death arising out of and in the
course of employment, and such occupational disease or infection as arises
Admiralty Outline Fall 2016
naturally out of such employment or as naturally or unavoidably results from
such accidental injury, and includes an injury caused by the willful act of a
third person directed against an employee because of his employment.
(3) The term “employee” means any person engaged in maritime employment,
including any longshoreman or other person engaged in longshoring
operations (BLURB), and any harbor-worker including a ship repairman,
shipbuilder, and ship-breaker, but such term does not include—
1. individuals employed exclusively to perform office clerical, secretarial,
security, or data processing work;
2. individuals employed by a club, camp, recreational operation,
restaurant, museum, or retail outlet;
3. individuals employed by a marina and who are not engaged in
construction, replacement, or expansion of such marina (except for
routine maintenance);
4. individuals who (i) are employed by suppliers, transporters, or vendors,
(ii) are temporarily doing business on the premises of an employer
described in paragraph (4), and (iii) are not engaged in work normally
performed by employees of that employer under this chapter; (TRUCK
DRIVERS)
5. aquaculture workers;
6. individuals employed to build any recreational vessel under sixty-five
feet in length, or individuals employed to repair any recreational vessel,
or to dismantle any part of a recreational vessel in connection with the
repair of such vessel;
7. a master or member of a crew of any vessel; or
8. any person engaged by a master to load or unload or repair any small
vessel under eighteen tons net;
a. if individuals described in clauses (1) through (6) are subject to
coverage under a State workers’ compensation law.
i. Issue- LAWC- any worker covered by JA, LHWCA, FELA, not entitled
to WC benefits; so, if someone in one of the prohibited categories is
hurt in Louisiana, how will you know what he’s covered by? State
law says if not LHWCA, then state comp, but federal law says if not
state comp, then LHWCA
2. Northeast Marine Terminal v. Caputo (1977)- Respondents were injured while working
on the NYC waterfront; are they covered under the LHWCA?
a. The employee need not be engaged in maritime employment at the time of injury
if he or she spends at least some of his time in indisputably longshoring
operations.
(1) Employer’s try to raise “point of rest”- say unloading process ends, and
loading into another cargo hole begins—point where stevedoring ends and
terminal function begins
1. SCOTUS rejects this because no statutory support & goes against goal of
Congress to not have people “walking in and out of coverage”
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(2) Footnote 33- no significance in the fact that the container guy was stripping
had been taken off the vessel at another pier and then moved to the site of
the injury—the only geographical concern Congress intended was that
operation take place at a covered situs
1. Precisely Congress’ intent to accommodate mobility of containers and
ability to transport and strip them at locations removed from the ship—
however, limits:
a. Example- container put into terminal, sits there till truck gets there,
goes somewhere else, container gets to Denver before stripped--would employee doing checker responsibilities be covered by LHWCA
if he gets hurt?
i. No, because not an adjoining pier, wharf, dry dock, terminal,
building way, marine railway, or other adjoining area customarily
used by an employer in BLURB’ing
b. The language of the 1972 amendments is broad; suggests the courts should take
an expansive view of the extended coverage; since their job was to check and
mark cargo containers, integral part of unloading process, they are covered.
(1) Unresolved after Caputo whether a “maritime worker” entitled to LHWCA
coverage must be one engaged in loading, unloading, building and breaking
ships, or whether workers performing other activities may qualify as
“maritime workers”
3. Boudloche v. Howard Trucking (5th, 1980)- whether claimant who regularly performs
indisputably maritime operations, but which maritime operations constitute only a
small portion of his overall working time, occupies a status covered by the LHWCA;
administrative hearing ruled against him because said the LHWCA required a
“substantial portion” of the employee’s duties to be longshoring operations (he only
did 2-5% of this type of work)
a. Court reversed and said it may be as little as a "substantial portion" of his time,
but that may be as little as two and one-half percent of total work time.
(1) Congress wanted to expand coverage—SCOTUS has interpreted in two cases
that same principle; a worker responsible for at least some portion of
longshoring operations, can still be an integral part
(2) Note: court didn’t decide at what point a worker’s employment in maritime
activity becomes so episodic it will not suffice to confer status
(3) Note: in Schwab, SCOTUS said an employee injured while repairing equipment
essential to the loading/unloading process was engaged in maritime
employment for purposes of LHWCA
1. How far back does this status go though, in terms of immediacy? Such as,
people who originally built the conveyor belt, made parts to repair, etc.
2. Dean says courts have made it clear there is some kind of limit, but he
suggests addition of a temporal requirement
4. Director, Office of WC v. Perini- whether a construction worker, who was injured while
performing his job upon actual navigable waters, and who would have been covered
by the Act before 1972, is "engaged in maritime employment" and thus covered.
Admiralty Outline Fall 2016
a. The Court held that the worker was engaged in maritime employment for the
purpose of coverage under the amended LHWCA because the legislative intent
was to "extend coverage to protect additional workers."
(1) When a worker is injured on the actual navigable waters in the course of his
employment on those waters, he satisfies the status requirement and is
covered under LHWCA, providing, of course, that he is the employee of a
statutory "employer," and is not excluded by any other provisions of the
Act.
(2) These employees are considered to be "engaged in maritime employment"
not simply because they are injured in a historically maritime locale, but
because they are required to perform their duties upon navigable waters.
b. No legislative history indicating that Congress intended to withdraw coverage
from employees covered prior to 1972 amendments.
(1) In other words, if worker would’ve been covered prior to 1972 amendments,
then they meet status and situs requirements
(2) Note: holding extends only to those persons “traditionally covered” before
the amendments; didn’t express opinion whether coverage extends to a
worker injured while transiently or fortuitously upon navigable waters
1. Red flag- in the proper case, those people may not fall under this
exception because not covered under pre-72 version of LHWCA! Perini
doesn’t automatically extend coverage to them—only reason they
dropped this footnote was to emphasize uncertainty of coverage for these
people
2. Herb Welding v. Gray (1985)- SCOTUS ruled that a claimant working
exclusively as a welder on a fixed offshore oil drilling platform in state
territorial waters was not engaged in maritime employment for LHWCA
a. 1972 amendments were intended to cover workers on the situs who
are involved in essential elements of loading and unloading—
maritime employment not limited to occupations specifically
mentioned in Sec. 2(3), neither can it be read to eliminate any
requirement of a connection with the loading or construction of ships
b. Nothing inherently maritime about building and maintaining offshore
pipelines and platforms—nature is not altered by “marine
environment”
3. Munguia- (5th, 1993)- worker injured while acting as a pumper-gauger on
a platform within territorial waters—court said test for status coverage is
dual inquiry:
a. An employee may be engaged in maritime employment if he is injured
in the course of his employment while on navigable waters.
b. If he is not on navigable waters at the time of the injury, he may
satisfy the status test only if his work is "directly connected to the
commerce carried on by a ship or vessel."
i. Here, not on navigable waters; the only contract he may have had
with cargo (unloading supplies) was “fleeting” and “unrelated to
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
maritime commerce” & usually occurred at a time by which supplies
no longer possessed the properties associated with “cargo”
ii. 4th circuit rejected this decision in Pittman
4. Coloma v. OWCP (9th, 1990)- under Herb’s Welding, the “essential
elements of loading/unloading” test, applies in determining “status” for
coverage under the LHWCA
5. Bienvenu v. Texaco (5th, 1999)- en banc, looked at Perini; a worker injured
in the course and scope of his employment on navigable waters is
engaged in maritime employment & meets the status test only if:
a. Presence on the water at time of the injury is neither transient nor
fortuitous
i. In order to not be “transient nor fortuitous”- have to perform “not
an insubstantial amount of work on navigable waters”
In order to not be “insubstantial”—
o Threshold amount must be > a bit of activity (preclude
coverage for those commuting offshore to work by
boat)
o Routine activity of assisting in tying vessel to the dock
and loading/unloading one’s tools and personal gear DO
NOT count as a meaningful job
6. New Orleans Depot (5th, 2013- concurrence)- Clement addressed status
requirement for injured worker who repaired shipping containers that
may/may not have been used in maritime commerce
a. Proper question is whether the task that the employee engages in is
the type of customary maritime work that a dockworker or
longshoreman would have to perform in order to successfully transfer
cargo between ship and land (sort of like Dean’s proposed “temporal
requirement”)
i. This has no precedential value even though a concurrence can be
the majority opinion—she didn’t have enough people sign on;
however, two other panels have adopted this idea
ii. Example, BPU v. OWCP (5th, 2013)- rejected expansive
interpretation of maintenance and repair of loading/unloading
equipment; shoveling ore debris in a cross-tunnel may embrace
unloading activity, but cleaning an area is so far removed from any
unloading operations that it is not an “integral part of the loading
process”
7. Boomtown v. Bazor (5th, 2002)- floating casino’s chief engineer is excluded
from coverage under LHWCA because “individual employed by a
recreational operation;” he would also not be covered under Jones Act
because not a “vessel”
iii. Situs
1. Introduction
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a. Beyond three miles- OSCLA or coverage may be provided on navigable waters
beyond three miles of U.S. shore
b. Within three miles- inquiry is what constitutes a covered situs when the claimant
is injured on land?
(1) 33 U.S.C. §903. Coverage
1. (a) Disability or death; injuries occurring upon navigable waters of United
States
a. Except as otherwise provided in this section, compensation shall be
payable under this chapter in respect of disability or death of an
employee, but only if the disability or death results from an injury
occurring upon the navigable waters of the United States (including
any adjoining pier, wharf, dry dock, terminal, building way, marine
railway, or other adjoining area customarily used by an employer in
loading, unloading, repairing, dismantling, or building a vessel).
i. Most courts addressing the issue recognize that “other adjoining
area” must satisfy two additional requirements: (1) a geographic
component (the area must adjoin navigable waters) and (2) a
functional component (the area must be “customarily used by an
employer in loading [or] unloading ... a vessel”).
