Admiralty and Maritime Law

Robert Force

Niels F. Johnsen Professor of Maritime Law

Co-Director, Tulane Maritime Law Center

Tulane Law School

Federal Judicial Center 2004

This Federal Judicial Center publication was undertaken in furtherance of the

Center’s statutory mission to develop and conduct education programs for

judicial branch employees. The views expressed are those of the author and

not necessarily those of the Federal Judicial Center.

iii

Contents

Preface ix

Chapter 1: Jurisdiction and Procedure in Admiralty and Maritime

Cases 1

Introduction 1

Admiralty Jurisdiction in Tort Cases 3

Navigable Waters of the United States 3

The Admiralty Locus and Nexus Requirements 5

Maritime Locus 5

The Admiralty Extension Act 6

Maritime Nexus 6

Admiralty Jurisdiction in Contract Cases 9

Mixed Contracts 11

Multiple Jurisdictional Bases 12

Rule 9(h) of the Federal Rules of Civil Procedure 12

Multiple Claims 12

The Saving to Suitors Clause 18

Admiralty Cases in State Courts 18

Admiralty Actions At Law in Federal Courts 18

Law Applicable 19

Removal 19

Sources of Admiralty and Maritime Law 20

The General Maritime Law 21

Choice of Law: U.S. or Foreign 21

Procedure in Admiralty Cases 27

Special Admiralty Rules 28

Types of Actions: In Personam, In Rem, Quasi In Rem 28

The Complaint 34

Security for Costs 34

Property Not Within the District 34

Necessity for Seizure and Retention—Exceptions 35

Post-Arrest/Post-Attachment Hearing 36

Release of Property—Security 36

Increase or Decrease of Security; Counter-Security 38

Restricted Appearance 38

Sale of Property 39
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Chapter 2: Commercial Law 41

Introduction 41

Charter Parties 42

Definition and Types 42

The Contract 44

Typical Areas of Dispute 44

Withdrawal 50

Subcharters 50

Liability of the Owner for Damage or Loss of Goods 51

Arbitration Clauses 51

Transport Under Bills of Lading 52

Introduction 52

Legislation 54

Bills of Lading Under the Pomerene Act 54

Applicability 54

Negotiable and Nonnegotiable Bills of Lading 54

Carrier Obligation and Liability 55

The Harter Act 56

Applicability and Duration 56

Prohibition of Exculpatory Clauses Under the Harter Act 56

Carrier’s Defenses Under the Harter Act 57

Unseaworthiness 58

Carriage of Goods by Sea Act 58

Scope and Application 58

Parties to the Contract of Carriage: The COGSA Carrier 61

Duration 63

Carrier’s Duty to Issue Bills of Lading 63

Carrier’s Duties Relating to Vessel and Cargo 64

Exculpatory Clauses Prohibited 64

Immunities of Carrier 65

Deviation 73

Damages and Limitation of Carrier’s Liability 74

Burden of Proof 78

Notice of Loss or Damage 79

Time Bar 80

Extending the Application of COGSA 80

Jurisdiction and Choice-of-Law Clauses 82
Contents

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Chapter 3: Personal Injury and Death 83

Introduction 83

Damages 84

Statute of Limitations 85

Federal and State Courts 85

Removal 85

In Personam and In Rem Actions 86

Seamen’s Remedies 86

Introduction 86

Maintenance and Cure 87

Negligence: The Jones Act 91

Unseaworthiness 99

Contributory Negligence and Assumption of Risk in Jones Act and

Unseaworthiness Actions 101

Maritime Workers’ Remedies 102

Longshore and Harbor Workers’ Compensation Act 102

Scope of Coverage 102

Remedies Under the LHWCA 106

Dual-Capacity Employers 110

Indemnity and Employer Liens 111

Forum and Time for Suit 111

Offshore Workers’ Remedies 112

The Outer Continental Shelf Lands Act 112

Remedies of Nonmaritime Persons 114

Passengers and Others Lawfully Aboard a Ship 114

Recreational Boating and Personal Watercraft 116

Maritime Products Liability 117

Remedies for Wrongful Death 117

Introduction 117

Death on the High Seas Act 118

Wrongful Death Under the General Maritime Law 120

Chapter 4: Collision and Other Accidents 125

Introduction 125

Liability 126

Causation 126

Presumptions 127

Damages 128

Pilots 131

Place of Suit and Choice of Law 132
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Chapter 5: Limitation of Liability 133

Introduction 133

Practice and Procedure 133

The Limitation Fund 136

Parties and Vessels Entitled to Limit 138

Grounds for Denying Limitation: Privity or Knowledge 139

Claims Subject to Limitation 140

Choice of Law 141

Chapter 6: Towage 143

Towage Contracts 143

Duties of Tug 144

Duties of Tow 145

Liability of the Tug and the Tow to Third Parties 146

Exculpatory and Benefit-of-Insurance Clauses 146

Chapter 7: Pilotage 149

Introduction 149

Regulation of Pilots 150

Liability of Pilots and Pilot Associations 151

Exculpatory Pilotage Clauses 152

Chapter 8: Salvage 153

Introduction 153

Elements of “Pure Salvage” Claims 154

Salvage and Finds Distinguished 156

Salvage Awards 157

Misconduct of Salvors 159

Contract Salvage 160

Life Salvage 161

Chapter 9: Maritime Liens and Mortgages 163

Liens 163

Property to Which Maritime Liens Attach 164

Custodia Legis 165

Categories of Maritime Liens 165

Contract Liens 166

Preferred Ship Mortgage 168

Liens for Necessaries 168
Contents

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Persons Who May Acquire Maritime Liens 171

Priorities of Liens 171

Ranking of Liens 171

Governmental Claims 174

Conflicts of Laws 174

Extinction of Maritime Liens 175

Destruction or Release of the Res 175

Sale of the Res 175

Laches 176

Waiver 177

Bankruptcy 177

Ship Mortgages 177

Chapter 10: Marine Insurance 181

Introduction: Federal or State Law 181

Interpretation of Insurance Contracts 183

Limitation of Liability 183

Burden of Proof 183

Insurable Interest 184

Types of Insurance 184

The Hull Policy 185

Protection and Indemnity Insurance 187

Pollution Insurance 187

Cargo Insurance 188

Subrogation 188

Chapter 11: Governmental Liability and Immunity 189

The Federal Government 189

The Suits in Admiralty Act 189

The Public Vessels Act 190

The Federal Tort Claims Act 190

State and Municipal Governments 191

Foreign Governments: The Foreign Sovereign Immunities Act 192

Chapter 12: General Average 195

Introduction 195

The General Average Loss: Requirements 195

The York–Antwerp Rules 196

General Average, Fault, and the New Jason Clause 197

The General Average Statement 197
Admiralty and Maritime Law

viii

Selected Bibliography 199

Cases 203

Statutes 227

Rules 235

Index 237
ix

Preface

As this monograph demonstrates, “admiralty and maritime law” covers a broad range of subjects. This field of law has its own rules relating to jurisdiction and procedure. Classically, maritime law was a species of commercial law, and in many countries it is still treated as

such. Thus, this monograph includes topics such as charter parties,

carriage of goods, and marine insurance. There are also areas of maritime law that are peculiar to the subject matter. The law of collision,

towage, pilotage, salvage, limitation of liability, maritime liens, and

general average are unique to maritime law. In addition, the United

States has developed its own law of maritime personal injury and

death. All references are to U.S. courts unless noted otherwise.

I would like to thank Judge Eldon Fallon (U.S. District Court for

the Eastern District of Louisiana), Judge Sarah S. Vance (U.S. District

Court for the Eastern District of Louisiana and member of the Board

of the Federal Judicial Center), and Judge W. Eugene Davis (U.S.

Court of Appeals for the Fifth Circuit) for their invaluable assistance

in reviewing the draft of this monograph.

1

chapter 1

Jurisdiction and Procedure in

Admiralty and Maritime Cases

Introduction

Article III of the U.S. Constitution defines the boundaries of subjectmatter jurisdiction for the courts. Specifically, it extends the judicial

power of the United States to “all Cases of admiralty and maritime

Jurisdiction.” This grant of judicial power has been implemented by

Congress in 28 U.S.C. §1333, which states that “The [United States]

district courts shall have original jurisdiction, exclusive of the Courts

of the States, of (1)any civil case of admiralty or maritime jurisdiction....” In current usage the terms “admiralty jurisdiction” and

“maritime jurisdiction” are used interchangeably. The Constitution

does not enumerate the types of “matters” or “cases” that fall within

the terms “admiralty and maritime jurisdiction.”

The Admiralty Clause in Article III does not disclose or even provide the means for ascertaining whether a particular dispute is an admiralty or maritime case. This task has been performed primarily by

the courts and, to a lesser extent, by Congress. Also, the Constitution

does not specify the legal rules to apply in resolving admiralty and

maritime disputes. It does not even point to the sources of substantive

law that judges should consult to derive such rules. This task also has

been performed primarily by the courts and, to some extent, by Congress. In this regard, federal courts have not merely created rules to fill

gaps or to supplement legislation as they have in other areas; they

have played the leading role in creating a body of substantive rules

referred to as the “general maritime law.”1 Thus, as will be discussed

later, the power of federal courts to entertain cases that fall within

admiralty and maritime jurisdiction has required courts, in the exer1. Robert Force, An Essay on Federal Common Law and Admiralty, 43 St. Louis

U. L.J. 1367 (1999).
Admiralty and Maritime Law

2

cise of their jurisdiction, to formulate and apply substantive rules to

resolve admiralty and maritime disputes.

No federal statute provides general rules for determining admiralty jurisdiction. No statute comprehensively enumerates the various

categories of cases that fall within admiralty jurisdiction. With two

exceptions, the few instances where Congress has expressly conferred

admiralty jurisdiction on federal district courts always has been in

connection with the creation of a specific, new statutory right. Notable examples include the Limitation of Vessel Owner’s Liability Act,2

the Ship Mortgage Act,3 the Death on the High Seas Act,4 the Suits in

Admiralty Act,5 the Public Vessels Act,6 the Outer Continental Shelf

Lands Act,7 and the Oil Pollution Act of 1990.8 By contrast, the Carriage of Goods by Sea Act9 and the Federal Maritime Lien Act10 make

no reference to admiralty jurisdiction. The Jones Act provides an action on the law side but is silent as to whether an action can be

brought in admiralty.11 The tort and indemnity provisions of the

Longshore and Harbor Workers’ Compensation Act (LHWCA) likewise make no reference to admiralty jurisdiction. Congress has not

spoken to jurisdiction over collision cases or cases involving towage,

pilotage, or salvage. No statutes confer admiralty jurisdiction over

marine insurance disputes. With the exception of the Death on the

High Seas Act (DOHSA), the Jones Act, and the LHWCA, Congress

has not addressed the substantive law of maritime personal injury and

death claims, let alone the issue of jurisdiction over such claims.

2. 46 U.S.C. app. §183 (2000).

3. 46 U.S.C. §31301 (2000).

4. 46 U.S.C. app. §761 (2000).

5. Id. §741.

6. Id. §781.

7. 43 U.S.C. §1331 (2000).

8. 33 U.S.C. §2701 (2000).

9. 46 U.S.C. app. §1301 (2000).

10. 46 U.S.C. §31341 (2000).

11. 46 U.S.C. app. §688 (2000). The Jones Act, which provides for recovery for

injury to or death of a seaman, is discussed in greater detail, infra text accompanying

notes 411–90.
Chapter 1: Jurisdiction and Procedure in Admiralty and Maritime Cases

3

In addition to 28 U.S.C. §1333, the Admiralty Extension Act12

and the Great Lakes Act13 are the only instances where Congress has

enacted admiralty jurisdiction statutes that are not tied to a specific

statutorily created right. By and large it appears that Congress has

been content to allow the federal courts to define the limits of their

admiralty jurisdiction.

Admiralty Jurisdiction in Tort Cases

Navigable Waters of the United States

There has never been any doubt that admiralty jurisdiction extends to

the high seas and the territorial seas.14 The same may not be said of

inland waters. Originally U.S. courts applied the English rules for determining admiralty jurisdiction. Those rules, however, would exclude from admiralty jurisdiction incidents and transactions involving

the Great Lakes and inland waterways. In a series of cases, the U.S.

Supreme Court overruled its earlier precedents and abandoned the

English rules as unsuited to the inland water transportation system of

the United States.

In place of the English rules, the U.S. Supreme Court equated the

scope of admiralty jurisdiction with “navigable waters.”15 The term

“navigable waters of the United States” is a term of art that refers to

bodies of water that are navigable in fact. This includes waters used or

capable of being used as waterborne highways for commerce, including those presently sustaining or those capable of sustaining the

transportation of goods or passengers by watercraft. To qualify as

“navigable waters,” bodies of water must “form in their ordinary condition by themselves, or by uniting with other waters, a continued

12. Admiralty Extension Act, 46 U.S.C. app. §740 (2000).

13. Great Lakes Act of Feb. 26, 1845, ch. 20, 5 Stat. 726, 28 U.S.C. §1873 (2000);

Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443, 451 (1851) (“The law, however,

contains no regulations of commerce; nor any provision in relation to shipping and

navigation on the lakes. It merely confers a new jurisdiction on the district courts; and

this is its only object and purpose.”).

14. Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty, §1-11 at 31

(2d ed. 1975).

15. Jackson v. The Steamboat Magnolia, 61 U.S. (20 How.) 296 (1857).
Admiralty and Maritime Law

4

highway over which commerce is or may be carried on with other

States or foreign countries in the customary modes in which such

commerce is conducted by water.”16

A body of water that is completely land-locked within a single

state is not navigable for purposes of admiralty jurisdiction. It is important to note, however, that a body of water need not flow between

two states or into the sea to be navigable. A body of water may be

navigable even if it is located entirely within one state as long as it

flows into another body of water that, in turn, flows into another state

or the sea. A body of water need only be a link in the chain of interstate or foreign commerce.17 Thus, if a small river located completely

within a state flows into the Mississippi River, it satisfies the navigability requirement so long as its physical characteristics do not preclude it from sustaining commercial activity. Furthermore, it is not

necessary for commercial activity to be presently occurring as long as

the body of water is “capable” of sustaining commercial activity.18 A

body of water may be nonnavigable because obstructions, whether

natural or man-made, preclude commercial traffic from using the

waters as an interstate or international highway or link thereto.19 Removal of the obstruction may then make the waters navigable. The

converse is true. A body of water may at one time have been navigable

and have supported interstate or foreign commerce; however, the

construction of dams or other obstructions may render certain portions of the waterway impassable to commercial traffic. If the obstruction precludes interstate or foreign commerce, the body of water

has become nonnavigable and will not support admiralty jurisdiction.20 The fact that a body of water was historically navigable does

not mean that it will remain so in the future.

The term “navigable waters” may have legal relevance on issues

other than admiralty jurisdiction and may have different meanings

that apply in other contexts. In Kaiser Aetna v. United States,

21 the Su16. The Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1870).

17. Id.

18. LeBlanc v. Cleveland, 198 F.3d 353 (2d Cir. 1999).

19. Id.

20. Id.

21. 444 U.S. 164 (1979).
Chapter 1: Jurisdiction and Procedure in Admiralty and Maritime Cases

5

preme Court identified four separate purposes underlying the definitions of “navigability”: to delimit the boundaries of the navigational

servitude; to define the scope of Congress’s regulatory authority under

the Commerce Clause; to determine the extent of the authority of the

Army Corps of Engineers under the Rivers and Harbors Act; and to

establish the scope of federal admiralty jurisdiction.22

Man-made bodies of water, such as canals, may qualify as navigable waters if they are capable of sustaining commerce and may be used

in interstate or foreign commerce.23 A body of water need not be

navigable at all times, and some courts have recognized the doctrine

of “seasonal navigability.”24 For example, a body of water may be used

for interstate and foreign commerce during certain times of the year

but may not support such activity during the winter when the water

freezes. Events that occur during the period when the waterway is capable of being used may be subject to admiralty jurisdiction.

The Admiralty Locus and Nexus Requirements

Currently, in tort cases, the plaintiff must allege that the tort occurred

on navigable waters and that the tort bore some relationship to traditional maritime activity.25 The first requirement is referred to as the

maritime location or locus criterion and the second as the maritime

nexus criterion.

Maritime Locus

“Maritime locus” is satisfied by showing that the tort occurred on

navigable waters.26 Thus, maritime locus is present where a person on

shore discharges a firearm and wounds a person on a vessel in naviga22. Id. at 171.

23. In re Boyer, 109 U.S. 629 (1884).

24. Wilder v. Placid Oil Co., 611 F.Supp. 841 (W.D. La. 1985). See also Missouri

v. Craig, 163 F.3d 482 (8th Cir. 1998); Gollatte v. Harrell, 731 F. Supp. 453 (S.D. Ala.

1989).

25. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527

(1995).

26. The Plymouth, 70 U.S. 20 (1865).
Admiralty and Maritime Law

6

ble waters.27 Locus is similarly present where a person injured on a

vessel in navigable waters subsequently dies following surgery to treat

the injury in a hospital on land.28

The Admiralty Extension Act

Congress expanded the maritime location test by enacting the Admiralty Extension Act (AEA),29 which confers on the federal courts admiralty jurisdiction over torts committed by vessels in navigable waters notwithstanding the fact that the injury or damage was sustained

on land. The AEA was enacted specifically to remedy situations referred to as allisions, where vessels collide with objects fixed to the

land, such as bridges that span navigable waterways.

The language of the AEA, however, is not limited to ship–bridge

allisions. In one of the most extreme situations, maritime jurisdiction

was found under the AEA in a case where a “booze cruise” passenger,

after disembarking the vessel, was injured in an automobile accident

caused by the driver of another car who allegedly became drunk while

also a passenger on the cruise.30 It is crucial to AEA jurisdiction that

the injury emanate from a vessel in navigable waters. The mere fact

that a vessel may be involved in an activity is not enough. The party

who invokes jurisdiction under the AEA must show vessel negligence.

Vessel negligence relates not only to defective appurtenances or negligent navigation, but to any tortious conduct of the crew while on

board the vessel that results in injury on land.

Maritime Nexus

The maritime nexus criterion is of relatively recent origin, and its

meaning is still being developed. It was created by the Supreme Court

to restrict the scope of admiralty tort jurisdiction for various policy

reasons, not the least of which are considerations of federalism and a

desire to confine the exercise of admiralty jurisdiction to situations

27. Kelly v. Smith, 485 F.2d 520 (5th Cir. 1973), cert. denied, 416 U.S. 969

(1974).

28. Motts v. M/V Green Wave, 210 F.3d 565 (5th Cir. 2000).

29. 46 U.S.C. app. §740 (2000).

30. Duluth Superior Excursions, Inc. v. Makela, 623 F.2d 1251 (8th Cir. 1980).
Chapter 1: Jurisdiction and Procedure in Admiralty and Maritime Cases

7

that implicate national interests. “Maritime nexus” is satisfied by

demonstrating (1)that “the incident has ‘a potentially disruptive impact on maritime commerce’” and (2)that “‘the general character’ of

the ‘activity giving rise to the incident’ shows a ‘substantial relationship to traditional maritime activity.’”31

The nexus requirement evolved from four Supreme Court cases.

The first case, Executive Jet Aviation, Inc. v. City of Cleveland,

32 held

that federal courts lacked admiralty jurisdiction over an aviation tort

claim where a plane during a flight wholly within the U.S. crashed in

Lake Erie.33 Although maritime locus was present, the Court excluded

admiralty jurisdiction because the incident was “only fortuitously and

incidentally connected to navigable waters” and bore “no relationship

to traditional maritime activity.”34 The Court supplemented the maritime locus test by adding a nexus requirement that “the wrong bear a

significant relationship to traditional maritime activity.”35 In the second case, Foremost Insurance Co. v. Richardson,

36 the Court made the

nexus criterion a general rule of admiralty tort jurisdiction and held

that admiralty tort jurisdiction extended to a collision between two

pleasure boats. The third case, Sisson v. Ruby,

37 confirmed that a vessel

need not be engaged in commercial activity or be in navigation, and

extended tort jurisdiction to a fire on a pleasure boat berthed at a pier.

The fourth and last case to address tort jurisdiction is Jerome B.

Grubart, Inc. v. Great Lakes Dredge & Dock Co.

38 Workers on a barge

in the Chicago River were replacing wooden pilings that protected

bridges from being damaged by ships, and the workers undermined a

tunnel that ran under the river. Subsequently the tunnel collapsed and

water flowed from the river into the “Loop” (the Chicago business

31. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534

(1995) (citing Sisson v. Ruby, 497 U.S. 358, 364, n.2, 365 (1990)).

32. 409 U.S. 249 (1972).

33. The Court declined to hold that admiralty jurisdiction could never extend to

an aviation tort. Id. at 271–72.

34. Id. at 273.

35. Id. at 268.

36. 457 U.S. 668 (1982).

37. 497 U.S. 358 (1990).

38. 513 U.S. 527 (1995).
Admiralty and Maritime Law

8

district), causing extensive property damage and loss of business. Refining the previous three cases, the Court articulated the latest version

of the nexus criterion: The plaintiff must show that the tort arose out

of a traditional maritime activity.39 This, in turn, requires a showing

(1)that the tort have a potentially disruptive effect on maritime

commerce and (2)that the activity was substantially related to traditional maritime activity.40 The first factor is not applied literally to the

facts at hand; rather, the facts are viewed “at an intermediate level of

possible generality.”41 The Court focused only on the “general features” of the incident, which it described as “damage by a vessel in

navigable water to an underwater structure.”42 Damage to a structure

beneath a waterway could disrupt the waterway itself and disrupt the

navigational use of the waterway. Such an incident could adversely

affect river traffic, and in this case it did. River traffic actually ceased,

stranding ferryboats and preventing barges from entering the river

system. Applying the second factor, the Court focused on whether the

general character of the activity giving rise to the incident reveals a

substantial relationship to traditional maritime activity. As the Court

said: “We ask whether a tortfeasor’s activity, commercial or noncommercial, on navigable waters is so closely related to activity traditionally subject to admiralty law that the reasons for applying special

admiralty rules would apply in the suit at hand.”43 Observing that the

requisite relationship was found in Foremost (navigation of vessel)

and Sisson (docking of vessels), the Court similarly found that repair

and maintenance work on a navigable waterway performed from a

vessel met the test.

There are several clues as to where the Court may be going with

the nexus test, especially in torts involving vessels. The parties in the

damage actions who opposed admiralty jurisdiction in Grubart had

argued that applying the nexus test by looking at “general features”

rather than the actual facts would mean that any time a vessel in navigable waters was involved in a tort the two criteria will be met. The

39. Id. at 534.

40. Id.

41. Id. at 538.

42. Id. at 539.

43. Id. at 539–40.
Chapter 1: Jurisdiction and Procedure in Admiralty and Maritime Cases

9

majority responded by stating that “this is not fatal criticism,”44 and

the concurring opinion observed that inasmuch as Executive Jet formulated a rule to deal with airplane crashes, no complex nexus test

should be required where a tort involves a vessel on navigable waters.45 Ultimately, the locus test may once again become the sole criterion in tort cases involving vessels.

It would appear that after Grubart it is inappropriate for a court

to use any test for nexus other than the criteria approved in that case.

In the aftermath of Executive Jet, lower federal courts had attempted

to fine-tune the nexus requirement; many courts of appeals followed

the lead of the Fifth Circuit, which formulated four factors to be applied in determining if the maritime nexus requirement was satisfied.46 The Supreme Court, however, indicated its disapproval of these

factors47 and ultimately expressly rejected them.48

Admiralty Jurisdiction in Contract Cases

In contract cases, courts have not used the locus and nexus criteria,

but have focused instead on the subject matter of the contract. One

commentator suggests the following approach for determining admiralty contract jurisdiction:

In general, a contract relating to a ship in its use as such, or to

commerce or navigation on navigable waters, or to transportation

by sea or to maritime employment is subject to maritime law and

the case is one of admiralty jurisdiction, whether the contract is to

be performed on land or water.

. . .

A contract is not considered maritime merely because the services to be performed under the contract have reference to a ship or

to its business, or because the ship is the object of such services or

44. Id. at 542.

45. Id. at 550, 551 (Thomas, J., and Scalia, J., concurring).

46. Kelly v. Smith, 485 F.2d 520 (5th Cir. 1973), cert. denied, 416 U.S. 969

(1974). Subsequently these four factors were supplemented by several others. Molett

v. Penrod Drilling Co., 826 F.2d 1419 (5th Cir. 1987), cert. denied, 493 U.S. 1003

(1989).

47. Sisson v. Ruby, 497 U.S. 358 (1990).

48. Grubart, 513 U.S. at 544.
Admiralty and Maritime Law

10

that it has reference to navigable waters. In order to be considered

maritime, there must be a direct and substantial link between the

contract and the operation of the ship, its navigation, or its management afloat, taking into account the needs of the shipping industry, for the very basis of the constitutional grant of admiralty jurisdiction was to ensure a national uniformity of approach to world

shipping.49

However, some contract cases have formulated jurisdictional distinctions that defy logic. Consider the following contracts that have been

held to lie within admiralty jurisdiction:

Suits on contracts for the carriage of goods and passengers; for

the chartering of ships (charter parties); for repairs, supplies, etc.,

furnished to vessels, and for services such as towage, pilotage,

wharfage; for the services of seamen and officers; for recovery of

indemnity or premiums on marine insurance policies.50

Compare the foregoing with the following that have been held not

to be within admiralty jurisdiction: “Suits on contracts for the building and sale of vessels; for the payment of a fee for procuring a charter; for services to a vessel laid up and out of navigation.”51 A mortgage on a vessel was not deemed by courts to be a maritime contract

until Congress so provided.52

Although it is not without dispute, executory contracts may satisfy admiralty jurisdiction, notwithstanding the fact that breaches of

such contracts do not give rise to maritime liens.53 However, it appears that so-called “preliminary” contracts are not maritime contracts.54 The criterion for determining which contracts are preliminary

contracts is not perfectly clear. Generally, when a contract necessitates

or contemplates the formation of a subsequent contract that will directly affect the vessel, the first contract is characterized as a prelimi49. Steven F. Friedell, 1 Benedict on Admiralty §182, at 12-4 to 12-6 (7th rev.

ed. 1999).

50. Gilmore & Black, supra note 14, §1-10, at 22.

51. Id. at 26.

52. Id. at 27.

53. Terminal Shipping Co. v. Hamberg, 222 F. 1020 (D. Md. 1915).

54. Peralta Shipping Corp. v. Smith & Johnson (Shipping) Corp., 739 F.2d 798

(2d Cir. 1984), cert. denied, 470 U.S. 1031 (1985).
Chapter 1: Jurisdiction and Procedure in Admiralty and Maritime Cases

11

nary contract. Examples of contracts that have been deemed preliminary include contracts to supply a crew55 and to procure insurance.56

At one time, it was thought that “agency” agreements were preliminary contracts. The Supreme Court, however, has rejected this per se

rule that deemed all agency contracts to be nonmaritime contracts. In

the case before it, the Court held that a carrier’s failure to pay for

bunkers (fuel oil) was a breach of a maritime contract, even though

the obligation to supply fuel stemmed from a “requirements” contract

and the supplier (an oil company) contracted with another oil company to supply the oil in question.57 The oil company had undertaken

to supply oil to a vessel, and it did not matter how the oil company

arranged to satisfy its contractual obligation. Thus, it appears that

contracts that obligate a person to provide services directly to a vessel

may be maritime contracts as distinguished from ones in which a

person merely obligates himself to procure another to provide services

to a vessel. In any event, the Supreme Court has indicated that the

determination as to whether agency contracts are maritime or not

should be made on a case-by-case basis.

Mixed Contracts

Some contracts may have aspects that satisfy the maritime requirement for admiralty jurisdiction, and yet there may be aspects of the

contract that are clearly nonmaritime. For example, a contract may

call for both ocean and overland transport. A mixed contract is not an

admiralty contract unless the nonmaritime aspect of the contract is

merely incidental to the maritime aspect, or the maritime and nonmaritime aspects are severable and the dispute involves only the

maritime aspect.58

55. Goumas v. K. Karras & Son, 51 F.Supp. 145 (S.D.N.Y. 1943), cert. denied,

322 U.S. 734 (1944).

56. F.S. Royster Guano Co. v. W.E. Hodger Co., 48 F.2d 86 (2d Cir.), cert. denied, 283 U.S. 858 (1931).

57. Exxon Corp. v. Central Gulf Lines, Inc., 500 U.S. 603 (1991).

58. Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d

105 (2d Cir. 1997).
Admiralty and Maritime Law

12

Multiple Jurisdictional Bases

Even where the facts of a case satisfy the jurisdictional criteria and

would permit the plaintiff to invoke a federal court’s admiralty jurisdiction, an alternative basis for bringing suit in federal court may be

used. This option occurs most frequently in diversity cases where the

plaintiff and defendant are citizens of different states, or where one of

the parties is a citizen of the United States and the other party is a citizen or subject of a foreign country.

Rule 9(h) of the Federal Rules of Civil Procedure

Where the facts alleged in a complaint satisfy more than one basis for

federal jurisdiction, the plaintiff may opt to base the complaint on

either ground. However, in order for the case to be heard under the

court’s admiralty jurisdiction, Rule 9(h) of the Federal Rules of Civil

Procedure directs that the plaintiff must designate the claim as one in

admiralty;59 otherwise, the court will proceed at law in order to allow

for a jury trial. By invoking diversity of citizenship as the basis for jurisdiction instead of admiralty jurisdiction, or by not opting to designate his or her claim as an admiralty claim, the plaintiff gains the advantage of a jury trial. However, the plaintiff may lose the advantage

of certain procedures available only in admiralty cases, including the

remedies of arrest and maritime attachment provided for in the Supplemental Rules to the Federal Rules of Civil Procedure. (These remedies are discussed later in this chapter.)

Multiple Claims

A plaintiff may have multiple claims, some arising under admiralty

jurisdiction and some being claims at law. This occurs most often in

seamen’s personal injury actions where a plaintiff seeks to join a claim

at law under the Jones Act with admiralty claims for unseaworthiness

and maintenance and cure. Joinder of claims raises several issues.

Absent legislation to the contrary, there is no right to a jury trial

in an action brought under admiralty jurisdiction (28 U.S.C.

59. Fed. R. Civ. P. 9(h).
Chapter 1: Jurisdiction and Procedure in Admiralty and Maritime Cases

13

§1333).60 Where there are multiple bases of jurisdiction, a litigant can

obtain the right to a jury trial by, for example, invoking diversity instead of admiralty jurisdiction. However, if the parties are diverse but

the plaintiff specifically designates his or her claims as admiralty

claims pursuant to Rule 9(h), the parties would lose the right to a jury

trial. Congress has provided for the right to jury trial in Jones Act and

Great Lakes Act cases.61

The propriety of joinder of admiralty claims with a Jones Act

claim at law was addressed in Romero v. International Terminal Operating Co.62 The plaintiff, a Spanish crewmember injured while the

Spanish-owned vessel was docked in New York, filed suit against his

employer and other defendants, asserting damages under general

maritime law for unseaworthiness and maintenance and cure and under the Jones Act at law for personal injuries. The plaintiff was of diverse citizenship from all defendants except his employer. In order to

obtain a jury trial, the plaintiff sought joinder of his claims in one action at law. The plaintiff asserted that unseaworthiness and maintenance and cure claims could also be brought as claims at law pursuant

to 28 U.S.C. §1331; that “maritime law” is part of the “laws” of the

United States and therefore claims that arose under the rules of substantive admiralty law arose under the laws of the United States. As

such, claims based on maritime law could be brought in federal court

under general federal question jurisdiction. There were two issues in

the case: whether the plaintiff may join his maritime law claims

against his employer with his claim at law brought under the Jones

Act, and whether the plaintiff may join other defendants of diverse

citizenship with his claim brought under the Jones Act against his

nondiverse employer.

As to the first issue, a majority of the Supreme Court held that in

determining the jurisdiction of federal courts, the word “laws” as used

in Article III of the Constitution and in 28 U.S.C. §133163 did not en60. Waring v. Clarke, 46 U.S. (5 How.) 441, 460 (1847).

61. Great Lakes Act of Feb. 26, 1845, ch. 20, 5 Stat. 726; 28 U.S.C. §1873 (2000).

62. 358 U.S. 354 (1959).

63. General federal question jurisdiction was first created by the Act of March 3,

1875, 18 Stat. 470 (1875). Although the text had been somewhat modified in the ver-
Admiralty and Maritime Law

14

compass claims that were within the admiralty and maritime jurisdiction of the federal courts.64 Nevertheless, the Court did hold that the

two admiralty claims (unseaworthiness and maintenance and cure)

could be “appended” to the Jones Act claim and brought with it on

the law side.

As to the second issue, the majority held that the plaintiff’s diversity claims could be joined with the Jones Act claim against his nondiverse employer, notwithstanding the fact that the rule of complete

diversity would not be satisfied. This deficiency was cured by the

Jones Act, which provided an independent basis for jurisdiction over

the nondiverse party. The Court did not address the jury trial issue.

Some courts have extended the holding of Romero, permitting

joinder of an action arising under the general maritime law against a

nondiverse defendant with an action against another party of diverse

citizenship.65 In other words, the plaintiff, in one action, may assert

diversity jurisdiction against one defendant and another basis of federal jurisdiction, such as federal question or admiralty, against another defendant.

Prior to the enactment of the Supplemental Jurisdiction Act,66

most federal courts had adopted a liberal approach to joinder of

claims and parties under the Federal Rules of Civil Procedure and additionally under various theories of pendent and ancillary jurisdiction.67 This liberal approach not only applied with respect to multiple

claims asserted by a plaintiff against one defendant and to claims asserted against multiple defendants, but was also followed in cases involving counterclaims, cross-claims, and impleader.68 The Supplemental Jurisdiction Act confirmed the correctness of these decisions

and essentially supplanted them. Section 1377(a) of the Act states that

sion before the Court as now contained in 28 U.S.C. § 1331, the differences were not

relevant to the decision.

64. Romero, 358 U.S. at 367.

65. Vodusek v. Bayliner Marine Corp., 71 F.3d 148 (4th Cir. 1995); contra Powell v. Offshore Navigation, Inc., 644 F.2d 1063 (5th Cir. 1981).

66. 28 U.S.C. §1367 (2000).

67. Leather’s Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800 (2d Cir. 1971); Roco

Carriers, Ltd. v. M/V Nurnberg Express, 899 F.2d 1292 (2d Cir. 1990).

68. In re Oil Spill by the Amoco Cadiz, 699 F.2d 909 (7th Cir. 1983); and see

cases cited infra note 71.
Chapter 1: Jurisdiction and Procedure in Admiralty and Maritime Cases

15

in any civil action of which the district courts have original jurisdiction, the district courts have supplemental jurisdiction over all

other claims that are so related to claims in the action within such

original jurisdiction that they form part of the same case or controversy under Article III of the U.S. Constitution. Such supplemental

jurisdiction shall include claims that involve the joinder or intervention of additional parties.

In Fitzgerald v. United States Lines Co.,

69 the Supreme Court held

that where maintenance and cure and unseaworthiness claims are

joined in the same action as a Jones Act claim, all claims should be

resolved by the jury. The Court’s decision was based on several rationales. Congress had made it clear that the right to jury trial was

part of the Jones Act remedy. Allowing the jury to resolve all issues

was the most efficient manner of resolving the disputes, and having

one decision maker would ensure consistency. The Court emphasized

that there is a constitutional right to a jury trial in certain instances,

but there is no corresponding constitutional right to a nonjury trial in

admiralty cases.

The Supreme Court has not addressed other jury trial issues outside of the context of the seaman’s trinity of claims. For example, in

cases where a plaintiff sues in admiralty and the defendant files a

counterclaim at law, is the defendant entitled to a jury trial?70 Where a

plaintiff sues in admiralty and the defendant impleads a third-party

defendant based on a claim at law, does either the third-party plaintiff

or the third-party defendant have a right to a jury trial?71 The situation is particularly difficult where issues of fact in the plaintiff’s original admiralty claim are intertwined with those presented in the other

claims, and where, under the Fitzgerald rationale, it makes sense to

have all the issues resolved by the same fact finder. Similar problems

69. 374 U.S. 16 (1963).

70. See, e.g., Wilmington Trust v. United States Dist. Ct. for the Dist. of Haw.,

934 F.2d 1026 (9th Cir. 1991). For a discussion of the conflicting rulings on whether a

party in an admiralty case who asserts a counterclaim at law is entitled to a jury trial,

see Concordia Co. v. Panek, 115 F.3d 67 (1st Cir. 1997).

71. Gauthier v. Crosby Marine Serv., Inc., 87 F.R.D. 353 (E.D. La. 1980); Joiner

v. Diamond M Drilling Co., 677 F.2d 1035 (5th Cir. 1982).
Admiralty and Maritime Law

16

are presented where the plaintiff originally files an action at law and a

counterclaim or third-party action is based on an admiralty claim.

In these various situations there are four possible solutions:

(1)Try everything to the jury (the Fitzgerald approach); (2)try everything to the court (this could present Seventh Amendment issues in

some cases); (3)have the jury resolve the actions at law and the court

resolve the admiralty claims, an approach that presents a possibility of

inconsistency; and (4)have the jury resolve the claims at law and use

the jury as an advisory jury72 on the admiralty claims. Some federal

courts have concluded that the rationale underlying Fitzgerald applies

in other contexts and have opted in favor of jury trial of all claims.73

The Supplemental Jurisdiction Act in liberalizing joinder of claims

and joinder of parties is silent on the issue of jury trial.74

The Supreme Court has not addressed the question as to the

availability of admiralty remedies where admiralty claims are joined

with claims at law. Where a plaintiff joins a claim at law with admiralty claims, some courts have allowed all claims to be resolved by the

jury and have allowed the plaintiff to invoke admiralty remedies such

as arrest and attachment on the admiralty claims.75

Hybrid claims arise in various contexts. On the one hand, it is

common for a seaman to file a personal injury claim and seek recovery under the Jones Act and under the general maritime law for unseaworthiness and for maintenance and cure. The seaman may in fact

have suffered a single injury but has alleged three different theories for

recovery. The legal basis for each claim is different, and it is possible

for the seaman to prevail on one theory and lose on another. In these

situations each claim stands on its own footing.

On the other hand, a plaintiff may have one claim, such as one

based on the general maritime law. If diversity of citizenship exists,

the seaman under Federal Rule of Civil Procedure 9(h) has the option

of pleading his case in law with a right to trial by jury or as an admiralty claim with trial to the court but with the opportunity to invoke

72. Fed. R. Civ. P. 39(c).

73. Zrncevich v. Blue Haw. Enters., Inc., 738 F.Supp. 350 (D. Haw. 1990); Wilmington Trust, 934 F.2d 1026.

74. 28 U.S.C. § 1367 (2000).

75. Haskins v. Point Towing Co., 395 F.2d 737 (3d Cir. 1968).
Chapter 1: Jurisdiction and Procedure in Admiralty and Maritime Cases

17

special remedies that are available only in admiralty cases. The Federal

Rules do not give this plaintiff a right to plead the case as both a claim

at law and a claim in admiralty.76

One might suggest that the two situations are different because in

the latter situation the plaintiff only has one claim and one cause of

action as to which the Rule 9(h) option applies. The same substantive

rules will be applied regardless if the plaintiff pleads at law or in admiralty. In the first situation, although it may be correct to say that the

plaintiff has suffered but one injury and may not receive double or

triple recovery, the claims are legally separate and are based on different substantive rules. The plaintiff does not truly have the 9(h) option

because, lacking diversity, he or she cannot plead general maritime

claims as claims at law. Perhaps these differences may explain the apparent disagreement in the lower courts.

Although judges and lawyers tend to speak of “admiralty cases”

and “actions at law,” these labels may be misnomers. Where a person

presents a case involving two claims, it is possible that one claim will

be resolved according to substantive rules of admiralty and the other

claim may be resolved by nonadmiralty rules. Such a “case” is not an

“admiralty case” or a “nonadmiralty case.” In the days before the unification under the Federal Rules of Civil Procedure of the various actions, law, equity, and admiralty each constituted a separate docket.

The merger of law, equity, and admiralty under the Federal Rules, and

the emergence of the “civil action” subjecting law, equity, and admiralty claims to a unified set of procedural rules, combined with the

consequent liberalization of the rules on the joinder of claims and

parties, have set the stage for hybrid actions involving claims at law

and admiralty.

76. T.N.T. Marine Serv., Inc. v. Weaver Shipyards & Dry Docks, Inc., 702 F.2d

585 (5th Cir.), cert. denied, 464 U.S. 847 (1983); cf. Hamilton v. Unicoolship, Ltd., No.

99 CIV 8791 (LMM), 2002 WL 44139 (S.D.N.Y. Jan. 11, 2002).
Admiralty and Maritime Law

18

The Saving to Suitors Clause

Admiralty Cases in State Courts

Section1333 of title 28 not only confers admiralty jurisdiction in the

federal courts, it also contains a provision characterized as the “saving

to suitors” clause. This provision saves to suitors (plaintiffs) whatever

nonadmiralty “remedies” might be available to them.77 This means

that plaintiffs may pursue remedies available under the common law

or other laws in state courts. Ordinarily, where plaintiffs seek monetary damages for tort or contract claims that fall within admiralty jurisdiction, they have a choice of bringing a suit in admiralty in federal

court or bringing suit in state court.78 One advantage of bringing suit

in state court is the availability of a jury trial.

There are some limitations on the remedies that plaintiffs may

pursue in state court, the most significant being that admiralty remedies, such as the action in rem, may be brought only in an admiralty

action in federal court.79

Admiralty Actions At Law in Federal Courts

There is another dimension to the saving to suitors clause. Ordinarily,

in diversity of citizenship cases brought in federal court, state law provides the substantive rules for the resolution of the dispute. The saving to suitors clause, however, does not provide that a state remedy is

saved or even that a remedy in a state court is saved. As originally

worded, the clause saved “the right of a common-law remedy where

the common law was competent to give it.”80 Today, it simply saves to

suitors “all other remedies to which they are entitled.” Thus, the saving to suitors clause has been interpreted to permit a plaintiff to seek a

common-law remedy in a federal court where diversity of citizenship

is present.81 This means that the plaintiff files the action under

77. 28 U.S.C. §1333 (2000).

78. Id.

79. The Hine, 71 U.S. 555 (1866).

80. Judiciary Act of 1789, ch. XX § 9 (1789).

81. Vodusek v. Bayliner Marine Corp., 71 F.3d 148 (4th Cir. 1995).
Chapter 1: Jurisdiction and Procedure in Admiralty and Maritime Cases

19

28U.S.C. §1332. In such cases, both the plaintiff and defendant may

demand a jury trial.

Law Applicable

Where a plaintiff invokes the saving to suitors clause to bring an action in a state court or in federal court under diversity jurisdiction,

the issues in most cases will be resolved by the application of the substantive rules of admiralty and maritime law, whether enacted by

Congress or as part of the general maritime law. The application of

federal law in saving to suitors cases is known as the “Reverse Erie”

doctrine. Pursuant to this doctrine, state courts are required to apply

substantive maritime law even if a case is properly brought in state

court.82 However, federal courts, in some circumstances, may apply

state substantive law even where the case before them falls under admiralty jurisdiction.83

Removal

Generally, it is the plaintiff who has the choice to sue in federal or

state court. Under certain circumstances, defendants are given the

right to remove a case from state court to federal court.84 Once a case

is properly removed, it proceeds in federal court as though it had been

originally filed there. The most common basis for removing a case

from state to federal court is that the case could originally have been

filed in federal court—that is, it meets the constitutional and statutory

jurisdictional criteria.85 In dictum in Romero, the Supreme Court,

however, recognized an important exception to the right to removal:

Where a suit is commenced in a state court, and it could have been

brought in federal court under 28 U.S.C. § 1333 (admiralty and mari82. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527,

545–46 (1995) (stating that “the exercise of admiralty jurisdiction does not result in

the automatic displacement of state law”). See, e.g., Carlisle Packing Co. v. Sandanger,

259 U.S. 255, 259 (1922) (noting that “[t]he general rules of maritime law apply

whether the proceeding be instituted in an admiralty or common-law court”).

83. See, e.g., Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199 (1996).

84. 28 U.S.C. §1441 (2000).

85. Id.
Admiralty and Maritime Law

20

time jurisdiction), the case may not be removed to federal court if

admiralty jurisdiction is the only basis for federal jurisdiction.86 This

means that plaintiffs who exercise their option under the saving to

suitors clause and sue in state court can keep their cases in state court

unless there is diversity of citizenship or some statutory basis other

than section1333 to support the assertion of federal jurisdiction. Despite the fact that some commentators, based on a literal reading of

the amended removal statute, have questioned the viability of the Romero dictum,87

 lower federal courts have continued to apply it.88

Sources of Admiralty and Maritime Law

There are several sources of admiralty and maritime law. The Constitution has been interpreted as authorizing both Congress89 and the

courts90 to formulate substantive rules of admiralty law. The United

States has ratified numerous international maritime conventions,

particularly those that promote safety at sea and the prevention of

pollution.91 At times, Congress has gone beyond ratification and has

actually enacted an international convention as the domestic law of

the United States: The Carriage of Goods by Sea Act (COGSA) is an

example.92 However, with the exceptions of COGSA (discussed infra

Chapter 2) and the Salvage Convention (discussed infra Chapter 8),

the United States has not enacted international conventions that deal

with liability between private parties or with procedural matters.

Conventions aside, as the following discussion elaborates, Congress

has enacted statutes creating substantive rules of admiralty and maritime law. Various federal agencies, particularly the U.S. Coast Guard,

86. Romero v. Int’l Terminal Operating Co., 358 U.S. 354, 371–72 (1959).

87. Kenneth G. Engerrand, Removal and Remand of Admiralty Suits, 21 Tul.

Mar. L.J. 383 (1997).

88. Nesti v. Rose Barge Lines, Inc., 326 F.Supp. 170, 173 (N.D. Ill. 1971); Commonwealth of P.R. v. Sea-Land Serv., Inc., 349 F.Supp. 964, 977 (P.R. 1970).

89. The Thomas Barlum, 293 U.S. 21 (1934).

90. The Lottawanna, 88 U.S. 558 (1874); E. River S.S. Corp. v. Transamerica

Delaval, Inc., 476 U.S. 858 (1986).

91. See generally Frank Wiswall, 6–6F Benedict on Admiralty (7th rev. ed. 2001).

92. 46 U.S.C. app. §1300 (2000).
Chapter 1: Jurisdiction and Procedure in Admiralty and Maritime Cases

21

have promulgated numerous regulations that deal with vessels and

their operations.

The General Maritime Law

Like Congress, federal courts have created substantive rules of maritime law. These court-made rules are referred to as “the general maritime law,” which has two dimensions. To some extent, the general

maritime law applies rules that are customarily applied by other

countries in similar situations. This reflects that certain aspects of the

general maritime law are transnational in dimension, and custom is

an important source of law in resolving these disputes. The other aspect of the general maritime law is purely domestic. Because Congress

has never enacted a comprehensive maritime code, the courts, from

the outset, have had to resolve disputes for which there were no congressionally established substantive rules. In the fashion of commonlaw judges, the courts created substantive rules out of necessity. Occasionally federal courts have looked to state law to resolve maritime

disputes.

Choice of Law: U.S. or Foreign

The shipping industry operates worldwide. Vessels on a single voyage

may call at one or more foreign ports. Vessels often are supplied and

repaired in foreign ports. Cargo may be damaged or lost while at sea

in the course of an international voyage or in a foreign port, and likewise seamen may be injured on the high seas or in the waters of foreign countries. Today, international shipping is a complex business,

and its activities are conducted in a manner that often implicates the

interests of several countries. Some admiralty cases filed in U.S. courts

involve personal injury and wage claims of foreign seamen; others

arise out of transactions and occurrences that involve contacts with

other countries. Such cases often present jurisdictional, choice-oflaw,93

 and forum non conveniens issues.94

93. Choice-of-law and forum selection clauses are discussed infra Chapter 2

(COGSA; Charter Parties), Chapter 3 (Personal Injury and Death), and Chapter 8

(Salvage).
Admiralty and Maritime Law

22

In such situations, the jurisdictional issue must be resolved first.

Then, if the court concludes that it has jurisdiction over the claim, it

must determine the law to be applied to that claim. Finally, if the

court determines that the law of a foreign country should be applied,

it may have to rule on a motion to dismiss on grounds of forum non

conveniens.

The admiralty jurisdiction of the federal courts is extremely

broad; thus subject-matter jurisdictional issues may not be the most

difficult ones to resolve. Consider that an injury aboard or caused by a

vessel in navigable waters usually meets the locus and nexus tests, and,

if proper service of process can be effected on the defendant or defendant’s property, a federal court would have admiralty jurisdiction

over the claim. Likewise, contracts to repair vessels and to supply

vessels with necessaries are maritime contracts, and, if service of process can properly be made, a federal court would have jurisdiction over

such claims. The open-ended jurisdictional criteria often compel federal courts to deal with choice-of-law and forum non conveniens issues.

Two leading Supreme Court cases provide the rules for choice-oflaw analysis. Although both of these cases involved personal injury

claims by foreign seamen, the Court’s approach has been used by

lower federal courts as a point of departure or as a guideline to resolve

choice-of-law issues in many other kinds of admiralty cases. The first

case, Lauritzen v. Larsen,

95 involved a foreign seaman employed by a

foreign shipowner on a foreign-flag vessel who brought suit in a U.S.

court seeking to recover damages under the Jones Act.96 The Court

enumerated and discussed various criteria that have been commonly

94. The Supreme Court has formulated the rules for determining when an action brought in federal court should be dismissed under the doctrine of forum non

conveniens. Admiralty cases are subject to those rules. Am. Dredging Co. v. Miller, 510

U.S. 443 (1994) (holding, however, that states are not bound to apply these rules).

The criteria were articulated in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), and

reaffirmed in Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). Ships are engaged in

international and interstate commerce, giving a special importance to the doctrine of

forum non conveniens.

95. 345 U.S. 571 (1953).

96. Suit was brought for injuries the foreign seaman had sustained in U.S. waters. The Jones Act provides a remedy for “any seaman” and as such is not limited to

U.S. seamen or even to seamen who serve on U.S. vessels.
Chapter 1: Jurisdiction and Procedure in Admiralty and Maritime Cases

23

resorted to in resolving international choice-of-law issues in the

maritime context. These factors include (1)the place of the wrongful

act; (2)the law of the flag; (3)the allegiance or domicile of the injured

seaman; (4)the allegiance of the defendant shipowner; (5)the place

where the contract of employment was made; (6)the inaccessibility of

a foreign forum; and (7)the law of the forum.

In Hellenic Lines Ltd. v. Rhoditis,

97 the Court added an eighth factor: the shipowner’s base of operations. At times, this last factor may

be the most crucial, as it was found to be in Rhoditis. But the fact that

a shipowner has a U.S. base of operations does not automatically trigger the application of U.S. law.98

The Lauritzen–Rhoditis criteria are regarded as the proper criteria

to be applied in admiralty cases and, as stated, have been used in cases

other than seamen’s personal injury cases.99

Choice of Law: Congressional Preemption and State Law

Legislative preemption in the maritime area is merely a species of the

general doctrine of congressional preemption and is exemplified in

the case of United States v. Locke.

100 In Locke, the Supreme Court decided that a complex series of safety requirements for oil tankers imposed by the state of Washington could not coexist with various federal statutes and regulations promulgated thereunder by the U.S.

Coast Guard. The Court applied its rules relating to “conflict preemption”101 and “field preemption,”102 and also applied the approach

it had previously formulated in Ray v. Atlantic Richfield Co.,

103 where

it had invalidated much of the state of Washington’s comprehensive

regulation of oil tankers and their operations.

97. 398 U.S. 306 (1970).

98. Warn v. M/Y Maridome, 169 F.3d 625 (9th Cir.), cert. denied, 528 U.S. 874

(1999).

99. Oil Shipping (Bunkering) B.V. v. Sonmez Denizcilik Ve Ticaret A.S., 10 F.3d

1015 (3d Cir. 1993); Gulf Trading & Transp. Co. v. Vessel Hoegh Shield, 658 F.2d 363

(5th Cir. 1981); Klinghoffer v. S.N.C. Achille Lauro, 795 F. Supp. 112 (S.D.N.Y. 1992).

100. 529 U.S. 89 (2000).

101. Id. at 109.

102. Id. at 110–11.

103. 435 U.S. 151 (1978).
Admiralty and Maritime Law

24

In some cases, however, the Court has allowed states substantial

leeway. For example, in Huron Portland Cement Co. v. City of Detroit,

104 a case involving the validity of a city smoke-abatement ordinance, the majority stated that “[e]venhanded local regulation to effectuate a legitimate local public purpose is valid unless preempted by

federal action.”105 The Court held that there was no statutory preemption and concluded that, in the absence of legislation, “[s]tate

regulation, based on the police power, which does not discriminate

against interstate commerce or operate to disrupt its required uniformity, may constitutionally stand.”106 After referring to numerous

cases where state and local regulations had been upheld,107 the Court

found no impermissible burden on commerce. Likewise, Kelly v.

Washington108 upheld a state hull and machinery inspection statute,

rejecting an argument that it conflicted with federal statutory standards and an alternative argument that the subject matter required

uniformity that only federal legislation can provide: “When the state

is seeking to protect a vital interest, we have always been slow to find

that the inaction of Congress has shorn the state of the power which it

would otherwise possess.”109

The issue of statutory preemption has presented itself in various

contexts, including the preemption of state remedies for personal injury and death for seamen and for certain maritime workers under the

Jones Act110 and the Longshore and Harbor Workers’ Compensation

Act;111 the preemption of state remedies under the Death on the High

Seas Act;112 the preemption of certain liens under the Federal Maritime Lien Act;113 the preemption under the Carriage of Goods by Sea

104. 362 U.S. 440 (1960).

105. Id. at 443.

106. Id. at 448.

107. Id. and authorities cited therein.

108. 302 U.S. 1 (1937).

109. Id. at 14.

110. See, e.g., Lindgren v. United States, 281 U.S. 38 (1930).

111. See, e.g., Davis v. Dep’t of Labor & Indus. of Wash., 317 U.S. 249 (1942).

112. See, e.g., Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986).

113. See, e.g., In re Mission Marine Assocs., Inc., 633 F.2d 678 (3d Cir. 1980).
Chapter 1: Jurisdiction and Procedure in Admiralty and Maritime Cases

25

Act;114 and the nonpreemption of a state’s remedies for damage to its

environment whether caused by the discharge of smoke115 or oil.116 In

such cases, the issue is not whether the federal legislation is valid, but

whether or not state legislation can be applied to supplement federal

law.

Maritime law, in one way or another, has accommodated the application of state law under certain circumstances.117

In Southern Pacific v. Jensen,

118 the Supreme Court articulated an

approach for delineating impermissible state encroachment on federal

maritime law. There, the Court held that the family of a longshoreman killed aboard a vessel in navigable waters was not entitled to recover an award under the New York workers’ compensation statute.

There are three situations where state law may not be applied:

(1)where state law conflicts with an act of Congress, (2)where it

“works material prejudice to the characteristic features of the general

maritime law,” or (3)where it “interferes with the proper harmony

and uniformity” of the general maritime law “in its international or

interstate relations.”119 Subsequent decisions, however, have not developed a coherent body of law that describes the “characteristic features of the general maritime law” or explains what types of state law

might “work[] material prejudice” to those features.120 Likewise,

subsequent decisions have not clarified the meaning of the “proper

harmony and uniformity” of the general maritime law “in its interna114. See, e.g., Polo Ralph Lauren, L.P. v. Tropical Shipping & Constr. Co., 215

F.3d 1217 (11th Cir. 2000).

115. Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440 (1960).

116. 33 U.S.C. §2718(a)(1) (2000) (providing an express nonpreemption of

state remedies in cases of oil pollution damage); Askew v. Am. Waterways Operators,

Inc., 411 U.S. 325 (1973); Bouchard Transp. Co., Inc. v. Updergraff, 147 F.3d 1344

(11th Cir. 1998), cert. denied, 525 U.S. 1140, and cert denied, 525 U.S. 1171 (1999).

117. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527

(1995); Romero v. Int’l Terminal Operating Co., 358 U.S. 354, 373–75 (1959); Steven

F. Friedell, 1 Benedict on Admiralty §105 (7th rev. ed. 1999); Robert Force, Deconstructing Jensen: Admiralty and Federalism in the Twenty-First Century, 32 J. Mar. L. &

Com. 517 (2001).

118. 244 U.S. 205 (1917).

119. Id. at 216.

120. Id.
Admiralty and Maritime Law

26

tional and interstate relations.”121 The Court has not routinely used the

Jensen criteria as the point of departure and has not applied Jensen in a

consistent manner.122 Also, it created exceptions, such as the “maritime but local”123

 and the “twilight zone”124 rules.

Of all the post-Jensen cases, the most helpful one from a methodological perspective is American Dredging Co. v. Miller.

125 The case

involved the validity of a Louisiana statute that precluded the application of the doctrine of forum non conveniens in admiralty cases. The

majority opinion begins, “The issue before us here is whether the

doctrine of forum non conveniens is either a ‘characteristic feature’ of

admiralty or a doctrine whose uniform application is necessary to

maintain the ‘proper harmony’ of maritime law.”126 A characteristic

feature is one that either “originated in admiralty” or “has exclusive

application there.”127 The Court concluded that the forum non conveniens rule does not satisfy either criterion.

The Court went on to consider the impact of the forum non conveniens rule on the proper harmony and uniformity of maritime law.