2. New Orleans Depot Services (5th, 2013)- en banc court overturned the previous
standard and held the definition of “adjoining” navigable water to mean “border on”
or “be contiguous with” navigable waters; based on the plain language of the statute.
a. The court concluded that because the facility where the employee worked did not
border on navigable waters, it was not a covered situs and Mr. Zepeda is entitled
to no benefits under the Act.
b. Because Congress did not specify a more technical definition of the word
“adjoining” (if that is even possible), we must accord that word its ordinary
meaning, as, “to lie next to,” to “be in contact with,” to “abut upon,” or to be
“touching or bounding at some point.”
c. Note: BPU v. OWCP- underground transport tunnel where a worker was injured is
not used in the vessel-unloading process & is not a covered situs
(1) The entire facility adjoined navigable waters, but when the location falls into
category of “other adjoining area,” must also be “customarily used” for
unloading/loading vessels (functional prong)
1. Need not be exclusively or predominantly used for unloading, only
customarily
2. Look to general purpose of the area rather than requiring every square
inch to be used for maritime activity
iv. Employment relationship
1. Hullinghorst Industries (5th, 1981)- The LHWCA covers claims made by employees
against their employers in the course and scope of their employment; not only must
the injury have been caused by the employment, it also must have arisen during the
employment.
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a. This case recognized that if the injured claimant meets the status and situs
requirements, his employer automatically qualifies as a covered employer.
2. Gaudet v. Exxon Corp.- In determining whether an employee has been "borrowed,"
the extent to which the borrowing employer exercises control over the employee is
relevant, but not dispositive. Other factors: existence of an agreement, the length of
time of the arrangement, right to fire, obligation to pay, and responsibility for work
conditions. The way these are viewed depends upon whether this doctrine is being
asserted by maritime worker, or by the company as a defense.
a. The most pertinent factors were determined by the Fifth Circuit to be:
(1) Was the second employer itself responsible for the working conditions
experienced by the employee, and the risks inherent therein?
(2) Was the employment with the new employer of such duration that the
employee could be reasonably presumed to have evaluated the risks of the
work situation and acquiesced thereto?
b. Note: if borrowing employee situation, borrowing employer assumes all
obligations, but benefits from exclusive remedy. Under LHWCA, a borrowing
employer cannot get contribution for payments made—which they could if under
state law
c. Special Defenses
i. Most common defense to an LHWCA claim is whether claimant pursued his or her remedy
timely
ii. 33 U.S.C. §903
1. (b) Governmental officers and employees
a. No compensation shall be payable in respect of the disability or death of an officer
or employee of the US, or any agency thereof, or any State or foreign government,
or any subdivision thereof
2. (c) Intoxication; willful intent to kill
a. No compensation shall be payable if the injury was occasioned solely by the
intoxication of the employee or by the willful intention of the employee to injure
or kill himself or another
(1) Note: not sure if the common law defense to the intoxication defense (if
employer encourages drinking, etc.) is applicable here
d. Benefits (page 517 for statutes)
i. Medical and disability
1. Compensation for disability—how much depends on what type of injury:
a. Permanent/total
(1) 2/3 of average weekly wages during continuance of total disability
1. A claimant makes out a prima facie case of total disability when he proves
that he is unable to perform the duties of his previous job because of a
work-related injury; the burden then shifts to the employer to show there
are jobs that the claimant is capable of performing and which are
reasonably available to him.
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2. There is a split in the circuits as to whether the paying employer can say
“we’ll hire you, just in a different position” to satisfy the burden—those
that allow, say it only lasts as long as employee stays at that job
b. Temporary/total
(1) 2/3 of average weekly wages for continuance of injury
c. Permanent/partial
(1) 2/3 of average weekly wages—when listed limb, like leg, arm, hand, foot, eye;
for as long as Congress has listed on schedule (they fixed # of weeks for
certain injuries)
(2) When other case, 2/3 of difference between average weekly wages of the
employee & earning capacity after accident, for as long as partial disability
continues
d. Temporary/partial
(1) 2/3 of difference between injured employee’s average weekly wages before
the injury & earning capacity thereafter
2. The employee may select a physician (other than one who has been "disapproved" by
the OWC) and may be required to submit to examination by another physician.
a. What happens when employer says we want IME & claimant says no?
(1) Employer cannot just cut off benefits! But, section (d) does require an injured
worker to submit to examination—employer can get order from court and if
he doesn’t show up again, can get order relieving payment of longshore
benefits until he does show up
1. Exception- “unreasonably” if there is a practical, valid reason why
employee refused to submit, employer stuck (ex. religious beliefs don’t
allow for blood transfusion)
3. Regarding asbestos and injuries that take time, it is the last employer to expose the
longshoreman to asbestos must pay for medical care; different result in tort.
ii. Second injury fund
1. An employer who knowingly hires a partially disabled worker whose subsequent onthe-job injury combines with the pre-existing disability to produce total and
permanent disability is subject to limited liability for LHWCA benefits.
a. For example, a longshoreman is partially blind (pre-existing) and has a second
injury that causes complete blindness; both the employee and employer are
entitled to this special fund relief. This would not be the case if a person injured
their arm and then the second injury caused a complete loss of the arm, cut it off.
(1) Combo of two has to be greater than either one alone & second one cannot
account for total of loss!
2. Designed to encourage hiring a longshoreman with a permanent/partial disability;
courts interpret section that disability has to be "manifest;" the employer has to have
actual knowledge of the condition.
a. Note: in 5th circuit, “manifest” is not actual knowledge; if in the employee’s
medical records, charged with knowledge
iii. Wrongful death and survival
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1. The LHWCA provides both wrongful death (if the worker dies from a work-related
injury or illness) and survival benefits (if an employee receiving LHWCA benefits dies
from a non-work-related injury or illness).
a. Spouses- as long as remains single, 50% of worker’s pre-death average weekly
wage + inflation; if remarried, 2-year lump sum
b. Spouses with children- 2/3 of worker’s pre-death average weekly wage; kids only
get this until turned 18
c. Employer only obligated to pay 3k for the funeral at most
iv. Credit for benefits paid under other laws
1. When a worker's status is unclear, an employer may pay seaman's benefits, LHWCA
benefits, or state workers compensation; acceptance does not estop worker from
claiming benefits under another status, employers just provided with a credit.
2. The benefits are only available to the employee's designated beneficiary.
e. Processing the LHWCA Claim
i. Initial proceedings
1. The Act is enforced through an administrative process where review is to the Benefits
Review Board with subsequent appeal to the U.S. Courts of Appeal.
2. The injured employee has a duty to give prompt notice to the employer and the
Department of Labor
a. Tolling provisions do have an effect on recovery, but only if the reason that
recovery was denied was because employee covered by one act & not the other
(ex. bring JA claim, litigation for 3 years, they say you were longshoreman & under
LHWCA, but the prescriptive period was 1 year on that claim; LHWCA is “tolled”)
(1) If you lose because employer wasn’t negligent, tolling provision does not
apply!
3. 33 U.S.C. § 902- presumptions created that (1) claim is under chapter, (2) sufficient
notice given, (3) injury not solely caused by intoxication of employee, (4) injury not
because of willful intention of employee to injure/kill himself or another
a. Once employer introduces substantial evidence to the contrary, presumption falls
out of case and trier of fact decides without presumption; in absence of such
evidence, presumption applies for plaintiff’s carrying burden of proof
4. The Rules of Evidence are relaxed in these proceedings; like hearsay.
ii. Appellate review of compensation orders
1. Process: Administrative Law Judge, Benefit Review Board, then and only then could
you appeal to Court of Appeal.
2. Once there is an order, the district court can enforce - seize assets.
iii. Compromise of claims
1. An administrative law judge shall approve the settlement within thirty days unless it is
found to be inadequate or procured by duress.
2. If both parties to the settlement are represented by counsel, then agreements shall be
"deemed" approved unless specifically disproved within thirty days.
iv. Enforcement and modification of awards
1. An award can be modified if there are sufficient facts to justify, such as employee
going back to work.
Admiralty Outline Fall 2016
v. Attorney’s fees
1. American Rule applies generally, but there are exceptions that shift payment to the
employer.
vi. Agreements as to compensation benefits
1. No agreement by an employee to waive his right to compensation under this chapter
shall be valid. Further, contingency fee contracts are not allowed under LHWCA.
vii. Retaliatory discharge
1. The law provides a claim, in addition to worker compensation benefits, to the
employee who is discharged or otherwise punished by the employer for pursuing the
claim for such benefits.
f. Maritime Worker’s Tort Claim
i. Introduction
1. LHWCA benefits are usually exclusive, but the employee may pursue tort claims
against 3rd parties and in some instances, against employer
ii. Against 3rd persons
1. Sieracki and its demise
a. Sieracki (1946)- The Court held that the obligation of seaworthiness, traditionally
owed by an owner of a ship to seamen, extends to a longshoreman injured while
working aboard the ship.
(1) It reasoned that the risks themselves arise from and are incident in fact to the
service, not merely to the contract pursuant to which it is done.