The federal rule of forum non conveniens “is procedural rather than

substantive, and it is most unlikely to produce uniform results.”128

Furthermore, “[t]he discretionary nature of the doctrine [forum non

conveniens], combined with the multifariousness of the factors relevant to its application, ... make uniformity and predictability of outcome almost impossible.”129

The dissent does not merely assume that forum non conveniens is

important to maritime law, but rather engages in an analysis lacking

121. Id. (emphasis added).

122. Am. Dredging Co. v. Miller, 510 U.S. 443, 452 (1994); David W. Robertson,

The Applicability of State Law in Maritime Cases After Yamaha Motor Corp. v. Calhoun, 21 Tul. Mar. L.J. 81, 95–96 (1996); Robert Force, Choice of Law in Admiralty

Cases: “National Interests” and the Admiralty Clause, 75 Tul. L. Rev. 1421, 1439–64

(2001).

123. W. Fuel Co. v. Garcia, 257 U.S. 233 (1921).

124. Davis v. Dep’t of Labor & Indus., 317 U.S. 249 (1942).

125. 510 U.S. 443 (1994).

126. Id. at 447 (Scalia, J.).

127. Id. at 450.

128. Id. at 453.

129. Id. at 455 (citations omitted).
Chapter 1: Jurisdiction and Procedure in Admiralty and Maritime Cases

27

in virtually all other discussions of choice of law in prior decisions of

the Supreme Court. In this respect, the dissent explains why a uniform application of the maritime forum non conveniens rule is important to the national interests of the United States. The dissent’s approach is innovative and instructive in three respects. First, it remarks

on the fact that no state interest seems to be promoted by not applying forum non conveniens in admiralty cases, and no state interest

would seem to be undermined if the general maritime rule was followed. Second, it faults the majority for making a mistake in formulating the test to be applied. It is not where the admiralty rule originated or whether it has unique application in admiralty that is critical—the issue is whether forum non conveniens is an “important feature of the uniformity and harmony to which admiralty aspires.”130

Third, the dissent takes its conclusion that it is important for the forum non conveniens rule to be uniformly applied and links it to the

Admiralty Clause of the Constitution by pointing out that a uniform

rule of forum non conveniens

serves objectives that go to the vital center of the admiralty preemption doctrine. Comity among nations and among States was a

primary aim of the Constitution. At the time of the framing, it was

essential that our prospective trading partners know that the

United States would uphold its treaties, respect the general maritime law, and refrain from erecting barriers to commerce. The individual States needed similar assurances from each other.131

Procedure in Admiralty Cases

Prior to 1966, a separate set of rules of procedure were applied in

cases filed on the federal courts’ admiralty docket. In 1966, the Federal

Rules of Civil Procedure eliminated the separate admiralty docket and

the admiralty rules of procedure. The Federal Rules merged the actions at law, equity, and admiralty into a single “civil action” and with

a few exceptions made the rules applicable to all civil actions, including those that fell within admiralty jurisdiction.

130. Miller, 510 U.S. at 463 (Kennedy, J., dissenting).

131. Id. at 466.
Admiralty and Maritime Law

28

Generally, admiralty actions commenced in federal district courts

are subject to the rules that apply to all civil actions, both maritime

and nonmaritime.132 Thus, the rules that relate to pleadings, joinder of

parties and claims, and discovery, for example, are uniformly applied

in both admiralty and nonadmiralty cases. However, there are special

procedural rules that apply to admiralty cases.

Special Admiralty Rules

There are some differences between admiralty cases and other civil

actions, as well as special rules that apply only in admiralty cases.

The greatest difference in admiralty cases is that there is no right

to a jury trial.133 It should be remembered that some situations create

the possibility of more than one basis for jurisdiction.134 When a

plaintiff has multiple bases, including admiralty, for invoking federal

court jurisdiction, he or she must specifically designate the claim as an

admiralty claim; otherwise it will be treated as a nonadmiralty

claim.135 This is referred to as the Rule 9(h) designation.

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

A person who seeks to bring an action to vindicate a claim that lies

within admiralty jurisdiction may, depending on the circumstances,

have several options. If the claim is based on the personal liability of

the other party, as is usually the case in an ordinary tort or breach of

contract situation, the plaintiff may file an in personam action against

that person in a federal district court.

A second possibility for vindicating a maritime claim is for the

plaintiff to bring an action in rem directly against the property, typically a vessel, that relates to the claim. In such cases, the vessel—not

the vessel’s owner—is the defendant. Under the fiction of “personification,” the vessel is deemed to have a legal personality and, as such, is

subject to suit directly whereby it can be held liable for the torts it has

132. See generally Fed. R. Civ. P. 1.

133. Waring v. Clarke, 46 U.S. (5 How.) 441, 460 (1847).

134. The jury trial implications of cases where there are alternative or multiple

bases of jurisdiction are discussed supra text accompanying notes 69–76.

135. Fed. R. Civ. P. 9(h). See supra text accompanying note 59.
Chapter 1: Jurisdiction and Procedure in Admiralty and Maritime Cases

29

committed and for the contracts it has breached. An action in rem

based on an admiralty claim may be brought only in a federal court

and is initiated by “arresting” (seizing) the property. The property

must be subject to the jurisdiction of the court. Furthermore, an in

rem action is not available in all admiralty disputes because the arrest

procedure is authorized only to enforce a maritime lien or as otherwise permitted by statute.

Finally, the plaintiff may bring an action that partakes of some of

the characteristics of both the in personam and the in rem actions.

This action is referred to as an action quasi in rem. It partakes of the in

rem action in that it is commenced by attachment (seizure) of the

property, that is, by subjecting the defendant’s property to the jurisdiction of the court. Yet it partakes of the in personam action because

it is based on the personal liability of the owner of the property.

Where a defendant fails to submit to the personal jurisdiction of the

court, judgment is limited to the value of the property. An objective of

the quasi in rem proceeding of attachment is to compel the defendant

to personally appear to defend against the claim.

Federal Rules of Civil Procedure Supplemental Rules

There are special rules that apply in admiralty cases under the Supplemental Rules to the Federal Rules of Civil Procedure (hereinafter

Supplemental Rules). The Supplemental Rules provide for the commencement of actions by arrest or attachment. With an exception not

relevant here, Supplemental Rule C applies only to arrest proceedings

in admiralty and Supplemental Rule B applies only to attachment

proceedings in admiralty. Supplemental Rule E136 provides additional

procedures for actions brought under both Rules B and C.

In Rem Actions: Arrest

An action in rem is commenced by arresting property, typically a vessel, under Supplemental Rules C and E of the Federal Rules of Civil

Procedure. An in rem action in the United States is an action against

the named property itself. It need not be based on the personal liability of the property owner, and it is not merely a means for obtaining

136. Discussed infra text accompanying notes 143–48.
Admiralty and Maritime Law

30

in personam jurisdiction over a nonresident or creating security over

an asset of the owner. The law of the United States differentiates between seizures of property by means of a judicial process called an

“arrest” and those initiated by a process called an “attachment.” Arrest is a process for asserting in rem liability.

An in rem action may be brought to enforce maritime liens under

the Federal Maritime Lien Act, to enforce other maritime liens created

under the general maritime law, and as authorized by statutes such as

the Federal Ship Mortgage Act.

Arrest Procedures

To commence an in rem action, a plaintiff must file a complaint that

describes the property subject to the action and states that such property is in or will be in the court’s judicial district during the pendency

of the action. If the property is not within the district where the action

is commenced and there is no immediate prospect of its entering the

district, the complaint will be dismissed.

The complaint and supporting documentation must be reviewed

by a court, and, if the conditions for an action in rem appear to exist,

the court shall issue an order authorizing a warrant for the arrest of

the property. No notice other than execution is required. However, if

the property is not released within ten days, the plaintiff must give

public notice of the action and the arrest in a newspaper of general

circulation. This notice must specify the time within which an answer

is required to be filed.

A person who asserts a right of possession or ownership of the

property, such as the owner of a vessel subject to an action in rem,

must file a statement of right or interest within ten days after process

has been executed, unless the court allows additional time. The claimant must file an answer within twenty days after filing its statement of

right or interest. Additional procedural rules pertaining to actions in

rem are contained in Supplemental Rule E.

An action in rem commences when the property subject to arrest

is physically seized within the jurisdiction of the court. Subject to the

qualifications discussed below, seizure of the property is essential to

give the court jurisdiction over the property. It is not enough for the

property to be present in the judicial district where the court is lo-
Chapter 1: Jurisdiction and Procedure in Admiralty and Maritime Cases

31

cated. Likewise, the presence of the owner within the district is insufficient. A court officer (the U.S. marshal) must physically seize the

property, actually or constructively, and take it into custody if possible. In the case of an arrest of a vessel, service of the arrest papers on

the master and the placing of a “keeper” on the vessel will suffice. In

an in rem action, jurisdiction over the property is required to give the

court jurisdiction over the action, but this requirement, as will be explained, has been relaxed to some extent.

In Personam Actions: Attachment and Garnishment

An alternative method for obtaining in personam jurisdiction is

sometimes referred to as quasi in rem jurisdiction and is accomplished

by an attachment of the defendant’s property. The presence of the

defendant’s property within a state may be sufficient to constitute the

“minimum contacts” required under the Due Process Clause, and the

seizure of the property may be sufficient to satisfy the service of process requirement.

Supplemental Rule B of the Federal Rules of Civil Procedure provides for commencing an in personam maritime action in federal

court by seizing property of the defendant. It authorizes the attachment or garnishment of the defendant’s property.

A plaintiff who has asserted an admiralty or maritime claim in

personam may include in his or her verified complaint a request for

process to attach the defendant’s goods and chattels, or credits and

effects, in the hands of garnishees named in the process for up to the

amount sued. Rule B is available only where the plaintiff has asserted a

maritime or admiralty claim. The property that the plaintiff seeks to

attach or garnish must be within the geographic boundaries of the

federal judicial district wherein the action is brought.

Attachment and garnishment are permissible under the rule only

“if the defendant shall not be found within the district.”137 The plaintiff must submit an affidavit to the effect that the defendant cannot be

found within the district where the suit is brought. Usually the plaintiff will set forth the steps taken supporting the allegation that the defendant is not present within the district.

137. Fed. R. Civ. P. Supp. R. B(1) (emphasis added).
Admiralty and Maritime Law

32

An allegation that the defendant cannot be found within the district has two dimensions: The defendant is not present for jurisdictional purposes; and the defendant is not present for service of process.138 To defeat an attachment and secure the release of property, the

defendant must show both that he or she is present in the district in

the jurisdictional sense (minimum contacts) and that he or she is

amenable to service of process personally or through an agent

authorized to accept service of process.139 The fact that the defendant

is present within the state is insufficient to bar a Rule B action if the

defendant is not present within the geographic area comprising the

federal judicial district in which the action has been commenced.140

Where suit is commenced in one district within a state, the defendant

cannot defeat an attachment merely by showing that state law

authorizes service of process on him or her by serving process on the

secretary of state who is located in another federal judicial district in

the state.141

The procedures under Supplemental Rule B are similar in many

respects to the procedures required by Rule C. A court must review

the complaint and affidavit, and if it appears that the plaintiff is entitled to have process issued, the court will so order. Notice is given to

the garnishee or person in possession of the property when process,

the attachment, is served on that person in order to secure physical

control of the property by the court. Rule B provides, however, that

no default shall be taken unless there is proof that the plaintiff or the

garnishee gave notice to the defendant. Notice is not required if the

plaintiff or garnishee has been unable to give notice despite diligent

efforts to do so.

The garnishee has twenty days from service of process to file an

answer. The defendant has thirty days after process has been executed

to file its answer.

138. Seawind Compania, S.A. v. Crescent Line, Inc., 320 F.2d 580 (2d Cir. 1963).

139. Id.

140. LaBanca v. Ostermunchner, 664 F.2d 65 (5th Cir. 1981).

141. Id.
Chapter 1: Jurisdiction and Procedure in Admiralty and Maritime Cases

33

Attachment and Arrest Distinguished

Supplemental Rule B attachment differs from Supplemental Rule C

arrest in several respects. First, Rule C arrest may be used even when

the defendant can be found within the district.

Second, to invoke Rule C, the property arrested must be related to

the plaintiff’s claim. In rem actions must be based on a maritime lien

or authorized by statute. Such liens arise when a vessel commits a tort

or breaches a contract. Thus, the underlying tort or contract that gave

rise to the maritime lien serves as the basis for the plaintiff’s claim. By

contrast, Rule B attachment applies to any property of the defendant

that is present within the district, even if it is totally unrelated to the

events giving rise to the claim and even if it has no maritime character.

Third, in a Supplemental Rule C in rem proceeding, the plaintiff’s

claim is predicated on the liability of the property itself. In a Rule B

attachment, liability is always predicated on the personal liability of

the defendant. If, under the applicable substantive rules, a defendant

is not personally liable, its property may not be attached. In an in rem

proceeding, judgment may be entered against the property itself,

which would be sold to satisfy the judgment against it. In such a judicial sale, the purchaser takes the property free and clear of all maritime liens. The sale of property to satisfy a judgment in rem scrapes all

liens from the vessel. To the extent that others had liens against the

vessel, those liens attach to the fund generated from the sale of the

property. In attachment proceedings, judgment is entered against the

owner of the property. The property may be sold to satisfy the judgment against the owner, but this does not necessarily affect the rights

of other persons, such as those holding maritime liens or a preferred

ship mortgage on the property.

Additional Provisions Applicable to Arrest and Attachment

Supplemental Rule E contains additional procedural provisions that

are applicable to both maritime arrest and attachment proceedings.142

142. Discussed infra text accompanying notes 144–45.
Admiralty and Maritime Law

34

The Complaint

A complaint filed by a plaintiff under Supplemental Rules B and C

must state the circumstances under which the claim arose with such

particularity that the defendant or claimant, without requesting additional information, will be able to begin investigating the facts and

prepare a responsive pleading. The Federal Rules of Civil Procedure

generally are not very demanding with regard to the facts pleaded as

the basis for a complaint because they authorize parties to engage in

extensive pretrial discovery practices. Thus, the requirement of Supplemental Rule E that the facts be stated with sufficient particularity

for the defendant to begin its investigation of the incident on which

the arrest or attachment is based is a more demanding standard.143

Arrest warrants and writs of attachment are issued ex parte after the

court has reviewed only the documents presented by the plaintiff; the

plaintiff’s documents must adequately inform the court that it should

order that the process be issued.

Security for Costs

Supplemental Rule E also authorizes the court to require any party to

post security for costs and expenses that may be awarded against it.

Property Not Within the District

Even where the property that is to be seized is not within the geographic bounds of the federal district court, the plaintiff may still apply for the issuance of process for its seizure. The plaintiff may then

request that execution of process be delayed until the property is

brought within the court’s territorial jurisdiction or until some arrangement by way of stipulation may be agreed on by the parties.

Property may not be seized under Supplemental Rules B, C, and E

unless it is within the district, because the process authorizing its seizure can only be served within the district.

143. Riverway Co. v. Spivey Marine & Harbor Serv. Co., 598 F.Supp. 909 (S.D.

Ill. 1984).
Chapter 1: Jurisdiction and Procedure in Admiralty and Maritime Cases

35

Necessity for Seizure and Retention—Exceptions

Under certain circumstances an action may proceed in rem or quasi in

rem without an actual physical seizure or retention of the property in

question. Supplemental Rule E states that where process of arrest or

attachment has issued, “such process shall be stayed, or the property

released, on the giving of security, to be approved by the court or

clerk, or by stipulation of the parties, conditioned to answer the

judgment of the court.”144

Under that provision, if property is seized it may be released upon

posting of a sufficient bond. With regard to the arrested property, the

plaintiff’s maritime lien is transferred from that property to the bond

that has been provided as security. Consequently, the plaintiff no

longer has a maritime lien on the property.

Rule E provides that even where the property has not been seized,

the parties (plaintiff and defendant) may enter into a stipulation that

(1) the property will not be seized; (2) the matter may proceed in

rem or quasi in rem, as the case may be; (3) the defendant will undertake to honor any judgment; [and] (4) the defendant will consent to the court’s jurisdiction over the action.

In reality this means that the parties may confer in rem or quasi in rem

jurisdiction upon the court by express agreement.145 In rem or quasi in

rem jurisdiction may be conferred by waiver as well.146 Even where no

property has been seized, a defendant who makes a general appearance and responds to the substance of the plaintiff’s complaint or who

asks for affirmative relief without clearly reserving an objection to the

court’s jurisdiction will be considered to have waived the jurisdictional defect.147 At the extreme, this means that an action may proceed

in rem notwithstanding the fact that the property was never seized

within the court’s jurisdiction, the parties never agreed to the court’s

jurisdiction, such as by stipulation, and the defendant never expressly

144. Fed. R. Civ. P. Supp. R. E(5)(a).

145. Id.

146. Cactus Pipe & Supply Co. v. M/V Montmartre, 756 F.2d 1103, 1107–11 (5th

Cir. 1985).

147. Fed. R. Civ. P. Supp. R. E(8).
Admiralty and Maritime Law

36

waived the right to object to the court’s jurisdiction by failing to

promptly and properly make an objection.

The expenses of seizing and keeping property are provided for by

federal statute.148

Post-Arrest/Post-Attachment Hearing

Supplemental Rule E(4)(f) confers upon a person whose property has

been arrested or attached the right to a prompt judicial hearing. At the

hearing, the plaintiff has the burden of proving that the arrest or attachment was authorized and lawful.

Release of Property—Security

The nature and amount of security required to release property that

has been seized or to stay execution of process prior to seizure may be

fixed by agreement of the parties. Where the parties fail to agree, the

court will fix the security at an amount sufficient to cover “the plaintiff’s claim fairly stated with accrued interest and costs.”149 This

amount of security may not exceed twice the amount of the plaintiff’s

claim or the value of the property as determined by appraisal.

When security such as a surety bond is provided to obtain the

release of property that has been arrested, it is usually claim and party

specific. This means that the surety has undertaken to pay a specified

claim asserted by a specified plaintiff. The bond does not secure other

claims.150 When property is released, the plaintiff’s lien is transferred

to the security. The plaintiff no longer has a lien on the res. The security in the court’s possession is sufficient to support in rem jurisdiction over the plaintiff’s claim and also provides security to pay the

plaintiff’s claim if the plaintiff is successful. That security, however,

does not support in rem jurisdiction over any claim asserted by other

parties, and other parties cannot look to the surety for the satisfaction

of their claims.151 Plaintiffs who seek to intervene or other defendants

148. 28 U.S.C. §1921 (2000).

149. Fed. R. Civ. P. Supp. R. E(5)(a).

150. Id.

151. Transorient Navigators Co., S.A. v. M/S Southwind, 788 F.2d 288 (5th Cir.

1986).
Chapter 1: Jurisdiction and Procedure in Admiralty and Maritime Cases

37

who seek to assert cross-claims against the ship must establish in rem

jurisdiction independent of the original plaintiff’s action either prior

to the release of the res or subsequent thereto. In other words, each

party intending to assert an in rem action against the property must

arrest the vessel unless the vessel owner stipulates to the in rem jurisdiction of the court.

Where a shipowner anticipates that multiple claims may be

brought against its vessel, it may file a general bond or stipulation,

with sufficient surety, which undertakes to satisfy any judgment of

that court in all actions that may be subsequently brought in the court

in which the vessel is attached or arrested.152 Where such a bond is

filed, execution of process shall be stayed as long as the amount secured by the bond or stipulation is at least double the aggregate

amount claimed by all plaintiffs in actions begun and pending in

which arrest or attachment process against the vessel has been issued.

Property attached, garnished, or arrested shall be released by the

U.S. marshal upon acceptance and approval of a stipulation, bond, or

other security, signed by the party in whose behalf the property is detained or its attorney, that expressly authorizes the property’s release.

However, all costs and charges of the court and its officers, including

the marshal, must first have been paid. The marshal may not release

the property in any other circumstance except by order of the court.

However, the clerk of the court, upon the giving of approved security

as provided by law and the Supplemental Rules, may enter an order

“as of course” releasing the property. Likewise, where an action is

dismissed or discontinued, the clerk may enter an order as of course

releasing the property. Notwithstanding that Federal Rule of Civil

Procedure 62 provides for an automatic stay in situations where a

court has dismissed an action, it has been held that this does not override the provision of Supplemental Rule E, which authorizes the clerk

to release property as of course when an action has been dismissed.153

If the plaintiff seeks to contest a dismissal by the district court, the

152. Fed. R. Civ. P. Supp. R. E(5)(b).

153. Alyeska Pipeline Serv. Co. v. The Vessel Bay Ridge, 703 F.2d 381 (9th Cir.

1983), cert. dismissed, 467 U.S. 1247 (1984).
Admiralty and Maritime Law

38

plaintiff should specifically request that the court or an appellate court

order a stay of the release of the detained property.

At one time, it was thought that the release of property seized

pursuant to an arrest or an attachment without security or other

stipulation deprived the court of jurisdiction to proceed further unless

the release was procured by fraud or resulted from a mistake. However, it now appears that if the initial seizure vested the court with

jurisdiction over the property, subsequent release of the property does

not divest a court of first instance or an appellate court of jurisdiction

over the matter.154 A court may decide, however, that the circumstances do not warrant proceeding further if there is no res to satisfy a

judgment.155

Increase or Decrease of Security; Counter-Security

Supplemental Rule E provides for certain practical contingencies.

Thus, the court may order either a reduction of or an increase in security where appropriate. Furthermore, where a counterclaim, including

a claim for wrongful seizure arising out of the same transaction or

occurrence, is asserted by a defendant who has provided security on

the original claim, the court may order the plaintiff to give security on

the counterclaim.

Restricted Appearance

Sometimes a party whose property has been attached or arrested faces

a dilemma because it may want to defend against that claim without

submitting to the jurisdiction of the court in respect to other claims

for which arrest, attachment, and garnishment are not available. Supplemental Rule E specifically authorizes such a restricted appearance,

but the restrictive nature of the appearance must be expressly stated.

154. Republic Nat’l Bank of Miami v. United States, 506 U.S. 80 (1992).

155. Id.
Chapter 1: Jurisdiction and Procedure in Admiralty and Maritime Cases

39

Sale of Property

All sales of property shall be made by the U.S. marshal and the proceeds paid into the registry of the court, where they will be dispersed

according to law.

41

chapter 2

Commercial Law

Introduction

Historically and continuing to the present, the heart of maritime law,

in its international context, lies in the transportation of goods and

passengers for compensation. Today ships are larger and faster and,

with the advent of “containerization,” can carry cargo more safely156

than cargo vessels of 100 years ago.

Contracts to transport cargo from one place to another are called

“contracts of carriage” or “contracts of affreightment.” The two terms

are used interchangeably. The “players” in water-borne transport include the following: owners, the persons who own commercial vessels;

charterers, persons who contract to use the carrying capacity of a vessel owned by another; shippers, persons who want their goods transported from one place to another; consignees, persons who are entitled to receive the goods after they have been discharged from the carrying vessel; freight forwarders (sometimes called ocean freight forwarders), transportation specialists who assist shippers by arranging

for the transport of their goods; and nonvessel operating common

carriers (NVOCCs), persons who undertake to transport goods of

shippers as though they had their own vessels but who, in reality,

contract with owners or charterers of vessels to actually perform the

transportation function.

156. The term “container” may be used in two ways. First, it may be used generically to refer to any packaging of cargo, whether made of cardboard, plastic wrapping,

or wooden crates. Second, and more commonly, it is used as a term of art to refer to a

large metal box either twenty or forty feet long and abbreviated as either a TEU

(twenty-foot equivalent) or an FEU (forty-foot equivalent). Various cargoes are

placed in these containers and can be carried more safely because they have the metal

box to protect them. Containerization also allows the consolidation of smaller lots of

cargo and provides those lots with the same protection as cargo shipped in container

lots.
Admiralty and Maritime Law

42

Charter Parties

Definition and Types

A charter party is a highly standardized written document157 that provides the contractual arrangements for one party (the charterer) to

hire the carrying capacity of a vessel, either in whole or in part, owned

by another party. Generally, charter parties are subject to the rules

and requirements of contract law. Charter party forms158 are used

worldwide, and many of them have been drafted to take into consideration the specific needs of particular trades. Other charter parties

are more general in form and are not adapted to a specific trade.

There are three basic types of charter parties: a voyage charter, a time

charter, and a demise charter.

Under a voyage charter, the owner of the vessel agrees to carry

cargo from one port to another on a particular voyage or voyages. The

vessel is manned and navigated by the owner’s crew. A voyage charter

may be used as a contract of affreightment—that is, for the shipper’s

purpose of sending its goods from the port of origin to a port of destination. To the extent that a voyage charterer obtains only the carrying capacity of a particular vessel, the charterer is not responsible for

maintenance, repairs to the vessel, or injuries to third parties arising

from the crew’s operational negligence. A voyage charterer usually is

not liable for expenses such as bunkers (fuel).

A time charter is a contract for the use of the carrying capacity of

a particular vessel for a specified period of time (months, years, or a

period of time between specified dates). As with a voyage charter, the

vessel owner under a time charter is responsible for the navigation

and management of the vessel, subject to conditions set out in the

charter party. The vessel’s carrying capacity is leased to the charterer

for the time period fixed by the charter party, allowing for unlimited

voyages within the charter period. Therefore, the vessel is under the

charterer’s orders as to ports of call, cargo carried, and other matters

157. A charter party entered into orally is enforceable. Union Fish Co. v. Erickson, 248 U.S. 308 (1919).

158. John C. Koster, 2B-E Benedict on Admiralty (7th rev. ed. 2000). Most of the

charter party forms are reproduced in Benedict on Admiralty.
Chapter 2: Commercial Law

43

related to the charterer’s business. The master and crew remain employees of the owner and are subject to the owner’s orders with regard

to the navigation and management of the vessel. Because a time charterer obtains only the carrying capacity of a particular vessel, the

charterer is not responsible for maintenance, repairs to the vessel, or

injuries to third parties arising from the crew’s operational negligence.

Time charterers usually are responsible for expenses of operating the

vessel.

In a demise charter, the charterer not only leases the carrying capacity of the vessel but, unlike a time or voyage charter, also obtains a

degree of control over the management and navigation of the vessel.

As such, the charterer becomes, in effect, the owner of the vessel pro

hac vice for the duration of the charter.159 The test for whether a charter party is a demise charter is whether the owner has turned over to

the charterer “the possession, command, and navigation” of the vessel

during the period it is in effect. When a vessel with a preexisting master and crew is under a demise charter, the master and crew may remain on the vessel and operate the vessel for the charterer as a provision of such agreement. The master and crew are subject to the orders

of the charterer and its agents, and they are considered its employees.

Under a demise charter, an owner may also turn over the vessel to the

charterer without a master and crew. A demise charter of this type is

also referred to as a bareboat charter.160

Under a demise charter, the legal relationship between the owner

and the charterer is significantly different from that created by a time

or voyage charter. Because a demise charter transfers the possession

and control of the vessel to the charterer, one who takes a vessel on

demise is responsible for maintenance, repairs, or damages caused to

third parties by the crew’s negligent navigation of the vessel. Thus, the

owner who has demised its vessel will generally not be liable in personam for the fault or negligence of the crew—the charterer will be

159. United States v. Shea, 152 U.S. 178 (1894).

160. Forrester v. Ocean Marine Indem. Co., 11 F.3d 1213 (5th Cir. 1993). See

generally Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty, §§4-1 to 4-24

(2d ed. 1975) (for a broad overview of charter parties).
Admiralty and Maritime Law

44

primarily liable. Demise charterers usually are responsible for the

vessel’s operating expenses.

In addition to these three types of charter parties, a number of

variations have been created to accommodate containerization and

the changing nature of the shipping industry.161

The Contract

Most charter party transactions use standardized printed forms. Some

of the clauses contain blank spaces that require the parties to supply

information. Typically the parties must specify the names of the

owner and of the charterer and the amount of payment, referred to as

“hire” or “charter hire.” Obviously, a voyage charter must specify the

voyage to be undertaken, and a time charter must specify the length of

time. In addition, a time charter requires information about the

physical characteristics of the vessel and any restrictions on the use of

the vessel. The charter form also sets out standard terms and conditions that apply under the contract. Charter parties typically are negotiated contracts and, in contrast to transport pursuant to bills of

lading, are often marked up—that is, provisions are added, deleted, or

modified. These changes reflect the market and the relative financial

strength of the owner and the charterer.

Typical Areas of Dispute

Freedom of contract is the touchstone to the resolution of charter

party disputes between owner and charterer. The rules applicable to

charter party disputes derive from the terms of the charter party itself

and generally do not implicate public policy concerns. These are contracts between businesspersons, negotiated at arm’s length, often

through intermediaries (i.e., brokers who are experts in the field). It is

often assumed that the contracting parties are sophisticated and that

considerations of consumer protection are absent. Confirmation of

161. Commonplace variations of charter parties include slot, space, and cross

charters. See Carroll S. Connard, 2A Benedict on Admiralty, ch. XX (7th rev. ed.

2001). For example, the English Court of Appeal has characterized the widely used

slot charter as a “[voyage] charter of part of a ship.” The Tychy, [1999] 2 Lloyd’s Rep.

11 (U.K.).
Chapter 2: Commercial Law

45

this view is the fact that key terms, such as rate of charter hire and

length of charter term, are often subject to hard bargaining. This does

not mean that the parties negotiate from equal positions of strength.

Like other areas of commercial transactions, supply and demand may

strengthen an owner’s hand when vessels are in short supply or may

put charterers in a better position when there is a surplus of tonnage

available in the charter market. The advantages that inhere in these

circumstances are not the equivalent of overreaching.

Most terms used in standard charter parties are terms of art that

have well-established and well-understood meaning within the industry. Old-fashioned as some may seem, the terms (including those

described below) ought to be interpreted and applied in litigation as

they are understood in the industry.

Misrepresentation

The term “misrepresentation” includes not only fraud or intentional

misrepresentation but also any situation where a vessel does not conform to factual representations as stated by the owner in the charter

party. Courts today take a pragmatic approach, and resolution of a

dispute may hinge both on the materiality of the representation or

undertaking and whether the charterer seeks damages or termination

of the contract.162 The following has been said in regard to termination:

Under the American precedents, it is more important to distinguish between cases involving a misdescription determined

prior to delivery of the vessel and one occurring after delivery.

In the former a refusal to accept the vessel has been held justified even where the deviation from the represented characteristic is relatively small.

Once delivery of the vessel has been accepted, however, the

charterer is entitled to refuse to perform the charter only if

there is a material breach on the part of the owner.163

162. Aaby v. States Marine Corp., 181 F.2d 383 (2d Cir.), cert. denied, 340 U.S.

829 (1950).

163. Michael Wilford et al., Time Charters 108 (4th ed. 1995).
Admiralty and Maritime Law

46

Warranties

Size and Speed—A breach of an express warranty as to size and speed

may entitle a charterer to recover damages.164 At the election of the

charterer, the breach of such an express warranty may provide a basis

for rescission. Rescission of the charter party is available only under

circumstances where the breach is material or where it is discovered

before the vessel has been accepted by the charterer.165

Seaworthiness—In general, a shipowner has a duty to ensure that

his or her vessel is seaworthy and capable of transporting the cargo for

which it has been chartered.166 A charter party that describes the vessel

as “with hull, machinery, and equipment in a thoroughly efficient

state” or “that on delivery the ship be tight, staunch, strong and in

every way fitted for the service” gives rise to a warranty of seaworthiness. In the absence of an express and unambiguous stipulation or a

controlling statute to the contrary, a warranty of seaworthiness will be

implied by law.167

The parties may stipulate that there is no warranty of seaworthiness, but such agreements are not favored168 and will be enforced only

if they “clearly communicate that a particular risk falls on the [charterer].”169

Breach of the warranty of seaworthiness does not by itself confer

upon the charterer the right to repudiate. Repudiation by a charterer

is permissible only where the breach of the owner’s undertaking of

seaworthiness is so substantial as to defeat or frustrate the commercial

purpose of the charter.170 This view is consistent with the modern approach that the undertaking of seaworthiness is to be treated like any

164. Romano v. W. India Fruit & S.S. Co., 151 F.2d 727 (5th Cir. 1945); The

Atlanta, 82 F. Supp. 218 (S.D. Ga. 1948).

165. Romano, 151 F.2d 727.

166. The Caledonia, 157 U.S. 124 (1895).

167. Raoul P. Colinvaux, Carver on the Carriage of Goods by Sea 245 (7th ed.

1952). See also Richard A. Lord, 12 Williston on Contracts, §34.3 (4th ed. 1999).

168. The Carib Prince, 170 U.S. 655 (1898).

169. A. Kemp Fisheries, Inc. v. Castle & Cooke, Inc., 852 F.2d 493 (9th Cir.

1988); Hauter v. Zogarts, 14 Cal. 3d 104 (Cal. 1975).

170. S.S. Knutsford Co. v. Barber & Co., 261 F. 866 (2d Cir. 1919), cert. denied,

252 U.S. 586 (1920).
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47

other contractual undertaking. Thus, an insubstantial breach that

does not defeat the object of the contract will not justify repudiation

unless expressly made a condition precedent to a party’s performance

of its obligations.171

Likewise, the terms of the charter party must be examined carefully because the parties may have agreed to a lesser undertaking with

respect to seaworthiness. For example, an owner may have expressly

undertaken only to exercise “due diligence” to provide a seaworthy

vessel.

Temporary Interference with Charterer’s Use of the Vessel

Charter parties commonly provide for contingencies, short of frustration, that result from the inability of the charterer to use the ship as

intended. This may occur in the case of a mechanical malfunction or

illness of the crew or some other factor that renders a vessel temporarily unusable. A common provision in charter parties is an “off

hire” or “breakdown” clause. Under an off hire clause, a charterer’s

duty to pay hire ceases in the event that it is deprived of the use of the

vessel, either in whole or in part, as a result of some deficiency of the

vessel, its equipment, or the crew.172 There are many variations in the

wording of an off hire clause, and sometimes there are disputes as to

the applicability of the particular clause in question.173

Sometimes the inability to use a vessel is unrelated to the physical

condition of the vessel itself or its crew, such as where a strike by

longshoremen or government intervention prevents a vessel from

sailing or from loading or discharging cargo. Other clauses in the

charter party may determine who bears the risk of such events. Under

a “mutual exceptions” clause, for example, if a party is prevented from

fulfilling its obligations because of the occurrence of a circumstance

enumerated in the mutual exceptions clause, such nonperformance is

not considered to be a breach of the charter party contract. “Restraint

of princes” (an embargo) is usually one of the circumstances enumer171. Aaby v. States Marine Corp., 181 F.2d 383 (2d Cir.), cert. denied, 340 U.S.

829 (1950).

172. The Yaye Maru, 274 F. 195 (4th Cir.), cert. denied, 257 U.S. 638 (1921).

173. S.S. Knutsford, 261 F. 866 (2d Cir. 1919), cert. denied, 252 U.S. 586 (1920).
Admiralty and Maritime Law

48

ated in a standard mutual exceptions clause. Thus, the action of a

government that prevents an owner from fulfilling its obligation to

the charterer—for example, by placing the vessel in quarantine—will

excuse the nonperformance of the owner.174 Other circumstances

commonly excepted are acts of God or of public enemies.

Safe Port and Safe Berth Provisions

In time and voyage charters there are express or implied obligations

that the charterer will not require the vessel to call at an unsafe port or

enter an unsafe berth to load, discharge, or take on bunkers. Time and

voyage charter parties usually contain a provision referred to as a “safe

port/safe berth” clause that purports to place on the charterer the risks

to the vessel posed by the particular ports at which the vessel will call

and the berths where the vessel will lie. Under U.S. law, it is not clear

whether this clause in a charter party obliges the charterer to “warrant” the safety of ports and berths entered. The Fifth Circuit has held

that a safe berth clause does not impose strict liability upon a voyage

charterer, and the charterer is not liable for damages arising from an

unsafe berth where the charterer has exercised due diligence in the

selection of the berth.175 On the other hand, the Second Circuit has

held that where a time charter party includes a safe port/berth clause,

the charterer warrants the safety of the berth it selects.176

In any event, under a safe port/berth clause the master of a vessel

may refuse to proceed to an unsafe port/berth nominated by the

charterer without placing the owner in breach of the charter.177

Notwithstanding a safe port/berth provision, negligence on the

part of the master may relieve a charterer of its liability to the extent

174. Clyde Commercial S.S. Co. v. W. India S.S. Co., 169 F. 275 (2d Cir. 1909).

175. Orduna S.A. v. Zen-Noh Grain Corp., 913 F.2d 1149 (5th Cir. 1990).

176. Venore Transp. Co. v. Oswego Shipping Corp., 498 F.2d 469, 472–73 (2d

Cir.), cert. denied, 419 U.S. 998 (1974); Ore Carriers of Liberia, Inc. v. Navigen Co.,

435 F.2d 549 (2d Cir. 1970); Paragon Oil Co. v. Republic Tankers, S.A., 310 F.2d 169

(2d Cir. 1962), cert. denied, 372 U.S. 967 (1963). But see Hastorf v. O’Brien, 173 F.

346, 347 (2d Cir. 1909) (holding a charterer to the reasonable man standard); The

Terne, 64 F.2d 502 (2d Cir.) (holding that charterer was immune from damages when

ship was caught in ice and damaged), cert. denied, 290 U.S. 635 (1933).

177. In re The E. Eagle, 1971 AMC 236 (N.Y. Arb. 1970).
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49

that such negligence permits the fact finder to conclude either that the

port was safe because the peril could have been avoided by prudent

seamanship or that, in the case of an unsafe port, the master’s conduct

was an intervening, superseding cause of the resulting damages. Obviously, not every risk taken by a master will be considered a superseding cause.178 If the casualty results from the combined negligence of

the charterer and the vessel’s master or other agent of the owner,

damages are to be apportioned according to the respective fault of the

parties.179

Demurrage and Detention

In a time charter, the charterer has the vessel’s carrying capacity at its

disposal for a specified period of time. As such, it makes no difference

to the owner whether the charterer makes efficient use of the timechartered vessel. By contrast, in voyage charters, the time during

which the voyage charterer may use the vessel is measured by the

length of time it takes to complete the voyage. Obviously, it is to the

owner’s advantage to have the voyage completed as quickly as possible: The sooner an owner has the vessel at his disposal, the sooner he

can use it for his own purposes or charter it to another person. Consequently, a frequent issue in voyage charter party disputes is the

shipowner’s claim for “demurrage.”

Voyage charter parties provide a time frame for loading and unloading the vessel. Under such a provision, the charterer is allowed

“laytime”—a specified period (hours or days) during which it can

perform its loading and unloading operations without incurring

charges in excess of the agreed rate of charter hire. These clauses vary

greatly. If a charterer takes longer to load or discharge cargo than is

provided in the charter party (i.e., it exceeds its laytime), it will be

charged an additional amount called “demurrage.” Thus, demurrage

refers to the sum that a charterer agrees to pay for detaining the chartered vessel for that period of time that exceeds the laytime. It should

178. Am. President Lines, Ltd. v. United States, 208 F. Supp. 573, 577–78 (N.D.

Cal. 1961).

179. Bd. of Comm’rs of Port of New Orleans v. M/V Space King, 1978 AMC 856

(E.D. La. 1978).
Admiralty and Maritime Law

50

be noted that where a charterer completes loading or unloading in a

period of time less than that specified as laytime, the charterer has

conferred a benefit on the owner and may be entitled to financial allowance referred to as “dispatch.”

A typical demurrage clause in a charter party specifies the amount

of demurrage that must be paid and the maximum amount of time

allowed for demurrage. In this respect, demurrage should be distinguished from detention. Whereas demurrage is a contractual charge

imposed on the charterer for exceeding laytime, detention is a legal

remedy, in the form of damages, available to the shipowner after the

period during which demurrage has expired.180 Nonetheless, detention

is recoverable only where the owner can demonstrate that it has sustained damages, such as an opportunity cost.181

Withdrawal

A charter party may include a clause permitting the owner to withdraw the vessel where hire payments are not made in accordance with

the requirements set out in the written agreement. A shipowner may

insist on strict compliance with these requirements; and where these

requirements are not complied with, courts are likely to uphold the

owner’s right to withdraw its vessel. Owners may not withdraw a vessel while cargo is on board.182

Subcharters

The right of a charterer to sublet or subcharter a vessel depends on the

wording of the charter party. Charter parties often expressly authorize

a charterer to subcharter the vessel and usually specify that a subcharter arrangement does not relieve the principal charterer of its obligations to the owner under the head or primary charter party. The

owner is not in privity of contract with subcharterers who may not

180. See, e.g., Gloria S.S. Co. v. India Supply Mission, 288 F. Supp. 674 (S.D.N.Y.

1968).

181. Trans-Asiatic Oil Ltd., S.A. v. Apex Oil Co., 626 F. Supp. 718 (D.P.R. 1985)

(refusing to award demurrage where there was a delay but owner had no other charters for the vessel and subsequently sold it).

182. Luckenbach v. Pierson, 229 F. 130 (2d Cir. 1915).
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51

rely on the terms either expressed or implied in the head charter

party. The head charter party may, in order to protect the owner’s

right to hire, contain a provision giving the owner a lien on subfreights whereby the owner steps into the shoes of the charterer with

respect to freight due the charterer from cargo interests.

Liability of the Owner for Damage or Loss of Goods

Charter parties, per se, are excluded from the terms of the Carriage of

Goods by Sea Act (COGSA).183 Any disputes between the owner and

charterer must be resolved according to the terms of the charter

party.184 Courts generally apply the rule of freedom of contract in the

interpretation and enforcement of charter parties. This approach enables the parties to bargain freely and to include in the contract any

stipulation allowed by law. As such, the parties are free to incorporate

the terms of COGSA by reference into the charter party, and they frequently do. Thus, various provisions of COGSA often become terms

of a charter party through contractual stipulation. The parties are, of

course, free to modify, or even exclude, COGSA provisions in the

contract. Such modifications are permissible as long as COGSA does

not apply by operation of law.

Even where a carrying vessel is under charter, however, there are

circumstances in which COGSA is applicable as a matter of law. This

occurs where the owner has issued a bill of lading to the charterer,

who in turn has transferred the bill of lading to a third party, such as a

consignee. These situations are discussed in the following section.

Arbitration Clauses

Most charter parties contain a clause whereby the parties agree to resolve by arbitration disputes that arise under the charter party. These

provisions are enforceable and, under certain circumstances, may

bind others, such as a consignee.185

183. 46 U.S.C. app. §§1300–1312 (2000).

184. Gilmore & Black, supra note 160, §4-2, at 175.

185. See, e.g., Salim Oleochemicals, Inc. v. M/V Shropshire, 169 F. Supp. 2d 194

(S.D.N.Y. 2001); Kanematsu Corp. v. M/V Gretchen W, 897 F. Supp. 1314 (D. Or.

1995); Midland Tar Distillers, Inc. v. M/T Lotos, 362 F. Supp. 1311 (S.D.N.Y. 1973).
Admiralty and Maritime Law

52

Transport Under Bills of Lading186

Introduction

Shippers often entrust their goods to a carrier pursuant to a straightforward contract of carriage, which, in essence, simply states: “I, as

carrier, agree to carry your goods from port ‘A’ to port ‘B,’ and you, as

shipper, agree to pay me a specified amount as compensation.” In its

basic form, these contracts to carry goods by water are no different

from those that cover the overland transport of goods. In carriage by

water, the contract of carriage is often embodied in a negotiable bill of

lading and, although today there are other forms of shipping documents used in particular trades, many shipments are still made pursuant to negotiable bills of lading. A “bill of lading” is a multifunctional

document: It embodies a contract of carriage and also serves as a receipt by the carrier that it has received the goods. The bill of lading is a

document of delivery as well as a document of title.

Prior to the enactment of federal legislation, a “common carrier”

was analogized to an insurer of the goods in its custody. It was held

liable for loss or damage to goods regardless of fault on its part and

could avail itself only of a limited number of defenses, such as an act

of God or public enemy. In the nineteenth century, carriers began to

insert in their bills of lading clauses of nonresponsibility that purported, as a matter of contract, to exculpate the carriers from liability

for loss or damage resulting from specified causes. Some of the typical

grounds for exculpation included circumstances over which the carrier had no control, such as acts of God or public enemy, and some

over which the shipper had primary responsibility, such as deficiency

of packing or inherent vice of the goods. Use of these exculpatory

clauses was not unique to marine transportation. However, carriers

sometimes went beyond exculpating themselves for nonfault-based

causes. For example, some ocean carriers inserted clauses exculpating

themselves for loss or damage caused by errors in navigation and

management of the crew. Some clauses even placed the risk of all loss

and damage on the shipper, thereby making the shipper an insurer of

its own cargo. In other words, by these exculpatory clauses, carriers

186. See William Tetley, Marine Cargo Claims (3d ed. 1988).
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53

opted out of liability even where losses were occasioned through their

own negligence. The courts in the United States refused to enforce

clauses that purported to exempt a carrier from liability based on its

negligence. In England, however, the rule of freedom of contract applied whereby carriers were permitted to contractually opt out of liability even when it was fault based. Great uncertainty prevailed because liability might well depend on where a case was litigated,

whether U.S or U.K. law applied, and whether the carrier was a U.S.

or foreign vessel.

Because of the various interpretations of exculpatory clauses, organizations representing shippers, carriers, banks, and insurance

companies began discussions to achieve uniformity in the rules of liability to be applied in international shipping. Before agreement was

reached, the United States enacted the Harter Act.187 Thereafter, the

various groups negotiating for a uniform approach reached an agreement commonly referred to as the “Hague Rules,”188 which are more

comprehensive than the provisions contained in the Harter Act. The

United States adopted the Hague Rules by enacting the Carriage of

Goods by Sea Act (COGSA).189 Many other countries, including most

U.S. trading partners, likewise adopted the Hague Rules. Subsequently, the international community recommended amendments to

the Hague Rules known as the Visby Amendments.190 They have not

been adopted by the United States, although many of our trading

partners have adopted them. Another legal regime, the Hamburg

Rules,191 was promulgated by the United Nations. The Hamburg Rules

187. 46 U.S.C. app. §§190–196 (2000).

188. International Convention for the Unification of Certain Rules of Law relating to Bills of Lading (the Hague Rules), 51 Stat. 233; T.S. No. 9331; 120 U.N.T.S.

155 entered into force for the United States, Dec. 29, 1937.

189. 46 U.S.C. app. §§1300–1315 (2000).

190. Protocol to Amend the International Convention for the Unification of

Certain Rules of Law relating to Bills of Lading (Visby Amendments), Brussels, February 1968; (U.N.) Register of Texts, ch. 2 (the Visby Amendments to the Hague

Rules are also referred to as the Hague-Visby Rules).

191. United Nations Convention on the Carriage of Goods by Sea Act (Hamburg

Rules), Hamburg, Mar. 1978, U.N. doc. A, conf. 89/14 (1978), reprinted in 17 ILM

608 (1978).
Admiralty and Maritime Law

54

have not been adopted by the United States or any major maritime or

industrial nation.

Legislation

In the United States, carriage of goods by sea is governed primarily by

three statutory regimes: the Harter Act,192 the Carriage of Goods by

Sea Act (COGSA),193 and the Federal Bills of Lading Act, commonly

referred to as the Pomerene Act.194 These statutes apply to contracts of

carriage either by force of law or by express incorporation into a bill

of lading, charter party, or other contract of carriage.

Bills of Lading Under the Pomerene Act

Applicability

The Pomerene Act applies to bills of lading covering interstate transport and shipments departing from U.S. ports in the foreign trade.195

It applies not only to water transport but to overland transport as

well. Bills of lading issued for shipments inbound to the United States

are not subject to the Pomerene Act.

Negotiable and Nonnegotiable Bills of Lading

The Pomerene Act defines two kinds of bills of lading: negotiable bills

of lading and nonnegotiable bills of lading, otherwise referred to as

straight bills of lading. A negotiable bill of lading must state “that the

goods are to be delivered to the order of a consignee; and must not

contain on its face an agreement with the shipper that the bill is not

negotiable.”196 One of the important characteristics of a negotiable bill

is that a person to whom the bill is negotiated acquires title to the

goods, and the carrier who issued the bill becomes obligated to the

person to whom the bill has been negotiated to hold the goods under

the terms of the bill as if the carrier had issued the bill directly to that

192. 46 U.S.C. app. §§190–196 (2000).

193. Id. §§1300–1315.

194. 49 U.S.C. §§80101–80116 (2000).

195. Id. §80102.

196. Id. §80103(a)(1).
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55

person.197 A bill of lading is nonnegotiable if it “states that the goods

are to be delivered to a consignee.”198 The term “nonnegotiable” or

“not negotiable” must be stated on the bill.199

Carrier Obligation and Liability

The Pomerene Act obligates a carrier to deliver the goods covered by a

nonnegotiable bill of lading on demand of the consignee named in the

bill. With respect to a negotiable bill, the Act provides that the goods

should be delivered to the person in possession of the bill of lading.200

A common carrier is liable for misdelivery if it delivers the goods

to a person not entitled to possession. A common carrier may also be

liable for issuing a bill of lading for goods it has not received or for

misdescriptions contained in the bill of lading.201 However, a carrier is

not liable under this provision when the goods are loaded by the shipper and the bill describes the goods in terms of marks or labels, or in a

statement about kind, quantity, or condition, or the bill is qualified by

words “said to contain” or “shipper’s weight, load, and count,” or

other words that indicate that the carrier is relying on the shipper’s

representations to the extent that the carrier has no independent

knowledge of the goods.202 Likewise a carrier is not liable for improper

loading if the shipper loads the goods and the bill of lading so indicates.203

Where goods shipped in bulk are loaded by a shipper who makes

available to a common carrier the means for weighing the goods, a

request by the shipper for the carrier to make a determination of the

kind and quantity of the goods precludes a carrier from subsequently

qualifying the bill of lading by the insertion of such terms as “shipper’s weight.”204 In cases where goods are loaded by a common carrier, the carrier is obligated to count the packages or determine the

197. Id. §80105(a).

198. Id. §80103(b)(1).

199. Id. §80103(b)(2).

200. Id. §80110(b).

201. Id. §80113(a).

202. Id. §80113(b)(2).

203. Id. §80113(b)(1).

204. Id. §80113(d)(1).
Admiralty and Maritime Law

56

kind and quantity of bulk cargo. In these situations the insertion by

the carrier of some qualification, such as “shipper’s weight, load, and

count,” has no legal effect except for goods concealed in packages.205

The Harter Act

Applicability and Duration

Enacted in 1893, the Harter Act expressly applies to transportation of

goods by water between U.S. ports and between U.S. and foreign

ports.206 The statute is applicable from the time a carrier receives cargo

into its custody until proper delivery has been made. Proper delivery

is made when the carrier or its agent discharges the cargo onto a fit

wharf, gives notification to the consignee, makes the cargo accessible

to the consignee, and allows the consignee a reasonable opportunity

to take possession of the cargo.207 Proper delivery also occurs when

cargo is turned over to a designated authority pursuant to a regulation

or custom of the port.208 The Harter Act does not apply to contracts

for the carriage of live animals.209

The Harter Act has three major components: (1)it prohibits carriers from incorporating certain exculpatory clauses into contracts of

carriage; (2)it provides certain defenses to the carrier; and (3)it requires the carrier to issue a bill of lading to the shipper upon request.

Prohibition of Exculpatory Clauses Under the Harter Act

A carrier, which includes the vessel, manager, agent, master, and the

owner of the vessel, is prohibited from inserting any provision into a

bill of lading or shipping document whereby it is completely relieved

from liability for loss or damage to cargo “arising from negligence,

fault, or failure in proper loading, stowage, custody, care, or proper

205. Id. §80113(d)(2).

206. 46 U.S.C. app. §§ 190–196 (2000).

207. David Crystal, Inc. v. Cunard S.S. Co., 339 F.2d 295 (2d Cir. 1964), cert.

denied, 380 U.S. 976 (1965).

208. Tapco Nigeria, Ltd. v. M/V Westwind, 702 F.2d 1252 (5th Cir. 1983).

209. 46 U.S.C. app. § 195 (2000).
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delivery.”210 However, a carrier may insert into a contract of carriage a

clause that provides that it is liable only for damage caused by its fault,

or that it is not liable for any damage or loss that was not caused by its

fault.211 Furthermore, the Harter Act has been interpreted as permitting a carrier to insert a clause into the contract of carriage that limits

its liability for loss or damage to cargo caused by its negligence or fault

to a specified amount, if such provision is reasonable.212

The Harter Act prohibits carriers from incorporating into a bill of

lading or shipping document any provision that limits or repudiates

the vessel owner’s obligation “to exercise due diligence [to] properly

equip, man, provision and outfit” the vessel andto exercise due diligence “to make the vessel seaworthy and capable of performing her

intended voyage.”213 Likewise, a carrier may not limit its vicarious liability vis-à-vis “the obligations of the master, officers, agents, or servants to carefully handle,” stow, care for, and properly deliver the

cargo.214 These provisions do not impose the strict liability of an insurer of the cargo, but merely prohibit the carrier from arbitrarily relieving itself of its duty of due care.215

Although the Harter Act does not provide for limitation of liability, courts have held that limited liability in exchange for a reduced

freight rate, where reasonable, is valid under the Act. Where a bill of

lading has stipulated the value of the cargo, providing the shipper

with an opportunity to declare a higher value for a higher freight rate,

and no such declaration is made, the stipulated value is generally accepted by the courts.216

Carrier’s Defenses Under the Harter Act

If a carrier exercises due diligence prior to the voyage to make the

vessel seaworthy and to properly man, equip, and supply it, then the

210. 46 U.S.C. app. §190 (2000).

211. Cunard S.S. Co. v. Kelley, 115 F. 678 (1st Cir. 1902); The Monte Iciar, 167

F.2d 334 (3d Cir. 1948).

212. Antilles Ins. Co. v. Transconex, Inc., 862 F.2d 391 (1st Cir. 1988).

213. 46 U.S.C. app. §191 (2000).

214. Id.

215. Id.

216. Antilles Ins., 862 F.2d 391.
Admiralty and Maritime Law

58

carrier will not be liable for loss or damage to cargo resulting from the

following: (1)errors of navigation or management of the vessel;

(2)perils of the sea; (3)acts of God (vis majeur); (4)acts of public

enemies; (5)inherent defects, qualities, or vices of the cargo;

(6)insufficient packaging; (7)seizure under process of law; (8)loss

resulting from any act or omission of the shipper or owner of the

cargo; or (9)the saving or attempt to save life or property at sea, or

from any subsequent delays encountered in rendering such service.217

The burden of showing due diligence is on the carrier, and if due diligence was not exercised prior to the voyage, the carrier may not rely

on these defenses.218

Unseaworthiness

Seaworthiness is a relative term and means that a vessel is reasonably

fit to carry the cargo that she has undertaken to transport on the particular voyage. “Fitness” is measured by the sufficiency of the vessel to

carry its designated cargo in terms of materials, construction, equipment, officers, and crew for the trade or service for which the vessel

was employed. Seaworthiness is determined by factual, concrete considerations and not in the abstract. Consideration is given not only to

the particular cargo to be transported but also to the route to be traveled and the weather likely to be encountered.219

Carriage of Goods by Sea Act

Scope and Application

In 1936 the United States enacted the Carriage of Goods by Sea Act

(COGSA),220 which adopted Articles I through VIII of the Hague

Rules, with some minor variation.

COGSA applies by force of law (ex proprio vigore) to contracts for

the carriage of goods by sea, to or from foreign ports and U.S. ports.221

217. 46 U.S.C. app. §192 (2000).

218. United States v. Ultramar Shipping Co., 685 F. Supp. 887 (S.D.N.Y. 1987),

aff’d, 854 F.2d 1315 (2d Cir. 1988).

219. The Silvia, 171 U.S. 462 (1898).

220. 46 U.S.C. app. §§1300–1315 (2000).
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It expressly preempts the Harter Act with respect to all contracts of

carriage pertaining to foreign trade.222 However, unlike the Harter

Act, COGSA does not apply by force of law to voyages between U.S.

ports, such as those made for intercoastal and coastal trade, or to voyages on inland waters.223 In those situations, the Harter Act continues

to govern.

COGSA provides that the parties may incorporate the provisions

of COGSA into their contract of carriage for voyages between U.S.

ports; this is frequently done.224 In such circumstances, it is generally

accepted that COGSA applies.225 Courts have held that the incorporation of COGSA as a contract term does not give such provision superior rank, but rather it is to be regarded simply as another term in the

contract.226 In situations where COGSA does not apply ex proprio

vigore, the parties may, by agreement, incorporate by reference all of

COGSA or selected provisions. Likewise, the parties may modify the

provisions of COGSA—for example, by inserting a limitation of liability amount that is lower than the amount provided in COGSA.

Even where COGSA is applicable by force of law, it may not apply

to the entire time period during which the carrier has possession of

(or is by contract responsible for) the goods. It is not uncommon for a

carrier to insert in its bill of lading a provision that COGSA applies

during the entire period of time that the carrier is responsible for the

goods. Why would a carrier want to include such a provision in its bill

of lading? Even though COGSA imposes certain duties on carriers, it

also provides them with a wide range of defenses, and most importantly—even where liability exists—it provides for limited liability.

Thus to a considerable extent COGSA is favorable to carriers, and it is

to their advantage to be able to invoke its terms.

221. Id. §1300.

222. Id. §1312.

223. Id.

224. Id.

225. Pan Am. World Airways, Inc. v. Cal. Stevedore & Ballast Co., 559 F.2d 1173

(9th Cir. 1977).

226. Commonwealth Petrochemicals Inc. v. S.S. Puerto Rico, 607 F.2d 322 (4th

Cir. 1979); cf. PPG Indus., Inc. v. Ashland Oil Co.-Thomas Petroleum Transit Div.,

527 F.2d 502 (3d Cir. 1975).
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60

The provisions of COGSA apply as a matter of statutory mandate

to “[e]very bill of lading or similar document of title which is evidence

of a contract of carriage of goods by sea to or from ports of the United

States, in foreign trade.”227 Although a negotiable bill of lading is a

common form of documentation used to evidence a contract of carriage, it is not the only form. “Ocean waybills” are being employed

with increasing frequency. The straight (or nonnegotiable) bill of

lading is a form of waybill. By definition, a straight bill of lading under the Pomerene Act is a “bill of lading,” and COGSA applies “to

contracts of carriage covered by a bill of lading,” so that literally a bill

of lading, negotiable or nonnegotiable (straight), would seem to be

subject to COGSA under U.S. law.228 The matter is not free from

doubt. As a practical matter, problems as to whether COGSA applies

by force of law seldom arise because it is common practice for parties

using straight bills of lading in ocean transport to specifically incorporate the provisions of COGSA.229

Charter parties are not statutorily subject to COGSA.230 A bill of

lading issued to the charterer by the owner of a vessel is regarded as a

mere receipt while in the possession of the charterer. As such, this bill

of lading is not a contract of carriage231 and is not subject to COGSA.

However, where such a bill of lading is transferred to a third party,

such as the consignee of the goods, under circumstances that confer

rights in the third party with respect to delivery of the goods, the bill

of lading is then subject to COGSA, as it has become a contract of carriage vis-à-vis that third party and the issuer of the bill of lading (the

carrier).232 In such situations, the charter party controls the legal relations between owner and charterer, and the bill of lading, subject to

227. 46 U.S.C. app. §1300 (2000).

228. Id.

229. See, e.g., Swift Textiles, Inc. v. Watkins Motor Lines, Inc., 799 F.2d 697

(11th Cir. 1986), cert. denied, 480 U.S. 935 (1987).

230. 46 U.S.C. app. § 1305 (2000).

231. Unterweser Reederei Aktiengesellschaft v. Potash Importing Corp. of Am.,

36 F.2d 869 (5th Cir. 1930); Ministry of Commerce, State Purchase Directorate of

Athens, Greece v. Marine Tankers Corp., 194 F. Supp. 161 (S.D.N.Y. 1960); Albert E.

Reed & Co. v. M/S Thackeray, 232 F. Supp. 748 (N.D. Fla. 1964).

232. 46 U.S.C. app. §1301(b) (2000). See also Chilean Nitrate Sales Corp. v. The

Nortuna, 128 F. Supp. 938 (S.D.N.Y. 1955).
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61

COGSA, controls the legal relations between the carrier and consignee.

A charter party may incorporate the terms of COGSA in whole or

in part. In the latter situation, the COGSA provisions that are incorporated are treated as ordinary contract provisions that must be harmonized with or subordinated to conflicting contract terms.233 Likewise, a bill of lading may incorporate the terms of the charter party as

to which the consignee will be bound provided they are not inconsistent with the provisions of COGSA. Where a charter party is incorporated into the bill of lading, a consignee may be liable to pay charter

hire or demurrage, or be subject to an arbitration clause depending on

the terms of incorporation.234 An incorporation clause will be given

effect so long as the charter party is adequately identified in the bill of

lading.235

COGSA applies to the carriage of all goods, wares, merchandise,

articles, or cargo other than live animals and goods carried on deck

pursuant to the agreement of the parties.236 It is unlikely that the “on

deck” exclusion applies to containerized cargo carried on a vessel that

has been constructed or adapted to carry containers.237

Parties to the Contract of Carriage: The COGSA Carrier

Owner and Charterer

The parties to a contract of carriage are designated as the “carrier”

and the “shipper.” The carrier generally is the owner of the vessel, the

charterer of the vessel, or the vessel itself (invoking in rem liability).238

If the owner enters into a contract of carriage and issues its bill of

233. United States v. M/V Marilena P, 433 F.2d 164 (4th Cir. 1969).

234. Yone Suzuki v. Cent. Argentine Ry., 27 F.2d 795 (2d Cir. 1928), cert. denied,

278 U.S. 652 (1929).

235. See, e.g., Lucky Metals Corp. v. M/V Ave, 1996 AMC 265 (E.D.N.Y. 1995).

236. 46 U.S.C. app. §1301(c) (2000).

237. See generally English Elec. Valve Co. v. M/V Hoegh Mallard, 814 F.2d 84 (2d

Cir. 1987).

238. Mente & Co. v. Isthmian S.S. Co., 36 F. Supp. 278 (S.D.N.Y. 1940), aff’d,

122 F.2d 266 (2d Cir. 1941); Gans S.S. Line v. Wilhelmsen, 275 F. 254 (2d Cir.), cert.

denied, 257 U.S. 655 (1921); Joo Seng Hong Kong Co. v. S.S. Unibulkfir, 483 F. Supp.

43 (S.D.N.Y. 1979).
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62

lading, it is the “COGSA carrier.” Likewise, where the charterer of the

vessel (such as a time charterer) enters into a contract to carry a shipper’s goods, it is the COGSA carrier. It is possible for both the vessel

owner and the charterer of the vessel to be held liable as COGSA carriers with respect to the same transaction. For example, where a charterer issues its bill of lading signed by the master, or signed by the

charterer “for the master” as authorized in the charter party, courts

permit a shipper whose cargo has been damaged or lost to sue both

the charterer and the vessel owner.239 In these situations, the rules of

agency control. When authorized by the owner to do so, the signature

of the master or of someone authorized to sign “for the master” on

the bill of lading may be sufficient to bind that individual’s employer,

the owner, because in signing the bill of lading the master will be

viewed as the agent of the owner.

Intermediaries

Some courts have extended the definition of “carrier” to incorporate

intermediaries who enter into contracts of carriage on their own behalf, such as a nonvessel operating common carrier (NVOCC),240 or a

freight forwarder,241 if such a party issues a bill of lading and undertakes to deliver goods covered by the contract of carriage.

239. Pac. Employers Ins. Co. v. M/V Gloria, 767 F.2d 229 (5th Cir. 1985).

240. Fireman’s Fund Am. Ins. Co. v. Puerto Rican Forwarding Co., 492 F.2d

1294 (1st Cir. 1974). If an NVOCC issues a bill of lading to a shipper whereby the

NVOCC undertakes to transport the shipper’s goods, the NVOCC may be found to

be a COGSA carrier, notwithstanding the fact that the goods are carried on a vessel

owned or operated by someone else.

241. J.C. Penney v. Am. Exp. Co., 102 F. Supp. 742 (S.D.N.Y. 1951), aff’d, 201

F.2d 846 (2d Cir. 1953). A freight forwarder is a transportation expert who assists

shippers in arranging to have their goods transported from one place to another. As

such, the freight forwarder is an agent of the shipper. If a freight forwarder actually

undertakes to transport the goods, it may be regarded as a COGSA carrier, despite the

fact that the goods are carried on a vessel owned or operated by a third party.
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63

Duration

COGSA applies only from the time goods are loaded on board the

vessel to the time when they are discharged from it,242 that is, “from

tackle to tackle.” However, COGSA may be extended to other stages

of the transaction by agreement of the parties,243 and it is common

practice to do so. COGSA specifically authorizes the parties to enter

into an agreement with respect to the period of time prior to the

goods being loaded on the vessel and after they are discharged from

the vessel. If the parties do not agree that COGSA will govern the entire period the goods are in the custody of the carrier, the Harter Act

applies to the preloading (receipt) and post-discharge (delivery) periods of carriage, even in respect to foreign shipments.

Carrier’s Duty to Issue Bills of Lading

After a carrier receives goods, and upon demand of the shipper,

COGSA provides that a carrier must issue a bill of lading.244 Such bills

of lading must show the quantity, weight, or number of packages or

pieces, furnished in writing by the shipper, and the apparent condition of the goods, provided that the carrier is not bound to show or

state markings, numbers, quantity, or weight reasonably believed to

be inaccurate or of which it has no reasonable means of checking.245

A carrier may also protect itself by inserting a clause into a bill of

lading stating that it has not been able to verify certain particulars regarding the cargo, such as the condition of goods loaded by the shipper and delivered to the carrier in a sealed container. Here the carrier

may use terms such as “said to contain” or “shippers weight, load and

count” to indicate that it has had no opportunity to ascertain the

contents of the container and cannot vouch for the particulars provided by the shipper.246 The same applies where goods are contained

242. 46 U.S.C. app. §1301(e) (2000).

243. Id. §1307.

244. Id. §1303(7).

245. Id. §1303(3).

246. See, e.g., Plastique Tags, Inc. v. Asia Trans Line, Inc., 83 F.3d 1367 (11th Cir.

1996).
Admiralty and Maritime Law

64

in packages, the contents of which are concealed from the carrier.247

Carriers also use special clauses relating to specific goods, such as the

“rust clause,” when goods are inherently susceptible to degradation.248

Carrier’s Duties Relating to Vessel and Cargo

Unlike the Harter Act, COGSA prescribes specific duties and rights of

carriers, shippers, and consignees.249 Section 1303(1) imposes an express duty on the carrier, before and at the commencement of the

voyage, to exercise due diligence:

(a) to provide a seaworthy ship;

(b) to properly equip, man, and supply the ship; and

(c) to make the holds, refrigeration and cooling chambers, and all

other areas of the vessel where goods are carried, fit and safe

for their reception, preservation, and carriage.250

Section1303(2) requires that the carrier “properly and carefully

load, handle, stow, care for, and discharge the goods carried.”251 After

receiving the goods, and upon demand of the shipper, the carrier is

required to issue a bill of lading.252

Exculpatory Clauses Prohibited

A carrier may not use exculpatory clauses to avoid the duties and obligations set out in sections 1303(1) and (2) of COGSA.253 COGSA

specifically provides that a “benefit of insurance” clause, whereby the

carrier seeks to impose on the shipper a duty to obtain insurance for

the benefit of the carrier, is unenforceable.254

247. See, e.g., Caemint Food, Inc. v. Brasileiro, 647 F.2d 347 (2d Cir. 1981).

248. Tokio Marine & Fire Ins. Co. v. Retla S.S. Co., 426 F.2d 1372 (9th Cir.

1970).

249. 46 U.S.C. app. §1303 (2000).

250. Id. §1303(1).

251. Id. §1303(2).

252. Id. §1303(3).

253. Id. §1303(8).

254. Id.
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65

Immunities of Carrier

Under COGSA, carriers are not insurers of cargo. COGSA does not

impose strict liability. The liability of a carrier is based on fault and

thus is predicated on negligence, not mere loss or damage to cargo.

COGSA requires only that the carrier exercise due care. Carrier immunities (defenses) can be grouped into five categories. First, some

immunities excuse a carrier notwithstanding the loss or damage to

cargo resulting from the negligence of its employees. The defense

based on errors in navigation of the vessel,255 the defense based on

errors in the management of the vessel,256 and the fire defense fall into

this category.257 Second, there are defenses based on overwhelming

outside forces, such as acts of war,258 acts of public enemies,259 arrest

or restraint of princes (governments),260 quarantines,261 strikes or

lockouts,262 and riots or civil commotions.263 The third category includes loss or damage caused by overwhelming natural forces, including perils of the sea264 and acts of God.265 The fourth group deals

with loss or damage attributable to faults of the shipper, which include acts or omissions of the shipper or its agents,266 wastage in bulk

or weight,267 losses resulting from inherent vice,268 and insufficiency of

packaging or marking.269 Finally, the fifth category includes loss or

damage that occurs despite a carrier’s exercise of due care. This includes loss or damage resulting from an unseaworthy condition not

255. Id. §1304(2)(a).

256. Id.

257. Id. §1304(2)(b).

258. Id. §1304(2)(e).

259. Id. §1304(2)(f).

260. Id. §1304(2)(g).

261. Id. §1304(2)(h).

262. Id. §1304(2)(i).

263. Id. §1304(2)(k).

264. Id. §1304(2)(c).

265. Id. §1304(2)(d).

266. Id. §1304(2)(i).

267. Id. §1304(2)(m).

268. Id.

269. Id. §1304(2)(n)–(o).
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66

discoverable through the exercise of due care,270 from latent defects,271

and from situations where a carrier can establish that it and its servants and agents exercised due care and that loss or damage was occasioned through the conduct of others or circumstances for which it

is not responsible.272

Seaworthiness

Section 1304(1) of COGSA expressly states that neither the carrier nor

the vessel owner shall be liable for loss or damage arising from unseaworthiness unless it is caused by a lack of due diligence to make the

ship seaworthy—i.e., to see that the ship is properly manned,

equipped, and supplied, and to make the holds, and all other parts of

the ship in which goods are carried, fit and safe for their reception,

carriage, and preservation in accordance with section 1303(1). Thus, a

carrier is not liable for loss or damage where loss is caused by the unseaworthiness of the vessel, its equipment, personnel, or cargo facilities unless the carrier was negligent in failing to discover the defective

condition responsible for the damage or, if discovered, in failing to

remedy it. The duty to exercise due care is imposed before and at the

commencement of the voyage. If the defective condition was not reasonably discoverable, or if it arose after the voyage commenced, the

carrier will not be liable for damage to cargo resulting from that unseaworthy condition of the vessel.273 Under COGSA, unlike the Harter

Act, even where a carrier fails to exercise due diligence before and at

the beginning of the voyage, it will not be liable for damage to goods

unless caused by an unseaworthy condition. Proof of the exercise of

due diligence is not a prerequisite to asserting a COGSA defense. If it

is proven that loss or damage to cargo was the result of unseaworthiness, the carrier has the burden of proving due diligence.

270. Id. §1304(2)(p).

271. Id.

272. Id. §1304(2)(q).

273. Balfour, Guthrie & Co. v. Am.-W. African Line, Inc., 136 F.2d 320 (2d Cir.

1943), cert. denied, 320 U.S. 804 (1944); The Quarrington Court, 122 F.2d 266 (2d

Cir. 1941); Holsatia Shipping Corp. v. Fid. & Cas. Co. of N.Y., 535 F. Supp. 139

(S.D.N.Y. 1982).
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67

Unseaworthiness and Carrier’s Duty to Care for Cargo

Notwithstanding the carrier’s limited duty with respect to unseaworthiness, a carrier is under a continuing duty throughout the voyage to

properly care for the cargo.274 If the carrier is negligent in performing

this duty, it will be held accountable unless absolved from liability

under section 1304(2).

Errors in Navigation and Management

Under COGSA, the carrier is not responsible for cargo loss or damage

that results from the “[a]ct, neglect, or default of the master, mariner,

pilot, or the servants of the carrier in the navigation or in the management of the ship.”275 For example, if a vessel is involved in a collision caused by faulty seamanship or the exercise of poor judgment by

the master or crew, resulting in damaged or lost cargo, the carrier will

not be held liable.276 This provision does not absolve the carrier for

damage caused by its own personal fault, but rather it exempts a carrier from liability for the fault of its employees. Personal fault in the

context of corporations refers to management fault.

If a shipowner knew or in the exercise of due care should have

known that the master or a member of the crew was incompetent, or

that there were insufficient personnel to properly navigate the vessel,

and this incompetence or deficiency was a cause of a collision, the

shipowner will be held liable because it breached its duty to exercise

due diligence to properly man the vessel.277 If the collision was caused

by a fault in the navigational equipment that existed at the beginning

274. 46 U.S.C. app. §1303(2) (2000).

275. Id. §1304(2)(a).

276. In re Grace Line, Inc., 397 F. Supp. 1258 (S.D.N.Y. 1973), aff’d, 517 F.2d 404

(2d Cir. 1975); Wilbur-Ellis Co. v. M/V Captayannis “S,” 451 F.2d 973 (9th Cir.

1971), cert. denied, 405 U.S. 923 (1972).

277. In re Ta Chi Navigation (Panama) Corp., S.A., 513 F. Supp. 148 (E.D. La.

1981), aff’d, 728 F.2d 699 (5th Cir. 1984); In re Seiriki Kisen Kaisha, 629 F. Supp. 1374

(S.D.N.Y. 1986); Waldron v. Moore-McCormack Lines, Inc., 386 U.S. 724 (1967)

(holding that the owner has a duty to properly man the vessel; otherwise the vessel is

deemed unseaworthy).
Admiralty and Maritime Law

68

of the voyage, and if this condition was detectable through the exercise of due care, the carrier will likewise be liable.278

A distinction must be made between those situations where the

actions of the master or crew are simply errors in the navigation or

management of the vessel and those that constitute a breach of the

duty to properly care for the cargo. In a sense, any decision or action

that places a vessel at risk also places its cargo at risk. Master or crew

negligence that places the vessel at risk of sustaining damage will usually fall within the defense because that risk was caused by poor navigation or poor management. In such situations, the risk to the cargo is

secondary in that it was derived from the risk to the vessel.279

Conversely, an error that primarily puts the cargo at risk constitutes a failure to properly care for the cargo, notwithstanding that the

error involves a decision relating to the management of the vessel.280 It

also appears that if a negligent management decision and its implementation imperil cargo operations, such as loading or discharge of

cargo, the error will not be within the error of management defense.281

Damage or Loss Caused by Fire

The carrier is also insulated from liability for damage arising from

fire, unless the fire was caused by its actual fault or privity.282 The

COGSA fire defense parallels that provided in its predecessor, the Fire

Statute.283 Once a carrier demonstrates that the damage to cargo was

caused by fire, the carrier is exculpated from liability unless the shipper proves that the fire or the failure to properly deal with the fire was

caused by actual fault or privity of the carrier. Proof of actual fault or

privity requires the cargo plaintiff to show that the carrier was negligent. In the case of a corporate owner, this requires showing negligence of an officer or person who is part of management or at least an

278. In re Thebes Shipping Inc., 486 F. Supp. 436 (S.D.N.Y. 1980); In re Texaco,

Inc., 570 F. Supp. 1272 (E.D. La. 1983).

279. Knott v. Botany Worsted Mills, 179 U.S. 69 (1900).

280. The Germanic, 196 U.S. 589 (1905).

281. Id.

282. 46 U.S.C. app. §1304(2)(b) (2000).

283. 46 U.S.C. app. § 182 (2000).
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employee at a high supervisory level of the corporation.284 The majority of U.S. courts have held that this rule applies even where the cause

of the fire was an unseaworthy situation.285

Perils of the Sea

Section 1304(2)(c) of COGSA provides carriers with a defense when

cargo is damaged or lost as a result of “perils, dangers, and accidents

of the sea or other navigable water.” As one court has stated, although

the term “‘perils of the sea’ is a term of art not uniformly defined, the

generally accepted definition is ‘a fortuitous action of the elements at

sea, of such force as to overcome the strength of a well-found ship or

the usual precautions of good seamanship.’”286 The mere fact that a

vessel encounters a storm that causes cargo damage does not necessarily give rise to a “perils of the sea” defense. If a vessel is traversing a

route in which such storms are routine, a court will inquire as to

whether the vessel had taken adequate precautions to be seaworthy for

that voyage and whether it had taken reasonable precautions with regard to the stowage of the cargo.287

There is no magic formula for classifying conditions into those

that constitute perils of the sea and those that do not. Courts look at

factors such as the extent of structural damage to the vessel, reduction

in speed, the presence of cross-seas, how far the vessel was blown off

course, and the extent to which vessels similarly situated suffered

cargo damage. Perhaps the most important factors are strength of the

winds and seas.288 The classification of the force of wind velocity of a

storm, as measured on the Beaufort scale, is important. In this regard,

one court has observed that courts invariably find a peril of the sea

284. See, e.g., Westinghouse Elec. Corp. v. M/V Leslie Lykes, 734 F.2d 199 (5th

Cir.), cert. denied, 469 U.S. 1077 (1984).

285. See, e.g., Westinghouse, 734 F.2d 199. Contra Nissan Fire & Marine Ins. Co.

v. M/V Hyundai Explorer, 93 F.3d 641 (9th Cir. 1996).

286. Taisho Marine & Fire Ins. Co., Ltd. v. M/V Sea-Land Endurance, 815 F.2d

1270 (9th Cir. 1987).

287. Edmond Weil, Inc. v. Am. W. African Line, Inc., 147 F.2d 363 (2d Cir.

1945).

288. J. Gerber & Co. v. S.S. Sabine Howaldt, 437 F.2d 580 (2d Cir. 1971).
Admiralty and Maritime Law

70

where the force is 11 or greater and only occasionally where it is 9 or

less.289

Negligence of the carrier may be a factor in evaluating a perils of

the sea defense. Carriers must anticipate a range of expectable weather

conditions and take adequate precautions. Failure to do so may lead

to a conclusion that although stormy weather was the immediate

cause of the cargo loss or damage, the proximate cause was really the

failure of the carrier to take proper steps to deal with the storm.

Inherent Vice

Section 1304(2)(m) of COGSA provides a defense to a carrier where

the damage to cargo results from “wastage in bulk or weight or any

other loss or damage arising from inherent defect, quality, or vice of

the goods.” Thus, a carrier is not liable where the goods have sustained damage or loss that is attributable to the characteristics of the

goods themselves without the intervention or fault of the carrier.

Various foodstuffs—e.g., fruit, vegetables, meat, fish, and poultry—will spoil through the mere passage of time unless specially

treated or handled. Some metals will rust spontaneously, and some

chemicals may lose their potency or clarity through the passage of

time. All things being equal, a shipper bears the risks inherent in its

goods.

Where goods have a natural tendency to degrade in quality or

quantity unless special precautions are taken by the shipper or the

carrier, the burden is on the shipper to ensure that these precautions

are taken. For example, if cargo requires special preparation for transport, the shipper must take these necessary steps—e.g., freezing fish or

meat or adding inhibitors to chemical cargoes.290 If it fails to do so,

and the goods deteriorate in transit because of a lack of proper preparation, the loss falls on the shipper. Likewise, if goods require special

handling by the carrier, such as maintaining climate control (e.g., refrigeration), it is the shipper’s responsibility to make the carrier aware

of this special need and to secure the carrier’s agreement that the

289. Id.; Taisho Marine, 815 F.2d at 1273.

290. Aunt Mid, Inc. v. Fjell-Oranje Lines, 458 F.2d 712 (7th Cir. 1972); Jefferson

Chem. Co. v. M/T Grena, 413 F.2d 864 (5th Cir. 1969).
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goods will be carried in refrigerated cargo storage areas. If a shipper

fails to make the carrier aware of the special needs of the cargo or to

secure the appropriate agreement from the carrier, any loss resulting

from “inherent vice” falls on the shipper. Conversely, if the carrier

undertakes to carry the goods at a specified temperature, for example,

and fails to do so, it will be liable if the temperature variation causes

damage to the goods.

Nevertheless, a carrier has a duty to properly care for the cargo. If

it knows or should know that a particular cargo requires ventilation to

prevent degradation, and, if it is customary for carriers to properly

ventilate these cargoes, a carrier that negligently fails to do so will be

liable for damage proximately caused by improper ventilation.291

In terms of the burden of proof, there is some interplay between a

shipper’s burden of showing that it delivered the cargo to the carrier

in good condition and that damage occurred while in the custody of

the carrier and the carrier’s defense based on inherent vice. Some

courts have taken the view that as part of the shipper’s prima facie

case, it must negate inherent vice as the cause of the loss in circumstances where the goods are inherently susceptible to degradation.292

Other courts treat the “inherent vice” immunity like any other defense and place on the carrier the burden to show that the damage

resulted from inherent vice.293

The “Q Clause”

In addition, there is also a general exemption from liability where a

carrier can show that the loss or damage to cargo was not caused by its

negligence or that of its agents or servants.294 This defense is contained

in section 1304(2)(q) and referred to as the “Q Clause.” It provides

the carrier with an exemption from liability for loss or damage resulting from

291. Fla. E. Coast Ry. Co. v. Beaver St. Fisheries, Inc., 537 So.2d 1065 (Fla. App.

1 Dist. 1989).

292. See U.S. Steel Int’l, Inc. v. Granheim, 540 F. Supp. 1326 (S.D.N.Y. 1982),

and cases cited therein.

293. Quaker Oats Co. v. M/V Torvanger, 734 F.2d 238 (5th Cir. 1984), cert. denied, 469 U.S. 1189 (1985).

294. 46 U.S.C. app. §1304(2)(q) (2000).
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72

[a]ny other cause arising without the actual fault and privity of the

carrier and without the fault or neglect of the agents or servants of

the carrier, but the burden of proof shall be on the person claiming

the benefit of this exception to show 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 the loss or damage.295

Some courts require the carrier also to show the actual cause of the

loss or damage.296

Concurrent Causes of Cargo Damage

Where two factors are present in a cargo damage or loss situation, one

factor being within the exculpatory factors listed in COGSA and the

other not, the burden of proof is on the carrier to show that the loss

or damage (or portion thereof) resulted from the cause for which the

carrier is exculpated.297 As this burden is practically impossible to

meet, the carrier will usually be held fully liable in these situations.

For example, if a collision is caused by negligent navigation and

the cargo was improperly stowed, the carrier must show that all or

some of the cargo would have been damaged by the collision even if it

had been properly stowed (in other words, that the damage was

caused by the collision and not by the manner of stowage).298

Carrier Surrender of Immunities

Under section 1305 of COGSA, the carrier may agree to surrender any

or all of the rights and immunities so provided. A carrier may also

undertake to increase its responsibilities and liabilities in the contract

of carriage.299

295. Id.

296. See, e.g., Quaker Oats, 734 F.2d 238.

297. The Vallescura, 293 U.S. 296 (1934).

298. Blasser Bros., Inc. v. N. Pan-Am. Line, 628 F.2d 376 (5th Cir. 1980).

299. 46 U.S.C. app. §1305 (2000).
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Deviation

“Deviation” is “an intentional and unreasonable change in the geographic route of the voyage as contracted for.”300 It is implicit in section 1304(4) of COGSA that different consequences ensue depending

on whether a deviation is reasonable or unreasonable. COGSA provides that deviations intended to save life or property at sea and all

other “reasonable” deviations do not create a breach under either

COGSA or the contract of carriage.301 Hence, the carrier is not liable

for loss or damage resulting therefrom.

In the United States, the term deviation has also been applied to

overcarriage, misdelivery, and unauthorized carriage of cargo on

deck.302 Some courts have held that every fundamental and intentional

breach of a contract of carriage or act of gross negligence committed

by the carrier is a legal deviation.303 These nongeographic deviations

have been referred to as “quasi-deviations.”304 The recent trend, however, has been to restrict the doctrine of quasi-deviation to situations

of unauthorized stowage of cargo on deck.305

COGSA expressly provides that a deviation for the purpose of

loading or unloading cargo or passengers shall be regarded as presumptively unreasonable.306 However, it does not specify the consequences of cargo damage or loss that occurs during an unreasonable

deviation.

The majority view is that deviation deprives the carrier of both the

immunities and right to limit its liability provided in COGSA.307 In

order for a deviation to result in the loss of a carrier’s immunities and

300. Tetley, supra note 186, at 737.

301. 46 U.S.C. app. §1304(4) (2000).

302. Tetley, supra note 186, at 737–38.

303. See, e.g., Sedco, Inc. v. S.S. Strathewe, 800 F.2d 27 (2d Cir. 1986).

304. See, e.g., Vision Air Flight Serv., Inc. v. M/V Nat’l Pride, 155 F.3d 1165 (9th

Cir. 1998).

305. Sedco, 800 F.2d 27.

306. 46 U.S.C. app. §1304(4) (2000).

307. Berisford Metals Corp. v. S.S. Salvador, 779 F.2d 841 (2d Cir. 1985), cert.

denied, 476 U.S. 118 (1986). One court of appeals denies defenses but allows the

limitation of liability. See Atl. Mut. Ins. Co. v. Poseidon Schiffahrt G.m.b.H., 313 F.2d

872 (7th Cir.), cert. denied, 375 U.S. 819 (1963).
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74

its limitation of liability, there must be a causal connection between

the deviation and the damage or loss of cargo.308 A change in route

that exposes the cargo to new or additional risks may result in a finding of the required causal nexus.309

Bills of lading often include a general “liberties” clause, which

purports to confer virtually carte blanche on a carrier in making

changes to the advertised or customary route, to the vessels that will

carry the cargo, or even to the modes of transport. However, the majority of courts have held that liberties clauses do not authorize the

carrier to engage in conduct that would otherwise be considered an

unreasonable deviation.310

Damages and Limitation of Carrier’s Liability

Generally

One of the major features of COGSA is the provision that limits the

amount of the carrier’s liability according to a stated formula. Thus,

not only does COGSA provide carriers with a “laundry list” of complete defenses enumerated in sections 1304(1) and1304(2), section1304(5) limits the amount for which a carrier may be held liable.

Generally under COGSA, when cargo is damaged or lost under

circumstances that do not fall within the carrier’s immunities, the

shipper is entitled to recover damages from the carrier. Such damages

are based on the market value of the goods at the port of destination.

“In the event goods are damaged rather than lost entirely, the measure

would be the difference between sound market value at the port of

destination and the market value of the goods in the damaged condition.”311 However, COGSA limits carrier liability for cargo loss or

damage to $500 per package.312 Where the carrier is liable for cargo

loss or damage to goods that are not shipped in packages, its liability

308. Tetley, supra note 186, at 750–51.

309. Gen. Elec. Co. v. S.S. Nancy Lykes, 536 F. Supp. 687 (S.D.N.Y. 1982), aff’d,

706 F.2d 80 (2d Cir.), cert. denied, 464 U.S. 849 (1983).

310. Id. See also Tetley, supra note 186, at 752–54 .

311. Santiago v. Sea-Land Serv., Inc., 366 F. Supp. 1309, 1314 (D.P.R. 1973).

312. 46 U.S.C. app. §1304(5) (2000).
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is limited to $500 per “customary freight unit.”313 The customary

freight unit is derived from the method used in calculating the freight

in the contract of carriage, such as weight, size, or cost per unit.

Where goods are shipped in packages and the bill of lading states

the number of packages, a carrier’s liability is based on that number,

even where freight was calculated by weight or some other basis.314

Limitation Issues: The COGSA Package

Determining whether or not cargo has been shipped in a package is

occasionally problematic. If cargo is completely enclosed to facilitate

its transportation, it is definitively a package. Boxes and crates are

typically packages, as are goods fully wrapped in burlap or a tarpaulin;

but cargo shipped without any packaging, such as a vehicle or a large

piece of equipment, is not considered a package under COGSA.315

Difficulties most often arise when cargo is only partially enclosed or

where it is attached to something as a means of facilitating its safe

transport.316

In determining whether a container is a package, the intent of the

parties, as evidenced in the bill of lading, is crucial. A container will

not be treated as a COGSA package unless it is clearly apparent that

the parties so intended.317 In this respect, the wording of the bill of

lading is particularly important. If a bill enumerates a container’s

313. Id.

314. Leather’s Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800 (2d Cir. 1971); Mitsui

& Co. v. Am. Export Lines, Inc., 636 F.2d 807 (2d Cir. 1981).

315. See generally Jerome C. Scowcroft, Recent Developments Concerning the

Package Limitation, 20 J. Mar. L. & Com. 403 (1989).

316. Compare Aluminios Pozuelo Ltd. v. S.S. Navigator, 407 F.2d 152 (2d Cir.

1968) (a three-ton toggle press, bolted to a skid and described in the bill of lading as

“one skid,” constituted a single package), and Mediterranean Marine Lines, Inc. v.

John T. Clark & Son of Md., Inc., 485 F. Supp. 1330 (D. Md. 1980) (45,000-pound

metal shear mounted on a skid and completely covered by a tarp was held to be a

single package), with Hartford Fire Ins. Co. v. Pac. Far E. Line, Inc., 491 F.2d 960 (9th

Cir.), cert. denied, 419 U.S. 873 (1974) (an electrical transformer attached to a skid,

without any other wrapping, held not to be a package).

317. Monica Textile Corp. v. S.S. Tana, 952 F.2d 636 (2d Cir. 1991); Allstate Ins.

Co. v. Inparca Lines, 646 F.2d 166 (5th Cir. 1981); Mitsui & Co. v. Am. Export Lines,

Inc., 636 F.2d 807 (2d Cir. 1981).
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76

contents (e.g., “ten crates of electrical equipment”), the container will

not be considered a COGSA package, notwithstanding a “boilerplate”

printed clause that purports to make the container the package.318

Rather, each crate inside the container will be regarded as a package

for COGSA limitation purposes. Likewise, even if the number “1”

(designating that the goods are carried in one container) is inserted in

the “Number of Packages” box in the bill of lading, that provision will

be overridden by other provisions in the bill of lading (e.g., “10 crates

of electrical equipment” inserted in the “Description of Cargo” box).

Conversely, if the bill of lading describes the cargo as “one container

of electrical equipment,” the container will be considered as one

COGSA package.319

Maximum Liability

Under COGSA, a carrier’s maximum liability of up to $500 per package is imposed as a matter of law. A provision in a bill of lading that

sets a lower limit is void. Nevertheless, a shipper is never entitled to

recover more than its actual damages.320 If the damage to cargo is

$300, the shipper may only recover $300. If a bill of lading reveals that

two packages were shipped and the cargo in one is damaged to the

extent of $700 and the other is damaged to the extent of $100, the

shipper may not aggregate its loss. It may recover $500 on the first

package and $100 on the second for a total of $600. COGSA does,

however, permit a carrier to assume greater liability by contract.321 For

example, a carrier may agree to compensate a shipper for its actual

loss, even if it exceeds the $500 COGSA limitation. For this reason

some courts have enforced provisions incorporating the higher liability limits of the Hague-Visby Rules.322

318. Mitsui, 636 F.2d 807.

319. Monica Textile, 952 F.2d 636; Hayes-Leger Assocs., Inc. v. M/V Oriental

Knight, 765 F.2d 1076 (11th Cir. 1985).

320. 46 U.S.C. app. §1304(5) (2000).

321. Id. §§1304(5), 1305.

322. Francosteel Corp. v. M/V Pal Marinos, 885 F. Supp. 86 (S.D.N.Y. 1995). See

also supra text accompanying note 190.
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Opportunity to Declare Higher Value

COGSA provides that the $500 limit is applicable “unless the nature

and value of such goods have been declared by the shipper before

shipment and inserted in the bill of lading.”323 If the shipper declares a

package value that is higher than the COGSA limitation amount, it

will be charged a higher freight rate, such as an ad valorem rate. Although courts generally agree that the shipper is entitled to an “opportunity” to declare a higher value, they do not completely agree as

to which circumstances adequately provide such an opportunity.324 A

carrier who fails to provide the shipper with the opportunity to declare a higher value will be denied the right to limit its liability under

COGSA. Thus, carriers must notify shippers that liability is limited to

$500 per package and provide shippers with an opportunity to declare

a higher value.325

Damages for Delay

Neither COGSA nor the Harter Act provides a remedy for delay in

delivery. Where a shipper makes a claim based on delay, courts look

to the general maritime law, which is based on common-law rules

relating to delay by common carriers.

A carrier may enter into an express agreement that goods will be

delivered by a specific date or within a particular time frame. This

type of agreement takes on the characteristics of a warranty. If the carrier fails to deliver the goods as it has undertaken to do, it may be liable for economic losses sustained by the shipper.326 Of course, a car323. 46 U.S.C. app. §1304(5) (2000).

324. Compare Komatsu, Ltd. v. States S.S. Co., 674 F.2d 806 (9th Cir. 1982)

(holding that the “opportunity” must be on the face of the bill of lading), with

Couthino, Caro & Co. v. M/V Sava, 849 F.2d 166 (5th Cir. 1988) (holding that there

is no fair opportunity to declare a higher value without an indication that a choice of

shipping rates existed or that the shipper knew a particular rate was tied to a limited

value).

325. Nippon Fire & Marine Ins. Co. v. M/V Tourcoing, 167 F.3d 99 (2d Cir.

1999).

326. Int’l Drilling Co., N.V. v. M/V Doriefs, 291 F. Supp. 479 (S.D. Tex. 1968)

(holding carrier liable for additional expenses incurred by shipper because of delay

despite fact that there was no loss or damage to cargo).
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78

rier may qualify its undertaking by exempting itself from delays that

are beyond its control.327

More often, bills of lading expressly negate any undertaking with

respect to a specific date or time frame within which delivery will be

made.328 Under these circumstances the carrier need only deliver the

goods with reasonable promptitude, taking into account its advertised

routes and custom.

If delay is attributable to the carrier, and the delay is considered

unreasonable, the carrier may be liable to the shipper.329 Furthermore,

where a carrier has specific knowledge of the shipper’s need to have

the goods delivered within a specific time frame for a particular purpose and the carrier does not transport the goods expeditiously, the

carrier’s action may be regarded as an unreasonable delay.330

Burden of Proof

Under section1303(6), a bill of lading shall be prima facie evidence of

the receipt by the carrier of the goods as described in section1303(3).

In practice, if a shipper introduces into evidence a clean bill of lading,

and the goods are subsequently delivered in a damaged condition (or

nondelivery of goods has otherwise resulted), the shipper has established a prima facie case. The burden then shifts to the carrier to

prove that the damage or loss resulted from a cause exempted by section1304.

The circumstances surrounding a transaction must be consistent

with an evidentiary presumption to a bill of lading. For example, if

goods are concealed by their packaging, a clean bill evidences only the

condition of the packaging, not of the goods themselves.331 Likewise, if

a container (or other package) packed by the shipper is found to contain damaged goods, a clean bill of lading alone is clearly not sufficient

to sustain the shipper’s burden of proof.332 The shipper must offer

327. Id.

328. See, e.g., Anyagwe v. Nedlloyd Lines, 909 F. Supp. 315 (D. Md. 1995).

329. Wayne v. Inland Waterways Corp., 92 F. Supp. 276 (S.D. Ill. 1950).

330. Hellenic Lines, Ltd. v. United States, 512 F.2d 1196 (2d Cir. 1975) (affirming award to shipper of expenses of transshipment).

331. Caemint Food, Inc. v. Brasileiro, 647 F.2d 347 (2d Cir. 1981).

332. Plastique Tags, Inc. v. Asia Trans Line, Inc., 83 F.3d 1367 (11th Cir. 1996).
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79

extrinsic evidence to establish that goods were undamaged (i.e., in

good condition) when they were delivered to the carrier.333 However,

the very nature of the damage to the container or package may itself

demonstrate that the goods were damaged in transit.334 The same may

be said of the cause of the damage (e.g., seawater).335

The burden of proof in COGSA cases has sometimes been described as having a “ping-pong” effect.336 It is likely to operate as follows: (1)the cargo interest makes its prima facie case by producing a

clean bill of lading and by showing that the goods were delivered to

the consignee in a damaged condition (or that they were not delivered

at all); (2)the carrier responds by either (a)showing that the loss or

damage was caused by unseaworthiness despite its exercise of due

diligence,337 or (b)showing that cargo loss or damage was attributable

to circumstances that fall within at least one of the immunities provided by section 1304(2) of COGSA;338 (3)the shipper tries to rebut

the carrier’s defense by showing facts that establish (a)a lack of due

diligence, (b)the inapplicability of the immunities claimed, or

(c)negligence on the part of the carrier, unless statutorily exempted.

Ultimately, the “cargo interest,” as plaintiff, has the burden of proving

that the carrier is liable for damage or loss.

Notice of Loss or Damage

Section 1303(6) provides that the person entitled to take delivery of

the goods shall give the carrier written notice of loss or damage, including a description of the damage’s general nature before the goods

are removed. Failure to give such notice constitutes prima facie evidence that the carrier delivered the goods as described in the bill of

333. Caemint Food, 647 F.2d 347.

334. Transatlantic Marine Claims Agency, Inc. v. M/V OOCL Inspiration, 137

F.3d 94 (2d Cir. 1998).

335. J.Gerber & Co. v. M/V Galiani, 1993 WL 185622 (E.D. La. 1993); Am. Marine Corp. v. Barge Am. Gulf III, 100 F. Supp. 2d 393 (E.D. La. 2000).

336. Quaker Oats Co. v. M/V Torvanger, 734 F.2d 238 (5th Cir. 1984), cert. denied, 469 U.S. 1189 (1985).

337. 46 U.S.C. app. §1304(1) (2000); Fireman’s Fund Ins. Co. v. M/V Vignes,

794 F.2d 1552 (11th Cir. 1986).

338. Blasser Bros., Inc. v. N. Pan-Am. Line, 628 F.2d 376 (5th Cir. 1980).
Admiralty and Maritime Law

80

lading.339 Where loss or damage is not apparent, notice must be given

within three days of delivery.340 Failure to give notice of loss or damage does not preclude a shipper from bringing suit.341

Time Bar

COGSA provides that a suit for damages must be brought within

twelve months of the date of delivery of the goods.342 It should be

noted that COGSA does not define the term “delivery.” Under the

general maritime law a carrier effects delivery when it unloads the

cargo onto a dock, segregates it by bill of lading and count, puts it in a

place of rest on the pier so that it is accessible to the consignee, and

affords the consignee a reasonable opportunity to come and get it.343

Proper delivery is also made where the goods are turned over to a

proper authority according to the law or custom of the port.344 Where

goods are lost (i.e., never delivered), the twelve-month period begins

to run from the time when they should have been delivered.

The Harter Act does not provide a statutory limitation on the filing of suit, but where applicable the doctrine of laches may be used.

Extending the Application of COGSA

COGSA does not, of its own accord, supersede the Harter Act in regard to the preloading/receipt and post-discharge/delivery stages.

Nevertheless, COGSA allows parties to contractually extend its coverage to these periods. Section 1307 provides that COGSA shall not prevent

a carrier or a shipper from entering into any agreement, stipulation, condition, reservation, or exemption as to the responsibility

and liability of the carrier . . . for the loss or damage to or in con339. 46 U.S.C. app. §1303(6) (2000).

340. Id.

341. Id.

342. Id.

343. Servicios-Expoarma, C.A. v. Indus. Mar. Carriers, Inc., 135 F.3d 984 (5th

Cir. 1998).

344. Lithotip, C.A. v. S.S. Guarico, 569 F. Supp. 837 (S.D.N.Y. 1983).
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81

nection with the custody and care and handling of goods prior to

the loading on and subsequent to the discharge from the ship.345

This provision has been held to allow a carrier to make the provisions

of COGSA applicable to the preloading/receipt and postdischarge/delivery stages.346 However, because courts are somewhat

strict in applying COGSA when goods are not on a vessel, “errors in

navigation and management”347 and “fire”348 defenses are not available

where goods are damaged on land.

By clear and express stipulation in a bill of lading, the parties to a

contract of carriage may also extend the benefits of COGSA to other

parties involved in the transaction,349 such as stevedores and terminal

operators. Stevedores and terminal operators are not parties to the

contract of carriage and, unless they are employees of the carrier, owe

no direct contractual duty to a shipper or consignee. Although stevedores and terminal operators may be under a contractual obligation

to a carrier to render services involving goods, this obligation does not

give rise to a contractual claim against them by a shipper.350 However,

as a bailee of goods, a stevedore or terminal operator must exercise

due care in the handling of goods and is liable to a shipper or consignee for damage resulting from his or her negligence.351

In order to protect these “agents” or “contractors,” as well as the

carrier as principal, bills of lading almost always include a “Himalaya

clause.”352 A typical Himalaya clause provides that all of the immunities and limitations to which the carrier is entitled under COGSA are

equally applicable to all of its servants, agents, and independent contractors (including, for example, stevedores and terminal operators).

345. 46 U.S.C. app. §1307 (2000).

346. Brown & Root, Inc. v. M/V Peisander, 648 F.2d 415 (5th Cir. 1981).

347. Vistar, S.A. v. M/V Sea Land Express, 792 F.2d 469 (5th Cir. 1986).

348. R. L. Pritchard & Co. v. S.S. Hellenic Laurel, 342 F. Supp. 388 (S.D.N.Y.

1972).

349. Leather’s Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800 (2d Cir. 1971).

350. Thomas R. Denniston et al., Liabilities of Multimodal Operators and Parties

Other Than Carriers and Shippers, 64 Tul. L. Rev. 517 (1989).

351. Robert C. Herd & Co. v. Krawill Mach. Corp., 359 U.S. 297 (1959).

352. The Himalaya clause arose as the result of a decision of the English Court of

Appeal in the case of Adler v. Dickson (The Himalaya), [1954] 2 Lloyd’s Rep. 267,

[1955] 1 Q.B. 158.
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82

Under this clause, servants, agents, and independent contractors may

invoke the benefits of COGSA. These benefits include not only the

time limit for bringing suit and burden of proof,353 but the $500 package-unit limitation of liability as well.354 However, certain exemptions

are available only to the carrier itself, such as those that relate to unseaworthiness or to errors in the navigation and management of the

vessel.355 Courts scrutinize Himalaya clauses strictly, enforcing them

only where they are clear and explicit as to the beneficiaries, especially

with regard to independent contractors.

Jurisdiction and Choice-of-Law Clauses

In Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer,

356 the Supreme

Court upheld the enforcement of a foreign arbitration clause in a dispute to which COGSA was applicable. The Court overruled previous

lower court decisions that had held that choice-of-forum clauses designating a foreign forum undermined the protections COGSA extended to cargo interests and, as such, were unenforceable. Since Sky

Reefer, lower courts have routinely enforced choice-of-forum clauses,

regardless of whether the forum was a foreign arbitral tribunal or a

foreign court.357

The provisions of COGSA and the Harter Act are mandatory and

may not be contractually ousted by mere agreement of the parties.

However, courts have tended to uphold clear and express clauses in

bills of lading invoking foreign law—but only insofar as the stipulated

law increases the carrier’s liability.358

353. B. Elliott (Canada) Ltd. v. John T. Clark & Son of Md., Inc., 704 F.2d 1305

(4th Cir. 1983).

354. Koppers Co. v. S.S. Defiance, 704 F.2d 1309 (4th Cir. 1983).

355. Vistar, S.A. v. M/V Sea Land Express, 792 F.2d 469 (5th Cir. 1986).

356. 515 U.S. 528 (1995).

357. See, e.g., Mitsui & Co. (USA) Inc. v. Mira M/V, 111 F.3d 33 (5th Cir. 1997).

358. Francosteel Corp. v. M/V Pal Marinos, 885 F. Supp. 86 (S.D.N.Y. 1995).
83

chapter 3

Personal Injury and Death

Introduction

There is a body of law applicable to personal injury and death claims

that is part of the maritime law of the United States. Some of it is

statutory and some is contained in the rules of the general maritime

law. Maritime personal injury and death actions are governed by a set

of rules that are separate and distinct from the general body of tort

law applicable in nonmaritime situations.

In resolving maritime personal injury and death claims that stem

from maritime employment or employment in a maritime environment, the status of the parties, both plaintiff and defendant, is of primary importance. Some rules are of a general character and may be

invoked by any claimant, but other rules are status dependent, creating both rights and remedies that may be invoked only by a specified

plaintiff class against an equally well-defined defendant class.359 With

respect to maritime personal injury and death law in the United

States, three classes of employee claimants are likely to be encountered: (1)seamen; (2)maritime workers who are not seamen; and

(3)offshore oil and gas workers. Additionally, suits are brought by

passengers, and in recent years litigation involving recreational boating accidents resulting from the operation of small pleasure boats or

personal watercraft such as jet skis has increased. Typical defendants

in these various actions include employers, vessel owners and operators, and third-party tortfeasors, such as product manufacturers.

There are some rules that apply more or less across the board to

personal injury and death actions regardless of the status of the parties.

359. Robert Force, Post-Calhoun Remedies for Death and Injury in Maritime

Cases: Uniformity Whither Goest Thou, 21 Tul. Mar. L.J. 7 (1996).
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Damages

Damages that may be recovered in maritime personal injury cases include the following: (1)loss of past and future wages; (2)loss of future earning capacity; (3)pain, suffering, and mental anguish; and

(4)past and future medical expenses, as well as any other conditionrelated expenses.360 Prejudgment interest may be recovered if an action is brought in admiralty.361 At an earlier time some circuits permitted recovery under the general maritime law for loss of consortium or loss of society and punitive damages in appropriate circumstances.362 Subsequently, in Miles v. Apex Marine Corp.,363 the Supreme

Court held that the surviving (nondependent) mother of a Jones Act

seaman could recover only for pecuniary loss, even though the action

was brought under the general maritime law, reasoning that the damages recoverable under the general maritime law could not exceed

those available under the Jones Act.

In the wake of Miles, some lower federal courts have held that recoverable damages under the general maritime law are restricted to

pecuniary losses only.364 Some courts have refused to extend Miles to

other situations.365

360. Downie v. United States Lines, Co., 359 F.2d 344, 347 (3d Cir.), cert. denied,

385 U.S. 897 (1966).

361. Magee v. United States Lines, 976 F.2d 821 (2d Cir. 1992) (an award for

unseaworthiness under the general maritime law may include prejudgment interest).

362. Force, supra note 359, at 36.

363. 498 U.S. 19 (1990).

364. See, e.g., Horsley v. Mobil Oil Corp., 15 F.3d 200 (1st Cir. 1994); Wahlstrom

v. Kawasaki Heavy Indus., Ltd., 4 F.3d 1084 (2d Cir. 1993), cert. denied, 510 U.S. 1114

(1994); Miller v. Am. President Lines, Ltd., 989 F.2d 1450 (6th Cir.), cert. denied, 510

U.S. 915 (1993).

365. CEH, Inc. v. F/V Seafarer, 70 F.3d 694 (1st Cir. 1995); Gerdes v. G&H

Towing Co., 967 F.Supp. 943 (S.D. Tex. 1997); Rebstock v. Sonat Offshore Drilling,

764 F.Supp. 75 (E.D. La. 1991).
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85

Statute of Limitations

By statute, the time for bringing actions to recover damages for personal injury or death is within three years.366

Federal and State Courts

If the criteria for maritime tort jurisdiction are present, suit may be

filed in federal court under 28 U.S.C. §1333. There is no right to a

jury trial.367 However, under the “saving to suitors” clause, where diversity of citizenship is present, suit may be brought under section

1332, and a jury trial is available. Furthermore, the Jones Act specifically provides seamen with the right to bring suit in an action at law

with a right to jury trial,368 and the right to jury trial is not lost by the

joinder of general maritime law claims with the Jones Act action.369

Finally, under the saving to suitors doctrine, maritime personal injury

and death claims may be filed in state court, and ordinarily a jury trial

will be available as provided by state law. The Jones Act has been construed to permit suit in a state court.370

Removal

If the plaintiff exercises his or her right to file suit in state court, and

the only basis for invoking federal jurisdiction is 28 U.S.C. §1333, the

defendant may not remove the action to federal court because this

would defeat the objective of the saving to suitors clause.371 However,

if another basis for federal jurisdiction exists, such as diversity of citizenship or federal question, the action may be removed in conformity

366. 46 U.S.C. app. §763(a) (2000) (“Unless otherwise provided by law, a suit

for recovery of damages for personal injury or death, or both, arising out of a maritime tort, shall not be maintained unless commenced within three years from the date

the cause of action accrued.”); see also 45 U.S.C. §56 (2000).

367. Nonjury and jury trials are discussed supra Chapter 1.

368. 46 U.S.C. app. §688(a) (2000).

369. 28 U.S.C. §1331 (2000); Fitzgerald v. United States Lines, Co., 374 U.S. 16

(1963).

370. 46 U.S.C. app. §688 (2000); O’Donnell v. Great Lakes Dredge & Dock Co.,

318 U.S. 36 (1943).

371. Romero v. Int’l Terminal Operating Co., 358 U.S. 354 (1959).
Admiralty and Maritime Law

86

with the terms of the removal statute.372 Suits under the Jones Act filed

in state courts by seamen may not be removed even if there is another

basis for federal jurisdiction, such as diversity.373

In Personam and In Rem Actions

If plaintiff’s injury or death was caused by a vessel, suit may be

brought in personam against the vessel owner or operator, against the

vessel itself in rem, or both in personam and in rem.

374 An action under

the Jones Act may not be brought in rem.

375

Seamen’s Remedies

Introduction

Seamen376 have three primary remedies available under both the general maritime law and statute. Seamen may have actions for maintenance and cure, for negligence,377 and for unseaworthiness of a vessel.

Where more than one of these claims grows out of the same incident,

the claims usually are asserted in a single action.

372. Scurlock v. Am. President Lines, 162 F.Supp. 78 (N.D. Cal. 1958); Tenn.

Gas Pipeline v. Houston Cas. Ins. Co., 87 F.3d 150 (5th Cir. 1996).

373. 28 U.S.C. §1445(a) (2000); Lackey v. Atl. Richfield Co., 983 F.2d 620 (5th

Cir. 1993); Pate v. Standard Dredging Corp., 193 F.2d 498 (5th Cir. 1952).

374. Guzman v. Pichirilo, 369 U.S. 698 (1962).

375. Plamals v. The Pinar del Rio, 277 U.S. 151 (1928), overruled on other

grounds, Mahnich v. S. S.S. Co., 321 U.S. 96 (1944); Zouras v. Menelaus Shipping Co.,

336 F.2d 209 (1st Cir. 1964).

376. A seaman is one (1)who has an employment-related connection to a vessel

(or identifiable fleet of vessels) in navigation that is substantial in both duration and

nature; and (2)whose duties contribute to the function of the vessel or to the accomplishment of its mission. Chandris, Inc. v. Latsis, 515 U.S. 347 (1995). Seaman status

is discussed more fully infra text accompanying notes 416–44.

377. 46 U.S.C. app. §688 (2000).
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87

Maintenance and Cure

Seamen who suffer injuries or become ill while in the service of the

ship378 are entitled to the remedy of maintenance and cure.379 The

doctrine of maintenance and cure is part of the general maritime law

and encompasses three distinct remedies: (1)maintenance; (2)cure;

and (3) wages.380

The obligation to provide maintenance and cure payments is imposed on a seaman’s employer—the employer is usually the owner of

the vessel on which the seaman is employed.381 However, a demise

charterer assumes both full control of the vessel and the owner’s responsibility for maintenance and cure.382 In addition, where a seaman

is employed by one who provides contract services to a vessel owner,

the vessel owner also may be liable for maintenance and cure payments under traditional principles of agency law.383 The vessel itself is

liable in rem.

384

Maintenance and cure is not a fault-based remedy. An employer’s

liability is based on the employment relationship, and the seaman

need not prove employer negligence.385 Further, a seaman’s own fault

or contributory negligence is irrelevant, and the award will not be diminished under the comparative fault rule.386 The right to maintenance and cure is forfeited only by a seaman’s willful misbehavior or

deliberate act of indiscretion.387

378. Service to the ship begins when the employer exerts some control over the

seaman and the seaman is answerable to the ship’s call. Archer v. Trans/Am. Servs.,

Ltd., 834 F.2d 1570 (11th Cir. 1988). Periods of recreation such as shore leave are

customarily viewed as service to the vessel. Warren v. United States, 340 U.S. 523

(1951).

379. Warren, 340 U.S. 523.

380. The Osceola, 189 U.S. 158 (1903).

381. Warren, 340 U.S. 523.

382. Matute v. Lloyd Bermuda Lines, Ltd., 931 F.2d 231 (3d Cir.), cert. denied,

502 U.S. 919 (1991).

383. Archer, 834 F.2d 1570.

384. Solet v. M/V Captain H.V. Dufrene, 303 F. Supp. 980 (E.D. La. 1969).

385. Calmar S.S. Corp. v. Taylor, 303 U.S. 525 (1938).

386. Stanislawski v. Upper River Serv. Inc., 6 F.3d 537 (8th Cir. 1993).

387. Aguilar v. Standard Oil Co. of N.J., 318 U.S. 724 (1943). In addition,

fraudulent concealment of a preexisting condition may also be a defense against the
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88

The right to maintenance and cure exists where a seaman is injured or falls ill regardless of whether that occurs on board the vessel

or on land.388

Maintenance is an amount of money to which a seaman is entitled for daily living expenses associated with his recovery (i.e., room

and board).389 Maintenance is designed to provide the seaman with

food and lodging comparable to that received aboard ship—therefore,

the obligation to provide maintenance payments does not arise until

the seaman actually leaves the vessel.390 Maintenance includes only

those expenses attributable to the seaman himself and does not encompass expenses of family members.391

A seaman makes a prima facie case for an award of maintenance

by offering testimony as to the cost of obtaining reasonable accommodations with respect to room and board in the community in

which he or she lives.392 The amount of maintenance must be reasonable, and the seaman’s employer may offer rebuttal evidence that the

proffered maintenance costs are excessive.393 Most courts have enobligation to pay maintenance and cure. Lancaster Towing, Inc. v. Davis, 681 F.Supp.

387 (N.D. Miss. 1988).

388. Warren v. United States, 340 U.S. 523 (1951) (involving injury on land

during shore leave). Although the Court in Warren held that shore leave was an elemental necessity for the well-being of bluewater seamen and concomitant to service

aboard ship, injury or illness during periods of extended vacation do not fall within

the purview of the doctrine of maintenance and cure. See Haskell v. Socony Mobil Oil

Co., 237 F.2d 707 (1st Cir. 1956). Further, commuter seamen—i.e., those who serve

on board a vessel for a fixed period of time and are then on shore for a fixed period

with the ability to maintain the lifestyle of an ordinary shore dweller—may not be

entitled to maintenance and cure for injuries or illness suffered during their time on

shore. In such situations, where the seaman is not subject to the call of the ship,

maintenance and cure will be denied. See, e.g., Liner v. J.B. Talley & Co., 618 F.2d 327

(5th Cir. 1980); Baker v. Ocean Sys., Inc., 454 F.2d 379 (5th Cir. 1972); Sellers v.

Dixilyn Corp., 433 F.2d 446 (5th Cir. 1970), cert. denied, 401 U.S. 980 (1971).

389. McWilliams v. Texaco, Inc., 781 F.2d 514 (5th Cir. 1986).

390. Morales v. Garijak, Inc., 829 F.2d 1355 (5th Cir. 1987).

391. Macedo v. F/V Paul & Michelle, 868 F.2d 519 (1st Cir. 1989); Ritchie v.

Grimm, 724 F.Supp. 59 (E.D.N.Y. 1989).