(2) It is not confined to the ship's service under immediate hire to the owner, but
extends to those who render it with consent or arrangement.
b. After Sieracki, the Court held that a vessel owner was "strictly liable" for an
unseaworthy condition that was—caused by the maritime worker's employer and
that subjected the vessel owner to Sieracki liability—could recover indemnity
from the worker's employer under the "implied warranty of workmanlike
performance." Ryan Stevedoring Co., Inc. (1956) This led to 1972 amendments…
(1) Negligence of Vessel (33 U.S.C. § 905(b))- In the event of injury to a person
covered under this chapter caused by the negligence of a vessel, then such
person, or anyone otherwise entitled to recover damages by reason thereof,
may bring an action against such vessel as a third party in accordance with
the provisions of section 933 of this title, and the employer shall not be liable
to the vessel for such damages directly or indirectly and any agreements or
warranties to the contrary shall be void (did away with Ryan indemnity—
but, note: only for vessel owners; so indemnity agreement between
stevedoring company and OSCLA vessel, valid). If such person was employed
by the vessel to provide stevedoring services, no such action shall be
permitted if the injury was caused by the negligence of persons engaged in
providing stevedoring services to the vessel. (drawing distinction between
vessel’s crew and another longshoreman) If such person was employed to
provide shipbuilding, repairing, or breaking services and such person’s
employer was the owner, owner pro hac vice, agent, operator, or charterer
of the vessel, no such action shall be permitted, in whole or in part or
Admiralty Outline Fall 2016
directly or indirectly, against the injured person’s employer (in any capacity,
including as the vessel’s owner, owner pro hac vice, agent, operator, or
charterer) or against the employees of the employer. (special exception to
dual capacity doctrine for shipyard people) The liability of the vessel under
this subsection shall not be based upon the warranty of seaworthiness or a
breach thereof at the time the injury occurred. The remedy provided in this
subsection shall be exclusive of all other remedies against the vessel except
remedies available under this chapter. (no more Sieracki seaman)
1. In this provision, Congress did away with the Ryan indemnity. It also kept
the "dual capacity doctrine" intact. Lastly, it did away with the Sieracki
unseaworthiness claim.
2. Dual Capacity Doctrine: In the case where an employer owns both the
vessel and stevedoring company (wears two hats), the employee can sue
their employer under general maritime law tort and avoid exclusive
remedies under the LHWCA.
3. Today, employees covered by the LHWCA in shipyard work are limited
only to compensation benefits; this would be the case even if the shipyard
owns a vessel.
c. Bridges v. Penrod (5th, 1984)- Whether a roustabout/seaman on a submersible
drilling rig, protected by full seaman remedies, falls into one of the pockets of
Sieracki seamen remaining after 1972 amendments to LHWCA while briefly
engaged in transferring equipment from a supply vessel to rig.
(1) Bridge’s remedies:
1. Jones Act negligence claim
2. Maintenance and cure
3. BUT NO UNSEAWORTHINESS CLAIM!
a. You are only owed seaworthiness on a boat of which you are a
member of the crew—he was on supply boat
(2) The Court held that a Jones Act seaman injured on one vessel, when he is the
member of the crew of another vessel, is not a Sieracki seamen as to the
supply boat.
(3) Bridges argued that the amendments were only tied to the LHWCA, while
Sieracki was tied to everyone. Bridges says he is in the little pocket of people
who are not covered by LHWCA, so amendment doesn’t affect him he is
aboard a vessel doing work that members of the crew of that vessel would
normally do, so should be owed warranty of seaworthiness
1. Basically, the Fifth Circuit said that Jones Act seaman does not need this
other coverage because they already get the three-strand suit.
(4) While there are pockets of Sieracki seamen still left after the 1972
amendments, that does not apply to Jones Act seamen. Examples:
1. Federal and state employees, who are expressly excluded from LHWCA
coverage
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a. Swan Lake (5th)- maritime workers covered by FECA, who were not
subject to LHWCA, were not barred by 72 amendments from asserting
claims as Sieracki seamen and that Ryan indemnity rights followed
2. Workers who are neither seaman nor LHWCA employees, but are injured
working on a vessel
a. Green v. Vermillion (5th)- cook/watchman at his employer’s duck camp
asked to assist in tying up employer’s vessel & in unloading supplies
and equipment, slipped and fell on deck; excluded from LHWCA
because “employed by club or camp,” (72 added this exception) but
he could pursue Sieracki unseaworthiness claim against his employer
and a GML negligence claim against employer
i. These workers may be covered by state worker compensation but
because they are injured on navigable waters, state worker
compensation may not be their exclusive remedy—may pursue
claim against employer under Sieracki or tort law
3. A seaman on one vessel who is temporarily working aboard another
vessel
4. An American citizen or resident who I employed as a maritime worker in
international waters by American-based corporation
2. 905(b) Action
a. Scindia Steam Navigation v. De Los Santos (1981)- longshoreman and employee of
Seattle Stevedore Co. was injured when he was helping load a vessel owned by
Scindia; what’s the extent of the duty owed by vessel owner after amendments to
person aboard doing stevedoring services?
(1) The Court articulated three duties owed by the vessel: (1) turnover duty (2)
active operations duty (3) the duty to intervene.
1. Turnover duty- two-fold:
a. Turn over the ship and equipment in condition such that expert in
stevedoring company can carry on cargo operations with reasonable
safety to person and property
b. Vessel owner must warn about hidden dangers—warn stevedoring
company of any hazards known or should be known to vessel owner
likely to be encountered by stevedoring company and longshoreman,
that are not known or could be known to them
i. A shipowner does not have a duty to warn of an open and obvious
condition if the one asserting the duty to warn was in a better
position, by virtue of training and experience, to appreciate the
danger.
ii. Absent any contract provision, positive law, or custom to the
contrary, the shipowner has no general duty by way of supervision
or inspection to exercise reasonable care to discover dangerous
conditions that develop within the confines or the cargo operations
that are assigned to stevedore.
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2. Active operations- vessel owner owes a continuing duty to exercise
reasonable care to make the vessel safe if (1) it actively participates in the
operations, (2) maintains control over the area, or (3) such a duty is
imposed upon the vessel owner by contract, positive law or custom
3. Duty to intervene- vessel owner turns over vessel to stevedoring
company—see what they are doing, and know someone will get hurt; only
have a duty to intervene when vessel owner has actual knowledge of this
danger, and cannot rely on stevedoring company to correct
a. Mere knowledge of a dangerous condition which the stevedore
created does not trigger the Scindia duty to intervene.
4. Note: duty of reasonable care (not Scindia and Howlett) governs tort
claims by one stevedoring company against another stevedoring company
b. Kerr-McGee Corp. v. Ma-Ju (5th, 1987)- Lyons was injured while on vessel
belonging to Ma-Ju, under time charter (i.e. where vessel owner hires the crew) to
Kerr-McGee, who had the right to say where the vessel goes.
(1) Section 905(b) eliminates only an injured worker's right to bring an
unseaworthiness claim against vessel owner, but preserves right under prior
law to recover for vessel owner negligence - didn't create new cause of action.
1. Under the provisions of the charter, it is clear that maintaining the safety
of the vessel's deck and stairs was the sole responsibility of Ma-Ju.
(2) The court held that a time-charter is not liable under Section 905(b) unless the
cause of the harm is within the charterer's traditional sphere of control and
responsibility or has been transferred thereto by agreement; as a result, Lyons
has no claim against Kerr-McGee - not responsible.
iii. Against his employer
1. Introduction
a. 33 U.S.C. § 904. Liability for Compensation
(1) Every employer shall be liable for and shall secure the payment to his
employees of the compensation payable under 907, 908, and 909.
1. In the case of an employer who is a subcontractor, only if such contractor
fails to secure the payment of compensation shall the contractor be liable
for compensation.
a. So, if subcontractor cannot pay benefits, the general contractor has to
pay—however, he gets benefit of exclusive remedy!
2. A subcontractor shall not be deemed to have failed to secure the payment
of compensation if the contractor has provided insurance for such
compensation for the benefit of the subcontractor.
a. Overrules Womata- LHWCA is state worker’s comp in DC; so when
they put in subway system, government said they would buy single
worker’s comp policy that covered everybody—so, subcontractor
doesn’t need to buy insurance; someone got hurt because of fault of
someone with transit authority—although government was reason
that subcontractor didn’t get insurance, SCOTUS said they still get the
benefit of exclusive remedy
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b. 33 U.S.C. § 905(a). Employer Liability; failure of employer to secure payment of
compensation
(1) The liability of an employer prescribed in section 904 of this title shall be
exclusive and in place of all other liability of such employer to the employee,
his legal representative, husband or wife, parents, dependents, next of kin,
and anyone otherwise entitled to recover damages from such employer at law
or in admiralty on account of such injury or death, except that if an employer
fails to secure payment of compensation as required by this chapter, an
injured employee, or his legal representative in case death results from the
injury, may elect to claim compensation under the chapter, or to maintain
an action at law or in admiralty for damages on account of such injury or
death. In such action the defendant may not plead as a defense that the injury
was caused by the negligence of a fellow servant, or that the employee
assumed the risk of his employment, or that the injury was due to the
contributory negligence of the employee. For purposes of this subsection, a
contractor shall be deemed the employer of a subcontractor’s employees
only if the subcontractor fails to secure the payment of compensation as
required by section 904 of this title.
1. So basically, if employer fails to pay compensation benefits—no exclusive
remedy & injured employee has choice of suing for (1) recovery of LHWCA
benefits or (2) tort recovery
a. When would you recommend to injured employee to seek LHWCA
benefits instead of tort benefits?
i. Employee of subcontractor injured by the sole fault of the general
contractor’s employee—if general contractor pays benefits,
exclusive remedy & employee of subcontractor cannot get tort
recovery from the general contractor tortfeasor
2. Morehead v. Atkinson-Kiewit (1st, 1996)- issue concerns the liability of a dual-capacity
employer under LHWCA; whether Atkinson's alleged negligence occurred in its
"employer" capacity (immune from suit) or rather was in its capacity as "vessel"
(905(b) negligence action against a vessel as third party).
a. The duties of care described in Scindia should be applied in dual capacity cases
insofar as the facts allow. To do so, a court may have to divide the employershipowner into a hypothetical independent employer and independent vessel
owner, each separately holding the duties allocated under principles suggested in
Scindia.