392. Yelverton v. Mobile Lab., Inc., 782 F.2d 555 (5th Cir. 1986).

393. Incandela v. Am. Dredging Co., 659 F.2d 11 (2d Cir. 1981).
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89

forced an amount fixed by a collective bargaining agreement,394 but

some courts, especially where the stipulated rate was unrealistically

low, have held such provisions to be invalid.395

“Cure” refers to the reasonable medical expenses incurred in the

treatment of the seaman’s condition.396 A seaman has the duty to

mitigate the costs associated with cure,397 and an employer will only be

obligated to pay those expenses associated with the seaman’s treatment that are reasonable and legitimate. Although a seaman is free to

see any physician of his or her choice for treatment, the employer will

not be required to pay for treatments that are unnecessary or unreasonably expensive.398

An employer-established health insurance program that pays its

employees’ medical expenses satisfies the employer’s obligation to pay

cure.399 In addition, the availability of free medical treatment under a

government-sponsored health insurance program, such as Medicare

or Medicaid, has been held to satisfy the employer’s obligation to pay

cure.400

The obligation to provide maintenance and cure payments does

not furnish the seaman with a source of lifetime or long-term disability income. The employer’s duty to provide maintenance and cure

payments ends when the seaman reaches the point of maximum

medical cure401 (i.e., when the condition is cured or declared to be

394. E.g., Gardiner v. Sea-Land Serv., Inc., 786 F.2d 943 (9th Cir.), cert. denied,

479 U.S. 924 (1986).

395. E.g., Barnes v. Andover Co. L.P., 900 F.2d 630 (3d Cir. 1990).

396. Vella v. Ford Motor Co., 421 U.S. 1 (1975).

397. Kossick v. United Fruit Co., 365 U.S. 731 (1961).

398. Rodriguez-Alvarez v. Bahama Cruise Line, Inc., 898 F.2d 312 (2d Cir.

1990). The burden is on the defendant-employer to prove that the treatment provided

was unnecessary or unreasonably expensive. See Caulfield v. AC & D Marine, Inc., 633

F.2d 1129 (5th Cir. 1981).

399. Al-Zawkari v. Am. S.S. Co., 871 F.2d 585 (6th Cir. 1989); Gosnell v. SeaLand Serv., Inc., 782 F.2d 464 (4th Cir. 1986); Baum v. Transworld Drilling Co., 612

F.Supp. 1555 (W.D. La. 1985).

400. Moran Towing & Transp. Co. v. Lombas, 58 F.3d 24 (2d Cir. 1995).

401. Maximum cure contemplates that point at which the seaman’s condition

will not improve despite further medical treatments. Vella v. Ford Motor Co., 421
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90

incurable or of a permanent character).402 Further, the obligation to

provide cure exists only to improve the seaman’s condition rather

than to alleviate the condition. Therefore, courts have held that an

employer has no obligation to provide maintenance and cure payments for palliative treatments that arrest further progress of the condition or relieve pain once the seaman has reached the point of total

disability.403 However, where a seaman has reached the point of

maximum medical cure and maintenance and cure payments have

been discontinued, the seaman may nonetheless reinstitute a demand

for maintenance and cure where subsequent new curative medical

treatments become available.404

Wages

In addition to providing maintenance and cure, an employer must

also pay to the seaman wages that would have been earned during the

remainder of the voyage.405 Where a contract of employment fixes a

specific term of employment, the employer must pay wages for that

specific term.406

By statute, a penalty of “double wages” applies where an employer, without sufficient cause, fails to pay a seaman’s wages that are

due,407 and imposition of the penalty is mandatory for each day payment is withheld in violation of the statute.408 The wage penalty statute is applicable to all wages due a seaman, not merely those triggered

by a claim for maintenance and cure.

U.S. 1 (1975); Farrell v. United States, 336 U.S. 511 (1949); Morales v. Garijak, Inc.,

829 F.2d 1355 (5th Cir. 1987).

402. Vella, 421 U.S. 1. In the case of permanent injury, the employer’s obligation

to provide maintenance and cure payments continues until the condition is diagnosed

as permanent. See Farrell, 336 U.S. 511.

403. Farrell, 336 U.S. 511; Cox v. Dravo Corp., 517 F.2d 620 (3d Cir.), cert. denied, 423 U.S. 1020 (1975).

404. Farrell, 336 U.S. 511; Cox, 517 F.2d 620.

405. Farrell, 336 U.S. 511; Cox, 517 F.2d 620.

406. Archer v. Trans/Am. Servs., Ltd., 834 F.2d 1570 (11th Cir. 1988).

407. 46 U.S.C. §10504(c) (2000); see also Lipscomb v. Foss Mar. Co., 83 F.3d

1106 (9th Cir. 1996).

408. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 (1982).
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91

There is a split among courts of appeals over whether the threeyear statute of limitations409 applicable in cases of personal injury and

death actions based on maritime torts is also applicable in maintenance and cure actions or whether the doctrine of laches applies.410

Negligence: The Jones Act

Statutory Provisions

The Jones Act411 provides a seaman with a negligence-based cause of

action against his or her employer with the right to trial by jury. The

Jones Act incorporates the provisions of the Federal Employers’ Liability Act,412 which provides a right of action for injured railroad

workers as well as wrongful death and survival actions.

Prior to enactment of the Jones Act in 1920, a seaman injured in

the service of a ship because of the negligence of the vessel’s owner,

master, or fellow employees was entitled to receive no compensation

for injuries other than the remedy of maintenance and cure, unless

the injuries resulted directly from an unseaworthy condition of the

vessel.413 The defenses of contributory negligence, assumption of risk,

and the fellow servant doctrine were available to the vessel owner,

thereby precluding recovery of damages in a negligence action.414 In

response to this situation, Congress enacted the Jones Act, which is

remedial in nature and liberally construed in favor of injured seamen.415

409. 46 U.S.C. app. §763(a) (2000).

410. Reed v. Am. S.S. Co., 682 F. Supp. 333 (E.D. Mich. 1988) (applying doctrine

of laches); Chacon-Gordon v. M/V Eugenio “C,” 1987 AMC 1886 (S.D. Fla. 1987)

(applying maritime tort statute of limitations).

411. 46 U.S.C. app. §688 (2000).

412. 45 U.S.C. §§51–60 (2000).

413. Cal. Home Brands, Inc. v. Ferriera, 871 F.2d 830 (9th Cir. 1989) (discussing

remedial effect of Jones Act).

414. Chelentis v. Luckenbach S.S. Co., 247 U.S. 372 (1918); The Osceola, 189

U.S. 158 (1903).

415. Fisher v. Nichols, 81 F.3d 319 (2d Cir. 1996).
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Seaman Status

By its own language, the Jones Act remedy is available to “any seaman.” The term “seaman,” however, is not defined in the statute. In

Chandris, Inc. v. Latsis,

416 the Supreme Court definitively articulated

the requirements for seaman status, holding that an employee claiming such status (1)must have a connection to a vessel in navigation

(or identifiable fleet of vessels) that is substantial in both duration and

nature; and (2)must contribute to the function of the vessel or to the

accomplishment of its mission.417

An employee need not “reef and steer” or otherwise contribute to

the navigation or transportation functions of a vessel in order to be

considered a seaman for purposes of the Jones Act; the employee simply “must be doing the ship’s work.”418 This element of the Chandris

test for seaman status broadly encompasses many individuals who

would not ordinarily be thought of as seamen. In fact, individuals as

varied as a hairdresser aboard a cruise ship,419 a roustabout aboard an

oil rig,420 and a paint foreman aboard a vessel used in painting offshore oil platforms421 have been held to satisfy that requirement for

seaman status. The more difficult prong of the test is the requirement

that the employee must have a “substantial connection to a vessel.”

Chandris requires that a seaman’s connection to a vessel be “substantial in terms of both its duration and its nature.”422 Rejecting a

“snapshot” approach to seaman status, the Court concluded that it

would not look merely at what the seaman was doing at the time of

injury or during the particular voyage during which the injury occurred, but rather the proper frame of reference is the employee’s entire employment history with the employer.423

416. 515 U.S. 347 (1995).

417. Id.

418. McDermott Int’l, Inc. v. Wilander, 498 U.S. 337 (1991).

419. Mahramas v. Am. Export Isbrandtsen Lines, Inc., 475 F.2d 165 (2d Cir.

1973).

420. Offshore Co. v. Robison, 266 F.2d 769 (5th Cir. 1959).

421. McDermott, 498 U.S. 337.

422. Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995).

423. Id. at 371.
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As to the temporal or durational requirement of the test for seaman status, the Supreme Court approved of the Fifth Circuit’s “rule

of thumb” that an employee who spent less than 30% in the service of

a vessel in navigation does not qualify as a seaman.424 The Court

warned, however, that the 30% rule of thumb serves only as a guideline, and that departure from it is appropriate, for instance, when an

employee’s basic assignment changes—e.g., the employee is reassigned from land-based duties to those of a crewmember of a vessel

and is injured shortly after the assignment begins.425

Under the “fleet doctrine,” a worker’s employment-related connection need not be limited to a single vessel in order to attain seaman

status, but may also be satisfied by assignment to an “identifiable fleet

of vessels.” This could occur where an employer owns several vessels

and the seaman is assigned to work on various ones at different

times.426 The doctrine requires that the fleet be “an ‘identifiable fleet’

of vessels, a finite group of vessels under common ownership or control.”427

Vessel in Navigation—To qualify as a seaman one must have an

employment-related connection to a “vessel in navigation.” A claim

under the Jones Act is dependent on the existence of a vessel. Whether

or not a structure is or is not a vessel depends largely on “the purpose

for which the craft is constructed and the business in which it is engaged.”428 “Vessel” has been defined broadly by Congress as “every

description of watercraft or other artificial contrivance used or capable of being used as a means of transportation on water.”429 Courts

construing the language of the Jones Act have followed Congress’s

424. Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067 (5th Cir. 1986). As a result,

transitory workers (e.g., pilots) may not be able to satisfy the substantiality prong of

the test for seaman status. See Bach v. Trident S.S. Co., 947 F.2d 1290 (5th Cir. 1991),

cert. denied, 504 U.S. 931 (1992). But see Foulk v. Donjon Marine Co., Inc., 144 F.3d

252 (3d Cir. 1998).

425. Chandris, 515 U.S. at 371.

426. Harbor Tug & Barge v. Papai, 520 U.S. 548 (1997).

427. Id. at 555.

428. Blanchard v. Engine & Gas Compressor Servs., Inc., 575 F.2d 1140, 1142

(5th Cir. 1978).

429. 1 U.S.C. §3 (2000).
Admiralty and Maritime Law

94

lead, and a number of otherwise nontraditional or “special purpose”

structures used as a means of transportation have been held to be

vessels notwithstanding the fact that “transportation” was not their

sole function.430 However, dry docks and similar structures used primarily as work platforms,431 and structures that are permanently

moored432 or permanently affixed433 to the seafloor, are not vessels as a

matter of law.

With respect to structures used as work platforms, three factors

generally are used in determining whether they are vessels under the

Jones Act:

(1)the structures involved were constructed and used primarily as

work platforms; (2) they were moored or otherwise secured at the

time of the accident; and (3)although they were capable of movement and were sometimes moved across navigable waters in the

course of normal operations, any transportation function they

performed was merely incidental to their primary purpose.434

Work platforms generally are not considered vessels for Jones Act

purposes. However, a “structure whose purpose or primary business

is not navigation or commerce across navigable waters may nonetheless satisfy the Jones Act’s vessel requirement if, at the time of the

worker’s injury, the structure was actually engaged in navigation.”435

430. See, e.g., Manuel v. P.A.W. Drilling & Well Serv., Inc., 135 F.3d 344 (5th

Cir. 1998) (workover rig); Marathon Pipe Line Co. v. Drilling Rig Rowan/Odessa, 761

F.2d 229 (5th Cir. 1985) (jack-up oil drilling rig); Producers Drilling Co. v. Gray, 361

F.2d 432 (5th Cir. 1966) (submersible oil drilling rig).

431. Hurst v. Pilings & Structures, Inc., 896 F.2d 504 (11th Cir. 1990).

432. See, e.g., Pavone v. Miss. Riverboat Amusement Corp., 52 F.3d 560 (5th Cir.

1995).

433. See, e.g., Johnson v. Odeco Oil & Gas Co., 864 F.2d 40 (5th Cir. 1989).

434. Fields v. Pool Offshore, Inc., 182 F.3d 353 (5th Cir. 1999), cert. denied, 528

U.S. 1155 (2000).

435. DiGiovanni v. Traylor Bros., Inc., 959 F.2d 1119 (1st Cir.), cert. denied, 506

U.S. 827 (1992). The Supreme Court has granted certiorari in Stewart v. Dutra Constr.

Co., 230 F.3d 461 (1st Cir. 2000), 343 F.3d 10, cert. granted, 124 S. Ct. 1414 (2004), on

the issue of what constitutes a vessel.
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A vessel is “in navigation” when it is “engaged as an instrument of

commerce and transportation on navigable waters.”436 Seaman status

will not be accorded to employees working aboard “dead ships,”437

vessels that are in navigation seasonally but then laid up,438 vessels

plying nonnavigable waters,439 or vessels withdrawn from440 or not yet

in navigation. Neither ships undergoing sea trials with additional

construction work or outfitting remaining to be performed441 nor

ships withdrawn from navigation for extensive repairs or conversion

are vessels in navigation.442 Conversely, vessels that are temporarily in

dry dock for repairs do not lose their vessel status.443

Situs of Injury

Where plaintiffs meet the test for seaman status, they need only show

that they were in the course of their employment at the moment of

the accident, regardless of whether the injury occurs on territorial

waters, the high seas, or on land.444

436. McKinley v. All Alaskan Seafoods, Inc., 980 F.2d 567, 569 (9th Cir. 1992)

(quoting Caruso v. Sterling Yacht & Shipbuilders, Inc., 828 F.2d 14 (11th Cir. 1987)).

437. A “dead ship” is one in which the crew is not present to operate the vessel

and where the Coast Guard has not granted the vessel a certificate of operation. See

Harris v. Whiteman, 243 F.2d 563 (5th Cir. 1957), rev’d on other grounds, 356 U.S. 271

(1958).

438. In Desper v. Starved Rock Ferry Co., 342 U.S. 187 (1952), the Supreme Court

denied seaman status to an individual employed as a “boat operator” but who, at the

time of his death, had been performing shore-based seasonal repairs to a fleet of

sightseeing boats in expectation of their launch one month later. The Court noted

that the Jones Act “does not cover probable or expectant seamen but seamen in being.” Id. at 191.

439. Stanfield v. Shellmaker, Inc., 869 F.2d 521 (9th Cir. 1989).

440. Pavone v. Miss. Riverboat Amusement Corp., 52 F.3d 560 (5th Cir. 1995).

441. Caruso v. Sterling Yacht & Shipbuilders, Inc., 828 F.2d 14 (11th Cir. 1987).

442. West v. United States, 361 U.S. 118 (1959).

443. “[V]essels undergoing repairs or spending a relatively short period of time

in drydock are still considered to be ‘in navigation’ whereas ships being transformed

through ‘major’ overhauls or renovation are not.” Chandris, Inc. v. Latsis, 515 U.S.

347, 374 (1995).

444. Braen v. Pfeifer Oil Transp. Co., 361 U.S. 129 (1959); Hopson v. Texaco,

Inc., 383 U.S. 262 (1966) (seamen being driven to consul’s office to be discharged);

Mounteer v. Marine Transp. Lines, Inc., 463 F.Supp. 715 (S.D.N.Y. 1979) (seaman

being transported to vessel).
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96

The Jones Act Employer

The Jones Act gives seamen a right only against their “employers.”445

The burden of proof as to whether there was an employment relationship is on the person claiming seaman status.446 Various factors

are considered in determining whether there is an employment relationship, the most important being the right of control.447 Vessel ownership, however, is not a prerequisite for employer status under the

Jones Act.448

Under the “borrowed servant doctrine,” an individual may be a

crewmember aboard a vessel, and thereby a Jones Act seaman, even

though he is employed by an independent contractor rather than the

vessel’s owner.449 The doctrine places liability for the seaman’s injuries

on the actual rather than the nominal employer, with the key element

in the determination being “control,” which a court will resolve as a

matter of law.450 Where the worker is employed by a charterer or concessionaire, however, the vessel owner generally will not be the

worker’s employer for purposes of the Jones Act.451

Standard of Care and Causation

A cause of action under the Jones Act is predicated upon a showing of

employer negligence.452 The duty of care owed by the Jones Act employer to the seaman is relatively straightforward. Most courts impose

on an employer the duty to exercise reasonable care under the cir445. Pope & Talbot v. Hawn, 346 U.S. 406 (1953).

446. Wheatley v. Gladden, 660 F.2d 1024 (4th Cir. 1981).

447. Id. at 1026.

448. Glynn v. Roy Al Boat Mgmt. Corp., 57 F.3d 1495 (9th Cir. 1995), cert. denied, 516 U.S. 1046 (1996).

449. Minnkota Power Co-op., Inc. v. Manitowoc Co., 669 F.2d 525 (8th Cir.

1982).

450. Ruiz v. Shell Oil Co., 413 F.2d 310, 312–13 (5th Cir. 1969), lists the factors

considered by some courts in making the “borrowed servant” analysis.

451. See, e.g., Mahramas v. Am. Export Isbrandtsen Lines, Inc., 475 F.2d 165 (2d

Cir. 1973).

452. Lauritzen v. Larsen, 345 U.S. 571 (1953); Gautreaux v. Scurlock Marine,

Inc., 107 F.3d 331 (5th Cir. 1997).
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cumstances.453 Those courts also use a reasonable care standard in

evaluating contributory negligence.454 Some courts have said a seaman

need only prove “slight negligence” on the part of the employer or

that a seaman need only exercise “slight care” in carrying out his or

her duties.455 The confusion on the issue of “ordinary” versus “slight”

care stems from three factors: the right to jury trial, the nature of

maritime employment, and the reduced burden on causation. On the

first point, it seems clear that the right to jury trial is part of the Jones

Act remedy.456 Therefore, a seaman need introduce only minimum or

“slight” evidence of employer negligence to get to the jury, and a verdict in favor of the seaman should not be taken away if the quantum

of proof satisfies this minimal standard.457 As to the second factor, an

employer of a Jones Act seaman is under a duty to provide a safe place

to work and to supply the seaman with proper tools and equipment.

Furthermore, a seaman is under a duty to follow orders.458 These factors facilitate a seaman’s chances of showing an employer’s breach of

duty and that the seaman was not contributorily negligent.

Where an employer violates a statutory duty and such violation

causes injury to a seaman, the employer will be liable under the Jones

Act without regard to the employer’s negligence.459 This is a species of

strict liability in that the violation is considered negligence per se. Unlike its land-based analog, it is irrelevant whether or not the seaman is

within the class of persons the statute is designed to protect, or that

the harm caused the seaman is of the type the statute was designed to

prevent.460

453. Gautreaux, 107 F.3d 331; Robert Force, Allocation of Risk and Standard of

Care Under the Jones Act: “Slight Negligence,” “Slight Care,” 25 J. Mar. L. & Com. 1

(1994).

454. Gautreaux, 107 F.3d 331.

455. Williams v. Long Island R.R. Co., 196 F.3d 402 (2d Cir. 1999).

456. Force, supra note 453, at 6, 7.

457. Id.

458. Id.

459. Kernan v. Am. Dredging Co., 355 U.S. 426 (1958).

460. Id.
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The traditional standard of proximate cause, however, is not required,461 and a seaman’s burden of proving causation is “featherweight.”462 Stated differently, a seaman need not prove that his or her

employer’s negligence was a substantial cause of injury, but simply

that the employer’s negligence was a cause.463 Under this featherweight burden, the seaman-plaintiff need only prove that the employer’s negligence played some role, however “slight,” in causing the

injury.464

Application of the Jones Act to Foreign Seamen

A foreign seaman may maintain a cause of action under the Jones Act

where, after a choice-of-law analysis, sufficient contacts are present so

as to allow the application of the statute. In determining the applicability of the Jones Act to a foreign seaman, the following factors are

considered in the choice-of-law analysis: (1)the place of the wrongful

act; (2)the law of the vessel’s flag; (3)the allegiance or domicile of the

injured seaman; (4)the allegiance of the shipowner; (5)the place of

the contract; (6)inaccessibility of the foreign forum; (7)the law of the

forum; and (8)the vessel owner’s base of operations.465

Where the Jones Act claimant is a foreign seaman employed in the

production of offshore energy and mineral resources of a country

other than the United States, however, Congress has proscribed recovery under the statute unless the seaman can show that no other

remedy is available.466

461. Chisholm v. Sabine Towing & Transp. Co., 679 F.2d 60 (5th Cir. 1982).

462. Evans v. United Arab Shipping Co. S.A.G., 4 F.3d 207 (3d Cir. 1993), cert.

denied, 510 U.S. 1116 (1994).

463. Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107 (1959).

464. In re Cooper/T. Smith, 929 F.2d 1073 (5th Cir.), cert. denied, 502 U.S. 865

(1991).

465. Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306 (1970); Lauritzen v. Larsen,

345 U.S. 571 (1953).

466. 46 U.S.C. app. §688(b) (2000); see also Neely v. Club Med Mgmt. Servs.,

Inc., 63 F.3d 166 (3d Cir. 1995).
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Unseaworthiness

Nature of the Cause of Action

Under the general maritime law, vessel owners and owners pro hac

vice (e.g., demise charterers) owe a duty to seamen to provide a seaworthy vessel aboard which the seaman works, and “the vessel and her

owner are ... liable ... 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.”467

Only seamen have a cause of action for unseaworthiness.468 The

doctrine imposes on the vessel owner or owner pro hac vice a duty that

is both absolute and nondelegable.

The so-called “warranty” of seaworthiness covers all parts of the

vessel and its operation, including the hull, machinery, appliances,

gear and equipment, and other appurtenances.469 The equipment

must be an appurtenance of or attached to the vessel or otherwise under the vessel’s control in order for the warranty of seaworthiness to

attach. Where defective, shore-based equipment causes the seaman’s

injury or death, no cause of action for unseaworthiness will lie because the equipment lacks the requisite connection to the vessel to be

considered part of its equipment.470 The duty of seaworthiness is implicated where cargo is improperly loaded or stowed,471 and a statutory or regulatory violation may amount to unseaworthiness per se.472

The warranty of seaworthiness extends also to manning the vessel,

and an incompetent or inadequate master or crew may render the

vessel unseaworthy.473 Indeed, where the vessel owner employs a

crewmember of “savage disposition” who assaults a fellow seaman,

the vessel may be considered unseaworthy.474

467. The Osceola, 189 U.S. 158, 175 (1903); Mahnich v. S. S.S. Co., 321 U.S. 96

(1944).

468. Griffith v. Martech Int’l, Inc., 754 F.Supp. 166 (C.D. Cal. 1989).

469. Havens v. F/T Polar Mist, 996 F.2d 215 (9th Cir. 1993).

470. Feehan v. United States Lines, Inc., 522 F. Supp. 811 (S.D.N.Y. 1980).

471. Gutierrez v. Waterman S.S. Corp., 373 U.S. 206 (1963).

472. Smith v. Trans-World Drilling Co., 772 F.2d 157 (5th Cir. 1985).

473. Waldron v. Moore-McCormack Lines, Inc., 386 U.S. 724 (1967).

474. Gutierrez, 373 U.S. at 210.
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100

The test for determining a vessel’s seaworthiness is whether the

vessel as well as her equipment and other appurtenances are “reasonably fit for their intended use.”475 However, the vessel owner is not

required to furnish an accident-free vessel—i.e., the “standard is not

perfection, but reasonable fitness,”476 with reasonableness determined

by the traditional “reasonable person” standard of tort law.477 No distinction, however, is made between unseaworthy conditions that are

permanent and those that are transitory.478

Negligence plays only a tangential role in an unseaworthiness action, in that negligence may create an unseaworthy condition, but

liability under the doctrine of seaworthiness is not contingent on the

finding of negligence. The vessel owner is held to the standard of strict

liability.479 Where an unseaworthy condition exists and causes injury

to a seaman, it is no defense that the vessel owner had exercised due

diligence to make the vessel seaworthy, that it was not negligent in

creating the unseaworthy condition, or that it was without notice of

the unseaworthy condition and did not have an opportunity to correct it.480 Operational negligence—i.e., an isolated act of negligence by

an otherwise qualified fellow worker that injures the seaman—will

not render the vessel unseaworthy481 unless it is “pervasive.”482

To state a cause of action for unseaworthiness, a seaman must

allege not only that the vessel was unseaworthy, but also that the unseaworthy condition was the proximate cause of the seaman’s injury

or death.483 Proximate causation is satisfied by a showing that the injury or death was either a direct result of the unseaworthy condition

or a reasonably probable consequence thereof.484

475. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960).

476. Id.

477. Allen v. Seacoast Prods., Inc., 623 F.2d 355 (5th Cir. 1980).

478. Mitchell, 362 U.S. at 550.

479. Id. at 548.

480. Id. at 550.

481. Usner v. Luckenbach Overseas Corp., 400 U.S. 494 (1971).

482. Cf. Daughdrill v. Ocean Drilling & Exploration Co., 709 F.Supp. 710 (E.D.

La. 1989).

483. Bommarito v. Penrod Drilling Corp., 929 F.2d 186 (5th Cir. 1991).

484. Phillips v. W. Co. of N. Am., 953 F.2d 923 (5th Cir. 1992).
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Right of Action

The plaintiff in an action for unseaworthiness may bring an in personam action against the party exercising operational control over the

vessel (either the vessel owner or demise charterer) as well as an in

rem action against the vessel itself.485

Contributory Negligence and Assumption of Risk in Jones Act and

Unseaworthiness Actions

Contributory negligence or assumption of risk by a seaman-plaintiff

will not bar recovery in a Jones Act or unseaworthiness action. However, under principles of comparative fault, the seaman’s recovery, if

any, will be reduced in proportion to his or her own degree of fault.486

Where a seaman is injured by an unseaworthy condition caused exclusively by the seaman’s own negligence, however, recovery in an

action for unseaworthiness will be denied.487 Where an employer has

violated a safety statute or regulation, the seaman-plaintiff’s recovery

will not be reduced proportionately under contributory negligence or

assumption of risk.488

In the absence of a statutory violation, where a seaman is solely at

fault in bringing about his or her injury, there can be no recovery under the Jones Act because proof of employer fault is a prerequisite to

recovery.489 However, the mere fact that a seaman’s negligence creates

a risk does not mean that the employer did not likewise contribute to

the risk and ensuing injury. This could occur, for example, where an

inexperienced, unsupervised seaman is ordered to perform tasks that

he or she is not competent to perform or if the seaman is ordered to

work in an unsafe or dangerous environment.490 In assessing a seaman’s duty to care for himself or herself, the fact finder must bear in

485. Baker v. Raymond Int’l, 656 F.2d 173 (5th Cir. 1981), cert. denied, 456 U.S.

983 (1982).

486. Villers Seafood Co. v. Vest, 813 F.2d 339 (11th Cir. 1987).

487. Keel v. Greenville Mid-Stream Serv., Inc., 321 F.2d 903 (5th Cir. 1963).

488. Smith v. Trans-World Drilling Co., 772 F.2d 157 (5th Cir. 1985).

489. 45 U.S.C. §151 (2000); In re Cooper/T. Smith, 929 F.2d 1073 (5th Cir.),

cert. denied, 502 U.S. 865 (1991); Valentine v. St. Louis Ship Bldg. Co., 620 F.Supp.

1480 (E.D. Mo. 1985), aff’d, 802 F.2d 464 (8th Cir. 1986).

490. Spinks v. Chevron Oil Co., 507 F.2d 216 (5th Cir. 1975).
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102

mind that the employer is under a duty to provide its seamen with a

safe place to work and to supply proper tools and equipment, and that

seamen are under a duty to follow orders.

Maritime Workers’ Remedies

Longshore and Harbor Workers’ Compensation Act

Persons engaged in “maritime employment,” such as longshoremen

and harbor workers, enjoy a special status that affects both the rights

and remedies available to them as a result of work-related injuries or

disabilities. Under the Longshore and Harbor Workers’ Compensation Act (LHWCA),491 workers who come within the coverage of the

Act and who sustain injury or illness related to their maritime employment are entitled to scheduled compensation benefits from their

employers.

The LHWCA is essentially a federal workers’ compensation statute in which a covered worker “accepts less than full damages for

work-related injuries. In exchange, he is guaranteed that these statutory benefits will be paid for every work-related injury without regard

to fault.”492 The statute was enacted in response to Supreme Court

decisions that held that state worker compensation schemes could not

supply remedies to longshoremen who were injured or killed while

working on navigable waters,493 although such state benefits could be

awarded where injuries occurred on land.494

Scope of Coverage

In order to qualify for coverage under the LHWCA, the maritime

worker must meet both “status” and “situs” requirements.495

491. 33 U.S.C. §§901–948(a) (2000).

492. Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256 (1979)

(Blackmun, J., dissenting).

493. S. Pac. Co. v. Jensen, 244 U.S. 205 (1917).

494. State Indus. Comm. of State of N.Y. v. Nordenholt Corp., 259 U.S. 263

(1922); T. Smith & Son v. Taylor, 276 U.S. 179 (1928).

495. Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40 (1989); Herb’s Welding, Inc. v. Gray, 470 U.S. 414 (1985).
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Employee Status

Coverage under the LHWCA is accorded to those who are engaged in

“maritime employment.” This includes “any longshoreman or other

person engaged in longshoring operations, and any harbor-worker

including a ship repairman, shipbuilder, and ship-breaker.”496 The list

of individuals in the LHWCA, however, is illustrative rather than exhaustive, and where an employee is engaged in activities the nature of

which are an integral part of loading, unloading, repairing, building,

or disassembling a vessel, the employee will satisfy the status requirement for coverage under the LHWCA.497

There is an important exception to the maritime employment

status requirement. The LHWCA originally covered only employees

who were injured or killed on navigable waters. Location alone was

the sole criteria for eligibility; there was no occupational status requirement. After the maritime employment status requirement was

added in 1972, the Supreme Court nevertheless has continued to find

LHWCA coverage where a worker’s job assignment requires work in

or on navigable waters. The fact that the employee is required to work

on navigable waters satisfies the occupational status requirement, and

to the extent that the worker would have been covered prior to the

1972 amendment, he or she will be covered under the amended Act.498

Mere “presence” on the water when an injury is sustained may not be

sufficient, such as where an employee is only fortuitously or transiently on navigable waters.499

The Act also excludes a number of occupations from its coverage.500 Importantly, the Act excludes from coverage “a master or

member of the crew of any vessel,” the definition of which is co496. 33 U.S.C. §902(3) (2000).

497. Schwalb, 493 U.S. 40; P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979). However, a welder on an oil or gas fixed platform does not qualify. See Herb’s Welding,

Inc. v. Gray, 470 U.S. 414 (1985).

498. Director, O.W.C.P. v. Perini N. River Assocs., 459 U.S. 297 (1983).

499. Bienvienu v. Texaco, Inc., 164 F.3d 901 (5th Cir. 1999).

500. Section 902(3)(A)–(F) of the Act specifically excludes from the definition of

the term “employee” certain classes of employees if they are covered under state statutes.
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extensive with that of “seaman” for purposes of the Jones Act.501 The

remedies are considered mutually exclusive.502 However, the mere fact

that a person does the kind of work enumerated in the LHWCA does

not automatically preclude that worker from satisfying the criteria for

seaman status. In Southwest Marine, Inc. v. Gizoni,

503 the Supreme

Court held that an employee engaged in one of the occupations enumerated in the LHWCA nevertheless may be a seaman if he or she

satisfies the criteria for seaman status under the Jones Act.504 For example, a regular member of a ship’s crew assigned to maintain and

repair equipment during the vessel’s voyages would be a seaman even

though he was a ship repairer.

Where a worker who brings a Jones Act action against his or her

employer is found to be a seaman, but does not recover because of the

absence of employer negligence, the seaman status determination will

not bar subsequent recovery in an LHWCA action.505 A denial of

LHWCA benefits based on an administrative or judicial finding that

the applicant was a seaman does not preclude a subsequent suit under

the Jones Act.506 There is some dispute as to whether a formal award

in a contested case bars a subsequent Jones Act action.507 A worker’s

voluntary acceptance of LHWCA benefits does not preclude a later

Jones Act action; but if a worker recovers under the Jones Act, any

compensation benefits received must be returned.508

501. McDermott Int’l, Inc. v. Wilander, 498 U.S. 337 (1991).

502. See, e.g., Pizzitolo v. Electro-Coal Transfer Corp., 812 F.2d 977 (5th Cir.

1987), cert. denied, 484 U.S. 1059 (1988).

503. 502 U.S. 81 (1991).

504. Id. at 88.

505. See, e.g., Strachan Shipping Co. v. Shea, 406 F.2d 521 (5th Cir.), cert. denied,

395 U.S. 921 (1969).

506. McDermott, Inc. v. Boudreaux, 679 F.2d 452 (5th Cir. 1982).

507. Compare Papai v. Harbor Tug & Barge Co., 67 F.3d 203 (9th Cir. 1995),

rev’d on other grounds, 520 U.S. 548 (1997), with Sharp v. Johnson Bros. Corp., 973

F.2d 423 (5th Cir. 1992), cert. denied, 508 U.S. 907 (1993).

508. 33 U.S.C. §903(e) (2000); Gizoni, 502 U.S. 81.
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105

Situs of the Injury or Disability

The LHWCA, as amended in 1972, covers injuries or deaths that occur

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).509

The status of an employee is relevant only where the injury does not

occur on navigable waters, but rather on a pier, wharf, or adjoining

area. Where the worker clearly satisfies the occupational status requirement but is injured on a situs outside the scope of the LHWCA,

coverage will be denied.510

The test for determining navigable waters is the same as that used

for determining admiralty jurisdiction over torts.511 The LHWCA also

applies to injuries occurring on the high seas.512

Though the majority of cases hold that proximity to navigable

waters is not determinative of whether coverage will attach to an adjoining area,513 the Fourth Circuit holds that geographic proximity is

dispositive, requiring that an “adjoining area” be contiguous with or

touching navigable waters.514

The shoreward extension of coverage under the 1972 amendments to the LHWCA creates a jurisdictional overlap between the Act

and state workers’ compensation statutes.515 Therefore, a worker who

qualifies for both LHWCA and state compensation benefits may file

509. 33 U.S.C. §903(a) (2000).

510. Humphries v. Director, O.W.C.P., 834 F.2d 372 (4th Cir. 1987), cert. denied,

485 U.S. 1028 (1988).

511. Rizzi v. Underwater Constr. Corp., 84 F.3d 199, 202 (6th Cir.), cert. denied,

519 U.S. 931 (1996).

512. Kollias v. D & G Marine Maint., 29 F.3d 67 (2d Cir. 1994), cert. denied, 513

U.S. 1146 (1995); see also 33 U.S.C. §939(b) (2000).

513. Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137, 141 (9th Cir.

1978); Texports Stevedore Co., 632 F.2d 504, 518 (5th Cir. 1980), cert. denied, 452

U.S. 905 (1981).

514. Parker v. Director, O.W.C.P., 75 F.3d 929 (4th Cir.), cert. denied, 519 U.S.

812 (1996); Sidwell v. Express Container Servs., Inc., 71 F.3d 1134 (4th Cir. 1995).

515. Sun Ship, Inc. v. Penn., 447 U.S. 715 (1980).
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106

for both, either concurrently or successively.516 Where an employee

recovers under the state regime an amount more generous than under

the LHWCA, an employer’s obligation to provide LHWCA benefits is

discharged, since the worker will in no case be allowed to recover

twice for the same injury.517 Where the worker files first for state

benefits and later receives a higher award under the LHWCA, the

worker may recover under both regimes, with the amount of the state

recovery credited against the recovery under the LHWCA.518

Remedies Under the LHWCA

Under the LHWCA, the payment of compensation is the exclusive

remedy of a covered worker against his or her employer, with limited

exception.519 The right to benefits does not depend on employer fault,

nor is the right overcome or diminished by the comparative fault of

the worker.520 However, an employee is not entitled to compensation

if the injury was caused solely by the employee’s intoxication or the

willful intention to injure or kill himself or herself.521 The benefits are

fixed according to schedule. Compensation includes medical expenses,522 disability benefits,523 and rehabilitation benefits,524 in addition to a percentage of the employee’s average weekly wage.525 Where

the worker’s injuries result in death, the LHWCA enumerates a beneficiary class and a schedule of benefits to which the members of that

class are entitled.526

516. Id. at 723–24.

517. Strachan Shipping Co. v. Nash, 782 F.2d 513 (5th Cir. 1986); 33 U.S.C.

§933(e) (2000).

518. Sun Ship, 447 U.S. at 725, n.8.

519. 33 U.S.C. §905(a) (2000).

520. Id. §904(b).

521. Id. § 903(c).

522. Id. §907.

523. Id. §908.

524. Id. §§908(g), 939(c).

525. Id. §906.

526. Id. §909.
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Section 933 of the LHWCA preserves all causes of action an injured worker may have against third parties for tort damages.527 An

injured worker who brings an action against a negligent third-party

tortfeasor need not elect remedies528—that is, the worker can recover

LHWCA benefits from his or her employer and still maintain an action in tort against the third-party tortfeasor. For example, where a

longshoreman or ship repairman is working aboard a vessel and is

injured by a defective piece of equipment, the worker may bring an

action in products liability against the manufacturer of that equipment.529

Though a worker need not elect remedies, acceptance of LHWCA

benefits from an employer pursuant to an award operates as an assignment of rights of the injured worker to the employer, unless the

worker commences an action against the third-party tortfeasor within

six months of accepting compensation benefits.530 If the employer fails

to bring its action against the third-party tortfeasor within ninety days

of the assignment, it loses the right to the assignment, which reverts

back to the worker.531 Where the employer does bring a cause of action against the third-party tortfeasor, the employer is entitled to retain from any judgment all amounts paid as compensation to the

worker, including the present value of any benefits that will be paid in

the future, as well as reasonable attorney fees expended in bringing

suit.532 Recovery in excess of these amounts will be turned over to the

injured worker.533 Where an employee brings suit against a third

party, the employer or the employee’s insurance company may intervene to recover indemnification for the compensation benefits it has

paid.534

527. See generally 33 U.S.C. §933 (2000).

528. Id. §933(a).

529. See, e.g., Lewis v. Timco, Inc., 697 F.2d 1252 (5th Cir. 1983), modified, 736

F.2d 163 (1984).

530. 33 U.S.C. §933(b) (2000).

531. Id.

532. Id. §933(e).

533. Id.

534. The Etna, 138 F.2d 37 (3d Cir. 1943).
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108

Section905(b) of the LHWCA expressly recognizes the right of a

covered employee to sue the vessel as a third party in an action for

injuries caused by vessel negligence.535 The term “vessel” is broadly

defined and includes, inter alia, the vessel’s owner. Under the Act, the

covered worker has a cause of action against a vessel where the

worker’s injury or death is caused by the vessel’s negligence.536 As to

“covered” employees, the LHWCA expressly abolished the judicially

created action for unseaworthiness that the Supreme Court had extended to injured longshoremen.537 Through the interrelationship

between sections 933 and 905(b), the LHWCA preserves “the traditional maritime tort remedy of an Act-covered employee for injuries

caused by the negligence of a vessel . . . while on the navigable waters.”538 The LHWCA articulates neither the elements of the negligence cause of action nor the elements of damages recoverable. The

courts, however, have done so as part of the development of this general maritime law remedy.539

In Scindia Steam Navigation Co., Ltd. v. De Los Santos,540 the Supreme Court articulated guidelines setting forth the duties that a vessel owes to maritime workers. In general, a vessel owner who turns

part of a ship over to a stevedore may rely on the expertise of the stevedore in loading or discharging cargo from the vessel. Negligence

535. For LHWCA purposes, “in order for a waterborne structure to qualify as a

‘vessel’ under §905(b), it must be a vessel for purposes of maritime jurisdiction. Such

a vessel must be capable of navigation or its special purpose use on or in water.”

Richendollar v. Diamond M Drilling Co., 819 F.2d 124, 125 (5th Cir.), cert. denied,

484 U.S. 944 (1987).

536. 33 U.S.C. §905(b) (2000).

537. In Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946), the Court extended the

warranty of seaworthiness to longshoremen performing their work aboard vessels,

thereby allowing an injured longshoreman (hence a “Sieracki seaman”) to maintain

actions for both negligence and unseaworthiness. See McDermott Int’l, Inc. v.

Wilander, 498 U.S. 337 (1991). Congress has since amended section905(b) of the

LHWCA to deny covered employees the right to sue for unseaworthiness.

538. Hall v. Hvide Hull No. 3, 746 F.2d 294, 303 (5th Cir. 1984), cert. denied, 474

U.S. 820 (1985).

539. See, e.g., Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92 (1994); Scindia

Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156 (1981).

540. 451 U.S. 156 (1981).
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that occurs during these operations usually is the fault of the stevedore or its employees and is not attributable to the vessel owner. Nevertheless, a vessel owner must exercise “reasonable care under the circumstances.”541 Scindia described the following three duties that the

vessel owner owes to a maritime worker:542 (1) A “vessel owes to the

stevedore and his longshoremen employees the duty of exercising due

care ‘under the circumstances.’ This duty extends at least to exercising

ordinary care under the circumstances to have the ship and its

equipment in such condition that an expert and experienced stevedore will be able by the exercise of reasonable care to carry on its

cargo operations with reasonable safety to persons and property, and

to warning the stevedore of any hazards on the ship or with respect to

its equipment that are known to the vessel or should be known to it in

the exercise of reasonable care, that would likely be encountered by

the stevedore in the course of his cargo operations and that are not

known by the stevedore and would not be obvious to or anticipated

by him if reasonably competent in the performance of his work.”543

(2)“It is also accepted that the vessel may be liable if it actively involves itself in the cargo operations and negligently injures a longshoreman or if it fails to exercise due care to avoid exposing longshoremen to harm from hazards they may encounter in areas, or from

equipment, under the active control of the vessel during the stevedoring operation.”544 And (3) “We are of the view that absent 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 of the cargo operations that are assigned to the stevedore.

The necessary consequence is that the shipowner is not liable to the

longshoremen for injuries caused by dangers unknown to the owner

and about which he had no duty to inform himself.”545

541. Id. at 168.

542. Though the precedents speak of stevedores and longshoremen, the Scindia

duties are applicable to other maritime workers as well. See, e.g., Cook v. Exxon Shipping Co., 762 F.2d 750 (9th Cir. 1985), cert. denied, 475 U.S. 1047 (1986).

543. Scindia, 451 U.S. at 166–67.

544. Id. at 167.

545. Id. at 172.
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110

If Scindia was aware that the winch was malfunctioning to some

degree, and if there was a jury issue as to whether it was so unsafe

that the stevedore should have ceased using it, could the jury also

have found that the winch was so clearly unsafe that Scindia should

have intervened and stopped the loading operation until the winch

was serviceable?546

The third rule means that if a shipowner is not aware that a stevedore is employing unsafe practices, it is not liable for injuries that result. A shipowner who is aware that a stevedore is using unsafe practices may be liable, under some circumstances, for its failure to intervene.

Dual-Capacity Employers

Where the owner of the vessel is also the employer of the maritime

worker, the owner–employer has dual capacity under the LHWCA.

There are restrictions on the right to sue where the vessel owner has

dual capacity.547 No tort action will lie against the employer where a

maritime worker engaged in one of the “harbor worker” occupations

(e.g., shipbuilding and repairing or breaking services) enumerated in

section 905(b) is injured and the worker’s employer is the owner of

the vessel. The worker’s exclusive remedy is compensation benefits

under the LHWCA. If the injured worker is a longshoreman employed directly by a vessel, a tort action against the dual-capacity employer may be available under section 905(b), but the action is against

the employer only in its capacity as vessel owner.548 A longshoreman

may not recover against a vessel under section 905(b) “if the injury

was caused by persons engaged in providing stevedoring services to

the vessel.”549

546. Id. at 178.

547. 33 U.S.C. §905(b) (2000).

548. Reed v. The Yaka, 373 U.S. 410 (1963). It is not always an easy matter to

determine whether an employer has been negligent in its capacity as employer or

vessel owner. Gravatt v. City of New York, 226 F.3d 108 (2d Cir. 2000), cert. denied,

532 U.S. 957 (2001).

549. 33 U.S.C. §905(b) (2000); see also Singleton v. Guangzhou Ocean Shipping

Co., 79 F.3d 26 (5th Cir.), cert. denied, 519 U.S. 865 (1996).
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Indemnity and Employer Liens

If an injured worker brings an action under section 905(b) and recovers damages from the vessel, the vessel may not recover those damages, either directly or indirectly, from the injured worker’s employer,

notwithstanding any agreement to the contrary.550 Where the injured

worker recovers damages in a section 905(b) action, the worker is obligated to repay any compensation benefits received, and the employer

has a judicially created lien in that amount.551 Further, where the employer’s workers’ compensation carrier (insurance company) has paid

benefits to the injured employee, the carrier may intervene to protect

its interests even where the recovery is against the employer in its capacity as vessel owner.552

Forum and Time for Suit

With respect to the jurisdiction over claims for compensation benefits, the maritime worker’s claim is handled by administrative process

through the U.S. Department of Labor.553 Any dispute regarding the

claim for benefits will be adjudicated by an administrative law judge554

with appellate review of this decision, if appropriate, by the Benefits

Review Board.555 The board will affirm the decision of the administrative law judge where it is supported by “substantial evidence.”556 The

court of appeals for the circuit in which the injury giving rise to the

claim occurred has appellate jurisdiction over the Benefits Review

Board’s decision.557

The period beyond which an injured maritime worker’s claim will

be barred depends on whether it is a claim for compensation benefits

or an action for damages. The LHWCA provides for a one-year stat550. 33 U.S.C. §905(b) (2000); Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256 (1979).

551. Bloomer v. Liberty Mut. Ins. Co., 445 U.S. 74 (1980).

552. Taylor v. Bunge Corp., 845 F.2d 1323 (5th Cir. 1988).

553. See generally 33 U.S.C. §913 (2000).

554. Id. §919(d).

555. See generally id. §921.

556. Id. §921(b)(3).

557. Id. §921(c).
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112

ute of limitations.558 Suit under section 905(b) is subject to the threeyear statute of limitations for personal injuries and death under the

general maritime law.559

Offshore Workers’ Remedies

The Outer Continental Shelf Lands Act

The discovery and production of offshore energy resources exposed a

new class of workers to the perils of maritime employment. The Outer

Continental Shelf Lands Act (OCSLA)560 extends the LHWCA’s compensation benefits provisions to offshore workers engaged in extracting natural resources on the Outer Continental Shelf.561 For offshore

workers (as with maritime workers), the exclusive remedy against

their employers is compensation; they may not maintain a tort action

against their employers.562

Workers engaged in activities on areas of the Continental Shelf

that lie below state waters have remedies with respect to their employers under state workers’ compensation laws.563 Tort claims may be

brought as state claims or general maritime law claims, depending on

the circumstances. With respect to injuries occurring on the Continental Shelf within state waters, the OCSLA is silent. However, because the OCSLA makes nonconflicting state laws applicable to injuries occurring on covered situses adjacent to a state, presumably state

law would be applicable to similar events occurring within a state’s

territorial waters.

Status and Situs Requirements

OCSLA by its own terms excludes from coverage government employees564 and seamen. This does not mean, however, that all others

injured while engaged in activities on the Outer Continental Shelf are

558. Id. §913(a).

559. 46 U.S.C. app. §763(a) (2000).

560. 43 U.S.C. §§1331–1356 (2000).

561. Id. §1333(b).

562. Wentz v. Kerr-McGee Corp., 784 F.2d 699 (5th Cir. 1986).

563. Miles v. Delta Well Surveying Corp., 777 F.2d 1069 (5th Cir. 1985).

564. 43 U.S.C. §1333(b)(1) (2000).
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covered. In order for OCSLA coverage to attach, an offshore worker

must be engaged in one of the enumerated activities—e.g., “exploring

for,” “developing,” “removing,” or “transporting” natural resources as

set forth in the OCSLA. As to the situs requirement, it is not clear if it

applies where the employee is assigned to work on the Outer Continental Shelf even though at the moment of injury he or she may not

in fact be in that location, or if the employee must in fact be engaged

in work on the Outer Continental Shelf when injured.565 If a worker

satisfies the status requirement and is actually injured while working

on the Outer Continental Shelf, that worker meets the situs requirement and is entitled to compensation benefits.

Remedies

Offshore workers injured on the Outer Continental Shelf have the

same remedies available to maritime workers under the LHWCA.566 In

addition to compensation benefits from their employers, they have a

section 905(c) action for damages caused by the negligence of a vessel

and for injuries caused by the negligence of other third parties, and

these actions, depending on the circumstances, may be pursued under

state law or as a general maritime law cause of action.

The OCSLA extends federal law to the Outer Continental Shelf

and to injuries suffered thereon that result from energy-related activities.567 In addition, the OCSLA adopts as federal law the laws of each

adjacent state where they are not in conflict with federal law, “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 area of the State if its boundaries were extended seaward to

the outer margin of the Outer Continental Shelf.”568 State law does not

supplant the general maritime law, however, and injuries resulting

from tortious activity on navigable waters are governed by the latter,

565. Compare Mills v. Director, O.W.C.P., 877 F.2d 356 (5th Cir. 1989), with

Kaiser Steel Corp. v. Director, O.W.C.P., 812 F.2d 518, 522 (9th Cir. 1987), and

Curtis v. Schlumberger Offshore Serv., Inc., 849 F.2d 805 (3d Cir. 1988).

566. 43 U.S.C. §1333(a)(1) (2000).

567. Id.

568. 43 U.S.C. §1333(a)(2)(A) (2000).
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114

despite the fact that the subsoil beneath those waters may form part of

the Outer Continental Shelf.569

Remedies of Nonmaritime Persons

Passengers and Others Lawfully Aboard a Ship

Duty and Standard of Care Generally570

A variety of people other than seamen and maritime workers may be

lawfully present on a vessel. Every day, passengers board cruise ships,

government officials inspect ships, and seamen receive visitors aboard

vessels.

As a general rule, a shipowner is under a duty to exercise reasonable care toward persons lawfully present aboard the shipowner’s

vessel.571 The standard of care is not dependent on whether the injured person is a “licensee” or “invitee” on the vessel.572

Nevertheless, the duty to exercise reasonable care applies only

where the injured person is lawfully present aboard the vessel. With

respect to stowaways and other individuals who have no legal right to

be or remain aboard the vessel, the shipowner is subject to a less demanding standard of care, a duty of humane treatment.573 In such

situations a shipowner is only liable for its willful or wanton misconduct toward stowaways.574

A shipowner is liable when it or its employee negligently causes an

injury to a person lawfully present aboard the vessel.575 By statute, a

569. Id. §1333(f); Tenn. Gas Pipeline v. Houston Cas. Ins. Co., 87 F.3d 150 (5th

Cir. 1996).

570. The materials in this section have been adapted from Robert Force & A.N.

Yiannapoulos, 1 Admiralty and Maritime Law, ch.3 (2001).

571. Leathers v. Blessing, 105 U.S. 626 (1881); The Max Morris v. Curry, 137

U.S. 1, 2 (1890).

572. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632 (1959)

(holding that “the owner of a ship in navigable waters owes to all who are on board

for purposes not inimical to his legitimate interests the duty of exercising reasonable

care under the circumstances of each case” (id. at 630) and thereby rejecting the tort

rules commonly applied to determine the liability of landowners).

573. The Laura Madsen, 112 F. 72 (W.D. Wash. 1901).

574. Taylor v. Alaska Rivers Navigation Co., 391 P.2d 15, 17 (Alaska 1964).

575. Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63, 64 (2d Cir. 1988).
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shipowner is liable when a passenger is injured or a passenger’s property is damaged by “explosion, fire, collision, or other cause” if it happens through neglect, in violation of various safety measures, or

through known defects in the vessel.576 Under this provision, liability

is imposed not only on shipowners but also on masters and other key

members of the crew. Otherwise, a shipowner is only bound to exercise that degree of care as would be exercised by a reasonable

shipowner under like circumstances. Specifically, with respect to

medical care for passengers, a cruise ship operator is not liable for the

negligence of the ship’s doctor, but liability would attach if the

shipowner failed to exercise reasonable care to provide a reasonably

competent doctor.577 The shipowner’s liability to passengers (nonmaritime persons) is not limited to conduct that occurs within the

confines of the ship.578 A shipowner may be absolutely liable for the

intentional torts of its crew members.579

The general maritime rule of comparative negligence may be used

by a shipowner to reduce the amount of damages.580

Contractual Limitation of Shipowner’s Liability

The United States is not a party to any international convention, such

as the Athens Convention, relating to personal injuries or death of

passengers and damage to or loss of passengers’ luggage. A statute,

however, does provide that a carrier may not “contract out” of its liability for negligent acts that result in personal injury or death of

passengers.581 To a limited extent, a carrier may avoid liability for

emotional distress, mental suffering, or psychological injury except

576. 46 U.S.C. app. §491 (2000).

577. Barbetta v. S.S. Bermuda Star, 848 F.2d 1364, 1371 (5th Cir. 1988).

578. Morton v. De Oliveira, 984 F.2d 289 (9th Cir. 1993) (holding that a passenger who was raped by a member of the crew could recover against the shipowner

without showing any negligence on the part of the shipowner).

579. Gillmor v. Caribbean Cruise Line, Ltd., 789 F.Supp. 488, 490 (D.P.R. 1992)

(denying cruise line’s motion to dismiss passengers’ complaint alleging negligence in

failing to advise them that the pier, where they were injured, was a high-crime area;

noting that alleged failure to warn took place on board vessel; id. at 491, 492).

580. Carey v. Bahama Cruise Lines, 864 F.2d 201, 205 (1st Cir. 1988).

581. 46 U.S.C. app. §183c (2000).
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116

when such injury occurs in specified circumstances.582 The general

Limitation of Liability Act applies, including the special provisions

relating to personal injury and death (see infra Chapter 5).

Likewise, a statute prohibits a carrier from requiring passengers to

give notice of personal injury within a period of less than six months

after the injury or from requiring that suit be commenced within a

period of less than one year after the injury.583 Notice and commencement of suit provisions that comply with these limits are enforceable. A carrier may not unreasonably limit the time for giving

notice or for the commencement of suit in cases involving lost or

damaged luggage.584

In Carnival Cruise Lines, Inc. v. Shute,

585 the Supreme Court held

that forum selection clauses are enforceable as long as they are not

deemed to be fundamentally unfair. The Court found that the forum

selection clause in the passage tickets in Shute was reasonable because

the plaintiffs had notice of it and the forum designated was not a “remote alien forum.”

Recreational Boating and Personal Watercraft

Recreational boating accidents and injuries resulting from the operation of personal watercraft on navigable waters satisfy the requirements for admiralty tort jurisdiction.586 In these situations, courts

have applied the tort rules of the general maritime law, recognizing a

right of recovery for injuries caused by negligence. Negligence under

the general maritime law is no different than under land-based law

except that the rule of proportionate fault applies.587 Contributory

negligence and assumption of risk are not complete defenses. In addition, other maritime rules (e.g., those that relate to limitation of liability, maritime liens, salvage) may be applicable. The use of personal

582. Id. §183c(b).

583. Id. §183b(a), (b).

584. The Kensington, 182 U.S. 261 (1902).

585. 499 U.S. 585 (1991).

586. Foremost Ins. Co. v. Richardson, 457 U.S. 668 (1982).

587. See, e.g., Carey v. Bahama Cruise Lines, 864 F.2d 201 (1st Cir. 1988).
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117

watercraft, such as jet skis, has occasioned numerous maritime products liability actions.588

Maritime Products Liability

In East River Steamship Corp. v. Transamerica Delaval, Inc.,

589 the Supreme Court created the tort of maritime products liability. This action may be based on negligence or strict liability. The Court has also

adopted the rule that recovery may not be had where the only damage

is to the product itself. The Supreme Court has not otherwise given

guidance as to the substantive rules of maritime products law, such as

whether it will follow Restatement of Torts Second or Third or some

other approach.

Remedies for Wrongful Death

Introduction

The general maritime law, as stated in The Harrisburg,

590 once followed the common-law rule that tort causes of action died with the

injured person.591 The Supreme Court, in 1907, ameliorated the

holding of The Harrisburg by allowing admiralty courts to apply state

wrongful death statutes for deaths in state territorial waters under the

“maritime but local doctrine.”592 In 1920, Congress partially overruled

The Harrisburg through the enactment of the Death on the High Seas

Act,593 which provides a statutory wrongful death remedy for those

killed on the high seas, and the Jones Act,594 which provides a remedy

in the case of the death of a seaman. Finally, in 1970 the Supreme

588. Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199 (1996).

589. 476 U.S. 858 (1986).

590. 119 U.S. 199 (1886).

591. Id.

592. The Hamilton, 207 U.S. 389 (1907); Robert Force, Choice of Law in Admiralty Cases: “National Interests” and the Admiralty Clause, 75 Tul. L. Rev. 1421,

1451–63 (2001).

593. 46 U.S.C. app. §§761–768 (2000).

594. Id. §688.
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Court in Moragne v. States Marine Lines, Inc.595 overruled The Harrisburg. Currently, claimants in actions for wrongful death have several

remedies, again depending generally on the status of their decedent

and where the decedent was killed. These remedies include an action

under the Death on the High Seas Act, state wrongful death statutes,

the general maritime law, and for seamen the Jones Act.

Death on the High Seas Act

The Death on the High Seas Act (DOHSA)596 provides in pertinent

part that

[w]henever the death of a person shall be caused by wrongful act,

neglect, or default occurring on the high seas beyond a marine

league from the shore of any State . . . the personal representative of

the decedent may maintain a suit for damages in the district courts

of the United States, in admiralty, for the exclusive benefit of the

decedent’s wife, husband, parent, child, or dependent relative

against the vessel, person, or corporation which would have been

liable if death had not ensued.597

Enacted in 1920, DOHSA has been amended to exclude from its

terms deaths that result from commercial aviation accidents twelve

miles or closer to the shore of any state: Such deaths are subject to the

rules applicable under any federal, state, or other law.598

DOHSA provides a wrongful death599 remedy in favor of the

beneficiaries of all decedents who die as a result of tortious acts committed beyond state territorial waters, generally more than three

595. 398 U.S. 375 (1970). For further discussion of Moragne, see infra notes

619–23, 627–29, and 631 and accompanying text.