(1) A court may sometimes be assisted in this process by the defendant's internal
employment arrangements assigning certain personnel to the "vessel" side of
its operation.
b. Note: a “borrowing employer” is immune from tort suit by the LHWCA employee
he borrows
c. Note: 905(b) bars a tort action by an LHWCA employee against his employer, if the
employee was employed to provide ship repairing services; issue is—at what point
does maintenance work become repair work?
Admiralty Outline Fall 2016
d. Note: Gay v. Barge (5th, 1990)- a worker is barred from bringing a 905(b) action
against his employer if his permanent duties, or his interim duties over an
appreciable period, are such that he would be a covered repairer within 902(3)—
however, not barred only because of what he was doing at the moment he was
injured
(1) Here, pumping water out of barges is an incidental chore involved in
operating barges & is not “repair work;” so, if person is in occupation of
shipbuilder, but injured doing something that crew of vessel would
traditionally do, 905(b) doesn’t die!
g. Maritime Employee’s Rights Against 3rd Persons
i. 33 U.S.C. §933
1. (a) Election of remedies
a. If on account of a disability or death for which compensation is payable under this
chapter the person entitled to such compensation determines that some person
other than the employer or a person or persons in his employ is liable in damages,
he need not elect whether to receive such compensation or to recover damages
against such third person.
2. (b) Acceptance of compensation operating as assignment
a. Acceptance of compensation under an award in a compensation order filed by
the deputy commissioner, an administrative law judge, or the Board shall operate
as an assignment to the employer of all rights of the person entitled to
compensation to recover damages against such third person unless such person
shall commence an action against such third person within six months after such
acceptance. If the employer fails to commence an action against such third
person within ninety days after the cause of action is assigned under this section,
the right to bring such action shall revert to the person entitled to compensation.
3. (d) Institution of proceedings or compromise by assignee
a. Such employer on account of such assignment may either institute proceedings
for the recovery of such damages or may compromise with such third person
either without or after instituting such proceeding.
4. (f) Institution of proceedings by person entitled to compensation
a. If the person entitled to compensation institutes proceedings within the period
prescribed in subsection (b) of this section the employer shall be required to pay
as compensation under this chapter a sum equal to the excess of the amount
which the Secretary determines is payable on account of such injury or death over
the net amount recovered against such third person. Such net amount shall be
equal to the actual amount recovered less the expenses reasonably incurred by
such person in respect to such proceedings (including reasonable attorneys’
fees).
(1) In other words, if amount of recovery is insufficient to cover all future comp
benefits, employer still on the hook after he gets credit for recovery from 3rd
party
5. (g) Compromise obtained by person entitled to compensation
Admiralty Outline Fall 2016
a. General rule- If the person entitled to compensation enters into a settlement with
a third person for an amount less than the compensation to which the person
would be entitled under this chapter, the employer shall be liable for
compensation.
b. But, two ways to get settlement that excuses duty to pay compensation benefits
to employee
(1) (1)- file something with OWC office
(2) (2)- if employee brings 3rd party tort claim & doesn’t tell employer about
lawsuit, gets settlement, employer/carrier doesn’t approve- eliminates
employee’s right to future compensation benefits
ii. Federal Marine Terminal’s Inc. v. Burnside Shipping- whether a stevedoring contractor
whose longshoreman employee was killed in the course of his employment is limited to
this subrogation remedy in seeking reimbursement (what has already been paid & future
payments) from a shipowner on whose vessel the longshoreman died, or does he have an
independent COA to recover to recover everything?
1. Under LHWCA, an employer who pays compensation benefits to the representative of
a deceased employee may be subrogated to the rights of the representative against
third persons.
2. The Court held that the stevedoring company does have a direct action against the
shipowner, third party, in tort to recover the amount of compensation payments
occasioned by the shipowners negligence.
a. When tortfeasor injures employee, they are really committing a tort against
employer/carrier because they didn’t do anything & now they have to pay
compensation benefits!
b. Also, if employee never brings action, then employer has no underlying COA to
intervene in—so, they have their own COA
3. Bloomer- issue was do they get full amount of intervention or does comp carrier have
to pay for attorney’s fees/expenses for employee to bring a successful tort claim?
a. Insurance carrier is not required to bear a portion of the legal expenses incurred
by the maritime worker in an action against 3rd party tortfeasor
h. 3rd Person’s Rights Against the Maritime Employer
i. Introduction
1. Contribution:
a. Tort
(1) If 3rd party is “vessel defendant,” recovery is barred, except when the
employer is liable to the worker in tort under section 905(b)—because not
immune from employee’s tort action, not immune from contribution
b. Contract
(1) If 3rd party is “vessel defendant,” recovery is barred
2. Indemnity
a. Tort
(1) If 3rd party is “vessel defendant,” barred because would permit recovery from
a person who is only vicariously liable, no negligence on part of maritime
employer
Admiralty Outline Fall 2016
(2) If 3rd party is “non-vessel defendant,” recovery would depend on applicability
and continued viability of principles and upon reach of exclusivity provision of
905(a)
b. Contract
(1) If 3rd party is “vessel defendant,” barred—“the employer shall not be liable to
the vessel for such damages directly or indirectly and any agreements or
warranties to the contrary shall be void”
1. Exception—905(c) allows for reciprocal indemnity agreements between
maritime employer of LHWCA worker who gets benefits by virtue of
OCSLA & vessel—against claims arising out of injury to their employees
a. 905(c): Exclusiveness of liability; Outer Continental Shelf
i. In the event that the negligence of a vessel causes injury to a
person entitled to receive benefits under this Act by virtue of
section 1333 of Title 43 (OSCLA employer), then such person, or
anyone otherwise entitled to recover damages by reason thereof,
may bring an action against such vessel in accordance with the
provisions of subsection (b) of this section.
ii. Nothing contained in subsection (b) of this section shall preclude
the enforcement according to its terms of any reciprocal indemnity
provision whereby the OSCLA employer and the vessel agree to
defend and indemnify the other for cost of defense and loss or
liability for damages arising out of or resulting from death or bodily
injury to their employees.
o Note: if LA or TX law applies as surrogate federal law
under OCSLA, these agreements STILL wouldn’t be valid
because of anti-indemnity statutes!
2. Exception in 5th circuit—a vessel owner may require the maritime
employer with whom he contracts to obtain insurance protecting the
maritime employer against tort claims by the maritime employer’s
employees and naming the vessel owner as coinsured “directly or
indirectly” language of 905(b) does not apply to insurance
(2) If 3rd party is “non-vessel defendant,” may be able to obtain contractual
indemnification from maritime employer since 905(b) does not apply & 905(a)
may be inapplicable because obligation indemnify may arise “on account of”
the contract of indemnification and not the injury to the employee
ii. Edmonds- a longshoreman who is injured by the concurrent negligence of the stevedore
and the ship may recover for the entire amount of his injuries from the ship.
1. Judges can make GML (which would require solidary liability), but Congress spoke with
the LHWCA; covered maritime employer entitled to exclusive remedy (tort claim for
contribution requires underlying potential liability for the person you are trying to get
$ back from; immunity shields contribution)
a. But when 3rd party tortfeasor involved, injured worker can recover 100% of
damages from 3rd party tortfeasor/multiple tortfeasors—can pick whoever they
want
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IX.
(1) As to compensation carrier, no claim for tort indemnity, because to have
indemnity, there has to be underlying obligation! In passing LHWCA, Congress
said no tort indemnity
1. This may be different in a dual capacity situation—depends on fault of
dual capacity employer; if tort liability in vessel capacity, then could be
made to contribute because no tort immunity (905(b))
(2) 3rd party tortfeasor could be 1% at fault, employer/insurer 99%--injured
worker can still get 100% from 3rd party tortfeasor & he has no indemnity
rights against covered maritime employer
2. Note: if substantive law is state law & establishes joint liability, then no solidary
liability; if substantive law is admiralty, then Edmonds applies
iii. Ketchum v. Gul Oil Corp.- plaintiff worked on offshore rig as employees of C1, injured
partially because of C2—gets LHWCA benefits from C1, also sues C2; now C2 wants
contribution from C1.
1. Plaintiff’s employer is not liable to defendants for contribution because the LHWCA
employer doesn't have tort liability to the employee - nothing to indemnify.
2. The shipowner cannot circumvent the exclusive-remedy provision of the LHWCA by
obtaining contribution from the concurrent tortfeasor employer.
Other Worker’s Injuries
a. 43 U.S.C. 1333. Laws and regulations governing lands—
i. (a) Constitution and United States laws; laws of adjacent States; publication of projected
State lines; international boundary disputes; restriction on State taxation and jurisdiction
1. The Constitution and laws and civil and political jurisdiction of the United States are
extended to the subsoil and seabed of the outer Continental Shelf and to all artificial
islands, and all installations and other devices permanently or temporarily attached
to the seabed, which may be erected thereon for the purpose of exploring for,
developing, or producing resources therefrom, or any such installation or other
device (other than a ship or vessel) for the purpose of transporting such resources,
to the same extent as if the outer Continental Shelf were an area of exclusive
Federal jurisdiction located within a State: Provided, however, That mineral leases on
the outer Continental Shelf shall be maintained or issued only under the provisions of
this subchapter.
a. This has been interpreted as extending the dominion of TX and FL seaward a
distance of 3 marine leagues (9 nautical miles) & LA, MS, AL seaward a distance of
three geographical miles
b. Note: Demette v. Falcon Drilling (5th)- we don’t know whether a jack-up rig ceases
to be a vessel when jacked up on the OCS, or whether the jack-up rig can be a
vessel for some purposes and a non-vessel for others
2. To the extent that they are applicable and not inconsistent with this subchapter or
with other Federal laws and regulations of the Secretary now in effect or hereafter
adopted, the civil and criminal laws of each adjacent State, now in effect or
hereafter adopted, amended, or repealed are declared to be the law of the United
States for that portion of the subsoil and seabed of the outer Continental Shelf, and
artificial islands and fixed structures erected thereon, which would be within the
Admiralty Outline Fall 2016
area of the State if its boundaries were extended seaward to the outer margin of the
outer Continental Shelf, and the President shall determine and publish in the Federal
Register such projected lines extending seaward and defining each such area. All of
such applicable laws shall be administered and enforced by the appropriate officers
and courts of the United States. State taxation laws shall not apply to the outer
Continental Shelf.
a. Thus, if no applicable federal law:
(1) State law applies on the OCS as surrogate federal law &
(2) State law applies of its own force within state’s territorial waters
ii. (b) Longshore and Harbor Workers' Compensation Act applicable; definitions
1. With respect to disability or death of an employee resulting from any injury occurring
as the result of operations conducted on the outer Continental Shelf for the purpose
of exploring for, developing, removing, or transporting by pipeline the natural
resources, or involving rights to the natural resources, of the subsoil and seabed of the
outer Continental Shelf, compensation shall be payable under the provisions of the
Longshore and Harbor Workers' Compensation Act [33 U.S.C.A. § 901 et seq.]. For
the purposes of the extension of the provisions of the Longshore and Harbor Workers'
Compensation Act under this section-a. (1) the term “employee” does not include a master or member of a crew of any
vessel, or an officer or employee of the United States or any agency thereof or of
any State or foreign government, or of any political subdivision thereof;
b. (2) the term “employer” means an employer any of whose employees are
employed in such operations; and
c. (3) the term “United States” when used in a geographical sense includes the outer
Continental Shelf and artificial islands and fixed structures thereon.
b. Injuries on platforms on the outer continental shelf
i. Rodrigue v. Aetna- The Court held that remedy for deaths of workers on artificial island
drilling rigs located on Outer Continental Shelf off Louisiana coast was under Outer
Continental Shelf Lands Act and Louisiana law, and Death on the High Seas Act was not
exclusive remedy.
1. In light of the principles of traditional admiralty law, the Seas Act, and the Lands Act,
we hold that petitioners' remedy is under the Lands Act and Louisiana law. The Lands
Act makes it clear that federal law, supplemented by state law of the adjacent State, is
to be applied to these artificial islands as though they were federal enclaves in an
upland State
a. Defendant argued that LA law was inconsistent with admiralty law because
DOSHA limited recovery to pecuniary damages, so pursuant “to extent not
consistent” language, it shouldn’t apply
(1) No, DOSHA is when an injury occurs on navigable waters—in order to be
inconsistent with federal law, the federal law would’ve had to apply in the
first place
ii. Gulf Offshore v. Mobil Oil- Employee of contractor engaged to perform operations on
offshore oil drilling platform & sued the owner of the platform for injuries sustained in the
course of his employment.
Admiralty Outline Fall 2016
1. The Court held that federal courts did not have exclusive jurisdiction over personal
injury and indemnity cases arising under the OCSLA—just because it can be brought in
federal court, doesn’t mean it has to be
a. Applicable law here under OCSLA was LA law as surrogate federal law
b. Note: courts have held that OCSLA claims filed in state court may be removed to
federal court
2. Knapp v. Chevron (5th Cir. 1986): The court held that the Lands Act makes Louisiana
law the applicable surrogate law on fixed platforms offshore LA; LA anti-indemnity
statute was not in conflict with 905(b) or (c) because those statutes prohibit/ partially
allow agreements between covered maritime employers and vessel owners—no
vessel owner in these situations, so no conflict
3. Grand Isle Shipyard v. Seacor Marine (5th Cir. 2009)- Contractor responsible for
repairing and maintaining offshore platforms and its insurer brought action against
contractor responsible for transporting offshore workers seeking declaration that it
was not obligated to defend and indemnify transportation contractor in lawsuit
related to incident in which employee of repair contractor was injured in fall onboard
vessel owned and operated by transportation contractor.
a. The Court held that the focus-of-the-contract test is the appropriate test to apply
in determining the situs of the controversy in contract cases
b. If majority of performance called by the contract is on stationary platforms on
OCS, that is the situs of the controversy for purposes of determining whether the
law of adjacent state applies as surrogate federal law
c. If majority of work called for by the contract is aboard vessels on navigable waters
on the OCS, this is the situs of the controversy and maritime law is applicable
(1) Two issues:
1. Counting mechanism is inconsistent with Kirby
Pays LHWCA benefits to
employee; because of OCSLA and
2. How is this a reciprocal agreement when one side is barred and not the
resulting LA surrogate federal
other? 5th only focused on language, as opposed to contractual network
law, agreement is not valid even
under 905(c) because of state
anti-indemnity statute for
offshore work. So, don’t have to
indemnify because exclusive
remedy is default absent a valid
agreement
BP
Oil
Vessel would still have to indemnify
the covered maritime employer—
agreement not barred as to vessel
owner
Admiralty Outline Fall 2016
X.
c. Platform claims within territorial waters
i. Normally, state law and state tort law apply on a platform in state territorial waters
ii. Maritime law may apply through the AEA
d. Other workers injured on navigable waters (those who are not seaman nor longshoreman,
but injured in a workplace accident on navigable waters—may have claim against employer,
if not barred by state worker’s compensation law; pocket of Sieracki seamen)
i. Green v. Vermilion Corp.- Employee brought action against employer alleging claims
under LHWCA and general maritime law for negligence and unseaworthiness arising from
slip and fall on vessel; he was employed at a duck camp, injured in unloading boat.
1. The court held that: as matter of first impression, employee assigned to duck hunting
camp fell within club/camp exception to LHWCA coverage; exclusive remedy provision
of Louisiana Workers' Compensation Act did not preclude employee from asserting
claim of unseaworthiness under general maritime law; and exclusive remedy provision
of Louisiana Workers' Compensation Act did not preclude employee from asserting
claim of negligence under general maritime law.
a. Today, Green may not be excluded by LHWCA because of circular reasoning in
statutory language—under LHWCA, not covered if covered by state
compensation; under LA state compensation law, not covered if covered by
LHWCA; wouldn’t be able to figure out which coverage he is excluded from?
Wrongful Death and Survival Actions
a. Death on the High Seas Act
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 United States, the personal
representative of the decedent may bring a civil action in admiralty against the person or
vessel responsible. The action shall be for the exclusive benefit of the decedent's spouse,
parent, child, or dependent relative.
1. Applies were wrongful act has an impact upon victim on high seas, although the
wrongful act is committed upon land or the death occurs on land
2. Does not expressly provide for a survival action
3. Limits recovery to pecuniary loss
4. Contributory negligence is not a bar to recovery—reduces recovery
5. For commercial aviation accidents:
a. DOSHA does not apply within 12 miles from shore
b. Nonpecuniary damages, but not punitive damages are recoverable for WD beyond
12 miles
6. Note: Dean said “shore”—does that mean shore of the state or shore in general?
Example—killed two miles off the coast off Catalina island?
b. Moragne v. States- Longshoreman killed while working aboard a vessel; representative seeks
wrongful death damages under negligence and unseaworthiness.
i. The Court overruled The Harrisburg and held that the beneficiaries of a Sieracki seaman
killed within territorial waters could recover wrongful death benefits under the maritime
common law, regardless of whether a statute of the state in which the accident occurred
permitted such recovery.
Admiralty Outline Fall 2016
1. Doubt as to whether this survived overruling of Sieracki, since this action arose under
facts involving a Sieracki seaman—Garris affirms NO; still good law for wrongful death
that occurs in state territorial waters, under general maritime law claim
2. Dispute over whether Moragne was limited to a longshoreman’s unseaworthiness
claims, but that view has not prevailed—provides a remedy whenever the defendant’s
conduct constitutes a maritime tort, including both negligence and unseaworthiness
(Norfolk)
ii. Questions raised:
1. Did Moragne include recovery for nonpecuniary losses?
a. Sea-land Services v. Gaudet- general maritime law wrongful death remedy
includes nonpecuniary damages for loss of society, but not grief
(1) EXAM: someone on final who was killed in state territorial waters—what
remedies do they have? If Jones Act seaman or DOSHA applies, limited to
pecuniary; if Moragne/Gaudet applies, can pecuniary and nonpecuniary!
2. Did the remedy that it established extend beyond territorial waters? And if so, does it
supplant or be subservient to DOSHA?
a. Mobil Oil v. Higginbotham- Helicopter crashed on its way to a platform in the Gulf
of Mexico causing the deaths of the pilot and three passengers; so, victim killed
beyond three miles from shore & beneficiaries seek recovery for loss of society
(1) The Court held that because DOHSA limits recovery to pecuniary losses and
prohibits loss of society damages, they should not be recovered by the
plaintiffs under general maritime law. "Congress struck the balance for us."
(2) So, Moragne remedy is applicable beyond three nautical miles from shore, but
the survivors cannot recover the nonpecuniary damages under GML that are
not available under DOSHA
b. Offshore Logistics v. Tallentire- The plaintiffs attempt to supplement recovery
under DOHSA with Louisiana wrongful death recovery, where they can recover
non-pecuniary losses.