596. 46 U.S.C. app. §§761–768 (2000).

597. Id. §761.

598. Id. §761(b).

599. Wrongful death remedies must be distinguished from survival actions.

Wrongful death beneficiaries are accorded causes of actions, the elements of damages

of which are based on the beneficiaries’ loss; conversely, survival actions allow the

decedent’s personal representative to maintain a cause of action based on claims for

damages the decedent would have had if he or she had lived.
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miles600 from shore (except for deaths that result from commercial air

accidents, as noted above).601 Importantly, it is the situs of the tortious

conduct when it impacts the decedent that is controlling, rather than

the actual place of death.602

The DOHSA action may be predicated upon any tort theory, including intentional tort,603 negligence,604 and strict products liability.605

With respect to causation, in order for the beneficiaries to recover, the

tortious conduct must have proximately caused decedent’s death.606

DOHSA provides a cause of action to a clearly defined beneficiary

class, including decedent’s “wife, husband, parent, child, or dependent relative.”607 The listing of beneficiaries is not preclusive, and, for

example, a dependent relative may recover under the Act notwithstanding that decedent is survived by a spouse, children, or parents.608

Plaintiff-beneficiaries under DOHSA may recover only for their

pecuniary losses,609 which include loss of support,610 loss of services,611

600. Sometimes the limit includes an area greater than three miles. See Robert

Force, Tort Reform by the Judiciary: Developments in the Law of Maritime Personal

Injury and Death Damages, 23 Tul. Mar. L.J. 351, 363–66 (1999).

601. 46 U.S.C. app. §761 (2000). Coverage under DOHSA extends to the “high

seas” as well as foreign territorial waters. Howard v. Crystal Cruise Line, 41 F.3d 527

(9th Cir. 1994), cert. denied, 514 U.S. 1084 (1995); Public Adm’r of N.Y. County v.

Angela Compania Naviera, S.A., 592 F.2d 58 (2d Cir.), cert. dismissed, 443 U.S. 928

(1979).

602. Bergen v. F/V St. Patrick, 816 F.2d 1345 (9th Cir. 1987), cert. denied, 493

U.S. 871 (1989).

603. Renner v. Rockwell Int’l Corp., 403 F.Supp. 849 (C.D. Cal. 1975).

604. Bodden v. Am. Offshore, Inc., 681 F.2d 319 (5th Cir. 1982).

605. Pavlides v. Galveston Yacht Basin, Inc., 727 F.2d 330 (5th Cir. 1984).

606. Solomon v. Warren, 540 F.2d 777 (5th Cir. 1976), cert. dismissed, 434 U.S.

801 (1977).

607. 46 U.S.C. app. §761 (2000). It is for decedent’s personal representative to

prosecute the claim, though. See, e.g., Porche v. Gulf Miss. Marine Corp., 390 F. Supp.

624 (E.D. La. 1975).

608. Evich v. Connelly, 759 F.2d 1432 (9th Cir. 1985), cert. denied, 484 U.S. 914

(1987).

609. Mobil Oil Co. v. Higginbotham, 436 U.S. 618 (1978).

610. Howard v. Crystal Cruises, Inc., 41 F.3d 527 (9th Cir. 1994), cert. denied,

514 U.S. 1084 (1995); Bergen v. F/V St. Patrick, 816 F.2d 1345 (9th Cir. 1987), cert.

denied, 493 U.S. 871 (1989).
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120

loss of nurture, guidance, care, and instruction,612 loss of inheritance,613 and funeral expenses.614 Nonpecuniary damages, such as loss

of society, loss of consortium, and punitive damages, are not available

in an action under DOHSA.615 However, Congress not only removed

from DOHSA deaths from commercial air crashes occurring twelve

miles or closer to the shore of any state, but also authorized the recovery of nonpecuniary damages in such cases where death occurs beyond twelve miles from the shore of any state. Such damages include

loss of care, comfort, and companionship.616 Punitive damages may

not be recovered. The Supreme Court has specifically refused to create

a “survival” action to supplement DOHSA.617

In Offshore Logistics, Inc. v. Tallentire,

618 the Supreme Court held

that DOHSA was preemptive of state law and that a claimant could

not append a state law claim to an action under DOHSA in order to

supplement damages available under the Act. The Court also held that

a DOHSA action may be brought in state court.

Wrongful Death Under the General Maritime Law

Subsequent to the passage of DOHSA and the Jones Act, the Supreme

Court in the case of Moragne v. States Marine Lines, Inc.619 followed

Congress’s lead and overruled The Harrisburg. Moragne created a

wrongful death remedy under the general maritime law for deaths

occurring within state territorial waters. The plaintiff in that case was

611. Sea-Land Serv., Inc. v. Gaudet, 414 U.S. 573 (1974).

612. Nygaard v. Peter Pan Seafoods, Inc., 701 F.2d 77 (9th Cir. 1983).

613. Zicherman v. Korean Airlines Co., Ltd., 43 F.3d 18 (2d Cir. 1994), aff’d in

part, 516 U.S. 217 (1996).

614. Neal v. Barisich, Inc., 707 F. Supp. 862 (E.D. La.), aff’d, 889 F.2d 273 (5th

Cir. 1989).

615. Zicherman v. Korean Airlines Co., Ltd., 516 U.S. 217 (1996) (loss of society); Mobil Oil Co. v. Higginbotham, 436 U.S. 618 (1978) (loss of society); Bergen v.

F/V St. Patrick, 816 F.2d 1345 (9th Cir. 1987) (punitive damages), cert. denied, 493

U.S. 871 (1989).

616. 46 U.S.C. app. §762(b)(2) (Supp. 2000).

617. Dooley v. Korean Airlines Co., 524 U.S. 116 (1998).

618. 447 U.S. 207 (1986).

619. 398 U.S. 375 (1970).
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the widow of a Sieracki seaman (i.e., a longshoreman) who was killed

on a vessel in navigable waters, and the lawsuit was based on an unseaworthiness theory as was then permitted. Subsequently, in Norfolk

Shipbuilding and Drydock Corp. v. Garris,620 the Court extended the

Moragne action to encompass a negligence claim based on the death

of a maritime worker. Because nothing in the Garris decision limits its

application to maritime workers, the case may be taken as encompassing a general maritime law wrongful death claim for any person

killed in state waters.

Prior to Garris, the Supreme Court had held that Moragne’s creation of a general maritime wrongful death action for deaths in state

waters did not preempt state remedies in cases involving nonseafarers.

In Yamaha Motor Corp., U.S.A. v. Calhoun,

621 the Supreme Court held

that with respect to nonseafarers622 the general maritime law cause of

action created by Moragne did not supply the exclusive remedy for

wrongful deaths occurring in state territorial waters. Thus, at least

where a decedent’s beneficiaries are not provided with a preclusive

wrongful death remedy by legislation, such as the Jones Act or the

LHWCA, damages may be recovered under state wrongful death

law.623

In Sea-Land Service, Inc. v. Gaudet,

624 the Supreme Court applied

an expansive rule of damages to actions for wrongful death in state

territorial waters, holding that the wife of a longshoreman whose

death resulted from an accident in territorial waters could recover for

loss of society. Subsequently, in Miles v. Apex Marine Corp.,

625 the

620. 532 U.S. 811 (2001).

621. 516 U.S. 199 (1996).

622. “Seafarers” include Jones Act seamen and maritime workers covered by the

LHWCA. Calhoun, 516 U.S. at 205, n.2.

623. On remand the Third Circuit held that the general maritime law determined whether or not plaintiffs had a cause of action, Pennsylvania law determined

the measure of wrongful death damages, and the law of Puerto Rico determined the

right to recover punitive damages. The case is important because it accentuates the

disparity of recovery between the general maritime law and the laws of some states.

Calhoun v. Yamaha Motor Corp. U.S.A., 216 F.3d 338 (3d Cir.), cert. denied, 531 U.S.

1037 (2000).

624. 414 U.S. 573 (1974).

625. 498 U.S. 19 (1990).
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122

Court denied recovery for loss of society, holding that the surviving

(nondependent) mother of a Jones Act seaman could recover only for

pecuniary loss, even though as in Gaudet the action was based on unseaworthiness under the general maritime law. The Court reasoned

that the damages recoverable under the general maritime law could

not exceed those available under the Jones Act. It did not expressly

overrule Gaudet, however.

In the wake of Miles, some lower federal courts have held that recoverable damages under the general maritime law in both death and

injury cases are restricted to pecuniary losses and have refused to allow recovery of loss of society regardless of the status of the parties.

Most courts have denied recovery of punitive damages.626 Thus the

damages recoverable under Moragne and DOHSA may be the same.

Persons Entitled to Recover Under Moragne

In Moragne v. States Marine Lines, Inc.,

627 the Supreme Court created a

wrongful death remedy under the general maritime law for deaths

occurring within state territorial waters. Only the decedent’s personal

representative may bring suit on behalf of the beneficiaries.628 Beneficiaries of a Moragne action include the decedent’s spouse, dependent

children, parents, and dependent relatives.629

626. See, e.g., Horsley v. Mobil Oil Corp., 15 F.3d 200 (1st Cir. 1994); Wahlstrom

v. Kawasaki Heavy Indus., Ltd., 4 F.3d 1084 (2d Cir. 1993), cert. denied, 510 U.S. 1114

(1994); Miller v. Am. President Lines, Ltd., 989 F.2d 1450 (6th Cir.), cert. denied, 510

U.S. 915 (1993).

627. 398 U.S. 375 (1970).

628. Tidewater Marine Towing, Inc. v. Dow Chem. Co., 689 F.2d 1251 (5th Cir.

1982); Ivy v. Sec. Barge Lines, Inc., 585 F.2d 732 (5th Cir. 1978), cert. denied, 446 U.S.

956 (1980); Neal v. Barisich, Inc., 707 F. Supp. 862 (E.D. La.), aff’d, 889 F.2d 273 (5th

Cir. 1989).

629. See, e.g., In re Patton-Tully Transp. Co., 797 F.2d 206 (5th Cir. 1986)

(spouse); Sistrunk v. Circle Bar Drilling Co., 770 F.2d 455 (5th Cir. 1985) (parents),

cert. denied, 475 U.S. 1019 (1986); Spiller v. Thomas M. Lowe, Jr. & Assoc., Inc., 466

F.2d 903 (8th Cir. 1972) (dependent stepchildren); Smith v. Allstate Yacht Rentals,

Ltd., 293 A.2d 805 (Del. 1972) (dependent siblings).
Chapter 3: Personal Injury and Death

123

Seaman’s Claims

A Jones Act action provides a seaman’s beneficiaries with the exclusive

remedy against an employer for negligence.630 A Jones Act negligence

action is available regardless of whether death occurs on the high seas,

in state territorial waters, or on land. Death actions predicated on

other grounds, such as unseaworthiness or against nonemployers,631

may be brought under DOHSA where death occurs on the high seas

and under Moragne where death occurs in state territorial waters. As

with DOHSA, the beneficiary class is specified in the statute: the surviving spouse and children; if none, then parents; and if none, then

next of kin dependent on the decedent. Jones Act beneficiaries are

ranked in preclusive order—i.e., a higher ranked class “takes” to the

exclusion of a lower ranked class.632 The Jones Act also creates a right

to bring a survival action for the seaman’s conscious pain and suffering between the time of injury and death.633 There is no right to recover future lost earnings.634

Maritime Workers’ Claims

Under the Longshore and Harbor Workers’ Compensation Act

(LHWCA), the maritime worker’s beneficiaries are entitled to the

payment of scheduled death benefits from the decedent’s employer,

subject to the special rules applicable to employer vessel owners.

Where the maritime worker’s death is caused by the negligence of a

vessel, the action may be brought under section 905(b) of the

LHWCA. Though the Supreme Court in Moragne created a general

maritime law wrongful death remedy in favor of the beneficiaries of a

longshoreman whose death resulted from the unseaworthiness of the

vessel upon which he was working, this action was legislatively overruled by the LHWCA.635

630. Furka v. Great Lakes Dredge & Dock Co., 775 F.2d 1085 (4th Cir. 1985).

631. See, e.g., In re Cleveland Tankers, Inc., 843 F. Supp. 1157 (E.D. Mich. 1994).

632. Hamilton v. Canal Barge Co., 395 F. Supp. 978 (E.D. La. 1975).

633. Snyder v. Whittaker Corp., 839 F.2d 1085 (5th Cir. 1988); Nygaard v. Peter

Pan Seafoods, Inc., 701 F.2d 77 (9th Cir. 1983).

634. Miles v. Apex Marine Corp., 498 U.S. 19 (1990).

635. 33 U.S.C. §905(b) (2000); see also Easley v. S. Shipbuilding Corp., 936 F.2d

839 (5th Cir. 1991), cert. denied, 506 U.S. 1050 (1993). The longshoreman is no longer
Admiralty and Maritime Law

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Further, because the LHWCA preserves the rights of maritime

workers against third parties, actions against nonemployer and nonvessel defendants will proceed in the same manner as any other

wrongful death claim.636 Where the decedent’s death is caused by

third-party negligence, if it results from an accident on land, state

wrongful death and survival statutes will apply; where the accident

takes place on territorial waters, Moragne-Garris applies; and where

the death results from tortious conduct on the high seas, DOHSA will

apply.

Offshore Oil and Gas Workers’ Claims

If an offshore worker is covered by the LHWCA via OCSLA, then recovery for the worker’s wrongful death is limited to the remedies

available to maritime workers, and claims against the employer are

controlled by sections 904, 905(a), and 905(c) of the LHWCA, notwithstanding the fact that the death occurred in the water or on a

vessel while the employee was performing his or her duties, or while

being transported to a platform.637 If an offshore worker is killed on a

fixed platform in state waters, state workers’ compensation schemes

supply the remedy against the employer.638 As to actions against nonemployers, Moragne-Garris applies to deaths resulting from maritime

torts in state waters. If an offshore worker’s death results from a

wrongful act on the high seas, then DOHSA provides the remedy.

entitled to a warranty of seaworthiness. See Scindia Steam Navigation Co., Ltd. v. De

Los Santos, 451 U.S. 156 (1981) (discussed supra text accompanying notes 540–46).

636. 33 U.S.C. §933 (2000). Norfolk Shipbuilding & Drydock Corp. v. Garris,

532 U.S. 811 (2001).

637. See, e.g., Wentz v. Kerr-McGee Corp., 784 F.2d 699 (5th Cir. 1986).

638. Herb’s Welding, Inc. v. Gray, 470 U.S. 414 (1985); Hollier v. Union Tex.

Petroleum Corp., 972 F.2d 662 (5th Cir. 1992).
125

chapter 4

Collision and Other Accidents

Introduction

The Basic Collision Regulations (COLREGS), or International Rules,

were developed by the Intergovernmental Maritime Commission

(originally IMCO, now IMO) and agreed on in the 1972 Convention

on the International Regulations for Preventing Collisions at Sea. In

1977, these rules were adopted by statute in the United States639 and

became part of the law of the United States. These rules essentially

deal with the safe navigation of vessels; they are analogous to “rules of

the road.” It should be noted, however, that in the internal waters of

the United States a separate set of navigational rules, referred to as the

Inland Navigational Rules, apply.640 Although there are many similarities between the two, they are by no means identical.

The basic international law applicable to collision liability is embodied in the 1910 Brussels Collision Convention.641 The United

States has not ratified this convention. Under the convention, liability

for damage or injury caused by a collision is based on fault. Despite

the fact that collision law in the United States is also based on fault,

including the proportional fault rule,642 important differences exist

between U.S. and international law relating to collisions.

Collision law applies in two situations. The first is the traditional

collision situation where two moving vessels come in physical contact

with each other. The second situation, referred to as an “allision,” occurs where a moving vessel strikes a stationary object, such as a

docked vessel, a bridge, or a wharf.

639. 33 U.S.C. §§1601–1608 (2000).

640. Id. §§2002–2073.

641. International Convention for the Unification of Certain Rules of Law with

respect to Collision between Vessels, Brussels, Sept. 23, 1910.

642. United States v. Reliable Transfer Co., 421 U.S. 397 (1975).
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126

Liability

Fault in a collision case may arise because of (1) negligence or lack of

proper care or skill on the part of the navigators; (2)a violation of the

rules of the road (i.e., the applicable rules of navigation laid down by

or under the authority of statute or regulation); (3)failure to comply

with local navigational customs or usage; or (4)an unseaworthy condition or malfunction of equipment. Liability is imposed where the

negligence of the navigator of a vessel is found to have caused a collision. The test is whether the collision could have been avoided by the

exercise of ordinary care, caution, and maritime skill.643 Collision

cases tend to be fact-specific, and the circumstances of each case will

be controlling.

Also, a vessel may be held at fault for violation of a local navigational custom.644 A party seeking to rely on a custom to establish fault

has the burden of establishing that such custom, in fact, exists. Custom may be relied on only if it does not conflict with statutory rules of

navigation.645

Causation

No liability will be imposed even where negligent navigation is shown

unless it is proved that the negligence was the proximate cause of the

collision. A proximate cause must, however, be a substantial factor in

bringing about the collision. There may be more than one proximate

cause to a collision. Before the adoption of the “proportionate fault”

rule that allocates the aggregate loss according to the degree of fault of

the parties,646 a series of “causation” rules had been created to ameliorate the unfairness of the “divided damages” rule that apportions the

loss equally among tortfeasors regardless of the degree of fault. Most

courts have held that some of these special collision-causation rules

were abrogated by the Supreme Court when it overruled the divided

643. The Jumna, 149 F. 171, 173 (2d Cir. 1906).

644. Valley Towing Serv., Inc. v. S.S. Am. Wheat, Freighters, Inc., 618 F.2d 341

(5th Cir. 1980).

645. Zim Israel Navigation Co. v. Special Carriers Inc., 611 F. Supp. 581 (E.D.

La. 1985).

646. Reliable Transfer Co., 421 U.S. 397.
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127

damages rule and adopted the proportionate fault rule.647 However,

the basic rules of proximate cause still apply, including the rule of superseding cause, whereby under appropriate circumstances a subsequent negligent act may supersede prior fault and relieve from any

liability the party initially at fault.648

Presumptions

There are a number of presumptions that may arise under U.S. collision law.649 The most important presumption is the Pennsylvania

Rule,650 which comes into play when a vessel violates a safety standard

established by statute or regulation. Under the Pennsylvania Rule, a

vessel that violates a statute or regulation must show “not merely that

her fault might not have been one of the causes, or that it probably

was not, but that it could not have been”651 the cause of the collision.

Therefore, a vessel that violates a safety statute has the burden of

proving that its violation of the statute could not have caused the accident. Where two colliding vessels have both violated a safety statute,

the presumption of causation will be applied to both vessels.

Although the Pennsylvania Rule was formulated in a collision

case, it is now accepted as a general rule applicable in maritime tort

cases.652 Often the Pennsylvania Rule is invoked together with the tort

doctrine of negligence per se. This is a basic tort doctrine that permits

fault to be presumed against a party whose conduct violated a governmentally established norm of behavior. A party seeking to rely on

the doctrine of negligence per se must show that a statute or regula647. Getty Oil Co. (E. Operations), Inc. v. S.S. Ponce de Leon, 555 F.2d 328 (2d

Cir. 1977) (major-minor rule abrogated); Self v. Great Lakes Dredge & Dock Co., 832

F.2d 1540 (11th Cir. 1987) (active-passive rule abrogated but the Pennsylvania rule

still applies), cert. denied, 486 U.S. 1033 (1988).

648. Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830 (1996).

649. These presumptions are in direct conflict with Article 6 of the 1910 Brussels

Collision Convention that abolished all presumptions of fault in collision cases.

650. The Pennsylvania, 86 U.S. (19 Wall.) 125 (1873).

651. Id. at 136.

652. Candies Towing Co. v. M/V B & C Eserman, 673 F.2d 91 (5th Cir. 1982)

(sinking of barge); Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540 (11th Cir.

1987) (personal injury and death), cert. denied, 486 U.S. 1033 (1988).
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128

tion established a safety standard intended to protect that party and

that the conduct of the other party fell below that standard, thereby

causing injury or loss. The tandem of presumptions, negligence per se

and the Pennsylvania Rule, imposes on the alleged tortfeasor the dual

burden of disproving both fault and causation.

Another important presumption is that when a moving vessel

strikes a nonmoving vessel or stationary object, the moving vessel is at

fault.653 This presumption may be rebutted by showing, for example,

that the stationary object was a hazard to navigation.654

Damages

The measure of damages in a collision or allision case depends on

whether the vessel is deemed a total loss or a partial loss capable of

being repaired. In a total loss, the damages include the market value of

the vessel at the time of the loss plus pending freight and pollution

cleanup, wreck removal, and other incidental costs proximately resulting from the casualty.655 Loss of earnings and detention are not

recoverable.656

In a partial loss capable of being repaired, damages include the

cost of repairs (or diminution in value if no repairs are made), the loss

of earnings for the period the vessel is out of service, and incidental

costs such as wharfage, pilotage, and salvage.657 Repairs for damage

that was not caused by the collision will not be included in a damage

recovery.658 In order to recover lost earnings, the vessel owner must

prove the loss.659 A vessel owner may prove lost earnings by showing

that because of the damage to the vessel the owner has been unable to

653. The Oregon, 158 U.S. 186 (1895).

654. Bunge Corp. v. M/V Furness Bridge, 558 F.2d 790 (5th Cir. 1977), cert.

denied, 435 U.S. 924 (1978).

655. The Umbria, 166 U.S. 404 (1897).

656. Id.

657. Skou v. United States, 478 F.2d 343 (5th Cir. 1973).

658. Bouchard Transp. Co. v. The Tug Ocean Prince, 691 F.2d 609 (2d Cir.

1982).

659. Delta S.S. Lines, Inc. v. Avondale Shipyards, Inc., 747 F.2d 995 (5th Cir.

1984).
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129

fulfill contractual commitments and has lost charter hire or freight.660

When a vessel is not under charter, the vessel owner may prove lost

earnings during the period the vessel was unusable by showing earnings prior to the accident and after the repairs were made.661

The principle of Robins Dry Dock & Repair Co. v. Flint662 limits a

negligent tortfeasor’s liability for damages caused by a collision or allision. In Robins Dry Dock, the Supreme Court held that a negligent

tortfeasor who damages a vessel cannot be held liable for economic

losses suffered by the vessel’s time charterer because the vessel owner

was unable to fulfill its contractual commitments under the charter.663

The principle has been interpreted more broadly to mean that recovery for economic losses cannot be had from a tortfeasor whose negligence damaged property unless the plaintiff had a proprietary interest

in the property.664 This is a rule of general maritime law and applies in

all maritime tort cases.

In Robins Dry Dock, the charter party had an “off hire” clause, and

thus the charterer was not obligated to pay charter hire during the

period it was unable to use the vessel. Nevertheless the Court held that

the vessel owner, who obviously had a proprietary interest in the vessel, was entitled to recover for not only the physical damage to the

vessel but also its lost hire. However, some courts have held that

where a vessel is time chartered and the charter hire is not suspended

while the vessel is out of service, the charterer may recover damages

from the negligent tortfeasor in the amount of the charter hire paid.665

In these situations, the charterer steps into the shoes of the owner who

would have been able to recover in the absence of the clause obligating the charterer to continue paying hire.

660. Moore-McCormack Lines v. The Esso Camden, 244 F.2d 198 (2d Cir.), cert.

denied, 355 U.S. 822 (1957).

661. Id.

662. 275 U.S. 303 (1927).

663. Id.

664. State of La. ex rel. Guste v. M/V Testbank, 752 F.2d 1019 (5th Cir. 1985),

cert. denied, 477 U.S. 903 (1986). But see Sekco Energy Inc. v. M/V Margaret Chouest,

820 F. Supp. 1008 (E.D. La. 1993).

665. Venore Transp. Co. v. M/V Struma, 583 F.2d 708 (4th Cir. 1978).
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130

In State of Louisiana ex rel. Guste v. M/V Testbank,

666 where a hazardous substance spilled into the water as a result of a collision, various plaintiffs who were not directly involved in the collision and sustained no physical damage to their property were denied recovery for

their economic losses. The plaintiffs included operators of marinas

and boat rentals, marine suppliers, tackle and bait shops, wholesale

and retail seafood enterprises, seafood restaurants, cargo terminal operators, recreational fishermen, and vessel owners whose vessels were

trapped when the Coast Guard closed the waterway. There was some

suggestion that losses suffered by commercial fishermen may be an

exception to the rule requiring physical damage as a prerequisite to

recover for economic loss in an unintentional maritime tort.667

In United States v. Reliable Transfer Co.,

668 the Supreme Court

abandoned its longstanding “divided damages” rule, which provided

in collision cases that damages would be divided equally between two

or more tortfeasors regardless of the degree of fault of the respective

tortfeasors. The Court adopted a comparative fault rule in its place,

holding the following:

When two or more parties have contributed by their fault to cause

property damage in a maritime collision or stranding, liability for

such damage is to be allocated among the parties proportionately

to the comparative degree of their fault, and that liability for such

damages is to be allocated equally only when the parties are equally

at fault or when it is not possible fairly to measure the comparative

degree of their fault.669

If a vessel sinks in navigable waters of the United States through

collision or otherwise, the owner of the vessel has a statutory duty to

mark and remove the wreck as soon as possible.670 If a vessel collides

with an unmarked sunken vessel, the owner of the sunken vessel will

be liable for damages caused by the collision if the owner is found to

have been negligent.671 Further, a nonowner may be held liable for

666. 752 F.2d 1019 (5th Cir. 1985), cert. denied, 477 U.S. 903 (1986).

667. Id. at 1021.

668. 421 U.S. 397 (1975).

669. Id. at 411.

670. The Wreck Act, 33 U.S.C. §§409, 411 (2000).

671. Ison v. Roof, 698 F.2d 294 (6th Cir.), cert. denied, 461 U.S. 957 (1983).
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131

contribution where the nonowner was at fault in causing a vessel to

sink and a collision involving the wreck subsequently occurs.672 Finally, the Supreme Court has held that a negligent nonowner who

caused a vessel to sink may be liable for the costs of removal or may

be required to remove the vessel.673

Where damages are sustained by cargo interests in a maritime

accident in which both vessels are to blame, COGSA or the Harter Act

may prevent cargo owners from recovering damages directly from the

carrying vessel or may limit the amount of recovery to $500 per package or customary freight unit.674 However, cargo interests are able to

recover full damages from the noncarrying vessel.675 COGSA defenses

and COGSA limitation of liability are not available to the noncarrying

vessel.

In computing the amount of its damages, the noncarrying vessel

will include the full amount of damages paid to cargo interests in their

damages calculation. The noncarrying vessel may then recover the

amount of the cargo damage in proportion to the carrying vessel’s

fault. A vessel owner may not force a cargo interest to forfeit part of

its recovery from the noncarrying vessel by use of a “both to blame”

clause because, in these circumstances, such clauses are unenforceable.676 The rule that permits cargo to obtain full recovery has survived

the Reliable Transfer case.677

Pilots

A vessel owner whose vessel is involved in a collision while under

control of a voluntary pilot is liable in personam if the collision was

caused by the negligence of the pilot but not if the pilot is a compul672. Nunley v. M/V Dauntless Colocotronis, 727 F.2d 455 (5th Cir.), cert. denied,

469 U.S. 832 (1984).

673. Wyandotte Transp. Co. v. United States, 389 U.S. 191 (1967).

674. Section 3 of the Harter Act, 46 U.S.C. app. §192 (2000); The Carriage of

Goods by Sea Act, 46 U.S.C. app. §1304 (2000).

675. United States v. Atl. Mut. Ins. Co., 343 U.S. 236 (1952).

676. Id.

677. Allied Chem. Corp. v. Hess Tankship Co. of Del., 661 F.2d 1044 (5th Cir.

1981).
Admiralty and Maritime Law

132

sory pilot.678 Nevertheless, in the latter situation, the vessel would be

liable in rem. If the collision were caused both by the pilot’s negligence

and crew negligence, the owner would be liable in personam. In any

event, the vessel at fault is liable in rem. Liability of vessel owners for

the negligence of pilots is discussed infra Chapter 7.

Place of Suit and Choice of Law

The general rule is that a forum will apply its own collision law to collisions that occur in its waters.679 Thus, U.S. courts will apply U.S. law

to collisions that occur in U.S. waters.680 If suit were brought in the

United States based on a collision that occurred in the territorial waters of a foreign country, then the U.S. court would apply the law of

the country where the collision occurred.681 As to collisions on the

high seas, U.S. courts will apply U.S. collision law.682 There appears to

be an exception to the latter rule where both vessels involved in the

collision are under the same flag. In such cases, a U.S. court should

apply the law of the flag.683 Also, it appears that even where vessels are

not under the same flag, if their respective flag states have adopted the

same collision liability regime, such as the 1910 Brussels Collision

Convention, then the forum should apply the law of that common

regime.684

678. Compulsory and voluntary pilotage are explained infra text accompanying

notes 799 & 800.

679. The Mandu, 102 F.2d 459 (2d Cir. 1939).

680. The Scotland, 105 U.S. (15 Otto) 24 (1881).

681. The Mandu, 102 F.2d 459.

682. The Scotland, 105 U.S. (15 Otto) 24.

683. Id.

684. The Mandu, 102 F.2d 459.
133

chapter 5

Limitation of Liability

Introduction

In the United States, a shipowner’s right to limit its liability is governed by the Limitation of Vessel Owner’s Liability Act of 1851.685 The

Limitation Act permits a shipowner to limit its liability following

maritime casualties to the value of the owner’s interest in its vessel

and pending freight, provided that the accident occurred without the

privity or knowledge of the owner.686 However, the owner of a seagoing vessel involved in a marine casualty that results in the loss of life

or personal injuries may be required to set up an additional fund if

the value of the vessel and pending freight is insufficient to pay such

losses in full.687 The United States has failed to adopt either of the international conventions relating to limitation of liability that apply in

many other countries.688

Practice and Procedure

The Limitation Act and Rule F of the Supplemental Rules of Civil

Procedure specify the procedures for limitation proceedings. To initiate a limitation proceeding, a shipowner must file a complaint within

six months of its receipt of a claim in writing.689 It is not the date of

the casualty that is controlling, but the date the shipowner receives

notice of a claim. The complaint may seek “exoneration” as well as

limitation of liability—that is, the owner may plead that it is not liable

at all, and in the alternative that if it is liable it is entitled to limit its

685. 46 U.S.C. app. §§181–189 (2000).

686. Id. §183(a).

687. Id. §183(b).

688. International Convention Relating to the Limitation of Liability of Owners

of Seagoing Ships (1957) and International Convention on Limitation of Liability for

Maritime Claims (1976).

689. 46 U.S.C. app. §185 (2000); Fed. R. Civ. P. Supp. R. F(1).
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134

liability as provided in the Limitation Act.690 A complaint seeking

limitation may only be filed in a federal district court.

Upon filing a complaint for limitation, the owner of the vessel

must “deposit with the court, for the benefit of claimants, a sum equal

to the amount or value of the owner’s interest in the vessel and pending freight.”691 Alternatively, the owner may transfer its interest in the

vessel and pending freight to a trustee. If the owner chooses to transfer its interest in the vessel to a trustee, the owner must include in its

complaint any prior paramount liens and any existing liens that arose

upon any voyages subsequent to the marine casualty.692 The owner

must also provide security for costs.693 There is no requirement either

in the statute or Rule F that these other liens be satisfied by the owner

as a precondition to its right to limitation. The lien claimants may

seek to intervene and file their claims in the limitation proceeding.

Any claimant to the fund may file a motion to have the fund that has

been deposited with the court increased on the ground either that it is

less than the value of the owner’s interest in the vessel and pending

freight or that the fund is insufficient to meet all of the claims against

the owner in respect to loss of life or bodily injury.694 Upon filing such

a motion, the burden of proof is on the movant.

Once the owner of the vessel complies with the requirements of

Rule F(1), the court “shall” enjoin all claims and proceedings against

the owner of the vessel or its property with respect to the matter in

question.695 The court must then give notice to all parties asserting

claims with respect to the incident for which the owner of the vessel

has sought limitation, advising the parties to file their claims in the

limitation proceeding. The owner of the vessel is also required to mail

a copy of the notice to all persons known to have made claims against

690. Fed. R. Civ. P. Supp. R. F(2).

691. Id. Supp. R. F(1).

692. Id. Supp. R. F(2).

693. Id. Supp. R. F(1). If the owner of the vessel chooses to post security, it must

include interest at the rate of 6% a year from the date the security is posted. Id.

694. Id. Supp. R. F(7).

695. Id. Supp. R. F(3).
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135

the owner or its vessel regarding the incident for which limitation is

sought.696

Rule F, therefore, results in a single proceeding, referred to as a

“concursus” of claims, in which all suits arising out of the marine

casualty must be litigated. There are two situations, however, in which

a claimant will be allowed to maintain its claim outside of the limitation of liability proceeding. First, when the owner of the vessel has

deposited with the court an amount in excess of all claims, a concursus is not necessary because there is no possibility that the owner

could be held liable in an amount in excess of the limitation amount.

In such circumstances, claimants must be allowed to pursue their actions in the forum of their choice.697 The second exception to the concursus originally applied to situations where there was but a single

claimant who stipulated that (1)the admiralty court had exclusive

jurisdiction to adjudicate the limitation of liability issues and (2)the

claimant would not seek to enforce a damage award in excess of the

limitation fund established by the federal court.698 Some courts have

extended this exception to include cases involving multiple claimants

who protect the shipowner’s right to limited liability with similar

stipulations.699 The Supreme Court has reaffirmed these exceptions

and stated that the right of a claimant to sue in a state court cannot be

undermined by a shipowner’s filing a federal limitation proceeding if

the shipowner’s protection under the Limitation Act is not in jeopardy.700 Furthermore, the fact that a shipowner is permitted to plead

exoneration in a limitation proceeding does not mean that it has the

right to compel the adjudication of that issue in a federal court.701

When a vessel owner files a limitation petition, the supposition is

that the limitation fund will be insufficient to pay all claims in full.

Under the Limitation Act, if the owner of the vessel is held liable but

is allowed to limit its liability, the funds deposited with the court, or

696. Id. Supp. R. F(4).

697. Lake Tankers Corp. v. Henn, 354 U.S. 147 (1957).

698. In re Port Arthur Towing Co., 42 F.3d 312 (5th Cir.), cert. denied, 516 U.S.

823 (1995).

699. In re Texaco, Inc., 847 F. Supp. 457 (E.D. La. 1994).

700. Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438 (2001).

701. Id.
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136

the proceeds from the sale of the vessel and the amount of pending

freight, are distributed by the court on a pro rata basis among the

claimants in proportion to the amounts of their respective claims. The

distribution is subject to all relevant provisions of law, such as the

rules relating to priority of claims.702 Priorities among claimants are

discussed infra Chapter 9.

Limitation of liability petitions may not be filed in state courts.

Some courts have held that a shipowner sued in a federal or state

court may plead its right to limitation of liability as a defense to the

claim.703

The Limitation Fund

The limitation fund is generally equal to the amount of the owner’s

interest in the vessel and pending freight.704 The value of the vessel is

determined at the termination of the voyage or marine casualty.705 If a

vessel is a total loss, then its value is zero. Insurance proceeds received

by a vessel owner as a result of the marine casualty, such as where a

vessel is a total loss, are not included in the limitation fund.706 “Pending freight” refers to the owner’s total earnings for the voyage.707 It

includes both prepaid earnings, which by contract are not to be returned to shippers should the voyage not be completed, and uncollected earnings.708 A question may arise as to what constitutes a voyage.709 Depending on the circumstances, a round-trip voyage may be

the equivalent of a single adventure (which requires earned freight to

be surrendered for the entire round-trip), or it may be broken into

702. Fed. R. Civ. P. Supp. R. F(8) (1992).

703. Mapco Petroleum, Inc. v. Memphis Barge Line, Inc., 849 S.W.2d 312

(Tenn.), cert. denied, 510 U.S. 815 (1993).

704. 46 U.S.C. app. §183(a) (2000).

705. Norwich & N.Y. Transp. Co. v. Wright, 80 U.S. (13 Wall.) 104 (1871).

706. Place v. Norwich & N.Y. Transp. Co., 118 U.S. 468 (1886).

707. The Main v. Williams, 152 U.S. 122 (1894).

708. Id. at 132; 3 Benedict on Admiralty §65 (7th rev. ed. 1983).

709. In re Caribbean Sea Transp., Ltd., 748 F.2d 622 (1984), amended, 753 F.2d

948 (11th Cir. 1985).
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distinct units (with freight considered pending for the particular leg of

the voyage in which the marine casualty occurred).710

If there are personal injuries or death associated with the marine

casualty, and the limitation fund is not adequate to cover such losses

in full, then the shipowner must increase that portion of the limitation fund allocable to personal injury and death claims up to a maximum of $420 per ton of the vessel’s tonnage.711 The limitation fund

needs to be increased only in instances where the owner of a “seagoing

vessel” seeks limitation.712 The term “seagoing vessel” is defined in the

statute, and excludes, among other vessels, pleasure yachts, tugs, and

towboats.713

The computation of the limitation fund may be complicated

when a marine casualty involves two or more vessels in a tug and tow

situation. In a “pure tort”714 situation, only the vessel actively at fault

is valued or surrendered for purposes of the limitation fund.715 In

contrast, under the “flotilla rule,”716 where a contractual relationship

exists between the vessel owner and the party seeking damages, both

the active vessel and the vessels in tow must be included in the computation of the fund.717 The continued vitality of the distinction between a “pure tort” situation and a contractual relationship situation

is questionable.718 As a result, some courts have limited the application of the flotilla rule to those situations where all the vessels belong

710. Id. at 626–27.

711. 46 U.S.C. app. §183(b) (2000).

712. Id.

713. Id. §183(f).

714. Sacramento Navigation Co. v. Salz, 273 U.S. 326 (1927).

715. Liverpool, Brazil & River Plate Steam Navigation Co. v. Brooklyn E. Dist.

Terminal, 251 U.S. 48 (1919). Notwithstanding this decision by the Supreme Court,

several lower courts have required that the limitation fund equal the value of several

vessels engaged in a common project. In re United States Dredging Corp., 264 F.2d

339 (2d Cir. 1959); In re Offshore Specialty Fabricators, Inc., 2002 AMC 2055, No.

CIV.A.01-2227, 2002 WL 827398 (E.D. La. Apr. 30, 2002).

716. Standard Dredging Co. v. Kristiansen, 67 F.2d 548, 550 (2d Cir. 1933), cert.

denied, 290 U.S. 704 (1934).

717. Salz, 273 U.S. 326.

718. Wirth Ltd. v. S.S. Acadia Forest, 537 F.2d 1272 (5th Cir. 1976); Valley Line

Co. v. Ryan, 771 F.2d 366 (8th Cir. 1985).
Admiralty and Maritime Law

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to the same owner and are under common control, as well as engaged

in a common enterprise at the time of the marine casualty.719

Parties and Vessels Entitled to Limit

The owner of any vessel may petition for limitation of liability under

the Limitation of Vessel Owner’s Liability Act. The Act is available to

both American and foreign vessel owners.720 Demise or bareboat

charterers may apply for limitation of liability under the Act as well.721

However, time charterers are not allowed to limit their liability. The

United States may apply for limitation of liability under the Act when

a vessel owned by the government is involved in a marine casualty.722

A shipowner’s insurer is not authorized to limit liability under the

Limitation Act.723 Most states do not allow a direct action by an injured party against the tortfeasor’s liability insurer. Thus, a party who

is precluded from recovering full damages from a vessel owner who

has successfully limited its liability may not proceed directly against

the vessel owner’s insurer to recover its full damages. However, both

Louisiana and Puerto Rico provide a statutory right to proceed directly against the insurer. These “direct action statutes” have survived

constitutional challenges in the Supreme Court.724 Despite the fact

that the insurance carrier is not allowed the same protection as the

vessel owner under the Limitation Act,725 the availability of a direct

action may be small consolation because a marine insurer may indirectly limit its liability by contract. It may do so by including a provision in its insurance policy stating that the insurer is not liable for any

719. Cenac Towing Co. v. Terra Res., Inc., 734 F.2d 251, 254 (5th Cir. 1984).

720. 46 U.S.C. app. §183 (2000).

721. Id. §186.

722. Dick v. United States, 671 F.2d 724 (2d Cir. 1982).

723. Md. Cas. Co. v. Cushing, 347 U.S. 409 (1954).

724. Id.

725. Olympic Towing Corp. v. Nebel Towing Co., 419 F.2d 230 (5th Cir. 1969),

cert. denied, 397 U.S. 989 (1970). Although Olympic has been “overruled” by Crown,

its holding that insurers have no statutory right to limit their liability is still valid.

Crown Zellerbach Corp. v. Ingram Indus., Inc., 783 F.2d 1296 (5th Cir.), cert. denied,

479 U.S. 821 (1986) (en banc).
Chapter 5: Limitation of Liability

139

amount greater than that for which its insured owner could be held

liable under the Limitation Act.726

The Limitation Act applies to “all seagoing vessels” as well as “all

vessels used on lakes or rivers or in inland navigation, including canal

boats, barges, and lighters.”727 Most courts have held that the Act is

applicable to pleasure crafts, including personal watercraft, as well as

commercial vessels.728

Grounds for Denying Limitation: Privity or

Knowledge

Under the Limitation Act, limitation will be denied if the owner had

“privity or knowledge” of the act or condition that caused the marine

casualty.729 In the case of an individual owner, privity or knowledge

refers to the owner’s personal participation in the act or awareness of

the condition that led to the marine casualty.730 Where a corporate

owner seeks to limit its liability under the Limitation Act, limitation

will be denied only if a managing officer or supervisory employee had

knowledge or privity.731 The term “managing officer” generally does

not include the master of the vessel in the corporate context.732 However, where there is a claim for personal injury or death, the master’s

privity or knowledge prior to and at the beginning of the voyage of an

act or condition that resulted in the injury or death will be attributed

to the owner of a “seagoing vessel.”733 Furthermore, the owner of a

vessel will be denied limitation if the court finds that the individual or

corporate owner was negligent in that it failed to provide adequate

726. Crown, 783 F.2d 1296.

727. 46 U.S.C. app. §188 (2000).

728. In re Young, 872 F.2d 176 (6th Cir. 1989); Gibboney v. Wright, 517 F.2d

1054 (5th Cir. 1975); In re Guglielmo, 897 F.2d 58 (2d Cir. 1990); In re Hechinger,

890 F.2d 202 (9th Cir. 1989).

729. 46 U.S.C. app. § 183(a) (2000).

730. Coryell v. Phipps, 317 U.S. 406 (1943).

731. Great Lakes Dredge & Dock Co. v. City of Chicago, 3 F.3d 225 (7th Cir.

1993), cert. granted, 510 U.S. 1108 (1994), aff’d, 513 U.S. 527 (1995).

732. Waterman S.S. Corp. v. Gay Cottons, 414 F.2d 724 (9th Cir. 1969).

733. 46 U.S.C. app. §183(e) (2000).
Admiralty and Maritime Law

140

procedures to ensure the maintenance of equipment,734 failed to provide the vessel with a competent master or crew,735 or failed to use

reasonable diligence to discover the act or condition that caused the

marine casualty.736 Finally, the owner of a pleasure craft will be denied

limitation of liability for negligently entrusting its vessel to a person

who subsequently causes a marine casualty.737

Claims Subject to Limitation

The Limitation Act allows the owner of a vessel to limit its liability

“for any embezzlement, loss, or destruction . . . of any property,

goods, or merchandise . . . or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture, done,

occasioned or incurred.”738 A shipowner may also limit liability for

debts.739 However, a vessel owner may not limit its liability for wages

owed to its employees740 or for maintenance and cure.741 Further, liability for wreck removal under the Wreck Act742 is not subject to

limitation,743 nor is liability for pollution damages under federal law

subject to limitation under the Limitation Act.744 The various statutes

that deal with pollution have their own superseding limitation of liability provisions.745

734. Waterman, 414 F.2d 724.

735. Coryell v. Phipps, 317 U.S. 406 (1943).

736. China Union Lines, Ltd. v. A.O. Anderson & Co., 364 F.2d 769, 787 (5th

Cir. 1966), cert. denied, 386 U.S. 933 (1967).

737. Joyce v. Joyce, 975 F.2d 379 (7th Cir. 1992).

738. 46 U.S.C. app. §183(a) (2000).

739. Id. §189.

740. Id.

741. Brister v. A.W.I., Inc., 946 F.2d 350 (5th Cir. 1991).

742. 33 U.S.C. §409 (2000).

743. Univ. of Tex. Med. Branch at Galveston v. United States, 557 F.2d 438 (5th

Cir. 1977).

744. Oil Pollution Act of 1990, 33 U.S.C. §2718 (2000).

745. Robert Force & Jonathan M. Gutoff, Limitation of Liability in Oil Pollution

Cases: In Search of Concursus or Procedural Alternatives to Concursus, 22 Tul. Mar. L.J.

331, 338 (1998).
Chapter 5: Limitation of Liability

141

The owner of a vessel may also be denied limitation of liability

under the “personal contract doctrine.”746 This rule exempts from

limitation claims based on the failure to perform contractual obligations that the owner personally undertook to perform.747 For example,

the owner of a vessel who breaches a charter party will be denied

limitation of liability.748 Similarly, contracts made for supplies and

repairs are excluded from limitation of liability.749 However, a vessel

owner will be allowed to limit liability where he or she personally enters into a contract that is breached by the negligence of the vessel’s

master or crew.750

Choice of Law

The Supreme Court held in The Titanic751 that limitation of liability

was a procedural device, and when a foreign shipowner seeks to limit

its liability in a limitation proceeding brought in a U.S. court, U.S. law

determines the amount of the limitation fund. A subsequent Supreme

Court case, The Norwalk Victory,

752 concerned casualties that occurred

not on the high seas but in the territorial waters of a foreign country.

The Court admonished lower federal courts not to assume that all

countries classify their limitation laws as procedural. Therefore, if a

limitation proceeding is filed in federal district court based on a casualty that occurred in the waters of a foreign country, the court should

ascertain whether the law of that country classifies the right to limitation as procedural or substantive. If the court determines that it is

procedural, then U.S. law determines the limitation amount. If a court

determines that it is substantive, then the limitation law of the foreign

country applies. Some lower federal courts apply The Norwalk Victory

746. Richardson v. Harmon, 222 U.S. 96 (1911).

747. The Soerstad, 257 F. 130 (S.D.N.Y. 1919).

748. Cullen Fuel Co. v. W.E. Hedger, Inc., 290 U.S. 82 (1933).

749. Richardson, 222 U.S. 96.

750. Signal Oil & Gas Co. v. The Barge W-701, 654 F.2d 1164 (5th Cir. 1981),

cert. denied, 455 U.S. 944 (1982).

751. Ocean Steam Navigation Co. v. Mellor (The Titanic), 233 U.S. 718 (1914).

752. Black Diamond S.S. Corp. v. Robert Stewart & Sons (The Norwalk Victory),

336 U.S. 386 (1949).
Admiralty and Maritime Law

142

to casualties that occur in the waters of a foreign country753 and The

Titanic to casualties on the high seas.754 The results are far from consistent.755

753. In re Bethlehem Steel Corp., 631 F.2d 441 (6th Cir. 1980), cert. denied, 450

U.S. 921 (1981).

754. In re Ta Chi Navigation (Panama) Corp. S.A., 416 F. Supp. 371 (S.D.N.Y.

1976).

755. Compare In re Bethlehem Steel Corp., 631 F.2d 441 (6th Cir. 1980), cert.

denied, 450 U.S. 921 (1981) (affirming the district court that found the Canadian

limitation statute to be procedural), with In re Geophysical Serv., Inc., 590 F. Supp.

1346 (S.D. Tex. 1984) (holding the Canadian law to be substantive); and compare Ta

Chi Navigation, 416 F. Supp. 371 (holding that U.S. law applied to a casualty on the

high seas involving a Panamanian flag vessel), with In re Chadade S.S. Co. (The Yarmouth Castle), 266 F. Supp. 517 (S.D. Fla. 1967) (holding that Panamanian limitation

law was substantive and applied to a casualty on the high seas).
143

chapter 6

Towage

Towage Contracts

In the United States, there is a distinction between towage contracts

and contracts of affreightment.756 The distinction is important because

different legal liability regimes apply depending on which type of

contract is used. A contract of affreightment essentially is an undertaking by one party to transport cargo from one place to another. A

towage contract involves an undertaking by one party to move another party’s vessel (such as a barge) or structure from one place to

another.757 Where the party performing the transportation function

supplies both the tug and the barge to carry another party’s goods

from one place to another, the contract is one of affreightment.758

Towage contracts are governed by the general maritime law. Under U.S. towage law a tower does not become the bailee of the towed

vessel or its cargo.759 Further, a tower (often a tug boat operator) may

not contract out of liability for its own negligence, but creative lawyering has developed a way of circumventing this rule.760 The formation of towage contracts, either written or oral,761 is subject to the

common law of contracts. A maritime lien will arise against a towed

vessel whose owner does not pay for services rendered under a towage

contract.762

756. Agrico Chem. Co. v. M/V Ben W. Martin, 664 F.2d 85 (5th Cir. 1981).

757. Sacramento Navigation Co. v. Salz, 273 U.S. 326 (1927).

758. Id. Contracts of affreightment are discussed supra Chapter 2.

759. Stevens v. The White City, 285 U.S. 195 (1932).

760. Bisso v. Inland Waterways Corp., 349 U.S. 85 (1955). See also infra text

accompanying notes 789–92.

761. Kossick v. United Fruit Co., 365 U.S. 731 (1961) (upholding oral contracts

under the general maritime law).

762. 46 U.S.C. §31301(4) (2000).
Admiralty and Maritime Law

144

Duties of Tug

If a tug damages its tow, its liability is determined under tort law.763

Towage law imposes duties on the tug beyond any specific undertakings stated in the towage contract. Foremost among these duties is

“the duty to exercise such reasonable care and maritime skill as prudent navigators employ for the performance of similar service.”764

However, there is no presumption of negligence against a tug that receives a tow in good condition and later delivers it in damaged condition.765 On the contrary, the owner of the towed vessel has the burden

of proving that the damage was caused by the breach of the tug’s duty

to exercise reasonable care.766

Federal courts have established other duties, the breach of which

may result in a tug being held liable for negligent damage to a tow or

its cargo.767 A tug owner must provide a seaworthy vessel with a qualified master and crew.768 The tug must have proper lighting and must

obey all navigational rules of the road.769 It must maintain a watch

over the tow during its voyage.770 Finally, the tug has a duty to save the

tow from sinking if possible.771

Although the burden of proof usually lies with the tow to prove

that the tug was negligent, several courts have recognized a narrow

exception.772 The exception, based on the doctrine of res ipsa loquitur,

is applied in certain situations, such as where the tow is unmanned773

or is grounded in a channel that is well marked and reasonably

763. Stevens, 285 U.S. at 195.

764. Id. at 202.

765. Id. at 195.

766. Id.

767. Alex L. Parks & Edward V. Cattell, Jr., The Law of Tug, Tow & Pilotage

127–97 (3d ed. 1994).

768. Id. at 127–33.

769. Id. at 129–33, 144–48.

770. Id. at 144–48.

771. Curtis Bay Towing Co. of Va. v. S. Lighterage Corp., 200 F.2d 33 (4th Cir.

1952); Chemical Transporter, Inc. v. M. Turecamo, Inc., 290 F.2d 496 (2d Cir. 1961).

772. Mid-America Transp. Co. v. Nat’l Marine Serv., Inc., 497 F.2d 776 (8th Cir.

1974), cert. denied, 425 U.S. 937 (1976); The Anaconda, 164 F.2d 224 (4th Cir. 1947).

773. W. Horace Williams Co. v. The Wakulla, 109 F. Supp. 698 (E.D. La. 1953),

aff’d, 213 F.2d 27 (5th Cir. 1954).
Chapter 6: Towage

145

wide.774 Although the tug has a duty of explanation in these circumstances, the ultimate burden of proof remains upon the tow.775

Duties of Tow

A vessel owner that contracts to have its vessel towed has the duty of

providing a seaworthy vessel.776 The tow must be structurally sound

and properly equipped.777 Further, it must be properly manned, if it

has a crew,778 and properly loaded.779 The tug has a duty to visually

inspect the tow before the voyage, but does not have to perform a detailed inspection of the tow to ensure its seaworthiness.780 However, if

the tug knows that the tow is unseaworthy and fails “to use reasonable

care under the circumstances,”781 then the tug may be held liable for

the loss.782 Generally, there is a presumption of unseaworthiness

against a tow that sinks in calm water for no apparent reason.783 To

overcome the presumption, the tow must prove that the loss resulted

from the tug’s negligence.784

774. The Anaconda, 164 F.2d at 224.

775. Id.; Mid-America Transp. Co., 497 F.2d 776.

776. Derby Co. v. A. L. Mechling Barge Lines, Inc., 258 F. Supp. 206 (E.D. La.

1966), aff’d, 399 F.2d 304 (5th Cir. 1968).

777. Id.

778. Great Lakes Towing Co. v. Am. S.S. Co., 165 F.2d 368 (6th Cir.), cert. denied, 333 U.S. 881 (1948).

779. Salter Marine, Inc. v. Conti Carriers & Terminals, Inc., 677 F.2d 388 (4th

Cir. 1982).

780. Nat G. Harrison Overseas Corp. v. Am. Tug Titan, 516 F.2d 89, modified,

520 F.2d 1104 (5th Cir. 1975).

781. King Fisher Marine Serv., Inc. v. NP Sunbonnet, 724 F.2d 1181, 1184 (5th

Cir. 1984).

782. Id.

783. Parks & Cattell, supra note 767, at 202–04.

784. Consolidated Grain & Barge Co. v. Marcona Conveyor Corp., 716 F.2d

1077 (5th Cir. 1983); Derby Co. v. A. L. Mechling Barge Lines, Inc., 258 F. Supp. 206

(E.D. La. 1966), aff’d, 399 F.2d 304 (5th Cir. 1968).
Admiralty and Maritime Law

146

Liability of the Tug and the Tow to Third

Parties

Where a third party seeks recovery against either the tug, tow, or both

for loss of cargo, personal injury, or damage to other vessels, each

vessel will be held liable for damages in proportion to its individual

degree of fault.785 If damage is caused by a towed vessel, the courts will

apply the theory of “the dominant mind” to shift liability for the

damage from the tow to the tug, which was actually in control of the

tow.786 However, that theory may be overcome if the tug can present

evidence that the damage was in fact the fault of the tow.787 The negligence of the tug cannot be attributed to the tow under a towage contract between a separately owned tug and tow. Therefore, an innocent

tow cannot be held liable for damages caused by the tug.788

Exculpatory and Benefit-of-Insurance Clauses

A towage contract cannot include an exculpatory clause that purports

to relieve a tug from liability for its own negligence.789 Similarly, a

towage contract that includes a clause that attempts to allow the tug to

escape liability for the negligence of its crew by designating the tug’s

crew as servants of the tow does not create any rights in third parties

against the tow.790 Finally, a towage contract is prohibited from including a clause that requires a tow to indemnify the tug for damage

claims brought by third parties resulting from the tug’s negligence.791

However, the Supreme Court upheld the use of a foreign forum selec785. United States v. Reliable Transfer Co., 421 U.S. 397 (1975).

786. Dow Chem. Co. v. Tug Thomas Allen, 349 F. Supp. 1354 (E.D. La. 1972).

787. Chevron U.S.A., Inc. v. Progress Marine, Inc., 1980 AMC 1637 (E.D. La.

1979), aff’d, 632 F.2d 893 (5th Cir. 1980).

788. The Hector, 65 U.S. (24 How.) 110 (1860).

789. Bisso v. Inland Waterways Corp., 349 U.S. 85 (1955).

790. Boston Metals Co. v. The Winding Gulf, 349 U.S. 122 (1955).

791. Dixilyn Drilling Corp. v. Crescent Towing & Salvage Co., 372 U.S. 697

(1963).
Chapter 6: Towage

147

tion clause in a towage contract despite the fact that the selected forum enforced exculpatory provisions.792

Recognizing the economic inefficiency of requiring both the tug

and tow to procure separate insurance to protect against loss, several

courts of appeals approve the use of “benefit-of-insurance” clauses.793

A typical benefit-of-insurance clause requires that the tow procure

insurance to cover any damage that may result to the tow or the tow’s

cargo.794 Further, the clause will require that this insurance policy

name the tug as an additional insured with a waiver of subrogation.795

The tug undertakes to procure insurance for its vessel with comparable provisions. The courts that have upheld these clauses concluded

that benefit-of-insurance clauses are not the type of exculpatory

clauses that were disapproved by the Supreme Court.796

792. The M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972) (involving

international towage operation where contract was competitively negotiated).

793. Fluor W., Inc. v. G & H Offshore Towing Co., 447 F.2d 35 (5th Cir. 1971),

cert. denied, 405 U.S. 922 (1972); Twenty Grand Offshore, Inc. v. W. India Carriers,

Inc., 492 F.2d 679 (5th Cir.), cert. denied, 419 U.S. 836 (1974); Charles S. Donovan,

Exculpatory and Benefit of Insurance Clauses in Towage and Pilotage, 70 Tul. L. Rev.

605–06 (1995).