(1) Bottom line from this case and Higginbotham, when a claim falls under
DOHSA, neither state law claim or general maritime law can supplement to
provide access to nonpecuniary damages (despite language of section 7 of
DOSHA—“the provisions of any state statute giving rights of action or
remedies for death shall not be affected by this chapter”)
1. Note: SCOTUS said section 7 is a jurisdictional savings clause to make sure
people have a remedy; but, interpreted differently in Yamaha
(2) The Court held that DOHSA is the exclusive remedy for recovery.
(3) While under DOHSA all categories of representatives are entitled to recover,
while under the Jones Act it is preemptive.
(4) DOHSA now has 3 year SOL like Jones Act
3. Could the new remedy supplement the death provisions of the JA?
a. Miles v. Apex Marine- a seaman’s beneficiaries cannot recover for nonpecuniary
losses, such as loss of society, under the general maritime law; Congress in the
Jones Act withheld recovery of nonpecuniary damages in seamen’s death claims,
and the courts were not free to “sanction more expansive remedies in a judicially-
Admiralty Outline Fall 2016
created cause of action in which liability without fault than Congress has allowed
in cases of death resulting from negligence.”
(1) Different interpretations have resulted:
1. Scarborough (5th circuit)- Miles precludes recovery of nonpecuniary
damages in ANY maritime wrongful death action, including seaman death
claims against third parties (non-employers and non-vessel owners) and
non-seaman death claims
2. Some courts have held that Miles does not extend beyond the employeremployee relationship—so, a seaman’s spouse can recovery nonpecuniary
in a GML tort claim against 3rd party tortfeasor
3. Some have even extended Miles to bar recovery for other types of
nonpecuniary damages, like NIED
4. Can state law supplement benefits under common law wrongful death remedy in a
case where decedent is not a seaman or longshoreman & death occurred in territorial
waters (so, not DOSHA)?
a. Yamaha- in maritime wrongful death cases in which (1) no federal statute specifies
the appropriate relied and the decedent was not a seafarer, (2) no congressionally
enacted comprehensive tort recovery regime, and (3) death occurred in territorial
waters state remedies may remain applicable and not displaced by Moragne
(1) SCOTUS reserved the question of whether start law could be applied to
standards governing liability, as distinguished from rules on remedies
(2) Court said that section 7 of DOSHA preserved both jurisdictional issues and
state remedies as well! (in conflict with Tallentire)
(3) This is a claw back from Miles uniformity principle to non-seafarers—JA
seaman preclusion is consistent with Miles, but longshoreman?
1. Why would you take this away when §933 preserved general maritime
law remedies?
2. Dean thinks this is dicta!
(4) Also, in Alvez, the Court said don’t use statutes that don’t apply to ascertain
congressional intent; and now, in Yamaha and Tallentire, they are doing that.
(5) Note: in Yamaha and Atlantic Sounding—SCOTUS did not read Miles broadly;
so, go back to McBride seems inconsistent to read Miles that broadly so as
to preclude punitive damage recovery in an unseaworthiness action
5. Did it include survival benefits as well as wrongful death damages?
a. Moragne involved a wrongful death claim, and the Court expressly reserved the
question of whether the Moragne remedy would include survival damages
b. Lower courts generally hold that maritime common law provides a survival
action—if there is, it does not include recovery for deceased seaman’s loss of
projected post-death earnings (Miles) or pre-death pain and suffering on the high
seas (Dooley)
c. If there is a general maritime survival action, is it preempted beyond territorial
waters by DOSHA?
Admiralty Outline Fall 2016
XI.
(1) Section 30305- “personal representative may be substituted as a party and
the suit may proceed as a suit under this chapter for recovery of wrongful
death benefits”
1. Type of non-abatement statute, but Higginbotham said that this section
announced “considered judgment” on “survival” actions on the high seas
 Summary of wrongful death and survival damages in maritime law after
Moragne/Gaudet, Higginbotham, Miles and Yamaha:
o Seaman killed by employer negligence, within or beyond 3 miles from shore
beneficiaries can recovery under JA= get wrongful death and survival benefits,
but limited to pecuniary damages from employer (maybe 3rd persons too)
o Seaman killed, beyond three miles, by an unseaworthy condition
beneficiaries may recover wrongful death benefits under DOSHA (wrongful act or
effects of such act occurred on high seas, even if death on land/territorial
waters), but limited to pecuniary damages
 Whether survival action available depends on whether (1) there is a
maritime survival action not preempted by section 3035 of DOSHA or (2)
whether recovery can be obtained through borrowing survival action of
an adjacent state
 Damages for pre-death pain and suffering will not be available no matter
what
o Seaman killed within three miles of shore by an unseaworthy condition
beneficiaries may recover wrongful death benefits under Moragne, but no
nonpecuniary under Miles
 Again, perhaps survival action if (1) maritime survival action exists or (2)
state survival statute application
o Other death actions, beyond three miles from shore wrongful death benefits
through DOSHA, but only pecuniary (same survival action explanation)
o Seaman killed as a result of maritime tort committed by 3rd party within
territorial waters Moragne wrongful death benefits, but Miles may prevent
beneficiaries from nonpecuniary (depends on how broad you read it) (same
survival explanation)
o In all other maritime death actions within three miles from shore
beneficiaries may recover under Moragne, both pecuniary and nonpecuniary
 Even if Miles precludes recovery of nonpecuniary damages, remedy may
be available to some claimants through state law (Yamaha) (same
survival explanation)
Charter Parties
a. Generally
i. A charter party is an agreement by which a shipowner agrees to place an entire ship, or a
part of it, at the disposal of a merchant and/or other person. Maritime law will usually
govern these agreements.
ii. A charter party contract comes into existence when the parties have a meeting of the
minds on the essential terms of the charter; note that an oral charter is valid and it can
even be implied (even nod of the head).
Admiralty Outline Fall 2016
iii. Matute v. Llyod Bermuda- Crewman injured while serving on ship and files suit under the
Jones Act for negligence and unseaworthiness and M&C against the charterer.
1. Under long-settled maritime law, charterers of seagoing vessels ordinarily are not
liable for providing maintenance and cure to seamen who are injured aboard the
charterer's vessel. There are three exceptions:
a. The defendants have exercised such control that they constituted owners pro hac
vice of the ship.
b. Although not the owners, the defendants acted as the employer of the injured
worker.
c. The defendants, as agents of the owner, negligently failed to exercise their duty to
provide the worker with proper medical care.
2. Charterers of seagoing vessels may acquire the status of owner pro hac vice where
they take control under a "demise charter" agreement. A time charterer is not subject
to the traditional owner's maritime liability.
3. The court held here that this was not a demise charterer, but rather it was a time
charter both in name and in fact. As a result, shipowner is liable.
Basics
Liability
Demise
- Full possession and
control of the vessel
transferred to the
charterer
- “Bareboat”- same,
but without crew, fuel,
equipment or supplies
- Charterer- pro hac
vice, same liabilities as
shipowner (i.e.
unseaworthiness)
- Vessel can be liable in
rem as well
- Entitled to LLA as a
defense
Time
- Vessel remains under
management and
control of vessel owner
- Entitles charterer to
specified use for
particular period of
time
Voyage
- Vessel owner retains
control and operation
of the vessel
- The charterer's use of
the vessel is limited to
a voyage or series of
voyages between
defined points.
- Vessel owner liable
- The vessel owner may
for all damages that
be liable for damage to
arise out of vessel’s
the cargo resulting
operation, like
from fault chargeable
unseaworthiness
to the vessel owner.
- Charterer is only
- The vessel owner
liable for their own
generally bears all
negligence as a time
operating expenses of
charterer, in an area
the vessel as opposed
that it has
to a time charter, in
responsibility, such as
which the charterer
choosing an unsafe
bears some of those
combination of cargo in expenses.
the same hold or going
out into dangerous
weather conditions
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Obligations
XII.
- Redeliver the vessel
to the owner at the
termination of the
charter in as good a
condition as received,
with the exception of
ordinary wear and tear
- Owner of the vessel
must "completely and
exclusively relinquish
possession, command,
and navigation of the
vessel."
- Owner of vessel
under obligation to
provide a seaworthy
vessel at the inception
of charter
- Vessel owner
provides whatever
crew is needed, equips
and maintains the
vessel, makes repairs
as needed, and pays
for normal operating
expenses
- Vessel owner
provides a ship,
master, and crew, and
places them at the
disposal of the
charterer for the
carriage of cargo to a
designated port.
Carriage of Goods by Sea and Tug, Towage & Pilotage
a. Carriage of goods
i. Introduction
1. Small shippers must book passage for his goods on a common carrier, which makes
regular voyages to and from certain points
2. Bill of lading- shipper’s receipt from carrier for the goods delivered for shipment; may
be negotiable; contract allocating the risks of the voyage between shipper and
carrier—concerned with (1) who is responsible for what risks and (2) when carrier is
responsible, limits of liability
3. 2 statutes affecting such maritime commerce—and they must be read together to
determine rights of shipper and carrier: COGSA and The Harter Act
a. Harter- limits carrier’s liability from delivery to the carrier to redelivery to the
cargo owner
b. COGSA- sharply limits amounts of the carrier’s liability from American port to
foreign port, only from loading and unloading
(1) Clause paramount- parties can extend COGSA’s protections from delivery to
redelivery & from American port to American port
(2) Himalaya clause- extend COGSA’s protection to those who assist in the
transportation function (will usually extend $500 per package limit)
1. However, land carrier’s rights and liabilities are dictated in part by the
Carmack Amendment when no substantial maritime component (governs
any rail carrier or motor carrier falling within STB’s jurisdiction), which
imposed a strict liability standard
ii. Coverage of Harter and COGSA- generally, same allocation of risks between shipper and
carrier; obligated to use due diligence to send out a seaworthy vessel and is liable for
negligence in the stowage and handling of all cargo during the voyage.
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1. Wemhoener Pressen v. Ceres Marine- Court held that the Himalaya clause in the bill
of lading that extended the $500 per container limitation of liability benefits of COGSA
to Ceres was sufficiently specific.
a. The contractual incorporations of COGSA into foreign bills of lading should be
construed according to federal law.
b. It concluded that Wemhoener's cargo was not "at the disposal" of the consignee
and was not ready to be received by the inland carrier until after it had been
stripped; as such the Himalaya clause is sufficient to benefit Ceres.
c. Since the damage occurred during carriage and prior to delivery, the clause is
sufficiently specific to confer its benefits on those persons, who as agents of the
carrier, perform services necessary to carry out POL's obligation to complete
carriage of the goods.
d. Relation back to Kirby: COGSA can even extend limitation of liability to a land
based carriage in a Himalaya clause.
2. May v. Hamburg- duty to use due diligence to send out a seaworthy vessel ends with
the commencement of the voyage—even after the voyage has begun though, the duty
to exercise due diligence may re-arise if the owner regains control after the voyage
has begun
a. Under the Harter Act, freedom from liability for negligent navigation or
management of the vessel depends upon exercising due diligence to make the
vessel seaworthy at the outset of the voyage, even if the vessel's unseaworthiness
might not have caused the loss.
b. Under COGSA, the immunity from negligence is independent of the obligation to
exercise due diligence to provide a seaworthy vessel at the outset, absent a causal
relationship between the failure to exercise due diligence and the loss.
iii. General allocation of risks between shipper and carrier
1. International Navigation v. Farr
a. The obligation of the owner is, in the language of the act, "to exercise due
diligence, to properly equip, man, provision, and outfit said vessel, and to make
said vessel seaworthy and capable of performing her intended voyage."
b. That obligation was not discharged when this vessel sailed with a hole in her side,
under the circumstances disclosed, whether the duty of seeing that it was closed
devolved on the officers of the ship or foreman.
(1) As in May, the ability to rely on any exculpatory clause in Harter was
conditioned upon the owner's having exercised due diligence to provide a
seaworthy vessel at the outset of the voyage.
c. If the owner does exercise due diligence at start of voyage, an error in navigation
or management falls on the liability of the cargo.
iv. Allocation of risks; fire
1. Westinghouse Electric Corp.- Suit by a shipper of cargo against an ocean carrier for
damage to cargo resulting from a fire about the ship; issue concerns the burden of
proof in a carrier's defense under the Fire Statute in COGSA.
Admiralty Outline Fall 2016
a. In a maritime cargo claim, the initial burden is on the cargo (shipper) to prove that
he delivered the goods to the carrier in apparent good order and condition and
that, upon return, they were damaged.
b. Once the carrier shows that the loss or damage was caused by fire, the burden
shifts back onto the cargo to prove that the fire was caused by "the design or
neglect" of the shipowner.
(1) Thus, the burden is on the cargo to identify by preponderance of the evidence
the cause of the fire, and also to establish that the cause was due to the
"actual fault or privity" or the carrier.
c. The court held that the carrier was exonerated from liability for the fire damage
because there was insufficient proof of causation.
v. Proof of loss: allocation of the burdens
1. To hold a carrier liable for missing or damaged goods under COGSA, a shipper must
prove that the goods were damaged or lost while in the carrier's custody. The shipper
can meet this burden by showing: (Plastique Tags v. Asia Trans Line)
a. Full delivery of the goods in good condition to the carrier, and
(1) When a carrier issues the BOL, must show “apparent order and condition of
the goods”—so, to meet this prong, can introduce BOL reflecting receipt “in
apparent good condition”
(2) However, in order for a BOL to be prima facie proof of receipt by the carrier &
quality of goods—must be “clean BOL” (no limiting language)
b. Outturn by the carrier of the cargo with damaged or missing goods.
(1) COGSA may provide favorable presumption for the carrier—if loss or damage
is not apparent, presumption applies if notice is not given within a 3-day
period
2. When shipper makes prima facie case, burden shifts to carrier to prove loss or damage
resulted from a cause for which it is not responsible: (US v. Ocean Bulk)
a. Loss or damage caused by vessel negligence for which it is not responsible
(neglect in navigation or management of the ship)
b. Loss or damage resulted from other causes for which it is not chargeable under
COGSA (unseaworthiness that developed after voyage began, pre-voyage
unseaworthiness that couldn’t have been discovered in the exercise of due
diligence, a peril of the sea, act of god, etc.)
(1) Taisho Insurance- a peril of the sea is a fortuitous action of the elements as
sea, of such force as to overcome the strength of a well-found ship or the
usual precautions of good seamanship; however, there is no clear test.
1. The burden of proof alters when a carrier seeks an exoneration under the
peril of the sea exception; the carrier acquires the additional burden of
showing freedom from negligence.
c. Loss or damage was result of some other cause under the “q” clause
(1) But, then has to prove that neither the actual fault or privity of the carrier nor
the fault or neglect of the agents or servants of the carrier contributed to loss
or damage
Admiralty Outline Fall 2016
3. If the carrier successfully rebuts the shipper's prima facie case, then the presumption
of liability vanishes and the burden returns to the shipper to show that the carrier
negligence was at least a concurrent cause of the loss or damage to the cargo. If
proved, it shifts back to the carrier to show other factors that caused the loss. If
unable to prove apportionment, it is liable.
vi. Damages
1. At common law, the carrier is liable for market value of the lost cargo at destination
OR if cargo is damaged, difference between market value and value as damaged at the
destination
a. Before and after Harter—carriers had clauses in BOL limiting liability to value of
goods as declared in the bill or to “per package” sum & this was permissible if
shipper was afforded opportunity to pay higher freight rate & obtain liability of
the carrier for greater amount
2. COGSA- Neither the carrier nor the shipper shall be liable for loss or damage to goods
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 has been declared
by the shipper and inserted in the bill of lading. By agreement, the carrier and the
shipper may agree to another maximum amount (cannot be less than figure named
above). In no event shall the carrier be liable for more than the amount of damage
actually sustained.
a. Under COGSA, carrier must give the shipper an opportunity to declare value of the
goods—carrier has to prove that shipper was given such opportunity; if shipper
doesn’t declare, carrier liable for amount of loss or $500 limit, whichever is less
(1) < 500 may recover amount of his loss or value declared—whichever is less
(2) > 500 void under COGSA, shipper can get full amount of loss
3. If goods encased wholly or partially, single package for purposes of limited liability
provision; otherwise, customary freight unit
a. Fishman- courts look to the BOL to determine what a package is—otherwise, party
can try to prove custom
vii. Deviation and its effects
1. Introduction
a. BOL specifies the voyage upon which the goods will be carried and frequently
designates the method of stowage during the voyage
(1) At common law, any deviation by the carrier from specified voyage, or from
designated method of stowage, made carrier liable for damage to cargo—
regardless of whether deviation was causally related to damage
b. COGSA—any deviation in saving or attempting to save life or property at sea, or
any reasonable deviation shall not be deemed to be an infringement or breach of
this chapter or the contract of carriage, and the carrier shall not be liable for any
loss or damage resulting therefrom
(1) If deviation is for purpose of loading or unloading cargo or passengers, it shall,
prima facie, be regarded as unreasonable
1. COGSA implies that only an unreasonable deviation is a breach of the
contract of carriage
Admiralty Outline Fall 2016
2. COGSA is silent on issue of whether impermissible deviation makes the
carrier liable for damages to the cargo when there is no causation
between deviation and damage!
2. Vision Air Flight Service v. M/V National Pridea. Under common law, a geographic deviation from the scheduled voyage prevented
a carrier to rely on exculpatory provisions in the bill of lading.
b. The most common example of quasi-deviation is on-deck stowage; the doctrine of
deviation survives the enactment of COGSA and renders void its $500 limitation
when the carrier commits an unreasonable deviation.
(1) The court held here that the carrier unreasonably deviated and as a result
lost its liability limitation because it intentionally destroyed the goods; this
was not a case where it was to save life or the ship.
(2) An actor need not intend or desire the consequences of the act to have intent,
as long as he believes the consequences are substantially certain.
3. Konica Business Machines- whether the evidence supports a general custom of
stowing shipping containers on deck under a clean bill of lading and whether carrier's
liability should be limited under COGSA.
a. BOL may specify stowage below deck or some other special method of stowage; a
departure from the method specified is a deviation (note: if BOL specified abovedeck stowage, COGSA doesn’t apply). A “clean bill of lading,” on the other hand, is
one that (1) doesn’t indicate that the goods or containers were in any manner
defective when carrier received them AND (2) does not prescribe the place or
manner of stowage of the goods (default rule for clean BOL—below deck)
(1) Where goods shipped under clean BOL are not stowed below deck and are
damaged, courts must determine if deviation—intent determined from the
customary method of carrying the goods
b. So, absent express agreement or general port or trade custom, stowage above
deck is a deviation and the carrier cannot rely on liability limitation clauses in the
bill of lading.
(1) Given the special design of the vessel and the well-established custom, the
trial court correctly concluded that the stowage was reasonable under the
meaning of COGSA.
(2) While the chief mate did not use locking pins to secure the cargo, mere
negligence in the stowage and handling of cargo, which might be considered
an inherent risk of shipping, is not a deviation.
viii. “Exculpatory” clauses, including arbitration, fora selection and choice of law clauses
1. COGSA prohibits a carrier from exculpating itself from loss arising from negligence,
fault, or failure in its duties.
a. Parties may not avoid COGSA and Harter by stipulating to foreign law which
imposes less responsibility upon the carrier or by adopting “forum selection
clause” which would have same effect
(1) However, a clause calling for foreign arbitration is not in itself unenforceable
(Vimar Seguros)
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XIII.