794. Fluor, 447 F.2d 35; Twenty Grand, 492 F.2d 679.

795. Fluor, 447 F.2d 35; Twenty Grand, 492 F.2d 679.

796. Fluor, 447 F.2d 35; Twenty Grand, 492 F.2d 679.

149

chapter 7

Pilotage

Introduction

The term “pilot” may be broadly used to describe any person directing the navigation of a vessel.797 However, under U.S. maritime law,

the term is generally used to describe a person who is taken on board

in order to navigate a vessel through a particular river, road, or channel, or into or out of a port.798 A pilot is characterized as a “compulsory” pilot if there is a statutory mandate requiring the use of a pilot

in a particular situation that imposes a criminal sanction on a vessel

owner and any other person who violates the requirement.799 If an

owner is not subject to criminal sanctions, but elects to engage the

services of a pilot, the pilot is considered to be a “voluntary” pilot.800

Even where an owner has an option of not utilizing the services of a

pilot but is nevertheless obligated to pay full or partial pilotage fees,

the situation is one of voluntary pilotage.

A compulsory pilot is not an agent or servant of the vessel owner;

hence the owner of a vessel cannot be held liable in personam for

damages caused by a compulsory pilot. However, as stated in Chapter

4 on collision, the vessel may still be held liable in rem.

801 A voluntary

pilot is considered to be an employee of the vessel owner and, under

the rule of respondeat superior, the pilot’s conduct—including negligent acts—is attributed to the owner. In these circumstances, a vessel

owner may be held liable in personam for damages caused by the neg797. Parks & Cattell, supra note 767, at 992.

798. Francis Rose, The Modern Law of Pilotage 1 (1984).

799. Parks & Cattell, supra note 767, at 1018–19; The China, 74 U.S. (7 Wall.) 53

(1868).

800. Parks & Cattell, supra note 767, at 1019.

801. The China, 74 U.S. (7 Wall.) 53.
Admiralty and Maritime Law

150

ligence of a voluntary pilot, and the vessel may also be held liable in

rem.

802

Regulation of Pilots

Pilotage is regulated at both the state and federal levels. Under federal

law, the U.S. Coast Guard is responsible for the regulation of pilots.803

Federal law requires that all seagoing vessels engaged in coastwise

trade be navigated by a pilot who has been licensed by the U.S. Coast

Guard.804 Only U.S. licensed vessels may engage in domestic or coastwise trade.805 Therefore, there is no requirement that foreign vessels

engaged in trade between U.S. ports and foreign ports be navigated by

federally licensed pilots. Also, U.S. registered vessels engaged in foreign trade do not need to be piloted by a federally licensed pilot.806

Federally regulated vessels engaged in coastwise trade are not required

to use state-licensed pilots.807

Federal law grants the states the right to regulate the pilotage of

registered vessels engaged in foreign trade as well as “pilots in the

bays, rivers, harbors, and ports of the United States.”808 Therefore,

under the statute, states may regulate the pilotage of foreign vessels as

well as vessels sailing under U.S. registry.809 However, there is an exception with regard to the pilotage of foreign and U.S. registered vessels navigating the Great Lakes. Vessels navigating the Great Lakes

must be piloted by a federally licensed pilot.810 Wide latitude is given

802. Homer Ramsdell Transp. Co. v. La Compagnie Generale Transatlantique,

182 U.S. 406 (1901).

803. 46 U.S.C. §8502 (2000).

804. Id. §8502(a) (providing that federal regulation of pilots also extends to

vessels navigating on the Great Lakes).

805. 46 U.S.C. app. §883 (2000) (noting that vessels engaged in coastwise trade

are known as “enrolled vessels”).

806. 46 U.S.C. §8502(a) (2000).

807. Id. §8501(d).

808. Id. §8501(a); Cooley v. Bd. of Wardens of Port of Phila., 53 U.S. (12 How.)

299 (1851).

809. 46 U.S.C. § 8501(a) (2000). See also Ray v. Atl. Richfield Co., 435 U.S. 151

(1978).

810. 46 U.S.C. §9304 (2000).
Chapter 7: Pilotage

151

to the states in determining the waters in which a vessel must procure

a state-licensed pilot.811

Liability of Pilots and Pilot Associations

In the United States, pilots are held to a high standard of care. A pilot

must have “personal knowledge of the topography through which he

navigates his vessel.”812 Further, pilots must be aware of all possible

dangers located in the body of water that they navigate and must remain informed of any changes that might represent a hazard to the

vessel.813 Compulsory pilots are held to an exceptionally high standard

of care and, as a matter of law, may be charged with knowledge of a

local condition.814 Pilots may be held liable to the vessels they control815 and to third parties for damages caused by the pilot’s negligence.816

A pilot may belong to a pilots’ association. Pilots’ associations

often do not actually employ pilots, but rather represent pilots and

inform them of employment opportunities. These associations often

perform administrative services for the pilots. A pilots’ association

that is merely a representative of its members and does not employ

pilots or control the manner in which pilots perform their duties cannot be held liable for damages caused by a negligent member pilot.817

On the other hand, a pilots’ association, pilot company, or port

authority that employs pilots may be held liable for damages caused

by one of its pilots.818 However, a port commission or authority that

811. Warner v. Dunlap, 532 F.2d 767 (1st Cir. 1976); see also Wilson v.

McNamee, 102 U.S. (12 Otto) 572 (1880) (upholding state pilotage regulation requiring use of a state-licensed pilot about 50 miles from port).

812. Atlee v. Union Packet Co., 88 U.S. (21 Wall.) 389, 396 (1874).

813. Id.

814. Bunge Corp. v. M/V Furness Bridge, 558 F.2d 790 (5th Cir. 1977), cert.

denied, 435 U.S. 924 (1978).

815. Bethlehem Steel Corp. v. Yates, 438 F.2d 798 (5th Cir. 1971).

816. Gulf Towing Co. v. Steam Tanker, Amoco, N.Y., 648 F.2d 242 (5th Cir.

1981).

817. Guy v. Donald, 203 U.S. 399 (1906).

818. City of Long Beach v. Am. President Lines, Ltd., 223 F.2d 853 (9th Cir.

1955).
Admiralty and Maritime Law

152

regulates or licenses pilots but does not employ them cannot be held

liable for damages caused by a pilot.819

Exculpatory Pilotage Clauses

As a matter of common practice, an exculpatory pilotage clause is inserted into pilotage contracts between a pilot’s employer and a

shipowner, allowing the pilot and the pilot’s employer to escape liability for damages caused by the pilot. These clauses, in essence, provide that the pilot, while navigating the vessel, is the employee of the

vessel owner. The effect of a pilotage clause is to make the vessel liable

for damages caused by the pilot. The Supreme Court has upheld the

use of exculpatory pilotage clauses.820 It has distinguished its decision

invalidating exculpatory clauses in towage contracts on the ground

that in pilotage situations the pilot is actually controlling the movement of the vessel by using the vessel’s own power and navigational

equipment. However, a pilotage clause may be held invalid in certain

compulsory pilot situations.821 Further, a company that supplies a pilot to a vessel may not use a pilotage clause offensively in order to

collect damages for injuries caused to its own property by one of its

pilots acting under a pilotage contract.822

819. Kitanihon-Oi S.S. Co. v. Gen. Constr. Co., 678 F.2d 109 (9th Cir. 1982).

820. Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291 (1982).

821. Kane v. Hawaiian Indep. Refinery, Inc., 690 F.2d 722 (9th Cir. 1982); Texaco Trinidad, Inc. v. Afran Transp. Co., 538 F. Supp. 1038 (E.D. Pa. 1982), aff’d, 707

F.2d 1395 (3d Cir. 1983).

822. United States v. Nielson, 349 U.S. 129 (1955).
153

chapter 8

Salvage

Introduction

The United States is a party to both the 1910 Brussels Salvage Convention823 and the 1989 Salvage Convention.824 However, U.S. courts

usually decide salvage controversies under the principles of the general maritime law without reference to international conventions.825

Important innovations were introduced in the 1989 Convention, especially in regard to salvage efforts that protect against environmental

damage.826 Federal courts have exclusive jurisdiction over salvage cases

that are brought in rem. It is not clear whether state courts may entertain a salvage claim brought in personam, but such cases are rare.

Suit for a salvage award may be brought against either the owner of

the vessel salvaged or the vessel itself in rem.

827 The statute of limitations for filing a salvage award claim is two years.828 A claim for salvage is a claim either for “pure salvage” or “contract salvage.”

823. International Convention for the Unification of Certain Rules Relating to

the Salvage of Vessels at Sea, signed at Brussels, Sept. 23, 1910; codified with minor

modifications in the United States as the Salvage Act, 46 U.S.C. app. §§727–731

(2000).

824. International Convention on Salvage, signed in London, Apr. 28, 1989.

825. Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty 534 (2d ed.

1975). See, e.g., Sobonis v. Steam Tanker Nat’l Defender, 298 F. Supp. 631 (S.D.N.Y.

1969) (allowing salvage awards without reference to the Salvage Treaty).

826. International Convention on Salvage 1989, Article 14, and Attachment 1,

Common Understanding Concerning Articles 13 and 14 of the International Convention on Salvage, 1989.

827. The Sabine, 101 U.S. (11 Otto) 384 (1879) (a lien arises against a salvaged

vessel in favor of the salvor of the vessel). Where salvage services are rendered without

request by the owner or someone acting on authority of the owner, the salvor may be

limited to its lien as the sole remedy. See, e.g., Jupiter Wreck, Inc. v. Unidentified,

Wrecked & Abandoned Sailing Vessel, 691 F. Supp. 1377 (S.D. Fla. 1988).

828. 46 U.S.C. app. §730 (2000).
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The Supreme Court has stated that “no structure that is not a ship

or vessel is a subject of salvage.”829 Nevertheless, it is apparent that

cargo, fuel, and other property salvaged from or with a vessel may also

give rise to a salvage award.830 In order for a court to make a salvage

award, there should be a nexus between the item salvaged and traditional maritime activities.831 Lower federal courts, however, have liberally interpreted the Court’s statement in determining whether the

property has a maritime connection. Accordingly, some courts have

found such items as seaplanes832 and money found on a floating human body833 to be proper subjects of salvage. One court has, however,

held that a house that sank while it was being transported by truck

over a frozen lake lacked a maritime relationship.834

A party may render salvage services to a vessel without the request

of the owner, master, or other agent of the vessel if it appears that a

reasonable owner would have availed itself of the services had it been

present at the scene.835 However, a party who renders services to a

vessel despite the objection of a person who has authority over the

vessel will be denied a salvage award.836

Elements of “Pure Salvage” Claims

“Pure salvage” is a reward for perilous service. Public policy mandates

a pure salvage award for laborious, and sometimes dangerous, efforts

to provide maritime assistance. Awards are therefore designed to be

reasonably liberal in the salvor’s favor. There are three elements of a

pure salvage claim. First, the property must be exposed to a marine

peril. Second, the salvage service must be voluntary, whereby the sal829. Cope v. Vallette Dry-Dock Co., 119 U.S. 625 (1887).

830. Allseas Mar., S.A. v. M/V Mimosa, 812 F.2d 243 (5th Cir. 1987).

831. Provost v. Huber, 594 F.2d 717 (8th Cir. 1979).

832. Lambros Seaplane Base v. The Batory, 215 F.2d 228 (2d Cir. 1954).

833. Broere v. Two Thousand One Hundred Thirty-Three Dollars, 72 F. Supp.

115 (E.D.N.Y. 1947).

834. Provost, 594 F.2d 717.

835. Lambros Seaplane, 215 F.2d 228.

836. Platoro Ltd., Inc. v. Unidentified Remains of a Vessel, 695 F.2d 893 (5th

Cir.), cert. denied, 464 U.S. 818 (1983).
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155

vor is under no preexisting duty to render the service. Third, the salvage operation must be successful in whole or in part.837

A salvor is anyone who saves maritime property from a peril. An

“inadvertent” salvor does not qualify for a salvage award. The

would-be salvor must have the specific intent to confer a benefit on

the salved vessel. For example, where a person was trying to put out a

fire to save a wharf and in the process saved a ship, the unintended

result was not a salvage service.838

To qualify as a marine peril the danger need not be imminent.

There only needs to be a reasonable apprehension of peril.839 A claimant seeking a salvage award must show that, at the time assistance was

rendered, the salved vessel had been damaged or exposed to some

danger that could lead to her destruction or further damage in the

absence of the service provided.840 The party seeking a salvage award

has the burden to prove that a marine peril existed.841

Services must be rendered voluntarily. The owner of the salved

vessel has the burden of proving that the salvage services were not

voluntarily rendered.842 In order for the services to be considered voluntary, they must be “rendered in the absence of any legal duty or

obligation.”843 This requirement does not preclude professional salvors from claiming salvage awards,844 but may bar certain people, such

as firemen, from claiming salvage awards.845 Similarly, a vessel’s crew

is generally precluded from claiming salvage awards because of their

preexisting duty to the vessel. They may, however, be eligible for

awards under exceptional circumstances. It is clear, however, that

persons may claim a salvage award for rendering services to an endangered vessel notwithstanding the fact that they are members of the

837. The Sabine, 101 U.S. (11 Otto) 384 (1879).

838. See, e.g., Merritt & Chapman Derrick & Wrecking Co. v. United States, 274

U.S. 611 (1927).

839. Markakis v. S.S. Volendam, 486 F. Supp. 1103 (S.D.N.Y. 1980).

840. Conolly v. S.S. Karina II, 302 F. Supp. 675 (E.D.N.Y. 1969).

841. Am. Home Assurance Co. v. L & L Marine Serv., Inc., 875 F.2d 1351 (8th

Cir. 1989).

842. Clifford v. M/V Islander, 751 F.2d 1, 5 n.1 (1st Cir. 1984).

843. B.V. Bureau Wijsmuller v. United States, 702 F.2d 333 (2d Cir. 1983).

844. Id.

845. Firemen’s Charitable Ass’n v. Ross, 60 F. 456 (5th Cir. 1893).
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156

crew of another vessel owned by the same person who owns the salved

vessel.846

Finally, a party claiming a salvage award has the burden of proving that the salvor’s effort contributed to success in saving the property.847 This requirement has two dimensions. First, under the “no

cure–no pay” rule there can be no salvage award if the property is lost

despite the efforts of the party rendering services.848 Second, the party

must show it played a role in the success of the salvage. This role need

not have been laborious or dangerous. As stated by one court, activities such as

“standing by or escorting a distressed ship in a position to give aid

if it becomes necessary, giving information on the channel to follow .. . to avoid running aground, [and] carrying a message as a

result of which necessary aid and equipment are forthcoming have

all qualified.”849

Salvage and Finds Distinguished

Disputes arising out of the discovery and excavation of historic shipwrecks require courts to distinguish between the law of salvage and

the law of finds. Under the law of salvage, title to a salvaged vessel remains with the owner of the vessel. Although the salvor of the vessel

has a lien on the vessel and may claim a salvage award, the salvor does

not gain title to the vessel.850 In contrast, under the law of finds, the

finder acquires title to the property upon a determination that property has been permanently abandoned.851

The laws of salvage and finds may be subject to statutory laws

conferring federal government control over historic structures. In an

effort to protect artifacts that may be retrieved from historic ship846. Markakis v. S.S. Volendam, 486 F. Supp. 1103 (S.D.N.Y. 1980).

847. The Sabine, 101 U.S. (11 Otto) 384 (1879).

848. Id.

849. Markakis, 486 F. Supp. at 1106 (quoting Gilmore & Black, supra note 825,

at 536–37).

850. Chance v. Certain Artifacts Found & Salvaged from the Nashville, 606 F.

Supp. 801 (S.D. Ga. 1984), aff’d, 775 F.2d 302 (11th Cir. 1985).

851. Id. See also Treasure Salvors, Inc. v. Unidentified Wrecked & Abandoned

Sailing Vessel, 569 F.2d 330 (5th Cir. 1978).
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157

wrecks within the United States, Congress passed the Archaeological

Resources Protection Act of 1979,852 which protects archaeological

remains within federally owned lands other than the Outer Continental Shelf. The United States claims shipwrecks in specified areas

subject to U.S. control. Under the Abandoned Shipwreck Act,853 the

United States asserts ownership to all shipwrecks embedded in the

land within state territorial waters and, in turn, transfers title to those

vessels to the state in which the shipwreck is located.854 The Act further provides that neither the law of salvage nor the law of finds applies to shipwrecks covered under the Act.

The Antiquities Act of 1906855 confers control in the federal government over historic landmarks, historic and prehistoric structures,

and items of historic and scientific interest located on land owned and

controlled by the United States. The Outer Continental Shelf Land

Act,856 which extends jurisdiction and control of the United States

over the Continental Shelf, relates to the exploitation of the mineral

resources on the Continental Shelf, and, as made clear by the Convention on the Continental Shelf,857 does not apply to wrecked ships

and their cargo lying on the seabed or covered by sand or subsoil.

Salvage Awards

If a court finds that a salvage service was performed, it must then determine the amount of the salvage award. Each salvage situation is

unique, and the circumstances of each case must be considered in

fixing the award.858 In The Blackwall,

859 the Supreme Court listed a set

of factors that should be considered in determining a salvage award:

852. 16 U.S.C. §470aa (2000).

853. 43 U.S.C. §§2101–2106 (2000).

854. Id.

855. 16 U.S.C. §§431–433 (2000).

856. 43 U.S.C. §1332 (2000).

857. Convention on the Continental Shelf, done Apr. 29, 1958, 15 U.S.T. 471, 11

U.N. GAOR, Supp. No. 9, at 42, U.N. doc. A/3159 (1956) (entered into force June 10,

1964). See also Treasure Salvors, 569 F.2d at 339.

858. B.V. Bureau Wijsmuller v. United States, 702 F.2d 333 (2d Cir. 1983).

859. 77 U.S. (10 Wall.) 1 (1869).
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158

(1) the labor expended by the salvors in rendering the salvage

service;

(2) the promptitude, skill, and energy displayed in rendering

the service and saving the property;

(3) the value of the property employed by the salvors in rendering the service and the degree of danger to which such

property was exposed;

(4) the risk incurred by the salvors in securing the property

from the impending peril;

(5) the value of the saved property; and

(6) the degree of danger from which the property was rescued.860

All of the factors should be considered in determining the amount of

the salvage award.861 Each factor, however, is not given equal weight.

Furthermore, several courts have reversed the order of these factors so

that greater weight is given to the value of the salved property, which

includes both ship and cargo,862 and the degree of danger in a given

situation, thus permitting a more realistic appraisal of the respective

costs and benefits to the parties.863

A salvage award may include damages if the salvor’s property is

lost or damaged in the course of rendering its service.864 Further, the

salvor may recover expenses incurred during the salvage effort in addition to the salvage award.865 A salvage award will be apportioned

amongst all co-salvors commensurate with each salvor’s degree of

participation.866 Finally, professional salvors are generally granted

more liberal salvage awards than chance salvors because of their

unique skills and their investment in specialized equipment.867

860. Id.

861. Wijsmuller, 702 F.2d 333.

862. The Haxby v. Merritt’s Wrecking Org., 83 F. 715 (4th Cir. 1897).

863. Margate Shipping Co. v. M/V JA Orgeron, 143 F.3d 976 (5th Cir. 1998).

This is an interesting case that uses an “economic analysis” in calculating the award

for a fully laden tanker that saved a barge transporting a component of the space

shuttle.

864. Perez v. Barge LBT No. 4, 416 F.2d 407 (5th Cir. 1969).

865. Reynolds Leasing Corp. v. Tug Patrice McAllister, 572 F. Supp. 1131

(S.D.N.Y. 1983).

866. The Lydia, 49 F. 666 (E.D.N.Y. 1892).

867. Id.
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159

As to liability for salvage awards, any party who was involved in

the common venture must pay its proportionate share of the award.

This means that the cargo interests may have the duty to contribute to

the award.868 If salvage services have not been requested by a person

authorized to do so (such as the master of a vessel), the owner of the

salved property is not liable in personam; the property, however, is

liable in rem.

Misconduct of Salvors

“[A] salvor must act in good faith and exercise reasonable skill and

prudent seamanship” in providing salvage services.869 A salvor’s negligence may result in a reduction of the salvage award, a total denial of

any award, and liability for affirmative damages.870 Mere negligence

that results in an unsuccessful salvage will, in turn, result in a denial of

an award under the “no cure–no pay” rule.871 Negligence that only

reduces the degree of success will result in a reduction of the award.

However, where a salvor is guilty of “gross negligence or willful misconduct” the salvor not only will be denied a reward or suffer a reduction of its award, but will be liable for affirmative damages for loss

or damage to the salved vessel.872 Furthermore, there is authority for

the proposition that even in the absence of gross negligence, if the salvor inflicts a “distinguishable” or “independent” injury on the salved

vessel, it may be held liable to pay affirmative damages.873 A “distinguishable” injury “is some type of damage caused by the salvor to the

salved vessel other than that which she would have suffered had salvage efforts not been undertaken to extricate her from the perils to

which she was exposed.”874 Finally, a salvor may be denied a salvage

868. In re Pac. Far E. Line, Inc., 314 F. Supp. 1339 (N.D. Cal. 1970), aff’d, 472

F.2d 1382 (9th Cir. 1973).

869. Basic Boats, Inc. v. United States, 352 F. Supp. 44, 48 (E.D. Va. 1972). See

also The Noah’s Ark v. Bentley & Felton Corp., 292 F.2d 437 (5th Cir. 1961).

870. Basic Boats, 352 F. Supp. at 49.

871. See infra text accompanying note 877.

872. Id.

873. Id.

874. The Noah’s Ark, 292 F.2d at 441.
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160

award when there is dishonesty or fraudulent conduct involved.875

Dishonesty by the master of a salving vessel is attributed to the vessel’s

owner so as to deny the owner an award. Dishonesty by the master

will not be attributed to the crew unless they had knowledge of the

master’s conduct.876

Contract Salvage

Salvage services may be rendered under a salvage contract. A salvage

contract may call for compensation at a fixed rate payable regardless

of success or it may incorporate a “no cure–no pay” provision

whereby compensation is contingent on the success of the salvage operations.877 A court will generally enforce a salvage contract that was

fairly bargained for878 even if it turned out to be a “bad bargain” for

the owner of the salved vessel, such as where the work turned out to

be less onerous than the parties anticipated.879 The fact that a contract

is on a “no cure–no pay” basis is a factor that tends to establish its

fairness. However, even a “no cure–no pay” contract may be set aside

if it was procured through fraud, misrepresentation, or other compulsion.880

In recent years various versions of Lloyds Open Form (LOF), a

salvage contract form, have been used. The use of these forms does

not immunize salvors from claims of fraud.881 Furthermore, where

services are rendered in U.S. waters and both vessel owner and salvor

are U.S. citizens, some courts have refused to enforce the London arbitration provisions contained in the LOF.882

875. Jackson Marine Corp. v. Blue Fox, 845 F.2d 1307 (5th Cir. 1988).

876. Id. at 1311.

877. The Elfrida, 172 U.S. 186 (1898).

878. Onaway Transp. Co. v. Offshore Tugs, Inc., 695 F.2d 197 (5th Cir. 1983),

superseded on other grounds, 948 F.2d 179 (1991), cert. denied, 507 U.S. 1050 (1993).

879. The Elfrida, 172 U.S. at 197.

880. Id.; Black Gold Marine, Inc. v. Jackson Marine Co., 759 F.2d 466 (5th Cir.

1985).

881. Black Gold, 759 F.2d 466.

882. Jones v. Sea Tow Servs. Freeport N.Y. Inc., 30 F.3d 360 (2d Cir. 1994);

Reinholtz v. Retriever Marine Towing & Salvage, 1994 AMC 2981 (S.D. Fla. 1993),
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161

Life Salvage

There is a statutory duty to render assistance to save lives at sea,883

thereby precluding compensation for pure life salvage.884 However,

under the Life Salvage Act,885 a party who provides services that result

in the saving of lives is entitled to share in any salvage award granted

to other persons who saved the vessel or cargo where both were engaged in a common salvage operation. Salvors who act jointly and in

concert—whereby some save lives, thus foregoing an opportunity to

save property, while others save property—are entitled to a share of

the salvage award.886 Such an award will be granted only to those who

have foregone the opportunity to engage in the more profitable work

of property salvage.887

A person who incurs expenses in order to save lives has a right to

be reimbursed for any expenditures incurred in performing a duty

owed by a shipowner to a member of its crew.888

aff’d, 46 F.3d 71 (11th Cir. 1995); Brier v. Northstar Marine, Inc., 1993 AMC 1194

(D.N.J. 1992).

883. 46 U.S.C. §§2303, 2304 (2000).

884. The Emblem, 8 F. Cas. 611, 2 Ware 68, No. 4434 (D. Me. 1840).

885. 46 U.S.C. app. §729 (1994).

886. In re Yamashita-Shinnihon Kisen, 305 F. Supp. 796 (D. Or. 1969).

887. St. Paul Marine Transp. Corp. v. Cerro Sales Corp., 313 F. Supp. 377 (D.

Haw. 1970).

888. Peninsular & Oriental Steam Navigation Co. v. Overseas Oil Carriers, 553

F.2d 830 (2d Cir.), cert. denied, 434 U.S. 859 (1977).

163

chapter 9

Maritime Liens and Mortgages

Liens

Much has been written about the exact nature of maritime liens in the

United States.

A maritime lien is a secured right peculiar to maritime law. A

lien is a charge on property for the payment of a debt, and a maritime lien is a special property right in a vessel given to a creditor by

law as security for a debt or claim arising from some service rendered to the ship to facilitate her use in navigation or from an injury caused by the vessel in navigable waters.889

The basic purpose of the maritime lien is to provide security for a

claim while permitting the ship to proceed on her way in order to

earn the freight or hire necessary to pay off the claim. The simplest

way of understanding the nature of a maritime lien is by examining its

function. “A maritime lien is a nonpossessory security device that is

created by operation of law.”890 Although parties may waive or surrender the right to a maritime lien by contract or otherwise, they may

not agree to confer a maritime lien where the law does not provide for

one.891 The United States has never ratified any of the international

conventions on maritime liens, and the U.S. law of maritime liens is

purely domestic.

Under U.S. law, maritime liens are based on the fiction of a

“personified” vessel. Under the personification doctrine, a vessel is

held liable for its torts and for contractual obligations undertaken on

its behalf to facilitate the accomplishment of its mission. As a corollary to this doctrine, an action based on a maritime lien may only be

brought in rem against the vessel itself.

889. Robert Force & A.N. Yiannopoulos, 2 Admiralty and Maritime Law 2-1

(2001).

890. Id.

891. Id.
Admiralty and Maritime Law

164

The maritime lien is different from the general common-law lien

in several respects.892 Maritime liens are secret liens; they do not require recordation. In a fictional sense maritime liens are considered to

attach themselves to a particular vessel and follow that vessel wherever

it goes and from owner to owner. Having said this, it should be noted

that in the vast majority of cases the same facts that establish in rem

liability of the vessel also establish in personam liability of the owner of

the vessel.

Property to Which Maritime Liens Attach

Virtually every case involving maritime liens involves assertion of a

lien against a vessel. The term “vessel” is very broad and includes not

only the hull but also “components” and “accessories.”893 Components are things attached to the vessel that become an integral part of

it. Accessories include things that are placed on a vessel for completion or ornamentation but are not attached so as to become an integral part of it. The distinction between components and accessories is

not always clear. Prepaid freight, for example, is not considered part

of the vessel.894 A person who has a lien against a vessel does not, by

that fact, have a lien against that vessel’s cargo. Cargo carried on

board the vessel,895 even where it is the property of the vessel owner, is

not part of the vessel and consequently is not subject to a maritime

lien against the vessel.

Where a change in the character of a vessel so alters its “vessel”

status, it may no longer be a vessel for the purpose of acquiring a

maritime lien. As long as the lien arises at a time when the structure is

still considered a vessel, courts will sustain the assertion of the lien.896

Thus, where a vessel subject to a maritime lien subsequently is reduced to a pile of scrap metal as a result of damage sustained in a col892. Gilmore & Black, supra note 825, §§9-1 to 9-2, at 586–89.

893. The Joseph Warner, 32 F. Supp. 532 (D. Mass. 1939).

894. Galban Lobo Trading Co. S/A v. The Diponegaro, 103 F. Supp. 452

(S.D.N.Y. 1951).

895. Vlavianos v. The Cypress, 171 F.2d 435 (4th Cir. 1948), cert. denied, 337

U.S. 924 (1949).

896. Arques Shipyard v. The Charles Van Damme, 175 F. Supp. 871 (N.D. Cal.

1959).
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165

lision, the maritime lien still exists against the scrap metal. However,

events that occur once the structure loses its status as a vessel do not

give rise to maritime liens.897

There seems to be no reason why liens cannot be asserted against

other maritime property, although there are relatively few cases that

discuss the matter. Such liens would have to be based on claims

against the cargo itself. Thus a salvor who saved imperiled cargo

would have a lien on the cargo because of the service rendered to the

cargo. There are cases that acknowledge the propriety of asserting a

maritime lien against cargo.898

Custodia Legis

Generally, maritime liens do not arise for expenses incurred while a

vessel is in the custody of a federal court pursuant to arrest or attachment.899 Nevertheless, expenses properly incurred while a vessel is in

the custody of a court are preferentially paid out of the resultant fund

from the sale of the vessel or from security given to secure its release

prior to any distribution of the fund to the lien claimants.900 Court

approval prior to contracting expenses may be required to qualify as a

proper custodia legis expense.901

Categories of Maritime Liens

Most maritime claims arising from torts, contracts, or a peculiarly

maritime operation, such as salvage, give rise to maritime liens. Jurisprudential and statutory exceptions have been established to this gen897. Slavin v. Port Serv. Corp., 138 F.2d 386 (3d Cir. 1943); Hayford v. Doussony, 32 F.2d 605 (5th Cir. 1929); Johnson v. Oil Transp. Co., 440 F.2d 109 (5th Cir.),

cert. denied, 404 U.S. 868 (1971).

898. See, e.g., Logistics Mgmt., Inc. v. One (1) Pyramid Tent Arena, 86 F.3d 908

(9th Cir. 1996).

899. The Nisseqogue, 280 F. 174 (E.D.N.C. 1922); but see City of Erie v. S.S. N.

Am., 267 F. Supp. 875 (W.D. Pa. 1967) (limiting application of the custodia legis rule

to federal seizure and not state foreign attachment).

900. The Poznan, 274 U.S. 117 (1927); Roy v. M/V Kateri Tek, 238 F. Supp. 813

(E.D. La. 1965).

901. United States v. The Audrey II, 185 F. Supp. 777 (N.D. Cal. 1960).
Admiralty and Maritime Law

166

eral rule. Thus, a seaman’s claim for personal injuries under the Jones

Act is not supported by a lien. Historically, premiums due under a

contract of marine insurance were not supported by a lien.902 However, in Equilease Corp. v. M/V Sampson,

903 the Fifth Circuit held that

unpaid insurance premiums gave rise to a maritime lien.904 That case

is exceptional because federal courts generally apply the law of maritime liens strictly and usually are reluctant to extend maritime liens to

new situations.

Maritime claims that give rise to maritime liens include the following claims: seamen’s wages; salvage; torts that arise under the general maritime law; general average; preferred ship mortgages; supplies,

repairs, and other necessaries furnished to a vessel; towage, wharfage,

pilotage, and stevedoring; damage or loss to cargo while aboard a

vessel; claims by carriers for unpaid freight; and breach of charter

parties.

Contract Liens

Contract claims also may give rise to maritime liens because contracts

for necessaries, repairs, and the like are intended for the benefit of the

ship itself and contracts of affreightment and charter parties relate to

the use of the ship.905 In order for a maritime lien to exist, there must

be a maritime claim. Not all contracts that relate to vessels are classified as “maritime” contracts (see Chapter 1). The distinction between

maritime and nonmaritime contracts is important here because only

maritime contracts may give rise to a maritime lien, and, as will be

seen, not all maritime contracts support maritime liens: If a contract

is not subject to admiralty jurisdiction, it cannot give rise to a maritime lien.906

902. In re Ins. Co. of State of Pa., 22 F. 109 (N.D.N.Y. 1884).

903. 793 F.2d 598 (5th Cir.), cert. denied, 579 U.S. 984 (1986).

904. Id.

905. Thomas A. Russell, 2 Benedict on Admiralty §21, at 2-2 (7th rev. ed. 1999).

906. Gilmore & Black, supra note 825, §§9-20, at 624. For an illustration, see

Cary Marine, Inc. v. M/V Papillon, 872 F.2d 751 (6th Cir. 1989).
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167

Executory Contracts

There is no maritime lien for breach of an executory contract, notwithstanding that it may be classified as a maritime contract and fall

within admiralty jurisdiction. If a contract is in its executory stage, no

lien exists. Thus, if a vessel has contracted to carry cargo or passengers

and then repudiates the contract before the cargo is loaded or before

the passengers board the vessel, the injured parties may have a claim

for breach of a maritime contract, but they do not have a maritime

lien.

As an illustration, consider the case of a contract of affreightment,

admittedly a maritime contract, where the carrier failed to carry all of

the cargo it had contracted to transport. As to the cargo that had not

been loaded on board, the contract is still executory. Failure to load

and carry that portion constitutes a breach of the contract of affreightment, allowing the shipper to bring an in personam action in

admiralty against the carrier. Nevertheless, that breach does not give

rise to a maritime lien. In contrast, if some of the cargo loaded on

board had been lost or damaged, that breach of contract would give

rise to a maritime lien.

Agency Contracts

At one time it was thought that “agency contracts,” whereby one party

agrees to act as an agent for another person, were not maritime contracts. This per se rule was overruled by the Supreme Court in Exxon

Corp. v. Central Gulf Lines, Inc.

907 In that case an oil company agreed

to supply bunkers to a shipping company as needed. The oil company

usually supplied its own oil to the shipping company, but on the occasion in question it did not have any oil available at the location

where it was needed. The oil company contracted with another company to supply the oil. The bunkers were delivered to the vessel, and

the oil company paid the supplier. When the shipping company failed

to pay the oil company, the latter brought an action alleging breach of

a maritime contract. The shipping company argued that in procuring

bunkers on its behalf, the oil company was acting as its agent; the

shipping company relied on the rule that agency contracts did not

907. 500 U.S. 603 (1991).
Admiralty and Maritime Law

168

give rise to maritime liens. The Supreme Court held that the oil company supplied necessaries to the vessel, and that a contract whereby

one supplies necessaries to a vessel is a maritime contract. The Court

specifically declined to express a view as to whether the breach of the

contract gave rise to a maritime lien, leaving that issue to the lower

court to resolve on remand. There does not appear to be any reason

why the oil company should not have a lien.

Preferred Ship Mortgage

The Ship Mortgage Act908 provides that a preferred mortgage “is a lien

on the mortgaged vessel in the amount of the outstanding mortgage

indebtedness secured by the vessel.”909 The requirements to qualify as

a preferred mortgage are specified in the statute, and preferred status

may extend to both domestic and foreign mortgages.910 The statute

permits enforcement of a preferred mortgage in an in rem action.911

Liens for Necessaries

Part of the law of contract liens has been codified, primarily to provide protection to those who provide necessary services or supplies to

vessels. The Federal Maritime Lien Act (FMLA)912 states that “a person providing necessaries to a vessel on the order of the owner or

person authorized by the owner . . . has a maritime lien on the vessel

... [and] may bring a civil action in rem to enforce the lien . . . .”913

The FMLA defines necessaries as including “repairs, supplies,

towage and the use of a dry dock or marine railway.”914 The enumeration of specific necessaries is merely by way of illustration and is not

preclusive. Necessaries have been held to include “most goods or

services that are useful to the vessel, keep her out of danger, and en908. 46 U.S.C. §§31301–31343 (2000).

909. Id. §31325(a). Mortgages are discussed infra text accompanying notes

946–62.

910. Id. §§31301(6)(B) (foreign), 31322 (domestic).

911. Id. §31325(b).

912. Id. §§31301–31343 (originally codified at 46 U.S.C. §§971–974).

913. Id. §31342.

914. Id. §31301(4).
Chapter 9: Maritime Liens and Mortgages

169

able her to perform her particular function. . . . What is a ‘necessary’ is

to be determined relative to the requirements of the ship.”915

In Piedmont & George’s Creek Coal Co. v. Seaboard Fisheries Co.,

916

the Supreme Court held that the necessaries must be provided by the

supplier directly to the vessel.917 Following this approach, it has been

held that although a contract to supply containers to a carrier is a

maritime contract and that containers are necessaries as that term is

used in the FMLA, such contracts do not give rise to a maritime lien

because typically containers are delivered to the carrier in bulk and

not directly to a particular vessel.918

Under the FMLA, it is insufficient for a supplier to merely furnish

necessaries to a vessel; they must be supplied “on the order of the

owner or a person authorized by the owner.” A question may arise as

to whether a person who requested necessaries has authority to procure necessaries for a vessel where that person is not the owner. The

issue of authority is resolved under ordinary agency principles.919 At

one time there was some controversy as to whether a charterer could

incur a lien on a vessel by ordering necessaries where there was a “no

lien” clause in the charter party or where the charter party was silent

on the issue of authority. (Under a “no lien” clause a charterer is prohibited from entering into transactions that result in a lien on the

vessel.) The lien statute originally contained language that, as construed by the Supreme Court, required a supplier of necessaries to

exercise due care in ascertaining the authority of a person who sought

to procure necessaries.

The Federal Maritime Lien Act has since been amended and now

states that necessaries may be provided “on the order of a person

listed in section 31341 . . . or a person authorized by the owner [of the

915. Equilease Corp. v. M/V Sampson, 793 F.2d 598, 603 (5th Cir.), cert. denied,

579 U.S. 984 (1986).

916. 254 U.S. 1 (1920).

917. Id.; see also The Vigilancia, 58 F. 698 (S.D.N.Y. 1893); The Cimbria, 156 F.

378 (D. Mass. 1907); The Curtin, 165 F. 271 (E.D. Pa. 1908).

918. Foss Launch & Tug Co. v. Char Ching Shipping U.S.A., Ltd., 808 F.2d 697

(9th Cir.), cert. denied, 484 U.S. 828 (1987).

919. See, e.g., Epstein v. Corporacion Peruana de Vapores, 325 F. Supp. 535

(S.D.N.Y. 1971).
Admiralty and Maritime Law

170

vessel].”920 The persons listed in section 31341 are presumed to have

authority to procure necessaries and include “a person entrusted with

the management of the vessel at the port of supply; or an officer or

agent appointed by a charterer.” There is a statutory presumption that

a charterer, for example, has authority to procure necessaries for the

vessel and to incur a lien on the vessel. The presumption, however,

may not be invoked by a supplier who has actual knowledge that there

is a “no lien” clause in the charter party or that the charterer otherwise lacks authority. Recent decisions have concluded that only “actual knowledge” will defeat the lien; constructive knowledge, that is,

what a reasonable supplier would have known, is insufficient to defeat

the lien.921

The use of a subcontractor922 and intermediaries923 to fulfill the

obligation of the prime contractor can present problems if the owner

or charterer never authorized the use of such persons. Under such

circumstances, the subcontractor or intermediary could have trouble

showing that it furnished necessaries on the “order” of the owner or

charterer.

Although at one time the rule was otherwise, the FMLA also contains provisions that permit a supplier of necessaries to assert a lien

even where the necessaries are supplied in the vessel’s home port.

Likewise, it is no longer necessary for a supplier to show that it relied

on the credit of the vessel. However, the right to a lien may be waived,

either expressly, by implication, or by showing that the supplier obtained special security for the provision of its services.

920. 46 U.S.C. §31342 (2000).

921. Belcher Oil Co. v. M/V Gardenia, 766 F.2d 1508 (11th Cir. 1985); but see

Marine Fuel Supply & Towing, Inc. v. M/V Ken Lucky, 859 F.2d 1405 (9th Cir.),

opinion amended and superseded by Marine Fuel Supply & Towing, Inc. v. M/V Ken

Lucky, 869 F.2d 473 (9th Cir. 1988).

922. Turecamo of Savannah, Inc. v. United States, 824 F. Supp. 1069 (S.D. Ga.

1993), aff’d, 36 F.3d 1083 (11th Cir. 1994), cert. denied, 516 U.S. 1028 (1995); Stevens

Technical Servs., Inc. v. United States, 913 F.2d 1521 (11th Cir. 1990); Integral Control Sys. Corp. v. Consol. Edison Co. of N.Y., Inc., 990 F. Supp. 295 (S.D.N.Y. 1998).

923. Cantieri Navali Riuniti v. M/V Skyptron, 621 F. Supp. 171 (W.D. La. 1985),

remanded and aff’d, 802 F.2d 160 (5th Cir. 1986).
Chapter 9: Maritime Liens and Mortgages

171

Persons Who May Acquire Maritime Liens

The owner, part owner, or agent of a vessel may not acquire a lien

against the vessel.924 However, a joint venturer may acquire a lien for

necessaries.925 A stockholder in a vessel also may acquire a lien, but

must overcome a presumption that any advances were made on general credit. If the presumption is overcome, a lien may exist as long as

it does not unfairly prejudice other creditors.926 Maritime liens are

assignable; the assignee ordinarily assumes the rank of the assignor in

determining lien priority.927 Additionally, a person who advances

funds for the purpose of discharging a maritime lien succeeds to the

lien status of the former lien holder.

Priorities of Liens

Ranking of Liens

The sale of a vessel in an in rem proceeding generates a fund in the

registry of an admiralty court. Where this fund, or a comparable security posted by the shipowner to secure the vessel’s release, is insufficient to satisfy all valid liens and claims, the priority of the different

categories of claims becomes of paramount importance. The ranking

of maritime lien claims by the district courts and courts of appeals in

conjunction with the priority rules codified in 46 U.S.C.

§§31301(5)–(6) and 31326(b)(1)–(2) has generally resulted in the

observance of the following rankings:

1. expenses of justice during custodia legis (see 46 U.S.C.

§31326(b)(1));

2. the following “preferred maritime liens” (see 46 U.S.C.

§31301(5)(A)–(F)):

924. The Gloucester, 285 F. 579 (D. Mass. 1923).

925. Compagnia Maritima La Empresa, S.A. v. Pickard, 320 F.2d 829 (5th Cir.

1963).

926. The Cimbria, 214 F. 131 (D.N.J. 1914); The Puritan, 258 F. 271 (D. Mass.

1919).

927. Sasportes v. M/V Sol de Copacabana, 581 F.2d 1204 (5th Cir. 1978).
Admiralty and Maritime Law

172

(a) wages of the crew and master;928 maintenance and cure;

wages of stevedores when directly employed by the

shipowner or the shipowner’s agent (see 46 U.S.C.

§31341);

(b) salvage (including contract salvage) and general average;

(c) maritime torts (including personal injury, property damage, and cargo tort liens);929

(d) all maritime contract liens that arise before the filing of a

preferred ship mortgage (U.S. flag vessel) (see 46 U.S.C.

§31301(5)(A))—these include liens for “necessaries,”

such as repairs, supplies, towage, and the use of a dry

dock or marine railway (see 46 U.S.C. §31301(4)), as well

as cargo damage liens and charterer’s liens;

3. preferred ship mortgages (U.S. flag vessels);

4. other maritime contract liens that accrue after the filing of a

preferred ship mortgage (U.S. flag vessels) and prior to a foreign preferred ship mortgage; however, all necessaries provided in the United States have priority over foreign preferred

ship mortgages irrespective of the time they arose (see 46

U.S.C. §31326(b)(2));

5. foreign preferred ship mortgages; and

6. maritime contract liens, excluding those for necessaries provided in the United States, accruing after foreign preferred

ship mortgages, such as contractual claims for cargo damage

liens and charterer’s liens.

928. The master of a U.S. vessel has a lien under 46 U.S.C. § 11112. A master of a

foreign vessel has a lien for wages only if the law of the flag of the vessel provides for

one.

929. Tort liens also include damage to cargo. Therefore, claims for damage or

loss to cargo are preferred liens. Where there is a possibility of pursuing either a tort

or breach of contract for damage to cargo, if the breach sounds in tort, a tort claim

will give rise to a “preferred lien.” See Oriente Commercial, Inc. v. M/V Floridian, 529

F.2d 221 (4th Cir. 1975); see also All Alaskan Seafoods, Inc. v. M/V Sea Producer, 882

F.2d 425 (9th Cir. 1989).
Chapter 9: Maritime Liens and Mortgages

173

Inverse Order Rule

According to the above ranking scheme, competing liens are initially

ranked as to superiority by class—for example, all wage liens would be

grouped together and all tort liens would be grouped together. The

top priority liens, such as wage liens, will of course be paid first. If,

however, the funds in the registry of the admiralty court are insufficient to fully pay a particular class, the issue of priority of claims

within the class itself must be resolved. The rule generally applied is

the “inverse order” rule. Under this rule, claims of the same class are

given priority among themselves according to the inverse order of

their accrual. The most recent lien ranks first and the oldest lien ranks

last. Having said this, admiralty judges have considerable equitable

powers in distributing a fund. A court, for example, might decide not

to apply the inverse order rule to a particular class of claims, such as

wage claims.

Exceptions to the Inverse Order Rule—Special Time Rules

Though the inverse order rule is the basic general rule for the ranking

of claims within a class, for practical reasons the rule has been “subjected to a series of special rules which in effect have largely displaced

it.”930

Maritime Contract Liens

While the inverse order rule has the benefit of forcing a claimant to

act quickly, it can also encourage a supplier of necessaries to arrest a

vessel on the same day as the necessaries were supplied in order to

protect itself from the liens of future suppliers. Such a practice would

contradict the basic purpose of the maritime lien, which is to provide

security for a claim while permitting the ship to proceed on her way in

order to earn the freight or hire necessary to pay off the claim. Consequently, various special time rules—voyage, season, and calendar

year—have been devised, whereby liens within a particular class accruing during a specific period are ranked without preference. Generally, for transoceanic transport the “voyage” rule will apply. This

means that all contract liens that are accrued on a particular voyage

930. Gilmore & Black, supra note 825, §9-62, at 744.
Admiralty and Maritime Law

174

will be grouped together; none will have priority over another. The

inverse order rule still has some application. If, for example, the vessel

made several voyages during which contract liens accrued, all of the

contract liens from the most recent voyage would be grouped together

and paid first. If the fund was insufficient to pay all of those contract

claims in full, each claimant would receive its pro rata share. If there

were sufficient funds to pay all those claims in full, then all of the

contract claims incurred during the next most recent voyage would be

grouped together and paid, and so on, until the fund was exhausted.

For transport within the United States where a voyage rule is impractical, there are special rules applied that differ from one geographic

area to another.

Preferred Mortgages

The existence or nonexistence of a preferred mortgage may play a role

in deciding the priorities among contract lienors. Where there is no

preferred mortgage, the traditional inverse order rule—last is

first—applies. Where there is a preferred mortgage (U.S. vessel), all

contract liens in effect at the time of the mortgage prime the mortgage. The mortgage, however, primes subsequent contract liens, and

the inverse order rule is not applied in this situation. This results from

the fact that “preferred maritime liens” prime a preferred mortgage,

and all contract liens that predate the mortgage are included in the

definition of “preferred maritime liens.” The presence of a preferred

mortgage trumps the inverse order rule by insulating prior contract

liens and subordinating later ones.

Governmental Claims

Governmental claims, including federal, state, and local municipality

claims, are subordinate to all maritime liens.931

Conflicts of Laws

Transactions conducted outside of the United States and not involving U.S. parties are not subject to the Federal Maritime Lien Act but

931. Id. §§9-73 to 9-76, at 757–64.
Chapter 9: Maritime Liens and Mortgages

175

may give rise to a lien under foreign law. U.S. courts will use choiceof-law criteria to determine whether U.S. law or foreign law applies. If

U.S. law does not apply, courts will consider whether to dismiss the

case under the doctrine of forum non conveniens. If the case is not

dismissed, U.S. courts will enforce maritime liens that arise under foreign law.932 U.S. courts, however, will apply U.S. law, including the

FMLA, to protect an American supplier of fuel to a foreign vessel in a

U.S. port even if the supply contract was made in a foreign jurisdiction.933

Extinction of Maritime Liens

Destruction or Release of the Res

Complete and total destruction of the res934 extinguishes all maritime

liens.935 If the res is only partially destroyed, the lien remains an encumbrance upon the residue of the vessel.936 If the vessel is dismantled

and rebuilt, the maritime lien persists.937 If a lienor has a vessel arrested and the owner posts a bond as security for the release of the

vessel, the lien is transferred to the security; the lien on the vessel is

extinguished.

Sale of the Res

The sale of a vessel by a federal court in admiralty following arrest

under Rule C of the Supplemental Rules to the Federal Rules of Civil

Procedure removes all liens on the vessel. It is said that the vessel is

“scraped free” of all preexisting debts or liens. Likewise, if a vessel is

sold pursuant to a judicial proceeding in a foreign country in an action that is similar to the U.S. action in rem, U.S. courts will apply the

932. 1 Thomas J. Schoenbaum, Admiralty and Maritime Law, §9-8, at 515–16

(2d ed. 1994).

933. Gulf Trading & Transp. Co. v. M/V Tento, 694 F.2d 1191 (9th Cir. 1982)

(holding that the substantial contacts between the United States and the contracting

parties justified the application of U.S. law).

934. Walsh v. Tadlock, 104 F.2d 131 (9th Cir. 1939).

935. Hawgood & Avery Transit Co. v. Dingman, 94 F. 1011 (8th Cir. 1899).

936. Chapman v. Engines of the Greenpoint, 38 F. 671 (S.D.N.Y. 1889).

937. Dann v. Dredge Sandpiper, 222 F. Supp. 838 (D. Del. 1963).
Admiralty and Maritime Law

176

same rule. In making this determination, U.S. courts will place great

weight on whether the vessel was subjected to the custody of the foreign court and whether, under the law of the country where the proceedings took place, a judicial sale is free and clear of all liens. By

contrast, if a vessel is attached pursuant to Supplemental Rule B to

vindicate an in personam claim, the judicial sale of the vessel does not

discharge maritime liens.

Laches

There is no statute of limitation or prescriptive period during which a

lien must be enforced or otherwise expire. However, a court may extinguish a lien by the application of the doctrine of laches.938 A lienholder must exercise reasonable diligence to enforce its lien. Courts

often look to the comparable statute of limitations that would apply

to an in personam action as a guide. Absence of the vessel from domestic territorial waters can relieve a lien holder to some extent from

a claim of laches.939 Some courts try to ascertain the commercially

feasible practice viewed against a background of industry custom.940

This requires a court to consider industry practice in extending credit

as well as the payment history between the parties. Generally, the

laches defense is evaluated on a case-by-case basis. Often the courts

must balance the equities of the respective parties. Thus, a court may

reach different results depending on whether the parties affected include only the shipowner and the lienor or whether they include third

parties whose interests have intervened. Prejudice to a subsequent

purchaser for value who bought the vessel without knowledge of a lien

may be an important consideration.

938. McLaughlin v. Dredge Glouchester, 230 F. Supp. 623 (D.N.J. 1964).

939. S. Coal & Coke Co. v. Kugniecibas (The Everosa), 93 F.2d 732 (1st Cir.

1937).

940. Bermuda Exp., N.V. v. M/V Litsa (Ex. Laurie U), 872 F.2d 554 (3d Cir.),

cert. dismissed, 492 U.S. 939, and cert. denied, 493 U.S. 819 (1989).
Chapter 9: Maritime Liens and Mortgages

177

Waiver

The Federal Maritime Lien Act941 allows for the waiver of a lien or

subordinating a lien status by agreement of the parties.942 The relevant

question, in the absence of an agreement, is whether the lienor clearly

manifests an intention to forgo a lien in favor of some other security.943 A mere request for additional security is not a waiver. Some

courts require clear evidence of waiver of liens for necessaries in light

of the congressionally expressed policy of protecting suppliers.

Bankruptcy

Neither bankruptcy nor reorganization eliminates a maritime lien.944

Nevertheless, the bankruptcy court has exclusive jurisdiction over the

debtor’s property wherever located.945 Thus, a person with a maritime

lien claim may have to try to enforce it in bankruptcy court or request

that the bankruptcy judge permit the claimant to enforce it in admiralty.

Ship Mortgages

A contract for the construction of a vessel is not considered a maritime contract and therefore does not fall within U.S. admiralty jurisdiction.946 Thus a mortgage to finance such construction is also outside the federal courts’ admiralty jurisdiction. As a consequence, state

law governs the interim financing of vessel construction through various state ship-mortgage statutes.947 Upon a vessel’s completion, the

financing of the project may fall within the ambit of the Federal Ship

941. 46 U.S.C. §§31301–31343 (2000).

942. Id. §31305.

943. The President Arthur, 279 U.S. 564 (1929); Nacirema Operating Co. v. S.S.

Al Kulsum, 407 F. Supp. 1222 (S.D.N.Y. 1975).

944. In re Sterling Navigation Co., 31 B.R. 619 (S.D.N.Y. 1983).

945. 28 U.S.C. §1334(d) (2000).

946. People’s Ferry Co. v. Beers (The Jefferson), 61 U.S. (20 How.) 393, 401

(1858) (“The admiralty jurisdiction, in cases of contract, depends primarily upon the

nature of the contract, and is limited to contracts, claims, and services, purely maritime, and touching rights and duties appertaining to commerce and navigation.”).

947. See, e.g., La. Rev. Stat. Ann. §§9:5521–9:5538 (West 1999).
Admiralty and Maritime Law

178

Mortgage Act (FSMA).948 If that is the situation, the interim financing

can be converted to permanent financing under the FSMA through

the cancellation of the interim mortgage and the qualification of the

vessel as a “preferred” mortgage.949 However, if the vessel fails to fulfill

the requirements of the FSMA, the mortgage will remain subject to

the provisions of the applicable state ship-mortgage statute.950 The

principal advantage of receiving a preferred ship mortgage is the entitlement of the mortgagee to a maritime lien on the vessel that can be

enforced through an in rem action against the vessel.951

In order to obtain a preferred ship mortgage, the FSMA requires

the satisfaction of certain statutory criteria, including mortgaging the

entire vessel;952 substantially complying with the filing, recording, and

discharge procedures;953 attaining or having a current application

submitted for U.S. documentation of the vessel;954 and ensuring that

the mortgagee meets the prescribed standards.955

In the event a mortgagor defaults on its obligations under a preferred mortgage, the mortgagee has several options. The mortgagee

may enforce the preferred mortgage lien through an in rem action in

district court.956 An in personam action may also be brought against

the mortgagor, co-maker, or guarantor of the debt. Such action may

be brought as a federal admiralty action or a nonadmiralty civil action.957

A foreign ship mortgage may also qualify as a preferred mortgage

under the Act.958 To obtain such treatment in the United States, the

foreign mortgage must be properly executed in accordance with the

laws of the country where the vessel is documented, and must be reg948. 46 U.S.C. §§31301–31343 (2000).

949. Id.

950. Gilmore & Black, supra note 825, §9-50, at 695.

951. 1 Schoenbaum, supra note 932, §9-5, at 502; see also Thomas A. Russell, 2

Benedict on Admiralty §69b, at 6-20 (7th rev. ed. 1999).

952. 46 U.S.C. §31322(a)(1)(A) (2000).

953. Id. §31322(a)(1)(B) (referring to §31321).

954. Id. §31322(a)(1)(C).

955. Id. §31322(a)(1)(D).

956. Id. §31325(b)(1).

957. Id. §31325(b)(2).

958. Id. §31325(b)(1).
Chapter 9: Maritime Liens and Mortgages

179

istered in a public registry at a central office or the port of registry of

the vessel.959

The priority of a preferred mortgage lien is based on the time of

filing.960 The preferred mortgage lien has priority over all claims

against the vessel except “for expenses and fees allowed by the court

(custodia legis expenses), costs imposed by the court, and preferred

maritime liens.”961 Foreign mortgage lien claims also are subordinate

to any U.S.-based liens for necessaries.962

959. Russell, supra note 951, §70c, at 6-52.

960. 46 U.S.C. §31326(b)(1) (2000) (noting that 46 U.S.C. §31305(1) provides

that preferred maritime liens include all maritime liens that arise before the filing of

the preferred mortgage).

961. Id.

962. 46 U.S.C. §31326(b)(2) (2000). Priority of liens is discussed supra pages

171–74.

181

chapter 10

Marine Insurance

Introduction: Federal or State Law

Federal courts have jurisdiction over marine insurance disputes because the insurance contracts that underlie such disputes are regarded

as maritime contracts, satisfying the criteria for admiralty contract

jurisdiction.963 Under the “saving to suitors” clause,964 state courts

likewise have jurisdiction over marine insurance disputes. The United

States has not adopted a comprehensive marine insurance code comparable to the British Marine Insurance Act of 1906.965 Insurance issues are decided either under the general maritime law or under state

law. Until 1955 maritime lawyers, in general, were of the view that

marine insurance law was federal law; in the absence of a controlling

statute, federal courts formulated rules to resolve marine insurance

disputes as part of the general maritime law,966 often relying on the

British Marine Insurance Act and decisions of English courts as persuasive authority.967

The McCarran-Ferguson Act968 provides that the regulation of

insurance generally is a matter to be governed by state law. This statute, enacted in 1945, subsequently influenced the Supreme Court’s

963. Ins. Co. v. Dunham, 78 U.S. (11 Wall.) 1 (1870).

964. 28 U.S.C. §1333 (2000).

965. Marine Insurance Act, 1906, 6 Edw. 7, ch. 41 (Eng.) [hereinafter MIA]. See

also 1 Alex L. Parks, The Law and Practice of Marine Insurance and Average 16

(1987).

966. 1 Parks, supra note 965, at 12–15 (providing a broad overview of marine

insurance in the United States); see also Edward V. Cattell, Jr., et al., Introduction: An

American Marine Insurance Act: An Idea Whose Time Has Come, in Marine Insurance

Survey: A Comparison of United States Law to the Marine Insurance Act of 1906, 20

Tul. Mar. L.J. 1 (1995) (comparing each section of the British Marine Insurance Act

with the corresponding marine insurance law in the United States).

967. Queen Ins. Co. of Am. v. Globe & Rutgers Fire Ins. Co., 263 U.S. 487

(1924).

968. 15 U.S.C. §1012 (2000).
Admiralty and Maritime Law

182

decision in Wilburn Boat Co. v. Fireman’s Fund Insurance Co.969 In

that case, the issue before the Court was the effect to be given to the

assured’s breach of warranty.970 The Court held that if there is no generally established rule of maritime law governing the issue in question,

and in the absence of some compelling need to create a federal rule,

federal courts should not create a rule but rather should apply state

law.971 Since that decision, federal courts have applied the following

rule in marine insurance disputes: A marine insurance contract will be

interpreted in accordance with the law of the state in which it was

formed unless there is a controlling and specific federal rule, or, in the

absence of such rule, there is some compelling reason to create a federal rule.972 Where, however, a state’s insurance law is materially different than federal maritime law, the state law will not govern a marine insurance dispute.973 In other words, where there is a federal marine insurance rule based on “entrenched federal precedent,” that rule

should be applied.974 As one might imagine, it is not always easy to

determine whether there is “entrenched federal precedent” to apply in

a particular dispute.

As a consequence of these developments, the insurance industry is

regulated primarily by the individual states and not by the federal

government. Although marine and inland marine insurance are not

comprehensively regulated by the states, under the Wilburn Boat rationale, state substantive rules of insurance law are often applied in

marine insurance disputes. Notwithstanding the fact that state rules

may in some respects differ from what is thought by admiralty lawyers

to be the maritime rule, in many instances there are great similarities

between the two.

969. 348 U.S. 310 (1955).

970. Id.

971. Id.

972. Ingersoll-Rand Fin. Corp. v. Employers Ins. of Wausau, 771 F.2d 910 (5th

Cir. 1985), cert. denied, 475 U.S. 1046 (1986).

973. Albany Ins. Co. v. Anh Thi Kieu, 927 F.2d 882 (5th Cir.), cert. denied, 502

U.S. 901 (1991).

974. Id. at 886 (citing Wilburn Boat, 348 U.S. at 310).
Chapter 10: Marine Insurance

183

Interpretation of Insurance Contracts

An oral marine insurance contract will be upheld.975 Marine insurance

contracts are subject to the rules that generally govern contracts, except to the extent that legislation provides a specific rule to apply to

insurance contracts. An ambiguous marine insurance contract drafted

by the insurer will be interpreted in favor of the insured.976

Limitation of Liability

A shipowner’s insurer may not limit its liability under the general

Limitation of Liability statute.977 The statute enumerates the persons

entitled to limit their liability and does not name “insurers.”

In states that follow the majority rule (nondirect-action states),

insurers have de facto limitation. Where suit is brought against a

shipowner, and the shipowner successfully invokes its right to limit its

liability under the limitation statute, its insurer pays only the amount

for which its assured has been held liable—that is, an amount that

does not exceed the amount provided in the Limitation of Liability

statute.

In states that permit direct actions, insurers may not limit their

liability under the limitation statute. Nevertheless, the Fifth Circuit

has held that an insurer, in essence, can obtain the benefits of limitation indirectly by inserting into the insurance contract language limiting its liability to the amount for which the shipowner would be liable under the Limitation of Liability statute.978

Burden of Proof

The insured has the burden of proving that a covered peril was the

proximate cause of its loss or damage. The insurer has the burden of

975. Great Am. Ins. Co. of N.Y. v. Maxey, 193 F.2d 151 (5th Cir. 1951). In contrast, the British Marine Insurance Act requires that a marine insurance contract be in

writing. MIA, supra note 965, §22.

976. Id.

977. Limitation of liability is discussed supra Chapter 5.

978. Crown Zellerbach Corp. v. Ingram Indus., Inc., 783 F.2d 1296 (5th Cir.),

cert. denied, 479 U.S. 821 (1986).
Admiralty and Maritime Law

184

showing the loss or damage was excluded from coverage and must

prove affirmative defenses. In order for the insured to recover under a

marine insurance policy, the loss or damage must have been proximately caused by a peril insured against.979 The discussion of proximate cause in the jurisprudence tends to be metaphysical and not very

helpful.

Insurable Interest

In order for a marine insurance contract to be valid, the insured must

have an insurable interest. The definition of “insurable interest” in the

British Marine Insurance Act is an appropriate statement of U.S. law.

A person has an insurable interest “where he stands in any legal or

equitable relation to the adventure or to any insurable property at risk

therein, in consequence of which he may benefit by the safety or due

arrival of insurable property, or may be prejudiced by its loss, or by

damage thereto, or by detention thereof, or may incur liability in respect thereof.”980 The owner of a vessel has an insurable interest in the

vessel and in any liability that may result from the operation of the

vessel. A charterer has an interest in the use of the vessel, profits to be

made in such use, and liability that may result from such use. Both the

shipper and consignee have insurable interests in the goods. Aside

from these obvious examples, the doctrine of insurable interest applies to many others.981

Types of Insurance

Various types of coverage apply to marine transport. Typically these

include the hull policy, protection and indemnity (P&I) coverage,

pollution insurance, and cargo insurance. There are numerous special

coverages, such as builders risk, in port, and towers.

979. Graydon S. Staring & George L. Waddell, Marine Insurance, 73 Tul. L. Rev.

1619, 1673–1692 (1999).

980. MIA, supra note 965, §5(2).

981. Hooper v. Robinson, 98 U.S. (8 Otto) 528 (1878).
Chapter 10: Marine Insurance

185

The Hull Policy

The hull policy is primarily, but not exclusively, first-party coverage.

Its purpose is to cover damage to or loss of a vessel. However, its coverage is broader because the policy’s “running down” clause indemnifies an owner for liability to a third party resulting from a collision.

Protection and indemnity coverage is primarily third-party coverage

in that its purpose is to indemnify a vessel owner for liabilities incurred to third persons—these liabilities include personal injury and

death, property damage not covered under the running down clause,

and damage to cargo. Pollution insurance, which traditionally had

been part of P&I coverage, has emerged as a separate coverage in the

United States in part because of the enactment of the Oil Pollution

Act of 1990 (OPA 90).982 OPA 90 establishes a strict liability regime on

vessel owners and operators of facilities that discharge oil into the

navigable waters of the United States. Liability is imposed not only for

clean-up costs, but also for natural resource damages. There are also

provisions for private parties to recover damages.

Uberrimae Fidei

A marine insurance contract is said to be a contract uberrimae fidei—that is, based on the utmost good faith.983 According to this doctrine an underwriter is presumed to act on the belief that the party

who has applied for insurance has disclosed all facts material to the

risk. If an applicant fails to reveal material facts known to the applicant or presumed to be known, the insurer may avoid (void) the contract ab initio. The same is true with respect to material misrepresentations.984 Material facts are those that may have a bearing on whether

the insurer would accept the risk or the premium or terms under

which the risk would be insured.985 The requirement to disclose material facts applies even where the insurer does not make an inquiry into

a particular matter, but the failure to inquire may have a bearing on

whether the withheld information will be found to have been mate982. 33 U.S.C. §§2701–2761 (2000).

983. McLanahan v. Universal Ins. Co., 26 U.S. (1 Pet.) 170 (1828).

984. Id.

985. Gulfstream Cargo Ltd. v. Reliance Ins. Co., 409 F.2d 974 (5th Cir. 1969).
Admiralty and Maritime Law

186

rial.986 Some courts regard the uberrimae fidei rule, which also applies

to agents of the insured,987 as an “entrenched” rule of marine insurance law.988 Originally applied with reference to hull insurance policies, it is not clear whether the uberrimae fidei rule applies with the

same strictness to other forms of marine insurance.989

Warranties

A warranty is a promise that the assured will or will not undertake a

particular act or that some condition will be fulfilled, or it is a statement in which the assured confirms or negates certain facts.990 The

effect of a breach of warranty in a marine insurance policy is determined under the law of the applicable state.991 The Supreme Court

concluded that there was no established federal marine insurance rule

and no need to create one.992 State rules on the effect of a breach of

warranty vary. For instance, in some states the breach must have been

fraudulent or have been in bad faith.993 Additionally, the breach must

contribute to the loss insured against.

Warranty of Seaworthiness—There is an implied warranty in voyage policies that the vessel is seaworthy at the commencement of the

voyage.994 Voyage policies insure a vessel during a specific voyage. As

to time policies, which insure a vessel for a specified period of time,

the Fifth Circuit has stated that there are two warranties. First, a warranty of seaworthiness attaches at the inception of the policy.995 Sec986. Charles M. Davis, Maritime Law Deskbook 410 (1997).

987. C.N.R. Atkin v. Smith, 137 F.3d 1169 (9th Cir. 1998).

988. Port Lynch, Inc. v. New Eng. Int’l Assurety of Am., Inc., 754 F. Supp. 816

(W.D. Wash. 1991). Contra Albany Ins. Co. v. Anh Thi Kieu, 927 F.2d 882 (5th Cir.),

cert. denied, 502 U.S. 901 (1991).

989. Davis, supra note 986.

990. MIA, supra note 965, §8.

991. Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310 (1955).

992. Id.

993. See, e.g., Albany Ins., 502 U.S. 901 (applying Texas law that requires the

insurer to prove the assured’s intent to misrepresent material facts).

994. Saskatchewan Gov’t Ins. Office v. Spot Pack, Inc., 242 F.2d 385 (5th Cir.

1957).

995. Two experienced marine insurance lawyers express doubt as to whether this

warranty is part of U.S. law. Staring & Waddell, supra note 979, at 1690.
Chapter 10: Marine Insurance

187

ond, an owner will not, from bad faith or neglect, permit its vessel to

“break ground” (i.e., commence voyage) in an unseaworthy condition.996

Protection and Indemnity Insurance

Historically, protection and indemnity (P&I) insurance was created to

supplement the hull policy. Today, however, aside from the “running

down” clause in the hull policy, P&I insurance is the primary means

whereby shipowners and operators protect themselves against thirdparty liability claims. Nevertheless, events that would ordinarily be

included under a hull policy are expressly excluded from P&I coverage regardless of whether the requisite coverage is in effect. P&I clubs

are associations of shipowners (members) who have joined together

to mutually insure each other. The terms of insurance are usually not

contained in insurance policies but rather are set out in the club rules.

P&I coverage is based on the principal of indemnification. In addition, the clubs provide a legal defense to a member who is being sued

on a claim covered by the club rules. Coverage typically includes the

following:

personal injury and death claims (including maintenance and repatriation); passenger liability (including luggage); liability for

cargo loss and damage (including extra handling costs); collision,

wreck removal (where necessitated by law); pollution; loss of property on the insured vessel; damage to fixed and floating objects;

towage; and general average.997

Pollution Insurance

Because of the difficulty or expense of obtaining coverage for marine

pollution, specialized insurance companies have been organized to

provide this type of coverage. Pollution coverage includes removal

expenses and damages, as well as expenses incurred in abating or

avoiding discharges of oil and releases of hazardous and noxious substances.

996. Saskatchewan, 242 F.2d 385.

997. Raymond P. Hayden & Sanford E. Balick, Marine Insurance: Varieties,

Combinations, and Coverages, 66 Tul. L. Rev. 311, 327 (1991).
Admiralty and Maritime Law

188

Cargo Insurance

Cargo insurance is often written as an “all risks” policy. Cargo policies

often cover the goods from the shipper’s warehouse to the consignee’s

warehouse.998 However, cargo policies often contain exclusions.

“Notwithstanding the all-inclusive nature of the words ‘all risks,’ not

all risks are covered, only those arising from fortuitous accident or

casualty resulting in damage or loss attributable to an external

cause.”999 Cargo insurance is often written on open policies that enable the assured to issue certificates to its consignee.1000

Particular Average

A policy written “free of particular average” (F.P.A.) means that the

underwriters are liable only for a total loss. There is no liability in case

of a partial loss unless the policy so provides, and the loss is from a

peril not specifically excluded or a peril specifically included. A policy

may be written “with average” (W.A.) to provide coverage for partial

losses, but it may limit its coverage of those losses only if or to the extent that they exceed a percentage specified in the policy.

Subrogation

The right to subrogation exists in the United States. Subrogation is

“the right by which an underwriter, having settled a loss, is entitled to

place himself in the position of the assured, to the extent of acquiring

all the rights and remedies in respect of the loss which the assured

may have possessed.”1001

998. See, e.g., Brammer Corp. v. Holland-Am. Ins. Co., 228 N.Y.S.2d 512 (N.Y.

1962).

999. 1 Parks, supra note 965, at 63.

1000. Id. at 73.

1001. Leslie J. Buglass, Marine Insurance and General Average in the United

States 441 (3d ed. 1991).
189

chapter 11

Governmental Liability and Immunity

The Federal Government

The federal government is immune from suit unless it has waived its

sovereign immunity. In several statutes, the United States has waived

its immunity directly relevant to maritime law.

The Suits in Admiralty Act

Congress’s intent in enacting the Suits in Admiralty Act (SIAA)1002 was

to prevent the possibility of the seizure or arrest of U.S. vessels, which

provide valuable national services in times of both war and peace, and

to allow a remedy to be sought in personam by waiving federal sovereign immunity in admiralty claims involving U.S. vessels or cargo.1003

Suits brought under the SIAA are governed by federal maritime law

just as if they were suits involving private parties.1004 Section 741 of the

SIAA prevents the arrest or seizure of vessels substantially owned or

operated by the United States as part of a suit against the federal government. This immunity extends to cargo owned by the United States.

Elimination of an in rem remedy is made up for in the creation of a

libel in personam in section 742 that allows parties to sue the United

States in admiralty if such a suit could have been maintained if the

vessel were privately owned or operated. This statutory libel in personam is subject to a two-year limitation period.1005 This waiver also

applies to cargo owned by the United States. Section 742, along with

section 743, outlines the proper methods of service of process and the

procedure to be followed in such suits. Under section 746, the United

States may invoke the benefits of limitation of liability accorded to

1002. 46 U.S.C. app. §§ 741–752 (2000).

1003. Schnell v. United States, 166 F.2d 479 (2d Cir.), cert. denied, 334 U.S. 833

(1948).

1004. 46 U.S.C. app. §743 (2000).

1005. Id. §745.
Admiralty and Maritime Law

190

vessel owners. Traditional government defenses, like the discretionary

function defense, have been recognized in admiralty actions against

the United States.1006

The Public Vessels Act

Originally the SIAA applied only to “merchant vessels.” The Public

Vessels Act (PVA)1007 was enacted to cover other vessels. The PVA

permits an admiralty action in personam to be brought against the

United States for damages caused by, or for compensation for various

services rendered to, a vessel of the United States.1008 However, the

SIAA was amended, and the “merchant vessel” restriction was eliminated. Thus, there is an overlap between the two statutes. Section 782

of the PVA provides that suits brought under the PVA are subject to,

and must “proceed in accordance with,” the SIAA so long as the SIAA

is not inconsistent with the PVA. Congress’s intent was to allow the

SIAA to cover any claims associated with public vessels that fell outside the PVA.1009 Section 785 of the PVA contains a requirement of

reciprocity that restricts a foreign national’s right to sue the United

States unless that foreign national’s government allows U.S. nationals

to bring suit in its courts under similar circumstances.

The Federal Tort Claims Act

The Federal Tort Claims Act (FTCA)1010 allows for suit against the

United States for torts committed by U.S. government employees

within the scope of their employment if, under like circumstances, a

private entity would be liable according to the law of the location

where the tort occurred. This liability is limited to money damages

and does not extend to punitive damages.1011

An important exception to federal tort claim liability that relates

specifically to admiralty cases is provided under 28 U.S.C. §2680. No

1006. Indian Towing Co. v. United States, 350 U.S. 61 (1955).

1007. 46 U.S.C. app. §§ 781–790 (2000).

1008. Id. §781.

1009. United States v. United Cont’l Tuna Corp., 425 U.S. 164 (1976).

1010. 28 U.S.C. §1346 (2000).

1011. Id. §2674.
Chapter 11: Governmental Liability and Immunity

191

claim may be made under the FTCA where a remedy is provided by

the SIAA or the PVA.1012 This means that all admiralty claims against

the United States must be brought under the SIAA or the PVA, including maritime tort actions against the United States that otherwise

would fall under the FTCA. This is an important rule of exclusivity

because of the substantive and procedural differences between the

FTCA and the SIAA. The FTCA bars a claim unless it is presented in

writing to the federal agency involved within two years after the claim

accrues or an action is commenced within six months after an agency

denial.1013 Under the SIAA, on the other hand, suit must be commenced within two years after the cause of action accrues,1014 except in

suits where jurisdiction is based on the Admiralty Extension Act.1015

Additionally, SIAA claims are governed by the substantive federal

maritime law, while the FTCA provides for the application of state

tort law.1016

State and Municipal Governments

The Eleventh Amendment of the Constitution prevents suit against a

state or any of its departments or agencies without an express waiver

of its sovereign immunity and its consent to being sued in federal

court. This constitutional immunity makes it very difficult to bring an

admiralty claim against a state in federal court. However, the Eleventh

Amendment does not bar suits against state officials, even where acting in an official capacity, because the Supreme Court has held that

unconstitutional actions by a state official are not attributable to the

state under the Eleventh Amendment.1017 In essence, suits against state

officials claiming that the officer acted outside the scope of his or her

authority or that the officer’s authorized actions were unconstitutional are allowed. The Tenth Circuit has held that the Eleventh

Amendment is not violated when a plaintiff who had filed a petition

1012. Id. §2680(b).

1013. Id. §2401(b).

1014. 46 U.S.C. app. §745 (2000).

1015. Id. § 740.

1016. Patentas v. United States, 687 F.2d 707, 711 (3d Cir. 1982).

1017. Fla. Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670 (1982).
Admiralty and Maritime Law

192

to limit its liability in federal court removes to that proceeding a claim

brought by a state against it in state court.1018

Municipal governments are more open to liability. Municipalities

performing governmental duties are immune from the consequences

of their negligence, but remain liable for their negligence involving

property-ownership or commercial functions.

Foreign Governments: The Foreign Sovereign

Immunities Act

Section 1605(a) of the Foreign Sovereign Immunities Act (FSIA)1019

provides a catalog of exceptions in the United States to the general

rule of sovereign immunity for foreign governments in U.S. courts.

Foreign states are not immune from suits where they have waived

immunity;1020 where the claims against them are based on their commercial activities in the United States;1021 where damages are sought

for injury or loss of life or property that occurred in the United

States;1022 or where actions have been brought concerning arbitration

agreements.1023

Subsections 1605(b), (c), and (d), however, expressly apply to

specific maritime claims. Subsection (b) dictates that a foreign nation

is not immune from admiralty suits to enforce maritime liens against

that state’s vessel or cargo, provided a lien is predicated on the foreign

state’s commercial activities. Subsection (b) is subject to a proviso

that there be proper notice given to the foreign government of both

the suit and the beginning of such suit.1024

Under the FSIA, a plaintiff who arrests or attaches the property of

a foreign government is liable for damages if the plaintiff acted with

actual or constructive knowledge that the property of a foreign state

1018. Magnolia Marine Transp. Co. v. Oklahoma, 366 F.3d 1153 (10th Cir.

2004).

1019. 28 U.S.C. §§1602–1611 (2000).

1020. Id. §1605(a)(1).

1021. Id. §1605(a)(2).

1022. Id. §1605(a)(5)(A) & (B).

1023. Id. §1605(a)(6).

1024. Id. §1605(b)(1) & (2).
Chapter 11: Governmental Liability and Immunity

193

was involved. The FSIA originally precluded the commencement of an

action by arrest or attachment and provided that a plaintiff who did

so forfeited that claim; but the Act was amended to do away with the

forfeiture provision.

Subsection (c) allows maritime lien suits to proceed based on the

law and practice of in rem actions just as if the vessel had been owned

by a private entity. Subsection (d), additionally, allows suits to foreclose on a preferred ship mortgage1025 where such suit could have been

maintained had the vessel been privately owned.

1025. 46 U.S.C. §§30101–31343 (2000).

195

chapter 12

General Average

Introduction

The usual rule in maritime law is that a loss falls on the party that

suffers it. Of course, fault on the part of another person who causes a

loss may change this. “General average” is another exception to the

usual rule. General average is a means of equitable sharing, between

shipowner and cargo interests, of certain losses and expenses that occur during a voyage. Its origins are rooted in the notion that a voyage

is a common adventure between the vessel owner and the cargo owners. As an equitable doctrine, the law of general average holds that

some parties to the joint venture should not benefit from the misfortune of other parties to the venture. For example, the master of a vessel confronting a storm may decide that some cargo must be jettisoned to lighten the vessel, thereby giving her a better chance to avoid

sinking. If some cargo is sacrificed and the vessel and remaining cargo

survive the storm, the latter will have benefited at the expense of the

sacrificed cargo. Under the rules of general average, all parties to the

venture, including the shipowner and all owners of cargo, must absorb a proportionate share of the loss suffered by the owners of the

sacrificed cargo. The law of general average is not statutory and is part

of the general maritime law of the United States.

The General Average Loss: Requirements

Historically, a party seeking to recover under a claim of general average had to establish three factors: (1) there was imminent, common

danger or peril; (2) there was a voluntary jettison of the claimant’s

portion of the joint venture for the purpose of avoiding peril; and

(3)the attempt to avoid the peril was successful.1026 In more recent

times, the circumstances in which general average may be declared

1026. Barnard v. Adams, 51 U.S. (10 How.) 270 (1850).
Admiralty and Maritime Law

196

have expanded. General average is no longer restricted to situations of

jettison; other sacrifices will support a claim.1027 In fact, losses other

than sacrifices of cargo or vessel may also give rise to general average

claims. As the Supreme Court stated:

Losses which give a claim to general average are usually divided

into two great classes: (1)Those which arise from sacrifices of part

of the ship or part of the cargo, purposely made to save the whole

venture from perishing. (2)Those which arise out of extraordinary

expenses incurred for the benefit of ship and cargo.1028

Extraordinary expenses are those that are necessary for the safe completion of the voyage and may include costs of repairs, discharging

and reloading cargo, additional wages, and other expenses incurred

during any necessary interruption of a voyage.1029

Another expansion in the scope of general average claims has resulted from a deemphasis of the “imminence” requirement. As stated

by one court, “If the danger be real and substantial, a sacrifice or expenditure made in good faith for the common interest is justified,

even though the advent of any catastrophe may be distant or indeed

unlikely.”1030

The York–Antwerp Rules

The rules on general average have been “codified” in the form of various versions of the York–Antwerp Rules.1031 The rules consist of both

lettered rules and numbered rules. The lettered rules are more general

1027. Eagle Terminal Tankers, Inc. v. Ins. Co. of U.S.S.R., 637 F.2d 890 (2d Cir.

1981).

1028. The Star of Hope, 76 U.S. (9 Wall.) 203, 228 (1869), quoted and relied on in

Eagle Terminal, 637 F.2d 890.

1029. Eagle Terminal, 637 F.2d 890.

1030. Navigazione Generale Italiana v. Spencer Kellogg & Sons, 92 F.2d 41, 43

(2d Cir.), cert. denied, 302 U.S. 751 (1937), distinguished by Eagle Terminal, 637 F.2d

890.

1031. For the text of the York–Antwerp Rules, see Frank Wiswall, 6 Benedict on

Admiralty, The York–Antwerp Rules, doc. 4–6, pp. 4–28 (7th rev. ed. 2001). For a

discussion of the circumstances leading to the adoption of the York–Antwerp Rules,

see Eagle Terminal, 637 F.2d at 890. For a discussion of the rules themselves, see Leslie

J. Buglass, Marine Insurance and General Average in the United States (3d ed. 1991).
Chapter 12: General Average

197

and require some interpretation, whereas the numbered rules are fact

specific. Where a numbered rule is applicable to a particular situation,

it will be applied without regard to any of the lettered rules.1032 The

York–Antwerp Rules, although not binding as law in the United

States, are generally inserted into bills of lading and charter parties

and given effect by the courts.1033 The rules are adopted by parties on a

voluntary basis and have no bearing on claims that are governed by

statutes such as COGSA.

General Average, Fault, and the New Jason

Clause

At one time a carrier had no right to a general average contribution

where the peril necessitating the sacrifice or expense arose through its

fault.1034 However, an agreement between the carrier and the cargo

interests can modify this result. Consequently, most bills of lading and

other contracts of carriage contain a clause designated as a “Jason” or

“New Jason” clause that provides that a carrier is entitled to a general

average contribution even when occasioned by its fault, if under those

circumstances it is absolved from liability by law or contract.1035

The General Average Statement

According to York–Antwerp Rule G, general average is calculated on

the basis of the value at the time and place of the completion of the

voyage.1036 If the entire venture is lost, there is no general average

contribution.1037 Usually general average statements are prepared by

1032. Eagle Terminal, 637 F.2d 890; Wiswall, supra note 1031.

1033. Eagle Terminal, 637 F.2d 890.

1034. Gilmore & Black, supra note 825, §5-13, at 266. See also Flint v. Christall

(The Irrawaddy), 171 U.S. 187 (1898).

1035. Royal Ins. Co. of Am. v. Cineraria Shipping Co., 894 F. Supp. 1557 (M.D.

Fla. 1995); Cal. & Hawaiian Sugar Co. v. Columbia S.S. Co., 391 F. Supp. 894 (E.D.

La. 1972), aff’d, 510 F.2d 542 (5th Cir. 1975). The appellation “Jason clause” arises

from the name of the ship in the case that ultimately prompted the drafting of the

clause. The Jason, 225 U.S. 32 (1912).

1036. Wiswall, supra note 1031.

1037. Gilmore & Black, supra note 825, at 264.
Admiralty and Maritime Law

198

agents of shipowners referred to as “average adjusters.” In the United

States, absent any agreement to the contrary, a general average statement prepared by a professional average adjuster is without any legal

effect whatsoever and is open to question in every particular.1038

1038. United States v. Atl. Mut. Ins. Co., 298 U.S. 483 (1936).
199

Selected Bibliography

Treatises and Other Books

Benedict on Admiralty, 7th rev. ed., Matthew Bender.

This is a multivolume work (currently 34 volumes), arranged by

subject matter, that deals with many areas of admiralty and maritime law. Edited by lawyers and law professors, it is published in

loose-leaf form and supplemented on a regular basis. The name of

the current author or reviser is listed on the spine and cover page

of each volume. Those volumes edited by the publisher’s staff are

simply titled Benedict on Admiralty.

Stewart C. Boyd et al., Scrutton on Charter Parties and Bills of Lading,

20th ed., Sweet & Maxwell, London 1996.

Allen E. Branch, Dictionary of Shipping International Trade Terms

and Abbreviations, 3d ed., Whetherby & Co., Ltd., London 1986.

Geoffrey Brice, Maritime Law of Salvage, 3d ed., Sweet & Maxwell,

London 1999.

Robert H. Brown, Dictionary of Marine Insurance Terms and Clauses,

5th ed., Whetherby & Co., Ltd., London 1988.

Leslie J. Buglass, Marine Insurance and General Average in the United

States, 3d ed., Cornell Maritime Press, Centerville, Md. 1991.

Julian Cook et al., Voyage Charters, 2d ed., Lloyds of London Press,

London 2001.

Charles M. Davis, Maritime Law Deskbook, Compass Publishing

Company, Seattle, Wash. 2001.

Robert Force, U.S. Transport Law, in International Encyclopaedia of

Laws, R. Blanpain ed., Kluwer Law International, The Hague

2001.

Nicholas Gaskill et al., Bills of Lading, Lloyds of London Press, London 2000.
Admiralty and Maritime Law

200

Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty, 2d ed.,

Foundation Press, Mineola, N.Y. 1975.

Nicholas J. Healy & Joseph Sweeney, The Law of Marine Collision,

Cornell Maritime Press, Centerville, Md. 1998.

Arnold W. Knauth, American Law of Ocean Bills of Lading, 4th ed.,

American Maritime Cases, Baltimore, Md. 1953.

Norman J. Lopez, Bes’ Chartering and Shipping Terms, 11th ed.,

Barker & Howard Ltd., London 1992.

Martin J. Norris, The Law of Maritime Personal Injuries, 4th ed.,

West Group, St. Paul, Minn. 1990.

Martin J. Norris, The Law of Seamen, 4th ed., West Group, St. Paul,

Minn. 1985.

Alex L. Parks, The Law and Practice of Marine Insurance and Average,

Cornell Maritime Press, Centerville, Md. 1987.

Alex L. Parks & Edward V. Catell, Jr., The Law of Cargo and Pilotage,

3d ed., Cornell Maritime Press, Centerville, Md. 1994.

David W. Robertson, Admiralty & Federalism History, Foundation

Press, Mineola, N.Y. 1970.

Thomas J. Schoenbaum, Admiralty & Maritime Law, West Group, St.

Paul, Minn. 2001.

Eric Sullivan, The Marine Encyclopedic Dictionary, 6th ed., Lloyds of

London Press, London 1999.

William Tetley, International Conflict of Laws: Common, Civil and

Maritime, Blais International Shipping Publications, Montreal,

Canada 1994

— Marine Cargo Claims, 3d ed., Blais International Shipping Publications, Montreal, Canada 1988.

— Maritime Liens & Claims, 2d ed., Blais International Shipping

Publications, Montreal, Canada 1998.

— Glossary of Maritime Law Terms, Lanlois, Geautreau, O’Connor,

Montreal, Canada 2000.

Hugo Tiberg, The Law of Demurrage, 4th ed., Sweet & Maxwell, London 1995.
Selected Bibliography

201

Gunther Treitel & F.M.B. Reynolds, Carver on Bills of Lading, Sweet

& Maxwell, London 2001.

Michael Wilford et al., Time Charters, 4th ed., Lloyds of London

Press, London 1995.

David Wilson et al., The Law of General Average and The York Antwerp Rules, 11th ed., Sweet & Maxwell, London 1990.

A. N. Yiannopoulos, Ocean Bills of Lading, Kluwer Law International,

The Hague 1995.

Periodicals

There are three U.S. law journals devoted exclusively to admiralty and

maritime law.

Journal of Maritime Law and Commerce is published four times a

year by the Jefferson Law Book Company, Baltimore, Md., under

the supervision of an editorial board of admiralty lawyers and law

professors.

Tulane Maritime Law Journal (originally The Maritime Lawyer) is

published twice a year by students at Tulane Law School. In typical law review format, it contains lead articles by practitioners and

law professors as well as shorter student comments and case

notes.

University of San Francisco Maritime Law Journal is published

twice a year by students at the University of San Francisco Law

School in a similar format to the Tulane Maritime Law Journal.

In every odd-numbered year, the papers delivered at the Tulane

Admiralty Law Institute are published in the Tulane Law Review as a

special issue. Many of the ALI proceedings have been devoted to one

or two topics and often provide excellent in-depth source material not

otherwise available.
Admiralty and Maritime Law

202

Judicial Decisions

In addition to the cases reported in the National Reporter System, a

group of admiralty lawyers oversees the publication of American

Maritime Cases (abbreviated AMC or A.M.C.). In addition to publishing reported decisions, AMC frequently publishes decisions not

published in the National Reporter System and publishes important

maritime decisions of Canadian and British courts. Furthermore,

AMC has its own unique indexing system that facilitates research.
203

Cases

A. Kemp Fisheries, Inc. v. Castle & Cooke, Inc., 852 F.2d 493 (9th Cir.

1988) 46

Aaby v. States Marine Corp., 181 F.2d 383 (2d Cir. 1950) 45, 47

Adler v. Dickson (The Himalaya), [1954] 2 Lloyd's Rep. 267 [1955] 1 Q.B.

158 81

Agrico Chem. Co. v. M/V Ben W. Martin, 664 F.2d 85 (5th Cir. 1981) 143

Aguilar v. Standard Oil Co. of New Jersey, 318 U.S. 724 (1943) 87

Al-Zawkari v. American Steamship Co., 871 F.2d 585 (6th Cir. 1989) 89

Albany Insurance Co. v. Anh Thi Kieu, 927 F.2d 882 (5th Cir. 1991) 182, 186

Albert E. Reed & Co. v. M/S Thackeray, 232 F. Supp. 748 (N.D. Fla. 1964) 60

All Alaskan Seafoods, Inc. v. M/V Sea Producer, 882 F.2d 425 (9th Cir.

1989) 172

Allen v. Seacoast Products, Inc., 623 F.2d 355 (5th Cir. 1980) 100

Allied Chemical Corp. v. Hess Tankship Co. of Delaware, 661 F.2d 1044

(5th Cir. 1981) 131

Allseas Mar., S.A. v. M/V Mimosa, 812 F.2d 243 (5th Cir.) 154

Allstate Insurance Co. v. Inparca Lines, 646 F.2d 166 (5th Cir. 1981) 75

Aluminios Pozuelo Ltd. v. S.S. Navigator, 407 F.2d 152 (2d Cir. 1968) 75

Alyeska Pipeline Service Co. v. Vessel Bay Ridge, 703 F.2d 381 (9th Cir.

1983) 37

American Dredging Co. v. Miller, 510 U.S. 443 (1994) 22, 26, 27

American Home Assurance Co. v. L & L Marine Service, Inc., 875 F.2d

1351 (8th Cir. 1989) 155

American Marine Corp. v. Barge American Gulf III, 100 F. Supp. 2d 393

(E.D. La. 2000) 79

American President Lines, Ltd. v. United States, 208 F. Supp. 573

(N.D. Cal. 1961) 49

Anaconda, The, 164 F.2d 224 (4th Cir. 1947) 144, 145

Antilles Insurance Co. v. Transconex, Inc., 862 F.2d 391 (1st Cir. 1988) 57

Anyagwe v. Nedlloyd Lines, 909 F. Supp. 315 (D. Md. 1995) 78

Archer v. Trans/American Services, Ltd., 834 F.2d 1570 (11th Cir.

1988) 87, 90
Admiralty and Maritime Law

204

Arques Shipyard v. The Charles Van Damme, 175 F. Supp. 871 (N.D. Cal.

1959) 164

Askew v. American Waterways Operators, Inc., 411 U.S. 325 (1973) 25

Atlanta, The, 82 F. Supp. 218 (S.D. Ga. 1948) 46

Atlantic Mutual Insurance Co. v. Poseidon Schiffahrt G.m.b.H.,

313 F.2d 872 (7th Cir. 1963) 73

Atlee v. Union Packet Co., 88 U.S. (21 Wall.) 389 (1874) 151

Aunt Mid, Inc. v. Fjell-Oranje Lines, 458 F.2d 712 (7th Cir. 1972) 70

B. Elliott (Canada) Ltd. v. John T. Clark & Son of Maryland, Inc.,

704 F.2d 1305 (4th Cir. 1983) 82

B.V. Bureau Wijsmuller v. United States, 702 F.2d 333 (2d Cir.

1983) 155, 157, 158

Bach v. Trident S.S. Co., 947 F.2d 1290 (5th Cir. 1991) 93

Baker v. Ocean Systems, Inc., 454 F.2d 379 (5th Cir. 1972) 88

Baker v. Raymond International, 656 F.2d 173 (5th Cir. 1981) 101

Balfour, Guthrie & Co. v. American-West African Line, Inc., 136 F.2d

320 (2d Cir. 1943) 66

Barbetta v. S.S. Bermuda Star, 848 F.2d 1364 (5th Cir. 1988) 115

Barnard v. Adams, 51 U.S. (10 How.) 270 (1850) 195

Barnes v. Andover Co. L.P., 900 F.2d 630 (3d Cir. 1990) 89

Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067 (5th Cir. 1986) 93

Basic Boats, Inc. v. United States, 352 F. Supp. 44 (E.D. Va. 1972) 159

Baum v. Transworld Drilling Co., 612 F.Supp. 1555 (W.D. La. 1985) 89

Belcher Oil Co. v. M/V Gardenia, 766 F.2d 1508 (11th Cir. 1985) 170

Bergen v. F/V St. Patrick, 816 F.2d 1345 (9th Cir. 1987) 119, 120

Berisford Metals Corp. v. S.S. Salvador, 779 F.2d 841 (2d Cir. 1985) 73

Bermuda Exp., N.V. v. M/V Litsa (Ex. Laurie U), 872 F.2d 554

(3d Cir. 1989) 176

Bethlehem Steel Corp., In re, 631 F.2d 441 (6th Cir. 1980) 142

Bethlehem Steel Corp. v. Yates, 438 F.2d 798 (5th Cir. 1971) 151

Bienvienu v. Texaco, Inc., 164 F.3d 901 (5th Cir. 1999) 103

Bisso v. Inland Waterways Corp., 349 U.S. 85 (1955) 143, 146

Black Diamond S.S. Corp. v. Robert Stewart & Sons (The Norwalk

Victory), 336 U.S. 386 (1949) 141

Black Gold Marine, Inc. v. Jackson Marine Co., 759 F.2d 466

(5th Cir. 1985) 160
Cases

205

Blackwall, The, 77 U.S. (10 Wall.) 1 (1869) 157, 158

Blanchard v. Engine & Gas Compressor Servs., Inc., 575 F.2d 1140

(5th Cir. 1978) 93

Blasser Brothers, Inc. v. Northern Pan-American Line, 628 F.2d 376

(5th Cir. 1980) 72, 79

Bloomer v. Liberty Mutual Insurance Co., 445 U.S. 74 (1980) 111

Board of Commissioners of Port of New Orleans v. M/V Space King,

1978 AMC 856 (E.D. La. 1978) 49

Bodden v. American Offshore, Inc., 681 F.2d 319 (5th Cir. 1982) 119

Bommarito v. Penrod Drilling Corp., 929 F.2d 186 (5th Cir. 1991) 100

Boston Metals Co. v. The Winding Gulf, 349 U.S. 122 (1955) 146

Bouchard Transp. Co. v. The Tug Ocean Prince, 691 F.2d 609 (2d Cir.

 1982) 128

Bouchard Transp. Co., Inc. v. Updegraff, 147 F.3d 1344 (11th Cir. 1998) 25

Boyer, In re, 109 U.S. 629 (1884) 5

Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137 (9th Cir. 1978) 105

Braen v. Pfeifer Oil Transp. Co., 361 U.S. 129 (1959) 95

Brammer Corp. v. Holland-America Insurance Co., 228 N.Y.S.2d 512

(N.Y. 1962) 188

Brier v. Northstar Marine, Inc., 1993 AMC 1194 (D.N.J. 1992) 161

Brister v. A.W.I., Inc., 946 F.2d 350 (5th Cir. 1991) 140

Broere v. Two Thousand One Hundred Thirty-Three Dollars,

72 F. Supp. 115 (E.D.N.Y. 1947) 154

Brown & Root, Inc. v. M/V Peisander, 648 F.2d 415 (5th Cir. 1981) 81

Bunge Corp. v. M/V Furness Bridge, 558 F.2d 790 (5th Cir. 1977) 128, 151

C.N.R. Atkin v. Smith, 137 F.3d 1169 (9th Cir. 1998) 186

Cactus Pipe & Supply Co. v. M/V Montmartre, 756 F.2d 1103

(5th Cir. 1985) 35

Caemint Food, Inc. v. Brasileiro, 647 F.2d 347 (2d Cir. 1981) 64, 78, 79

Caledonia, The, 157 U.S. 124 (1895) 46

Calhoun v. Yamaha Motor Corp., U.S.A., 216 F.3d 338 (3d Cir. 2000) 121

California & Hawaiian Sugar Co. v. Columbia Steamship Co.,

391 F. Supp. 894 (E.D. La. 1972) 197

California Home Brands, Inc. v. Ferriera, 871 F.2d 830 (9th Cir. 1989) 91

Calmar S.S. Corp. v. Taylor, 303 U.S. 525 (1938) 87

Candies Towing Co. v. M/V B & C Eserman, 673 F.2d 91 (5th Cir. 1982) 127
Admiralty and Maritime Law

206

Cantieri Navali Riuniti v. M/V Skyptron, 621 F. Supp. 171

(W.D. La. 1985) 170

Carey v. Bahama Cruise Lines, 864 F.2d 201 (1st Cir. 1988) 115, 116

Carib Prince, The, 170 U.S. 655 (1898) 46

Caribbean Sea Transport, Ltd., In re, 748 F.2d 622 (11th Cir. 1984) 136, 137

Carlisle Packing Co. v. Sandanger, 259 U.S. 255 (1922) 19

Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991) 116

Caruso v. Sterling Yacht & Shipbuilders, Inc., 828 F.2d 14

(11th Cir. 1987) 95

Cary Marine, Inc. v. M/V Papillon, 872 F.2d 751 (6th Cir. 1989) 166

Caulfield v. AC & D Marine, Inc., 633 F.2d 1129 (5th Cir. 1981) 89

CEH, Inc. v. F/V Seafarer, 70 F.3d 694 (1st Cir. 1995) 84

Cenac Towing Co. v. Terra Resources, Inc., 734 F.2d 251 (5th Cir. 1984) 138

Chacon-Gordon v. M/V Eugenio “C,” 1987 AMC 1886 (S.D. Fla. 1987) 91

Chadade Steamship Co. (The Yarmouth Castle), In re, 266 F. Supp. 517

(S.D. Fla. 1967) 142, 156

Chance v. Certain Artifacts Found & Salvaged from the Nashville,

606 F. Supp 801 (S.D. Ga. 1984) 156

Chandris, Inc. v. Latsis, 515 U.S. 347 (1995) 86, 92, 93, 95

Chapman v. Engines of the Greenpoint, 38 F. 671 (S.D.N.Y. 1889) 175

Chelentis v. Luckenbach S.S. Co., 247 U.S. 372 (1918) 91

Chemical Transporter, Inc. v. M. Turecamo, Inc., 290 F.2d 496

(2d Cir. 1961) 144

Chesapeake & Ohio Railway Co. v. Schwalb, 493 U.S. 40 (1989) 102, 103

Chevron U.S.A., Inc. v. Progress Marine, Inc., 1980 AMC 1637

(E.D. La. 1979) 146

Chilean Nitrate Sales Corp. v. The Nortuna, 128 F. Supp. 938

(S.D.N.Y. 1955) 60

China Union Lines, Ltd. v. A.O. Anderson & Co., 364 F.2d 769

(5th Cir. 1966) 140

China, The, 74 U.S. (7 Wall.) 53 (1868) 149

Chisholm v. Sabine Towing & Transportation Co., 679 F.2d 60

(5th Cir. 1982) 98

Cimbria, The, 214 F. 131 (D.N.J. 1914) 171

Cimbria, The, 156 F. 378 (D. Mass. 1907) 169

City of Erie v. S.S. North American, 267 F. Supp. 875 (W.D. Pa. 1967) 165
Cases

207

City of Long Beach v. American President Lines, Ltd., 223 F.2d 853

(9th Cir. 1955) 151

Cleveland Tankers, Inc., In re, 843 F. Supp. 1157 (E.D. Mich. 1994) 123

Clifford v. M/V Islander, 751 F.2d 1 (1st Cir. 1984) 155

Clyde Commercial S.S. Co. v. West India S.S. Co., 169 F. 275

(2d Cir. 1909) 48

Commonwealth of Puerto Rico v. Sea-Land Service, Inc., 349 F.Supp.

964 (P.R. 1970) 20

Commonwealth Petrochemicals Inc. v. S.S. Puerto Rico, 607 F.2d 322

(4th Cir. 1979) 59

Compagnia Maritima La Empresa, S.A. v. Pickard, 320 F.2d 829

(5th Cir. 1963) 171

Concordia Co. v. Panek, 115 F.3d 67 (1st Cir. 1997) 15

Conolly v. S.S. Karina II, 302 F. Supp. 675 (E.D.N.Y. 1969) 155

Consolidated Grain & Barge Co. v. Marcona Conveyor Corp.,

716 F.2d 1077 (5th Cir. 1983) 145

Cook v. Exxon Shipping Co., 762 F.2d 750 (9th Cir. 1985) 109

Cooley v. Board of Wardens of Port of Philadelphia, 53 U.S. (12 How.)

299 (1851) 150

Cooper/T. Smith, In re, 929 F.2d 1073 (5th Cir. 1991) 98, 101

Cope v. Vallette Dry-Dock Co., 119 U.S. 625 (1887) 154

Coryell v. Phipps, 317 U.S. 406 (1943) 139, 140

Couthino, Caro & Co. v. M/V Sava, 849 F.2d 166 (5th Cir. 1988) 77

Cox v. Dravo Corp., 517 F.2d 620 (3d Cir. 1975) 90

Crown Zellerbach Corp. v. Ingram Industries, Inc., 783 F.2d 1296

(5th Cir. 1986) 138, 139, 183

Cullen Fuel Co. v. W.E. Hedger, Inc., 290 U.S. 82 (1933) 141

Cunard S.S. Co. v. Kelley, 115 F. 678 (1st Cir. 1902) 57

Curtin, The, 165 F. 271 (E.D. Pa. 1908) 169

Curtis Bay Towing Co. of Virginia v. Southern Lighterage Corp.,

200 F.2d 33 (4th Cir. 1952) 144

Curtis v. Schlumberger Offshore Service, Inc., 849 F.2d 805

(3d Cir. 1988) 113

Daniel Ball, The, 77 U.S. (10 Wall.) 557 (1870) 4

Dann v. Dredge Sandpiper, 222 F. Supp. 838 (D. Del. 1963) 175
Admiralty and Maritime Law

208

Daughdrill v. Ocean Drilling & Exploration Co., 709 F.Supp. 710

(E.D. La. 1989) 100

David Crystal, Inc. v. Cunard Steam-Ship Co., 339 F.2d 295

(2d Cir. 1964) 56

Davis v. Department of Labor & Industries of Washington, 317 U.S. 249

(1942) 24, 26

Delta Steamship Lines, Inc. v. Avondale Shipyards, Inc., 747 F.2d 995

(5th Cir. 1984) 128

Derby Co. v. A. L. Mechling Barge Lines, Inc., 258 F. Supp. 206 (E.D. La.

1966) 145

Desper v. Starved Rock Ferry Co., 342 U.S. 187 (1952) 95

Dick v. United States, 671 F.2d 724 (2d Cir. 1982) 138

DiGiovanni v. Traylor Brothers, Inc., 959 F.2d 1119 (1st Cir. 1992) 94

Director, Office of Workers’ Compensation Programs, U.S. Department

of Labor v. Perini North River Associates, 459 U.S. 297 (1983) 103

Dixilyn Drilling Corp. v. Crescent Towing & Salvage Co.,

372 U.S. 697 (1963) 146

Dooley v. Korean Airlines Co., 524 U.S. 116 (1998) 120

Dow Chemical Co. v. Tug Thomas Allen, 349 F. Supp. 1354

(E.D. La. 1972) 146

Downie v. United States Lines Co., 359 F.2d 344 (3d Cir. 1966) 84

Duluth Superior Excursions, Inc. v. Makela, 623 F.2d 1251 (8th Cir. 1980) 6

Eagle Terminal Tankers, Inc. v. Insurance Co. of U.S.S.R., 637 F.2d 890

(2d Cir. 1981) 196, 197

Easley v. Southern Shipbuilding Corp., 936 F.2d 839 (5th Cir. 1991) 124

East River Steamship Corp. v. Transamerica Delaval, Inc.,

476 U.S. 858 (1986) 20, 117

Eastern Eagle, The, In re, 1971 AMC 236 (N.Y. Arb. 1970) 48

Edmond Weil, Inc. v. American West African Line, Inc., 147 F.2d 363

(2d Cir. 1945) 69

Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256

(1979) 102, 111

Elfrida, The, 172 U.S. 186 (1898) 160

Emblem, The, 8 F. Cas. 611, 2 Ware 68, No. 4434 (D. Me. 1840) 161

English Electric Valve Co., Ltd. v. M/V Hoegh Mallard, 814 F.2d 84

(2d Cir. 1987) 61
Cases

209

Epstein v. Corporacion Peruana de Vapores, 325 F. Supp. 535

(S.D.N.Y. 1971) 169

Equilease Corp. v. M/V Sampson, 793 F.2d 598 (5th Cir. 1986) 166, 169

Etna, The, 138 F.2d 37 (3d Cir. 1943) 107

Evans v. United Arab Shipping Co. S.A.G., 4 F.3d 207 (3d Cir. 1993) 98

Evich v. Connelly, 759 F.2d 1432 (9th Cir. 1985) 119

Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249 (1972) 7, 9

Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830 (1996) 127

Exxon Corp. v. Central Gulf Lines, Inc., 500 U.S. 603 (1991) 11, 167

Farrell v. United States, 336 U.S. 511 (1949) 90

Feehan v. United States Lines, Inc., 522 F. Supp. 811 (S.D.N.Y. 1980) 99

Fields v. Pool Offshore, Inc., 182 F.3d 353 (5th Cir. 1999) 94

Fireman’s Fund American Insurance Co. v. Puerto Rican Forwarding

Co., 492 F.2d 1294 (1st Cir. 1974) 62

Fireman’s Fund Insurance Co. v. M/V Vignes, 794 F.2d 1552

(11th Cir. 1986) 79

Firemen’s Charitable Ass’n v. Ross, 60 F. 456 (5th Cir. 1893) 155

Fisher v. Nichols, 81 F.3d 319 (2d Cir. 1996) 91

Fitzgerald v. United States Lines Co., 374 U.S. 16 (1963) 15, 16, 85

Flint v. Christall (The Irrawaddy), 171 U.S. 187 (1898) 197

Florida Department of State v. Treasure Salvors, Inc., 458 U.S. 670

(1982) 191

Florida East Coast Railway Co. v. Beaver Street Fisheries, Inc.,

537 So.2d 1065 (Fla. App. 1 Dist. 1989) 71

Fluor W., Inc. v. G & H Offshore Towing Co., 447 F.2d 35

(5th Cir. 1971) 147

Foremost Insurance Co. v. Richardson, 457 U.S. 668 (1982) 7, 8, 116

Forrester v. Ocean Marine Indemnity Co., 11 F.3d 1213 (5th Cir. 1993) 43

Foss Launch & Tug Co. v. Char Ching Shipping U.S.A, Ltd.,

808 F.2d 697 (9th Cir. 1987) 169

Foulk v. Donjon Marine Co., Inc., 144 F.3d 252 (3d Cir. 1998) 93

Francosteel Corp. v. M/V Pal Marinos, 885 F. Supp. 86

(S.D.N.Y. 1995) 76, 82

F.S. Royster Guano Co. v. W.E. Hodger Co., 48 F.2d 86 (2d Cir. 1931) 11

Furka v. Great Lakes Dredge & Dock Co., 775 F.2d 1085

(4th Cir. 1985) 123
Admiralty and Maritime Law

210

Galban Lobo Trading Co. S/A v. The Diponegaro, 103 F. Supp. 452

(S.D.N.Y. 1951) 164

Gans S.S. Line v. Wilhelmsen, 275 F. 254 (2d Cir. 1921) 61

Gardiner v. Sea-Land Service, Inc., 786 F.2d 943 (9th Cir. 1986) 89

Gauthier v. Crosby Marine Service, Inc., 87 F.R.D. 353 (E.D. La. 1980) 15

Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997) 96, 97

General Electric Co. v. S.S. Nancy Lykes, 536 F. Supp. 687

(S.D.N.Y. 1982) 74

Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443 (1851) 3

Geophysical Service, Inc., In re, 590 F. Supp. 1346 (S.D. Tex. 1984) 142

Gerdes v. G&H Towing Co., 967 F.Supp. 943 (S.D. Tex. 1997) 84

Germanic, The, 196 U.S. 589 (1905) 68

Getty Oil Co. (Eastern Operations), Inc. v. SS Ponce De Leon,

555 F.2d 328 (2d Cir. 1977) 127

Gillmor v. Caribbean Cruise Line, Ltd., 789 F.Supp. 488 (D.P.R. 1992) 115

Gloria Steamship Co. v. India Supply Mission, 288 F. Supp. 674

(S.D.N.Y. 1968) 50

Gloucester, The, 285 F. 579 (D. Mass. 1923) 171

Glynn v. Roy Al Boat Management Corp., 57 F.3d 1495 (9th Cir. 1995) 96

Gollatte v. Harrell, 731 F. Supp. 453 (S.D. Ala. 1989) 5

Gosnell v. Sea-Land Service, Inc., 782 F.2d 464 (4th Cir. 1986) 89

Goumas v. K. Karras & Son, 51 F.Supp. 145 (S.D.N.Y. 1943) 11

Grace Line, Inc., In re, 397 F. Supp. 1258 (S.D.N.Y. 1973) 67

Gravatt v. City of New York, 226 F.3d 108 (2d Cir. 2000) 110

Great American Insurance Co. of New York v. Maxey, 193 F.2d 151

(5th Cir. 1951) 183

Great Lakes Dredge & Dock Co. v. City of Chicago, 3 F.3d 225

(7th Cir. 1993) 139

Great Lakes Towing Co. v. American S.S. Co., 165 F.2d 368

(6th Cir. 1948) 145

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 (1982) 90

Griffith v. Martech International, Inc., 754 F.Supp. 166 (C.D. Cal. 1989) 99

Guglielmo, In re, 897 F.2d 58 (2d Cir. 1990) 139

Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) 22

Gulf Towing Co. v. Steam Tanker, Amoco, New York, 648 F.2d 242

(5th Cir. 1981) 151
Cases

211

Gulf Trading & Transportation Co. v. M/V Tento, 694 F.2d 1191

(9th Cir. 1982) 175

Gulf Trading & Transportation Co. v. Vessel Hoegh Shield, 658 F.2d

363 (5th Cir. 1981) 23

Gulfstream Cargo Ltd. v. Reliance Insurance Co., 409 F.2d 974

(5th Cir. 1969) 185

Gutierrez v. Waterman Steamship Corp., 373 U.S. 206 (1963) 99

Guy v. Donald, 203 U.S. 399 (1906) 151

Guzman v. Pichirilo, 369 U.S. 698 (1962) 86

Hall v. Hvide Hull No. 3, 746 F.2d 294 (5th Cir. 1984) 108

Hamilton v. Canal Barge Co., 395 F. Supp. 978 (E.D. La. 1975) 123

Hamilton v. Unicoolship, Ltd., 2002 WL 44139 (S.D.N.Y. 2002) 17

Harbor Tug & Barge v. Papai, 520 U.S. 548 (1997) 93

Harris v. Whiteman, 243 F.2d 563 (5th Cir. 1957) 95

Harrisburg, The, 119 U.S. 199 (1886) 117, 118, 120

Hartford Fire Insurance Co. v. Pacific Far East Line, Inc., 491 F.2d 960

(9th Cir. 1974) 75

Haskell v. Socony Mobil Oil Co., 237 F.2d 707 (1st Cir. 1956) 88

Haskins v. Point Towing Co., 395 F.2d 737 (3d Cir. 1968) 16

Hastorf v. O’Brien, 173 F. 346 (2d Cir. 1909) 48

Hauter v. Zogarts, 14 Cal. 3d 104 (Cal. 1975) 46

Havens v. F/T Polar Mist, 996 F.2d 215 (9th Cir. 1993) 99

Hawgood & Avery Transit Co. v. Dingman, 94 F. 1011 (8th Cir. 1899) 175

Haxby, The v. Merritt’s Wrecking Organization, 83 F. 715

(4th Cir. 1897) 158

Hayes-Leger Associates, Inc. v. M/V Oriental Knight, 765 F.2d 1076

(11th Cir. 1985) 76

Hayford v. Doussony, 32 F.2d 605 (5th Cir. 1929) 165

Hechinger, In re, 890 F.2d 202 (9th Cir. 1989) 139

Hector, The, 65 U.S. (24 How.) 110 (1860) 146

Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306 (1970) 23, 98

Hellenic Lines, Ltd. v. United States, 512 F.2d 1196 (2d Cir. 1975) 78

Herb’s Welding, Inc. v. Gray, 470 U.S. 414 (1985) 102, 103, 124

Hine, The, 71 U.S. 555 (1866) 18

Hollier v. Union Texas Petroleum Corp., 972 F.2d 662 (5th Cir. 1992) 124
Admiralty and Maritime Law