(2) Party has to show that litigation in agreed upon forum would lessen carrier’
responsibility below which is provided for in COGSA
ix. Statute of limitations and stale claims
1. COGSA contains a one-year statute of limitations on claims by shippers for loss or
damage to cargo
a. Begins to run at delivery of goods—delivery may occur when goods are delivered
to the person entitled to receive the goods from the carrier, even though that
person is not the consignee
b. Discharge does not equal delivery; delivery implies an opportunity for the
consignee or his agent to observe "defects."
(1) If discharge doesn't happen at port - consignee has 30 days to complain.
2. Harter Act does not have a statute of limitations—rule of laches applies
b. Tugs and towage- boat which pushes barge is a towboat, one which pulls barge is a tugboat—
barge usually referred to as a tow & both towboat and tugboat referred to as the tug
i. Agrico Chemical- A barge loaded with liquid nitrogen capsized; the towing of the two
barges from Oklahoma to Louisiana was a towage contract.
1. A contract for a tug to move a barge is one of towage. When a person owns both the
tug and tow and agrees to carry the goods of another, the contract is one of
affreightment, governed by the rules applicable to charters or bills of lading
a. Where owner of a tug obtains a tow from another for use in business of the tug or
its owner, the contract is one of charter, and not of towage
(1) Need not be in writing
(2) In absence of contract, tower warrant that it will furnish seaworthy vessel and
crew & that it possesses sufficient skills and knowledge to perform contract
safely
1. If bareboat charter, different warranty
(3) Tug must exercise reasonable care in towing and mooring tow
ii. Bisso v. Inland Waterways- Oil barge being towed up the Mississippi River collided with a
barge pier and sank; there was a release-from-liability clause in the towage contract.
1. The Court held that a towboat may not validly contract against all liability for its own
negligent towage—absence of equal bargaining power
a. But, Southwestern Sugar- upheld validity of an exculpatory clause which was part
of a tariff filed with the Interstate Commerce Commission
c. Pilotage
i. While some pilots are regularly employed aboard a vessel and direct steerage of the
vessel, others (called "compulsory" if required by federal or state law) have specialized
knowledge of conditions in a specific geographic area, such as a harbor or inland stream goes aboard to direct safely.
ii. A shipowner is not vicariously liable for damages caused by the fault of a pilot he is
compelled by law to employ; however, the vessel is liable in rem for the torts of the
compulsory pilot.
Maritime Liens
a. Conventional lien—the maritime preferred mortgage
i. Introduction
Admiralty Outline Fall 2016
1. A maritime lien may attach to a vessel or to other maritime property, such as cargo,
and may arise through contract or by operation of law.
2. Maritime liens on vessels may be either express (by mortgage) or implied by the
occurrence of a maritime tort or performance of maritime service.
3. Congress responded to the need for vessel financing after WWI by adopting the Ship
Mortgage Act.
ii. The Preferred Mortgage
1. Some of the important requirements under the Act are that the vessel be
"documented," (over five tons) mortgage be on the whole of the vessel, mortgagee
must be citizen, mortgage may include more than one vessel or non-maritime
property, and no limit on interest rate.
2. Substantial compliance with the following steps necessary for perfection of a
preferred mortgage:
a. Execution of mortgage with an acknowledgment
b. Recordation of mortgage and affidavit with Secretary of Transportation
c. File with the Coast Guard documentation office; if vessel is seized, you will then
receive notice of the seizure.
3. Despite its title as “preferred,” the maritime ship mortgage is primed by all maritime
liens arising prior to the recordation of the mortgage, and by all subsequently arising
maritime liens (except those securing maritime contracts)
a. Because of this, mortgagee may require that all pre-existing liens be paid before
funds are advanced under the mortgage and that no other contract liens be place
on the vessel before the mortgage is recorded
b. Only way to wipe all the liens of the vessel—buying vessel from US marshal sale
with admiralty jurisdiction arising from admiralty court
b. Implied maritime lien
i. Introduction
1. An implied maritime lien arises from the breach of some maritime contracts or the
commission of some maritime torts; operation of law.
2. The lien arises at the moment of the occurrence of the debt or damages which it
secures, exists without recordation, does not require possession of the vessel, and can
be judicially discharged only by federal in rem proceeding.
3. Judicial execution on a maritime lien extinguishes all other liens on the ship, even
though the other lienholders do not have actual notice.
ii. Epstein v. Corporacion- Captain bought purchased cigarettes and liquor with partial credit
not having enough cash; plaintiff made demands, but the defendant never paid.
1. The master of a vessel possesses full authority to make purchases binding upon the
vessel's owner for "necessaries" to be used on board his ship unless the contrary is
clearly stated to all concerned.
a. Cigarettes have been held to be necessaries; however, the amount of cigarettes
and liquor here make it clear that the supplies were not purchased for
consumption by the ship - likely sold it to other ships.
2. The court held that the captain had no expressed, apparent, or implied authority.
Defendant did not give captain authority to buy the supplies.
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c. Liens on cargo
i. Conventional lien on cargo usually through negotiable BOL
ii. Implied lien on cargo may attach if defective or otherwise improper cargo causes damage
to persons or property
1. Vessel and operator have a lien upon the charter’s or shipper’s cargo for the freight
due for carriage it is possessory, in the sense that it does not attach until cargo is
loaded onto the vessel & lost when carrier unloads and delivers the cargo to the
owner or consignee
d. Ranking of liens
i. The William Leishear
1. All maritime claims or liens outrank all non-maritime liens.
a. Generally, the following is an order of priority (not always followed by courts):
(1) Expenses of justice—court costs and those other expenses incurred for care
and operation of vessel or other property while in custody of the court
(2) Seaman's wages
1. Example- pilotage
(3) Salvage
(4) Tort and Collision liens
1. Example- liability of carrier or tower based upon negligent performance of
a contract
(5) Repairs, supplies, towage, wharfage, pilotage, and necessaries
(6) Bottomry bonds in inverse order of application
(7) Nonmaritime claims
b. As to claims within the same class, the general rule is that the last claim to accrue
is the first to be paid
(1) Deviations from this rule have developed because of unfair results “voyage
rule” where all suppliers of necessaries to the vessel for a certain voyage are
ranked equally, with suppliers for each subsequent voyage priming the
suppliers for prior voyages
1. Even this has gotten unworkable for suppliers of tugs and harbor
vessels—40-day rule and calendar year rule have developed
2. While tort claims, like unseaworthiness and M&C, may give rise to a lien, the Jones Act
negligence claim does not.
ii. Bank One v. Mr. Dean- When does a maritime lien for breach of charter arise?
1. The court held that maritime liens for breach of charter attach at the moment the
owner places the vessel at the charterer's disposal.
2. Courts have long understood that maritime liens for charters and shipping contracts
attach at the beginning of the contract and remain inchoate until breached.
iii. PREFERRED MORTGAGES HAVE A SUPERIOR RANKING OVER ALL CLAIMS EXCEPT THE
PREFERRED MARITIME LIEN (maritime lien arising before preferred mortgage filed, tort
liens, certain wage liens, general average and salvage)
1. Thus, only significant lien ranked below the maritime preferred mortgage are contract
liens arising after the execution of the mortgage
Admiralty Outline Fall 2016
XIV.
Collision
a. General Principles
i. Introduction
1. Collision law governs the liability and the allocation of responsibility for damages
caused to other vessels and to the structures by the movement of a vessel on water.
a. The Test: Could the collision have been prevented by the exercise of ordinary
care, caution, and maritime skill?
b. The hallmark of collision law is whether the person operating a vessel acted as a
"reasonable prudent mariner" under the circumstances.
ii. Doctrines
1. If no negligence can be imputed to either vessel there is a presumption that they are
navigating in a lawful manner where no fault can be shown, the accident is said to be
an inevitable accident. The Juma (2d Cir. 1906)
2. Res ipsa loquitor does apply in maritime collision cases—if circumstantial evidence
shows someone is at fault, it may be enough to shift the burden of proof, but doesn’t
determine liability on its own.
3. Inscrutable fault exists when a collision clearly resulted from human fault, but the
court is unable to locate it or allocate fault among the parties. In such a case, no one
can recover anything. Atkins v. Lorentzen (5th Cir. 1964)
4. Errors in Extremis Doctrine: Reasonable care under emergency situation.
a. If you played a part in causing the emergency situation, you don’t get the benefit
of the doctrine
5. An unmoored vessel which drifts into a collision is presumed to be a fault; the
Louisiana rule shifts to the drifting vessel the burden of proof to prove that it is not
their fault; must show that they didn’t do it and there was nothing they could have
done to prevent it; this is not affected by the Federal Rules. Hood v. Knappton Corp.,
Inc. (9th Cir. 1993)
a. Louisiana rule, HYPO: Katrina storm surge sunk some barges.
(1) If representing the barges, show that it was an act of God and they did
everything they could (like tried to move them, tie them down, etc.)—this
would overcome presumption
b. The Pennsylvania Rule - vessel involved in collision & violated some statutory rule,
presumption of fault on vessel for violating statutory rule, unless person
responsible for vessel can prove violation didn’t play a part the collision & couldn’t
have played a part
(1) Example- 2 white lights on the bow, one light on the stern—starboard side
green light, port side, red light; vessel hits on green side light, but red side
light is out—yes a statutory violation, but the fact that other side burned out
COULD NOT have played a part! Vessel owner could overcome presumption
c. The Oregon Rule - when a vessel under its own power collides with a stationary
object, presumption that moving vessel did something wrong; could say below the
water not marked, I couldn’t have seen it—that would overcome presumption