212

Holsatia Shipping Corp. v. Fidelity & Casualty Co. of New York,

535 F. Supp. 139 (S.D.N.Y. 1982) 66

Homer Ramsdell Transportation Co. v. La Compagnie Generale

Transatlantique, 182 U.S. 406 (1901) 150

Hooper v. Robinson, 98 U.S. (8 Otto) 528 (1878) 184

Hopson v. Texaco, Inc., 383 U.S. 262 (1966) 95

Horsley v. Mobil Oil Corp., 15 F.3d 200 (1st Cir. 1994) 84, 122

Howard v. Crystal Cruise Line, 41 F.3d 527 (9th Cir. 1994) 119

Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92 (1994) 108

Humphries v. Director, Office of Workers Compensation Programs,

834 F.2d 372 (4th Cir. 1987) 105

Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440 (1960) 24, 25

Hurst v. Pilings & Structures, Inc., 896 F.2d 504 (11th Cir. 1990) 94

Incandela v. American Dredging Co., 659 F.2d 11 (2d Cir. 1981) 88

Indian Towing Co. v. United States, 350 U.S. 61 (1955) 190

Ingersoll-Rand Financial Corp. v. Employers Insurance of Wausau,

771 F.2d 910 (5th Cir. 1985) 182, 195

Insurance Co. of State of Pennsylvania, In re, 22 F. 109 (N.D.N.Y. 1884) 166

Insurance Co. v. Dunham, 78 U.S. (11 Wall.) 1 (1870) 181

Integral Control Systems Corp. v. Consolidated Edison Co. of New York,

Inc., 990 F. Supp. 295 (S.D.N.Y. 1998) 170

International Drilling Co., N.V. v. M/V Doriefs, 291 F. Supp. 479

(S.D. Tex. 1968) 77, 78

Ison v. Roof, 698 F.2d 294 (6th Cir. 1983) 130

Ivy v. Security Barge Lines, Inc., 585 F.2d 732 (5th Cir. 1978) 122

J.Gerber & Co. v. M/V Galiani, 1993 WL 185622 (E.D. La. 1993) 79

J. Gerber & Co. v. S.S. Sabine Howaldt, 437 F.2d 580 (2d Cir. 1971) 69, 70

J.C. Penney Co. v. American Express Co., 102 F. Supp. 742

(S.D.N.Y. 1951) 62

Jackson Marine Corp. v. Blue Fox, 845 F.2d 1307 (5th Cir. 1988) 160

Jackson v. The Steamboat Magnolia, 61 U.S. (20 How.) 296 (1857) 3

Jason, The, 225 U.S. 32 (1912) 197

Jefferson Chemical Co. v. M/T Grena, 413 F.2d 864 (5th Cir. 1969) 70

Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527

(1995) 5, 7, 8, 9, 19, 25

Johnson v. Odeco Oil & Gas Co., 864 F.2d 40 (5th Cir. 1989) 94
Cases

213

Johnson v. Oil Transport Co., 440 F.2d 109 (5th Cir. 1971) 165

Joiner v. Diamond M Drilling Co., 677 F.2d 1035 (5th Cir. 1982) 15

Jones v. Sea Tow Services Freeport NY Inc., 30 F.3d 360 (2d Cir. 1994) 160

Joo Seng Hong Kong Co., Ltd. v. S.S. Unibulkfir, 483 F. Supp. 43

(S.D.N.Y. 1979) 61

Joseph Warner, The, 32 F. Supp. 532 (D. Mass. 1939) 164

Joyce v. Joyce, 975 F.2d 379 (7th Cir. 1992) 140

Jumna, The, 149 F. 171 (2d Cir. 1906) 126

Jupiter Wreck, Inc. v. Unidentified, Wrecked & Abandoned Sailing

Vessel, 691 F. Supp. 1377 (S.D. Fla. 1988) 153

Kaiser Aetna v. United States, 444 U.S. 164 (1979) 4,5

Kaiser Steel Corp. v. Director, O.W.C.P., 812 F.2d 518 (9th Cir. 1987) 113

Kane v. Hawaiian Independent Refinery, Inc., 690 F.2d 722

(9th Cir. 1982) 152

Kanematsu Corp. v. M/V Gretchen W, 897 F. Supp. 1314 (D. Or. 1995) 51

Keel v. Greenville Mid-Stream Serv., Inc., 321 F.2d 903 (5th Cir. 1963) 101

Kelly v. Smith, 485 F.2d 520 (5th Cir. 1973) 6, 9

Kelly v. Washington, 302 U.S. 1 (1937) 24

Kensington, The, 182 U.S. 261 (1902) 116

Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959) 114

Kernan v. American Dredging Co., 355 U.S. 426 (1958) 97

King Fisher Marine Service, Inc. v. NP Sunbonnet, 724 F.2d 1181

(5th Cir. 1984) 145

Kitanihon-Oi Steamship Co. v. General Construction Co., 678 F.2d 109

(9th Cir. 1982) 152

Klinghoffer v. S.N.C. Achille Lauro, 795 F. Supp. 112 (2d Cir. 1991) 23

Knott v. Botany Worsted Mills, 179 U.S. 69 (1900) 68

Kollias v. D & G Marine Maintenance, 29 F.3d 67 (2d Cir. 1994) 105

Komatsu, Ltd. v. States Steamship Co., 674 F.2d 806 (9th Cir. 1982) 77

Koppers Co. v. S.S. Defiance, 704 F.2d 1309 (4th Cir. 1983) 82

Kossick v. United Fruit Co., 365 U.S. 731 (1961) 89, 143

LaBanca v. Ostermunchner, 664 F.2d 65 (5th Cir. 1981) 32

Lackey v. Atlantic Richfield Co., 983 F.2d 620 (5th Cir. 1993) 86

Lake Tankers Corp. v. Henn, 354 U.S. 147 (1957) 135

Lambros Seaplane Base v. The Batory, 215 F.2d 228 (2d Cir. 1954) 154
Admiralty and Maritime Law

214

Lancaster Towing, Inc. v. Davis, 681 F.Supp. 387 (N.D. Miss. 1988) 88

Laura Madsen, The, 112 F. 72 (W.D. Wash. 1901) 114

Lauritzen v. Larsen, 345 U.S. 571 (1953) 22, 23, 96, 98

Leather’s Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800

(2d Cir. 1971) 14, 75, 81

Leathers v. Blessing, 105 U.S. 626 (1881) 114

LeBlanc v. Cleveland, 198 F.3d 353 (2d Cir. 1999) 4

Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438 (2001) 135

Lewis v. Timco, Inc., 697 F.2d 1252 (5th Cir. 1983) 107

Lindgren v. United States, 281 U.S. 38 (1930) 24

Liner v. J.B. Talley & Co., 618 F.2d 327 (5th Cir. 1980) 88

Lipscomb v. Foss Maritime Co., 83 F.3d 1106 (9th Cir. 1996) 90

Lithotip, CA v. S.S. Guarico, 569 F. Supp. 837 (S.D.N.Y. 1983) 80

Liverpool, Brazil & River Plate Steam Navigation Co. v. Brooklyn

Eastern District Terminal, 251 U.S. 48 (1919) 137

Logistics Management, Inc. v. One (1) Pyramid Tent Arena, 86 F.3d 908

(9th Cir. 1996) 165

Lottawanna, The, 88 U.S. 558 (1874) 20

Luckenbach v. Pierson, 229 F. 130 (2d Cir. 1915) 50

Lucky Metals Corp. v. M/V Ave, 1996 AMC 265 (E.D.N.Y. 1995) 61

Lydia, The, 49 F. 666 (E.D.N.Y. 1892) 158

M/S Bremen, The v. Zapata Off-Shore Co., 407 U.S. 1 (1972) 147

Macedo v. F/V Paul & Michelle, 868 F.2d 519 (1st Cir. 1989) 88

Magee v. United States Lines, 976 F.2d 821 (2d Cir. 1992) 84

Magnolia Marine Transp. Co. v. Oklahoma, 366 F.3d 1153

(10th Cir. 2004) 192

Mahnich v. Southern S.S. Co., 321 U.S. 96 (1944) 86, 99

Mahramas v. American Export Isbrandtsen Lines, Inc., 475 F.2d 165

(2d Cir. 1973) 92, 96

Main, The v. Williams, 152 U.S. 122 (1894) 136

Mandu, The, 102 F.2d 459 (2d Cir. 1939) 132

Manuel v. P.A.W. Drilling & Well Service, Inc., 135 F.3d 344

(5th Cir. 1998) 94

Mapco Petroleum, Inc. v. Memphis Barge Line, Inc., 849 S.W.2d 312

(Tenn. 1993) 136
Cases

215

Marathon Pipe Line Co. v. Drilling Rig Rowan/Odessa, 761 F.2d 229

(5th Cir. 1985) 94

Margate Shipping Co. v. M/V JA Orgeron, 143 F.3d 976 (5th Cir. 1998) 158

Marine Fuel Supply & Towing, Inc. v. M/V Ken Lucky, 859 F.2d 1405

(9th Cir. 1988) 170

Marine Fuel Supply & Towing, Inc. v. M/V Ken Lucky, 869 F.2d 473

(9th Cir. 1988) 170

Markakis v. S.S. Volendam, 486 F. Supp. 1103 (S.D.N.Y. 1980) 155, 156

Maryland Casualty Co. v. Cushing, 347 U.S. 409 (1954) 138

Matute v. Lloyd Bermuda Lines, Ltd., 931 F.2d 231 (3d Cir. 1991) 87

Max Morris, The v. Curry, 137 U.S. 1 (1890) 114

McDermott Inc. v. Boudreaux, 679 F.2d 452 (5th Cir. 1982) 104

McDermott International, Inc. v. Wilander, 498 U.S. 337 (1991) 92, 104, 108

McKinley v. All Alaskan Seafoods, Inc., 980 F.2d 567 (9th Cir. 1992) 95

McLanahan v. Universal Insurance Co., 26 U.S. (1 Pet.) 170 (1828) 185

McLaughlin v. Dredge Glouchester, 230 F. Supp. 623 (D.N.J. 1964) 176

McWilliams v. Texaco, Inc., 781 F.2d 514 (5th Cir. 1986) 88

Mediterranean Marine Lines, Inc. v. John T. Clark & Son of Maryland,

Inc., 485 F. Supp. 1330 (D. Md. 1980) 75

Mente & Co. v. Isthmian S.S. Co., 36 F. Supp. 278 (S.D.N.Y. 1940) 61

Merritt & Chapman Derrick & Wrecking Co. v. United States,

274 U.S. 611 (1927) 155

Mid-America Transportation Co. v. National Marine Service, Inc.,

497 F.2d 776 (8th Cir. 1974) 144, 145

Midland Tar Distillers, Inc. v. M/T Lotos, 362 F. Supp. 1311

(S.D.N.Y. 1973) 51

Miles v. Apex Marine Corp., 498 U.S. 19 (1990) 84, 121, 122, 123

Miles v. Delta Well Surveying Corp., 777 F.2d 1069 (5th Cir. 1985) 112

Miller v. American President Lines, Ltd., 989 F.2d 1450 (6th Cir.

1993) 84, 122

Mills v. Director, O.W.C.P., 877 F.2d 356 (5th Cir. 1989) 113

Ministry of Commerce, State Purchase Directorate of Athens,

Greece v. Marine Tankers Corp., 194 F. Supp. 161 (S.D.N.Y. 1960) 60

Minnkota Power Co-op., Inc. v. Manitowoc Co., 669 F.2d 525

(8th Cir. 1982) 96

Mission Marine Associates, Inc., In re, 633 F.2d 678 (3d Cir. 1980) 24
Admiralty and Maritime Law

216

Missouri v. Craig, 163 F.3d 482 (8th Cir. 1998) 5

Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960) 100

Mitsui & Co. (USA) Inc. v. Mira M/V, 111 F.3d 33 (5th Cir. 1997) 82

Mitsui & Co. v. American Export Lines, Inc., 636 F.2d 807

(2d Cir. 1981) 75, 76

Mobil Oil Co. v. Higginbotham, 436 U.S. 618 (1978) 119, 120

Molett v. Penrod Drilling Co., 826 F.2d 1419 (5th Cir. 1987) 9

Monica Textile Corp. v. S.S. Tana, 952 F.2d 636 (2d Cir. 1991) 75, 76

Monte Iciar, The, 167 F.2d 334 (3d Cir. 1948) 57

Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63 (2d Cir. 1988) 114

Moore-McCormack Lines v. The Esso Camden, 244 F.2d 198

(2d Cir. 1957) 129

Moragne v. States Marine Lines, Inc., 398 U.S. 375

(1970) 118, 120, 121, 122, 123, 124

Morales v. Garijak, Inc., 829 F.2d 1355 (5th Cir. 1987) 88, 90

Moran Towing & Transportation Co. v. Lombas, 58 F.3d 24

(2d Cir. 1995) 89

Morton v. De Oliveira, 984 F.2d 289 (9th Cir. 1993) 115

Motts v. M/V Green Wave, 210 F.3d 565 (5th Cir. 2000) 6

Mounteer v. Marine Transport Lines, Inc., 463 F.Supp. 715

(S.D.N.Y. 1979) 95

Nacirema Operating Co. v. S.S. Al Kulsum, 407 F. Supp. 1222

(S.D.N.Y. 1975) 177

Nat G. Harrison Overseas Corp. v. American Tug Titan, 516 F.2d 89

(5th Cir. 1975) 145

Navigazione Generale Italiana v. Spencer Kellogg & Sons, 92 F.2d 41

(2d Cir. 1937) 196

Neal v. Barisich, Inc., 707 F. Supp. 862 (E.D. La. 1989) 120, 122

Neely v. Club Med Management Services, Inc., 63 F.3d 166 (3d Cir. 1995) 98

Nesti v. Rose Barge Lines, Inc., 326 F.Supp. 170 (N.D. Ill. 1971) 20

Nippon Fire & Marine Insurance Co. v. M/V Tourcoing, 167 F.3d 99

(2d Cir. 1999) 77

Nissan Fire & Marine Insurance Co. v. M/V Hyundai Explorer, 93 F.3d 641

(9th Cir. 1996) 69

Nisseqogue, The, 280 F. 174 (E.D.N.C. 1922) 165

Noah’s Ark, The v. Bentley & Felton Corp., 292 F.2d 437 (5th Cir. 1961) 159
Cases

217

Norfolk Shipbuilding and Drydock Corp. v. Garris, 532 U.S. 811

(2001) 121, 123, 124

Norwich & New York Transp. Co. v. Wright, 80 U.S. (13 Wall.) 104

(1871) 136

Nunley v. M/V Dauntless Colocotronis, 727 F.2d 455 (5th Cir. 1984) 131

Nygaard v. Peter Pan Seafoods, Inc., 701 F.2d 77 (9th Cir. 1983) 120, 123

O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36 (1943) 85

Ocean Steam Navigation Co. v. Mellor (The Titanic), 233 U.S. 718

(1914) 141, 142

Offshore Co. v. Robison, 266 F.2d 769 (5th Cir. 1959) 92

Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986) 24, 120

Offshore Specialty Fabricators, Inc., In re, 2002 AMC 2055, 2002 WL 827398

(E.D. La. 2002) 137

Oil Shipping (Bunkering) B.V. v. Sonmez Denizcilik Ve Ticaret A.S.,

10 F.3d 1015 (3d Cir. 1993) 23

Oil Spill by the Amoco Cadiz, In re, 699 F.2d 909 (7th Cir. 1983) 14

Olympic Towing Corp. v. Nebel Towing Co., 419 F.2d 230 (5th Cir.

1969) 138

Onaway Transportation Co. v. Offshore Tugs, Inc., 695 F.2d 197

(5th Cir. 1983) 160

Orduna S.A. v. Zen-Noh Grain Corp., 913 F.2d 1149 (5th Cir. 1990) 48

Ore Carriers of Liberia, Inc. v. Navigen Co., 435 F.2d 549 (2d Cir. 1970) 48

Oregon, The, 158 U.S. 186 (1895) 128

Oriente Commercial, Inc. v. M/V Floridian, 529 F.2d 221 (4th Cir. 1975) 172

Osceola, The, 189 U.S. 158 (1903) 87, 91, 99

P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979) 103

PPG Industries, Inc. v. Ashland Oil Co.–Thomas Petroleum Transit

Division, 527 F.2d 502 (3d Cir. 1975) 59

Pacific Employers Insurance Co. v. M/V Gloria, 767 F.2d 229

(5th Cir. 1985) 62

Pacific Far East Line, Inc., In re, 314 F. Supp. 1339 (N.D. Cal. 1970) 159

Pan American World Airways, Inc. v. California Stevedore & Ballast Co.,

559 F.2d 1173 (9th Cir. 1977) 59

Papai v. Harbor Tug & Barge Co., 67 F.3d 203 (9th Cir. 1995) 104

Paragon Oil Co. v. Republic Tankers, S.A., 310 F.2d 169 (2d Cir. 1962) 48

Parker v. Director, O.W.C.P., 75 F.3d 929 (4th Cir. 1996) 105
Admiralty and Maritime Law

218

Pate v. Standard Dredging Corp., 193 F.2d 498 (5th Cir. 1952) 86

Patentas v. United States, 687 F.2d 707 (3d Cir. 1982) 191

Patton-Tully Transportation Co., In re, 797 F.2d 206 (5th Cir. 1986) 122

Pavlides v. Galveston Yacht Basin, Inc., 727 F.2d 330 (5th Cir. 1984) 119

Pavone v. Mississippi Riverboat Amusement Corp., 52 F.3d 560

(5th Cir. 1995) 94, 95

Peninsular & Oriental Steam Navigation Co. v. Overseas Oil Carriers,

553 F.2d 830 (2d Cir. 1977) 161

Pennsylvania, The, 86 U.S. (19 Wall.) 125 (1873) 127

People’s Ferry Co. v. Beers (The Jefferson), 61 U.S. (20 How.) 393

(1858) 177

Peralta Shipping Corp. v. Smith & Johnson (Shipping) Corp.,

739 F.2d 798 (2d Cir. 1984) 10

Perez v. Barge LBT No. 4, 416 F.2d 407 (5th Cir. 1969) 158

Phillips v. Western Co. of North America, 953 F.2d 923 (5th Cir. 1992) 100

Piedmont & George’s Creek Coal Co. v. Seaboard Fisheries Co.,

254 U.S. 1 (1920) 169

Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) 22

Pizzitolo v. Electro-Coal Transfer Corp., 812 F.2d 977 (5th Cir. 1987) 104

Place v. Norwich & New York Transp. Co., 118 U.S. 468 (1886) 136

Plamals v. The Pinar del Rio, 277 U.S. 151 (1928) 86

Plastique Tags, Inc. v. Asia Trans Line, Inc., 83 F.3d 1367 (11th Cir.

1996) 63, 78

Platoro Ltd., Inc. v. Unidentified Remains of a Vessel, 695 F.2d 893

(5th Cir. 1983) 154

Plymouth, The, 70 U.S. 20 (1865) 5

Polo Ralph Lauren, L.P. v. Tropical Shipping & Construction Co.,

215 F.3d 1217 (11th Cir. 2000) 25

Pope & Talbot v. Hawn, 346 U.S. 406 (1953) 96

Porche v. Gulf Mississippi Marine Corp., 390 F. Supp. 624 (E.D. La.

1975) 119

Port Arthur Towing Co., In re, 42 F.3d 312 (5th Cir. 1995) 135

Port Lynch, Inc. v. New England International Assurety of America,

Inc., 754 F. Supp. 816 (W.D. Wash. 1991) 186

Powell v. Offshore Navigation, Inc., 644 F.2d 1063 (5th Cir. 1981) 14

Poznan, The, 274 U.S. 117 (1927) 165
Cases

219

President Arthur, The, 279 U.S. 564 (1929) 177

Producers Drilling Co. v. Gray, 361 F.2d 432 (5th Cir. 1966) 94

Provost v. Huber, 594 F.2d 717 (8th Cir. 1979) 154

Public Administrator of New York County v. Angela Compania

Naviera, S.A., 592 F.2d 58 (2d Cir. 1979) 119

Puritan, The, 258 F. 271 (D. Mass. 1919) 171

Quaker Oats Co. v. M/V Torvanger, 734 F.2d 238 (5th Cir. 1984) 71, 72, 79

Quarrington Court, The, 122 F.2d 266 (2d Cir. 1941) 66

Queen Insurance Co. of America v. Globe & Rutgers Fire Insurance

Co., 263 U.S. 487 (1924) 181

R. L. Pritchard & Co. v. Steamship Hellenic Laurel,

342 F. Supp. 388 (S.D.N.Y. 1972) 81

Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978) 23, 150

Rebstock v. Sonat Offshore Drilling, 764 F.Supp. 75 (E.D. La. 1991) 84

Reed v. American Steamship Co., 682 F. Supp. 333 (E.D. Mich. 1988) 91

Reed v. The Yaka, 373 U.S. 410 (1963) 110

Reinholtz v. Retriever Marine Towing & Salvage, 1994 AMC 2981

(S.D. Fla. 1993) 160–61

Renner v. Rockwell International Corp., 403 F.Supp. 849

(C.D. Cal. 1975) 119

Republic National Bank of Miami v. United States, 506 U.S. 80 (1992) 38

Reynolds Leasing Corp. v. Tug Patrice McAllister, 572 F. Supp. 1131

(S.D.N.Y. 1983) 158

Richardson v. Harmon, 222 U.S. 96 (1911) 141

Richendollar v. Diamond M Drilling Co., 819 F.2d 124

(5th Cir. 1987) 107

Ritchie v. Grimm, 724 F.Supp. 59 (E.D.N.Y. 1989) 88

Riverway Co. v. Spivey Marine & Harbor Service Co., 598 F.Supp. 909

(S.D. Ill. 1984) 34

Rizzi v. Underwater Construction Corp., 84 F.3d 199 (6th Cir. 1996) 105

Robert C. Herd & Co. v. Krawill Machinery Corp., 359 U.S. 297 (1959) 81

Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303 (1927) 129

Roco Carriers, Ltd. v. M/V Nurnberg Express, 899 F.2d 1292

(2d Cir. 1990) 14

Rodriguez-Alvarez v. Bahama Cruise Line, Inc., 898 F.2d 312

(2d Cir. 1990) 89
Admiralty and Maritime Law

220

Romano v. West India Fruit & Steamship Co., 151 F.2d 727

(5th Cir. 1945) 46

Romero v. International Terminal Operating Co., 358 U.S. 354

(1959) 13, 14, 19, 20, 25, 85

Roy v. M/V Kateri Tek, 238 F. Supp. 813 (E.D. La. 1965) 165

Royal Insurance Co. of America v. Cineraria Shipping Co.,

894 F. Supp. 1557 (M.D. Fla. 1995) 197

Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir. 1969) 96

Sabine, The, 101 U.S. (11 Otto) 384 (1879) 153, 155, 156

Sacramento Navigation Co. v. Salz, 273 U.S. 326 (1927) 137, 143

Salim Oleochemicals Inc. v. M/V Shropshire, 169 F. Supp. 2d 194

(S.D.N.Y. 2001) 51

Salter Marine, Inc. v. Conti Carriers & Terminals, Inc., 677 F.2d 388

(4th Cir. 1982) 145

Santiago v. Sea-Land Service, Inc., 366 F. Supp. 1309 (D.P.R. 1973) 74

Saskatchewan Government Insurance Office v. Spot Pack, Inc.,

242 F.2d 385 (5th Cir. 1957) 186, 187

Sasportes v. M/V Sol de Copacabana, 581 F.2d 1204 (5th Cir. 1978) 171

Schnell v. United States, 166 F.2d 479 (2d Cir. 1948) 189

Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156

(1981) 108, 109, 110, 124

Scotland, The, 105 U.S. (15 Otto) 24 (1881) 132

Scurlock v. American President Lines, 162 F.Supp. 78 (N.D. Cal. 1958) 86

Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573 (1974) 120, 121, 122

Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946) 108

Seawind Compania, S.A. v. Crescent Line, Inc., 320 F.2d 580

(2d Cir. 1963) 32

Sedco, Inc. v. S.S. Strathewe, 800 F.2d 27 (2d Cir. 1986) 73

Seiriki Kisen Kaisha, In re, 629 F. Supp. 1374 (S.D.N.Y. 1986) 67

Sekco Energy Inc. v. M/V Margaret Chouest, 820 F. Supp. 1008

(E.D. La. 1993) 129

Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540 (11th Cir. 1987) 127

Sellers v. Dixilyn Corp., 433 F.2d 446 (5th Cir. 1970) 88

Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107 (1959) 98

Servicios-Expoarma, C.A. v. Industrial Maritime Carriers, Inc.,

135 F.3d 984 (5th Cir. 1998) 80
Cases

221

Sharp v. Johnson Brothers Corp., 973 F.2d 423 (5th Cir. 1992) 104

Sidwell v. Express Container Services, Inc., 71 F.3d 1134 (4th Cir. 1995) 105

Signal Oil & Gas Co. v. The Barge W-701, 654 F.2d 1164 (5th Cir. 1981) 141

Silvia, The, 171 U.S. 462 (1898) 58

Singleton v. Guangzhou Ocean Shipping Co., 79 F.3d 26 (5th Cir. 1996) 110

Sisson v. Ruby, 497 U.S. 358 (1990) 7, 8, 9

Sistrunk v. Circle Bar Drilling Co., 770 F.2d 455 (5th Cir. 1985) 122

Skou v. United States, 478 F.2d 343 (5th Cir. 1973) 128

Slavin v. Port Service Corp., 138 F.2d 386 (3d Cir. 1943) 165

Smith v. Allstate Yacht Rentals, Ltd., 293 A.2d 805 (Del. 1972) 122

Smith v. Trans-World Drilling Co., 772 F.2d 157 (5th Cir. 1985) 99, 101

Snyder v. Whittaker Corp., 839 F.2d 1085 (5th Cir. 1988) 123

Sobonis v. Steam Tanker National Defender, 298 F. Supp. 631

(S.D.N.Y. 1969) 153

Soerstad, The, 257 F. 130 (S.D.N.Y. 1919) 141

Solet v. M/V Captain H.V. Dufrene, 303 F. Supp. 980 (E.D. La. 1969) 87

Solomon v. Warren, 540 F.2d 777 (5th Cir. 1976) 119

Southern Coal & Coke Co. v. Kugniecibas (The Everosa), 93 F.2d 732

(1st Cir. 1937) 176

Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917) 25, 26, 102

Southwest Marine, Inc. v. Gizoni, 502 U.S. 81 (1991) 104

Spiller v. Thomas M. Lowe, Jr. & Associates, Inc., 466 F.2d 903

(8th Cir. 1972) 122

Spinks v. Chevron Oil Co., 507 F.2d 216 (5th Cir. 1975) 101

St. Paul Marine Transportation Corp. v. Cerro Sales Corp.,

313 F. Supp. 377 (D. Haw. 1970) 161

Standard Dredging Co. v. Kristiansen, 67 F.2d 548 (2d Cir. 1933) 137

Stanfield v. Shellmaker, Inc., 869 F.2d 521 (9th Cir. 1989) 95

Stanislawski v. Upper River Services Inc., 6 F.3d 537 (8th Cir. 1993) 87

Star of Hope, The, 76 U.S. (9 Wall.) 203 (1869) 196

State Industrial Commission of State of New York v. Nordenholt Corp.,

259 U.S. 263 (1922) 102

State of Louisiana ex rel. Guste v. M/V Testbank, 752 F.2d 1019

(5th Cir. 1985) 129, 130

Steamship Knutsford Co. v. Barber & Co., 261 F. 866 (2d Cir. 1919) 46, 47
Admiralty and Maritime Law

222

Sterling Navigation Co., In re, 31 B.R. 619 (S.D.N.Y. 1983) 177

Stevens Technical Services, Inc. v. United States, 913 F.2d 1521

(11th Cir. 1990) 170

Stevens v. The White City, 285 U.S. 195 (1932) 143, 144

Stewart v. Dutra Construction Co., 230 F.3d 461 (1st Cir. 2000) 94

Strachan Shipping Co. v. Nash, 782 F.2d 513 (5th Cir. 1986) 106

Strachan Shipping Co. v. Shea, 406 F.2d 521 (5th Cir. 1969) 104

Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291 (1982) 152

Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (1980) 105, 106

Swift Textiles, Inc. v. Watkins Motor Lines, Inc., 799 F.2d 697

(11th Cir. 1986) 60

T. Smith & Son v. Taylor, 276 U.S. 179 (1928) 102

T.N.T. Marine Service, Inc. v. Weaver Shipyards & Dry Docks, Inc.,

702 F.2d 585 (5th Cir. 1983) 17

Ta Chi Navigation Corp., S.A., In re, 513 F. Supp. 148 (E.D. La. 1981) 67

Ta Chi Navigation (Panama) Corp. S.A., 416 F. Supp. 371

(S.D.N.Y. 1976) 142

Taisho Marine & Fire Insurance Co., Ltd. v. M/V Sea-Land Endurance,

815 F.2d 1270 (9th Cir. 1987) 69, 70

Tapco Nigeria, Ltd. v. M/V Westwind, 702 F.2d 1252 (5th Cir. 1983) 56

Taylor v. Alaska Rivers Navigation Co., 391 P.2d 15 (Alaska 1964) 114

Taylor v. Bunge Corp., 845 F.2d 1323 (5th Cir. 1988) 111

Tennessee Gas Pipeline v. Houston Casualty Insurance Co.,

87 F.3d 150 (5th Cir. 1996) 86, 113

Terminal Shipping Co. v. Hamberg, 222 F. 1020 (D. Md. 1915) 10

Terne, The, 64 F.2d 502 (2d Cir. 1933) 48

Texaco Trinidad, Inc. v. Afran Transport Co., 538 F. Supp. 1038

(E.D. Pa. 1982) 152

Texaco, Inc., In re, 847 F. Supp. 457 (E.D. La. 1994) 135

Texaco, Inc., In re, 570 F. Supp. 1272 (E.D. La. 1983) 68

Texports Stevedore Co., 632 F.2d 504 (5th Cir. 1980) 105

Thebes Shipping Inc., In re, 486 F. Supp. 436 (S.D.N.Y. 1980) 68

Thomas Barlum, The, 293 U.S. 21 (1934) 20

Tidewater Marine Towing, Inc. v. Dow Chem. Co., 689 F.2d 1251

(5th Cir. 1982) 122
Cases

223

Tokio Marine & Fire Insurance Co. v. Retla Steamship Co.,

426 F.2d 1372 (9th Cir. 1970) 64

Trans-Asiatic Oil Ltd., S.A. v. Apex Oil Co., 626 F. Supp. 718

(D.P.R. 1985) 50

Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp.,

109 F.3d 105 (2d Cir. 1997) 11

Transatlantic Marine Claims Agency, Inc. v. M/V OOCL Inspiration,

137 F.3d 94 (2d Cir. 1998) 79

Transorient Navigators Co., S.A. v. M/S Southwind, 788 F.2d 288

(5th Cir. 1986) 36

Treasure Salvors, Inc. v. Unidentified Wrecked & Abandoned Sailing

Vessel, 569 F.2d 330 (5th Cir. 1978) 156, 157

Turecamo of Savannah, Inc. v. United States, 824 F. Supp. 1069

(S.D. Ga. 1993) 170

Twenty Grand Offshore, Inc. v. West India Carriers, Inc., 492 F.2d 679

(5th Cir. 974) 147

Tychy, The, [1999] 2 Lloyd’s Rep. 11 (U.K.) 44

U.S. Steel International Inc. v. Granheim, 540 F. Supp. 1326

(S.D.N.Y. 1982) 71

Umbria, The, 166 U.S. 404 (1897) 128

Union Fish Co. v. Erickson, 248 U.S. 308 (1919) 42

United States Dredging Corp., In re, 264 F.2d 339 (2d Cir. 1959) 137

United States v. Atlantic Mutual Insurance Co., 343 U.S. 236 (1952) 131

United States v. Atlantic Mutual Insurance Co., 298 U.S. 483 (1936) 198

United States v. Locke, 529 U.S. 89 (2000) 23

United States v. M/V Marilena P, 433 F.2d 164 (4th Cir. 1969) 61

United States v. Nielson, 349 U.S. 129 (1955) 152

United States v. Reliable Transfer Co., Inc., 421 U.S. 397

(1975) 125, 126, 130, 131, 146

United States v. Shea, 152 U.S. 178 (1894) 43

United States v. The Audrey II, 185 F. Supp. 777 (N.D. Cal. 1960) 165

United States v. Ultramar Shipping Co., 685 F. Supp. 887 (S.D.N.Y. 1987) 58

United States v. United Continental Tuna Corp., 425 U.S. 164 (1976) 190

University of Texas Medical Branch at Galveston v. United States,

557 F.2d 438 (5th Cir. 1977) 140
Admiralty and Maritime Law

224

Unterweser Reederei Aktiengesellschaft v. Potash Importing

Corporation of America, 36 F.2d 869 (5th Cir. 1930) 60

Usner v. Luckenbach Overseas Corp., 400 U.S. 494 (1971) 100

Valentine v. St. Louis Ship Building Co., 620 F.Supp. 1480

(E.D. Mo. 1985) 101

Vallescura, The, 293 U.S. 296 (1934) 72

Valley Line Co. v. Ryan, 771 F.2d 366 (8th Cir. 1985) 137

Valley Towing Service, Inc. v. S.S. American Wheat, Freighters, Inc.,

618 F.2d 341 (5th Cir. 1980) 126

Vella v. Ford Motor Co., 421 U.S. 1 (1975) 89, 90

Venore Transportation Co. v. M/V Struma, 583 F.2d 708 (4th Cir. 1978) 129

Venore Transportation Co. v. Oswego Shipping Corp., 498 F.2d 469

(2d Cir. 1974) 48

Vigilancia, The, 58 F. 698 (S.D.N.Y. 1893) 169

Villers Seafood Co. v. Vest, 813 F.2d 339 (11th Cir. 1987) 101

Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528 (1995) 82

Vision Air Flight Service Inc. v. M/V National Pride, 155 F.3d 1165

(9th Cir. 1998) 73

Vistar, S.A. v. M/V Sea Land Express, 792 F.2d 469 (5th Cir. 1986) 81, 82

Vlavianos v. The Cypress, 171 F.2d 435 (4th Cir. 1948) 164

Vodusek v. Bayliner Marine Corp., 71 F.3d 148 (4th Cir. 1995) 14, 18

W. Horace Williams Co. v. The Wakulla, 109 F. Supp. 698

(E.D. La. 1953) 144

Wahlstrom v. Kawasaki Heavy Industries, Ltd., 4 F.3d 1084

(2d Cir. 1993) 84, 122

Waldron v. Moore-McCormack Lines, Inc., 386 U.S. 724 (1967) 67, 99

Walsh v. Tadlock, 104 F.2d 131 (9th Cir. 1939) 175

Waring v. Clarke, 46 U.S. (5 How.) 441 (1847) 13, 28

Warn v. M/Y Maridome, 169 F.3d 625 (9th Cir. 1999) 23

Warner v. Dunlap, 532 F.2d 767 (1st Cir. 1976) 151

Warren v. United States, 340 U.S. 523 (1991) 87, 88

Waterman S.S. Corp. v. Gay Cottons, 414 F.2d 724 (9th Cir. 1969) 139, 140

Wayne v. Inland Waterways Corp., 92 F. Supp. 276 (S.D. Ill. 1950) 78

Wentz v. Kerr-McGee Corp., 784 F.2d 699 (5th Cir. 1986) 112, 124

West v. United States, 361 U.S. 118 (1959) 95
Cases

225

Western Fuel Co. v. Garcia, 257 U.S. 233 (1921) 26

Westinghouse Electric Corp. v. M/V Leslie Lykes, 734 F.2d 199

(5th Cir. 1984) 69

Wheatley v. Gladden, 660 F.2d 1024 (4th Cir. 1981) 96

Wilbur-Ellis Co. v. M/V Captayannis “S,” 451 F.2d 973 (9th Cir. 1971) 67

Wilburn Boat Co. v. Fireman’s Fund Insurance Co., 348 U.S. 310

(1955) 182, 186

Wilder v. Placid Oil Co., 611 F. Supp. 841 (W.D. La. 1985) 5

Williams v. Long Island Railroad Co., 196 F.3d 402 (2d Cir. 1999) 97

Wilmington Trust v. United States District Court for the District of

Hawaii, 934 F.2d 1026 (9th Cir. 1991) 15, 16

Wilson v. McNamee, 102 U.S. (12 Otto) 572 (1880) 151

Wirth Ltd. v. S.S. Acadia Forest, 537 F.2d 1272 (5th Cir. 1976) 137

Wyandotte Transportation Co. v. United States, 389 U.S. 191 (1967) 131

Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199 (1996) 19, 117, 121

Yamashita-Shinnihon Kisen, In re, 305 F. Supp. 796 (D. Or. 1969) 161

Yaye Maru, The, 274 F. 195 (4th Cir. 1921) 47

Yelverton v. Mobile Laboratories, Inc., 782 F.2d 555 (5th Cir. 1986) 88

Yone Suzuki v. Central Argentine Railway, 27 F.2d 795 (2d Cir. 1928) 61

Young, In re, 872 F.2d 176 (6th Cir. 1989) 139

Zicherman v. Korean Airlines Co., Ltd., 43 F.3d 18 (2d Cir. 1994) 120

Zicherman v. Korean Airlines Co., Ltd., 516 U.S. 217 (1996) 120

Zim Israel Navigation Co. v. Special Carriers Inc., 611 F. Supp. 581

(E.D. La. 1985) 126

Zouras v. Menelaus Shipping Co., 336 F.2d 209 (1st Cir. 1964) 86

Zrncevich v. Blue Hawaii Enterprises Inc., 738 F.Supp. 350

(D. Haw. 1990) 16

227

Statutes

1 U.S.C. §3 93

15 U.S.C. §1012 181

16 U.S.C. §§431–433 157

16 U.S.C. §470aa 157

28 U.S.C. §1331 13, 14, 85

28 U.S.C. § 1332 18–19, 85

28 U.S.C. §1333 1, 3, 12–13, 18, 19, 20, 85, 181

28 U.S.C. §1334(d) 177

28 U.S.C. §1346 190

28 U.S.C. §1367 14, 16

28 U.S.C. § 1377(a) 14–15

28 U.S.C. §1441 19

28 U.S.C. §1445(a) 86

28 U.S.C. §§ 1602–1611 192

28 U.S.C. § 1605(a) 192

28 U.S.C. §1605(a)(1) 192

28 U.S.C. §1605(a)(2) 192

28 U.S.C. § 1605(a)(5)(A) 192

28 U.S.C. § 1605(a)(5)(B) 192

28 U.S.C. §1605(a)(6) 192

28 U.S.C. § 1605(b) 192

28 U.S.C. § 1605(b)(1) 192

28 U.S.C. § 1605(b)(2) 192

28 U.S.C. §1605(c) 192, 193

28 U.S.C. §1605(d) 192, 193

28 U.S.C. §1873 3, 13

28 U.S.C. §1921 36
Admiralty and Maritime Law

228

28 U.S.C. §2401(b) 191

28 U.S.C. §2674 190

28 U.S.C. § 2680 190

28 U.S.C. §2680(b) 191

33 U.S.C. § 409 130, 140

33 U.S.C. § 411 130

33 U.S.C. §§901–948(a) 102

33 U.S.C. §902(3) 103

33 U.S.C. §§902(3)(A)–(F) 103

33 U.S.C. §903(a) 105

33 U.S.C. § 903(c) 106

33 U.S.C. §903(e) 104, 106

33 U.S.C. §904 124

33 U.S.C. §904(b) 106

33 U.S.C. §905(a) 106, 124

33 U.S.C. §905(b) 108, 110, 111, 112, 123, 124

33 U.S.C. § 905(c) 113, 124

33 U.S.C. §906 106

33 U.S.C. §907 106

33 U.S.C. §908 106

33 U.S.C. §908(g) 106

33 U.S.C. §909 106

33 U.S.C. §913 111

33 U.S.C. §913(a) 112

33 U.S.C. §919(d) 111

33 U.S.C. §921 111

33 U.S.C. §921(b)(3) 111

33 U.S.C. §921(c) 111

33 U.S.C. §933 107, 108, 124

33 U.S.C. §933(a) 107
Statutes

229

33 U.S.C. §933(b) 107

33 U.S.C. §933(e) 107

33 U.S.C. §939(b) 105

33 U.S.C. § 939(c) 106

33 U.S.C. §§1601–1608 125

33 U.S.C. §§2002–2073 125

33 U.S.C. §2701 2

33 U.S.C. §§2701–2761 185

33 U.S.C. §2718 140

33 U.S.C. §2718(a)(1) 25

43 U.S.C. §1331 2

43 U.S.C. §§1331–1356 112

43 U.S.C. §1332 157

43 U.S.C. §1333(a)(1) 113

43 U.S.C. §1333(a)(2)(A) 113

43 U.S.C. §1333(b) 112

43 U.S.C. §1333(b)(1) 112

43 U.S.C. §1333(f) 114

43 U.S.C. §§2101–2106 157

45 U.S.C. §§51–60 91

45 U.S.C. §56 85

45 U.S.C. §151 101

46 U.S.C. §§ 971–974 168

46 U.S.C. § 2303 161

46 U.S.C. § 2304 161

46 U.S.C. §8501(a) 150

46 U.S.C. §8501(d) 150

46 U.S.C. §8502 150

46 U.S.C. §8502(a) 150

46 U.S.C. §9304 150
Admiralty and Maritime Law

230

46 U.S.C. §10504(c) 90

46 U.S.C. § 11112 172

46 U.S.C. §31301 2

46 U.S.C. §§30101–31343 193

46 U.S.C. §§31301–31343 168, 177, 178

46 U.S.C. §31301(4) 143, 168, 172

46 U.S.C. §§ 31301(5)–(6) 171

46 U.S.C. § 31301(5)(A) 172

46 U.S.C. §§ 31301(5)(A)–(F) 171

46 U.S.C. § 31301(6)(B) 168

46 U.S.C. § 31305 177

46 U.S.C. § 31305(1) 179

46 U.S.C. § 31322 168

46 U.S.C. §31322(a)(1)(A) 178

46 U.S.C. § 31322(a)(1)(B) 178

46 U.S.C. § 31322(a)(1)(C) 178

46 U.S.C. § 31322(a)(1)(D) 178

46 U.S.C. § 31325(a) 168

46 U.S.C. § 31325(b) 168

46 U.S.C. § 31325(b)(1) 178

46 U.S.C. § 31325(b)(2) 172, 178

46 U.S.C. § 31326(b)(1) 171, 179

46 U.S.C. §§ 31326(b)(1)–(2) 171

46 U.S.C. § 31326(b)(2) 179

46 U.S.C. §31341 2, 169, 170, 172

46 U.S.C. § 31342 168, 170

46 U.S.C. app. §§181–189 133

46 U.S.C. app. §182 68

46 U.S.C. app. §183 2, 138

46 U.S.C. app. §183(a) 133, 136, 139, 140
Statutes

231

46 U.S.C. app. §183(b) 133, 137

46 U.S.C. app. §183(e) 139

46 U.S.C. app. §183(f) 137

46 U.S.C. app. §183b(a) 116

46 U.S.C. app. § 183b(b) 116

46 U.S.C. app. §183c 115

46 U.S.C. app. §183c(b) 116

46 U.S.C. app. §185 133

46 U.S.C. app. §186 138

46 U.S.C. app. §188 139

46 U.S.C. app. §189 140

46 U.S.C. app. §190 57

46 U.S.C. app. §§190–196 53, 54, 56

46 U.S.C. app. §191 57

46 U.S.C. app. §192 58, 131

46 U.S.C. app. § 195 56

46 U.S.C. app. §491 115

46 U.S.C. app. §688 2, 85, 86, 91, 117

46 U.S.C. app. §688(a) 85

46 U.S.C. app. §688(b) 98

46 U.S.C. app. §§727–731 153

46 U.S.C. app. §729 161

46 U.S.C. app. §730 153

46 U.S.C. app. §740 3, 6, 191

46 U.S.C. app. §§741–752 189

46 U.S.C. app. §741 2

46 U.S.C. app. §743 189

46 U.S.C. app. §745 189, 191

46 U.S.C. app. §761 2, 118, 119

46 U.S.C. app. §§761–768 117, 118
Admiralty and Maritime Law

232

46 U.S.C. app. §761(b) 118

46 U.S.C. app. §762(b)(2) 120

46 U.S.C. app. §763(a) 85, 91, 112

46 U.S.C. app. §781 2, 190

46 U.S.C. app. §§ 781–790 190

46 U.S.C. app. §785 190

46 U.S.C. app. §883 150

46 U.S.C. app. §1300 20, 59, 60

46 U.S.C. app. §§1300–1312 51

46 U.S.C. app. §§1300–1315 53, 54, 58

46 U.S.C. app. §1301 2

46 U.S.C. app. §1301(b) 60

46 U.S.C. app. §1301(c) 61

46 U.S.C. app. §1301(e) 63

46 U.S.C. app. §1303 64

46 U.S.C. app. §1303(1) 64, 66

46 U.S.C. app. §1303(2) 64, 67

46 U.S.C. app. §1303(3) 63, 64, 78

46 U.S.C. app. §1303(6) 78, 79, 80

46 U.S.C. app. §1303(7) 63

46 U.S.C. app. §1303(8) 64

46 U.S.C. app. §1304 78, 131

46 U.S.C. app. §1304(1) 66, 74, 79

46 U.S.C. app. §1304(2) 67, 74, 79

46 U.S.C. app. §1304(2)(a) 65, 67

46 U.S.C. app. §1304(2)(b) 65, 68

46 U.S.C. app. §1304(2)(c) 65, 69

46 U.S.C. app. §1304(2)(d) 65

46 U.S.C. app. §1304(2)(e) 65

46 U.S.C. app. §1304(2)(f) 65
Statutes

233

46 U.S.C. app. §1304(2)(g) 65

46 U.S.C. app. §1304(2)(h) 65

46 U.S.C. app. §1304(2)(i) 65

46 U.S.C. app. §1304(2)(k) 65

46 U.S.C. app. §1304(2)(m) 65, 70

46 U.S.C. app. §§1304(2)(n)–(o) 65

46 U.S.C. app. §1304(2)(p) 66

46 U.S.C. app. §1304(2)(q) 66, 71, 72

46 U.S.C. app. §1304(4) 73

46 U.S.C. app. §1304(5) 74, 75, 76, 77

46 U.S.C. app. §1305 60, 72, 76

46 U.S.C. app. §1307 63, 80, 81

46 U.S.C. app. §1312 59

49 U.S.C. §§80101–80116 54

49 U.S.C. § 80102 54

49 U.S.C. §80103(a)(1) 54

49 U.S.C. §80103(b)(1) 55

49 U.S.C. §80103(b)(2) 55

49 U.S.C. §80105(a) 55

49 U.S.C. §80110(b) 55

49 U.S.C. §80113(a) 55

49 U.S.C. §80113(b)(1) 55

49 U.S.C. §80113(b)(2) 55

49 U.S.C. §80113(d)(1) 55

49 U.S.C. §80113(d)(2) 56

235

Rules

Fed. R. Civ. P. 1 28

Fed. R. Civ. P. 9(h) 12, 13, 16, 17, 28

Fed. R. Civ. P. 39(c) 16

Fed. R. Civ. P. 62 37

Fed. R. Civ. P. Supp. R. B 29, 31, 32, 33, 34, 176

Fed. R. Civ. P. Supp. R. C 29, 32, 33, 34, 175

Fed. R. Civ. P. Supp. R. E 29, 30, 33, 34, 35, 36, 37, 38

Fed. R. Civ. P. Supp. R. F 133, 134, 135, 136

La. Rev. Stat. Ann. §§9:5521–9:5538 (West 1999) 177

237

Index

Abandoned Shipwreck Act 157

Admiralty Extension Act 3, 6, 191

affreightment 41, 42, 143, 167

agency contracts 11, 167–68

Antiquities Act 157

arbitration 51, 61, 82, 160, 192

bills of lading 61

charter parties 51

Archaeological Resources Protection

Act 157

arrest 12, 16, 29–31, 33–38, 165, 189,

192–93

in rem actions 29, 30, 35, 37

maritime liens 33, 35, 165, 173, 175

preferred mortgage 33

procedures 12, 29, 30–31, 36, 38

release 37, 38, 175

sale of vessel 175

security 35, 36, 37, 165, 175

seizure 35, 189

attachment 12, 16, 29–38, 165, 193–93

in personam actions 29, 31–32, 176

not within district 192–93

prerequisites 31–32

procedures 12, 16, 29, 31–32, 33, 34,

36, 38

release 35, 37, 38

security 35, 37, 38, 165

seizure 29, 30

Basic Collision Regulations 125

bills of lading 44, 51, 52–57, 59–64, 74,

75–82, 197

burden of proof 78–79

negotiable 52, 54–55, 60

see Pomerene Act

breakdown clause 47

see off hire clause

British Marine Insurance Act 181, 184

Brussels Collision Convention 125,

132, 153

Brussels Salvage Convention 153

carriage of goods 10, 54, 58–82

see bills of lading

see Carriage of Goods by Sea Act

see charter parties

see Harter Act

see Pomerene Act

Carriage of Goods by Sea Act (COGSA)

2, 20, 24–25, 51, 53, 58–82

application 58–61

carrier’s duties 64

bills of lading 59–61, 63–64

duration 63

seaworthiness 66

vessel and cargo 64, 67

damages 74–78

limitation of carrier’s liability 59,

74–76, 131

deviation 73–74

liberties clause 74

due diligence 64, 66, 67, 79

exculpatory clauses prohibited 53,

64

extending application 80–82

immunities of carrier 65–72

errors in management 67–68

errors in navigation 67–68

fault of shipper 65, 70–71

fire 68–69

Himalaya clauses 81–82

inherent vice 70–71

jurisdiction and choice-of-law

clauses 82

notice of loss or damage 79–80

perils of the sea 69–70

“Q Clause” 71–72

unseaworthiness 66–67

packages versus containers 75–76

relationship with Harter Act 59, 64

time bar 80
Admiralty and Maritime Law

238

charter parties 10, 42–52, 54, 169–70

arbitration clauses 51

areas of dispute 44–45

bareboat charter 43–44

bills of lading 61

carriage of goods 51, 60–61, 62

contract 44, 166

damage to goods 51

definition 42

demise charter 43–44

demurrage 49–50

detention 50

forms 42, 44

liability of owner 54, 141

misrepresentation 45

mutual exceptions clause 47–48

off hire clause 47, 129

safe berth/port 48–49

seaworthiness 46–47

subcharters 50–51

time charter 42–43

types 42–44

voyage charter 42

warranties 46–47

withdrawal 50

choice of law 21–27, 82, 141–42

collision; accidents 2, 125, 132

causation 67–68, 126–27

damages 128–31

insurance 185, 187

liability 126

limitation of liability 140–41

pilots 131–32

place of suit and choice of law 132

presumptions 127–28

container 41, 75–76

Death on the High Seas Act 118–24

executory contracts 10, 167

Federal Maritime Lien Act 2, 24, 30,

168–70, 174, 175, 177

Federal Ship Mortgage Act 177–78

fleet doctrine 93

forum non conveniens 21–22, 26–27,

175

general average 172, 187, 195–98

fault and the New Jason Clause 197

general average loss: requirements

195–96

statement 197–98

York-Antwerp Rules 196–97

general maritime law 21

governmental liability and immunity

189–93

arrest 189, 192–93

federal government 189–91

Federal Tort Claims Act 190–91

Public Vessels Act 190

Suits in Admiralty Act 189–90

foreign governments 192–93

The Foreign Sovereign Immunities

Act 192–93

liens 192–93

state and municipal governments

191–92

Hague Rules 53

Visby Amendments 53

Hamburg Rules 53–54

Harter Act 53, 54, 56–58, 59, 63, 131

applicability and duration 56–58

bills of lading 54, 57

carrier’s defenses 57–58, 131

carrier’s duties 56–58

exculpatory clauses 53, 56–57

limitation of liability 57

relationship with COGSA 59, 63, 64,

66, 77, 80, 82, 131

time bar 80

unseaworthiness 58

inverse order rule 173, 174

Jones Act 2, 12, 13, 22, 24, 85, 91–98,

101–02

assumption of risk 91, 101

basis of liability; negligence 104, 123

borrowed servant doctrine 96

causation 96–98

contributory negligence 91, 96–98,

101

damages 84

death 85, 86, 117–18, 122
Index

239

defenses 91

employer 96

foreign seamen 98

joinder 12–15, 85

multiple claims 12–16

negligence 91

seaman status 92–95

vessel in navigation 93–95

jurisdiction 1–27

Admiralty Extension Act 3, 6, 191

in contract cases 9–11

mixed contracts 11

in tort cases 2, 3–9

maritime locus 5–6

maritime nexus 6–9

navigable waters of the United

States 3–5

multiple claims 12–17

hybrid claims 16–17

joinder 12–17

multiple jurisdictional bases 12–17

Rule 9(h) (FRCP) election 12

navigable waters 3–5

removal 19

saving to suitors clause 18–20

admiralty actions at law in federal

court 18–19

admiralty cases in state courts 18

law applicable 19

sources of law 1, 20–27

Life Salvage Act 161

limitation of liability 133–42

cargo damage 74

see carriage of goods

choice of law 141–42

claims subject to limitation 140–41

concursus of claims 135

exceptions 135

grounds for denying 139–40

limitation fund 136–38

parties and vessels entitled to limit

116, 138–39

personal contract doctrine 141

pollution 140

practice and procedure 133–36

priority of claims 136

privity or knowledge 139–40

Limitation of Vessel Owner’s Liability

Act 133–40

Lloyds Open Forum 160

Longshore and Harbor Workers’ Compensation Act 102–10

maintenance and cure 12, 13, 14, 15,

16, 86, 87–91

amount of maintenance 88

basis of liability (nonfault) 87

duration 89–90

maximum cure 89

seaman status 86

wages 90–91

marine insurance 64, 166, 181–88

burden of proof 183–84

cargo insurance 184, 188

particular average 188

hull policy 184, 185

insurable interest 184

interpretation of insurance contracts

10, 183

law applicable 2, 181–82

limitation of liability 138, 183

particular average 188

pollution insurance 185, 187–88

protection and indemnity (p&i)

insurance 184, 187

proximate cause 183–84

subrogation 188

uberrimae fidei 185–86

warranties 186–87

maritime contracts 9–11, 22, 181, 183

bills of lading 52–54, 60–61, 197

carriage of goods 10, 41, 54, 56,

58–62

charter parties 10, 44–45

insurance 10, 183

jurisdiction 9–11

liens 166–68

pilotage 10

salvage 160

towage 10, 143, 145, 152

maritime liens and mortgages 33, 134,

163–79

categories of maritime liens 165

contract liens 166–68
Admiralty and Maritime Law

240

crew wages 166, 172

general average 166

liens for necessaries 168–70

personified vessel 163

preferred ship mortgage 168, 174,

177–79

salvage 166

stevedore wages 166

tort liens 166

conflicts of laws 174–75

custodia legis 165

extinction of maritime liens 175–77

bankruptcy 177

destruction or release of the res

175

laches 176

sale of the res 175–76

waiver 177

persons who may acquire maritime

liens 163–64, 171

priorities of liens 171–74

governmental claims 174

ranking of liens 171–74

property to which maritime liens

attach 164–65

other property 165

vessel 164–65

maritime products liability 117, 119

maritime workers’ remedies 102–12

dual capacity employers 110

forum and time for suit 111–12

indemnity and employer liens 111

Longshore and Harbor Workers’

Compensation Act 102, 106–10

scope of coverage 102–06

suits against the vessel (§ 905(b))

108–11

suits against third parties (§ 933)

107

McCarran-Ferguson Act 181

mortgages, see maritime liens and

mortgages

off hire clause 47, 129

offshore workers’ remedies 112–14,

124

Outer Continental Shelf Lands Act

112–14, 124

remedies 113–14

status and situs requirements

112–13

passengers and others lawfully aboard a

ship 114–16

contractual limitation of shipowner’s

liability 115–16

duty and standard of care generally

114–15

personal contract doctrine 141

personal injury and death 2, 24,

83–124

beneficiaries 106, 118–19, 121–23

damages 84

Death on the High Seas Act 118–24

federal and state courts 85–86

removal 85–86

in personam and in rem actions 86

Jones Act 91–98

Longshore and Harbor Workers’

Compensation Act 102–10

maintenance and cure 87–91

maritime workers’ remedies 102–12

nonpecuniary 120

navigable waters 105

offshore workers’ remedies 112–14

passengers and others lawfully

aboard 114–16

see seamen’s remedies

statute of limitations 85

wrongful death under the general

maritime law 117–18, 120–24

pilotage 2, 10, 128, 149–52

compulsory 149

definition 149

exculpatory pilotage clauses 152

liability of pilots and pilot associations 151–52

regulation of pilots 150–51

standard of care 151

voluntary 149–50
Index

241

pollution 20, 25, 185

basis for liability 185

damages 128, 140

insurance 185, 187–88

liability 140

limitation 140

Oil Pollution Act of 1990 2, 185

Pomerene Act 54–56, 60

applicability 54

carrier liability 55–56

carrier’s obligation to deliver 55–56

negotiable and nonnegotiable bills of

lading 54–55, 60

preemption 23–27

procedure 27–39

arrest 12, 30–31, 33

see arrest

attachment 31–33

see attachment

garnishment 31–32

limitation of liability 133–36

see limitation of liability

see personal injury and death

special admiralty rules 28

supplemental rules 29

types of actions 28–33

recreational boating and personal watercraft 116–17

restraint of princes 47–48, 65

Reverse Erie Doctrine 19

salvage 2, 116, 128, 153–61

awards 157–59

contract salvage 153, 160

conventions 153

life salvage 161

misconduct of salvors 159–60

no cure–no pay rule 156, 159, 160

“pure salvage” 153, 154–56

peril 154, 155

success 156

voluntary service 155

reimbursement for expenses 161

salvage and finds distinguished

156–57

saving to suitors clause 18–20, 85, 181

admiralty actions “at law” in federal

court 18–19

admiralty cases in state courts 18

law applicable 19

removal 19–20

seaman status 92–93, 95, 96, 104

seamen’s remedies 86–102

assumption of risk 91, 101

basis of liability, strict 97

contributory negligence 87, 91, 97,

101–02

damages 91

death 91, 99, 100

defenses 91, 100

employer 87, 96

general maritime law 86, 87, 99

Jones Act 91, 96

maintenance and cure 86, 87–91

wages 90–91

proximate cause 98, 100

situs of injury 95

statute of limitations 91

unseaworthiness 101–02

vessel in navigation 93–95

ship mortgages 3, 33, 168, 172, 174,

177, 179

enforcement of the preferred ship

mortgage 168

maritime liens 178–79

mortgage creation: formal requirements 177–79

“no lien” clause 169

Ship Mortgage Act 168

sources of admiralty and maritime law

1–3, 20–27

choice of law 21–27

forum non conveniens 21–22, 26–27

general maritime law 21

Supplemental Jurisdiction Act 14–15,

16

torts 3–9, 107, 110, 125–30

collision; accidents 7, 125–30, 137

jurisdiction 6–9, 195

liens 33, 163–64

Pennsylvania Rule 127–28
Admiralty and Maritime Law

242

personal injury and death 83, 85,

107, 108, 117–19

pilotage 128

salvage 128

towage 144

towage 2, 10, 143–47

affreightment 143

contracts 143–44

duties of tow 145

duties of tug 144–45

exculpatory and benefit-of-insurance

clauses 146–47

liability of the tug and the tow to

third parties 146

towage contracts 143

unseaworthiness 12, 14, 15, 16, 58, 65,

66, 67, 99–102, 145, 186, 187

carriage of goods 67

COGSA 65–67, 69, 79, 82

death 121, 122

Harter Act 58

insurance 186–87

maritime workers 123–24

personal injury 13, 16, 91, 99–102

seamen 86, 91, 99–101, 123

tow 145

voyage rule 173–74

York–Antwerp Rules 196–97