Admiralty and Maritime Law - Federal Judicial Center and Maritime Law Robert Force Niels F. Johnsen Professor of Maritime Law Co-Director, Tulane Maritime Law Center Tulane Law School

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  • Admiralty and Maritime Law

    Robert ForceNiels F. Johnsen Professor of Maritime LawCo-Director, Tulane Maritime Law Center

    Tulane Law School

    Federal Judicial Center 2004

    This Federal Judicial Center publication was undertaken in furtherance of theCenters statutory mission to develop and conduct education programs forjudicial branch employees. The views expressed are those of the author andnot necessarily those of the Federal Judicial Center.

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    Preface ix

    Chapter 1: Jurisdiction and Procedure in Admiralty and MaritimeCases 1

    Introduction 1Admiralty Jurisdiction in Tort Cases 3

    Navigable Waters of the United States 3The Admiralty Locus and Nexus Requirements 5Maritime Locus 5The Admiralty Extension Act 6Maritime Nexus 6

    Admiralty Jurisdiction in Contract Cases 9Mixed Contracts 11

    Multiple Jurisdictional Bases 12Rule 9(h) of the Federal Rules of Civil Procedure 12Multiple Claims 12

    The Saving to Suitors Clause 18Admiralty Cases in State Courts 18Admiralty Actions At Law in Federal Courts 18Law Applicable 19Removal 19

    Sources of Admiralty and Maritime Law 20The General Maritime Law 21Choice of Law: U.S. or Foreign 21

    Procedure in Admiralty Cases 27Special Admiralty Rules 28Types of Actions: In Personam, In Rem, Quasi In Rem 28The Complaint 34Security for Costs 34Property Not Within the District 34Necessity for Seizure and RetentionExceptions 35Post-Arrest/Post-Attachment Hearing 36Release of PropertySecurity 36Increase or Decrease of Security; Counter-Security 38Restricted Appearance 38Sale of Property 39

  • Admiralty and Maritime Law


    Chapter 2: Commercial Law 41Introduction 41Charter Parties 42

    Definition and Types 42The Contract 44Typical Areas of Dispute 44Withdrawal 50Subcharters 50Liability of the Owner for Damage or Loss of Goods 51Arbitration Clauses 51

    Transport Under Bills of Lading 52Introduction 52

    Legislation 54Bills of Lading Under the Pomerene Act 54

    Applicability 54Negotiable and Nonnegotiable Bills of Lading 54Carrier Obligation and Liability 55

    The Harter Act 56Applicability and Duration 56Prohibition of Exculpatory Clauses Under the Harter Act 56Carriers Defenses Under the Harter Act 57Unseaworthiness 58

    Carriage of Goods by Sea Act 58Scope and Application 58Parties to the Contract of Carriage: The COGSA Carrier 61Duration 63Carriers Duty to Issue Bills of Lading 63Carriers Duties Relating to Vessel and Cargo 64Exculpatory Clauses Prohibited 64Immunities of Carrier 65Deviation 73Damages and Limitation of Carriers Liability 74Burden of Proof 78Notice of Loss or Damage 79Time Bar 80Extending the Application of COGSA 80Jurisdiction and Choice-of-Law Clauses 82

  • Contents


    Chapter 3: Personal Injury and Death 83Introduction 83Damages 84Statute of Limitations 85Federal and State Courts 85

    Removal 85In Personam and In Rem Actions 86Seamens Remedies 86

    Introduction 86Maintenance and Cure 87Negligence: The Jones Act 91Unseaworthiness 99Contributory Negligence and Assumption of Risk in Jones Act and

    Unseaworthiness Actions 101Maritime Workers Remedies 102

    Longshore and Harbor Workers Compensation Act 102Scope of Coverage 102Remedies Under the LHWCA 106Dual-Capacity Employers 110Indemnity and Employer Liens 111Forum and Time for Suit 111

    Offshore Workers Remedies 112The Outer Continental Shelf Lands Act 112

    Remedies of Nonmaritime Persons 114Passengers and Others Lawfully Aboard a Ship 114

    Recreational Boating and Personal Watercraft 116Maritime Products Liability 117Remedies for Wrongful Death 117

    Introduction 117Death on the High Seas Act 118Wrongful Death Under the General Maritime Law 120

    Chapter 4: Collision and Other Accidents 125Introduction 125Liability 126Causation 126Presumptions 127Damages 128Pilots 131Place of Suit and Choice of Law 132

  • Admiralty and Maritime Law


    Chapter 5: Limitation of Liability 133Introduction 133Practice and Procedure 133The Limitation Fund 136Parties and Vessels Entitled to Limit 138Grounds for Denying Limitation: Privity or Knowledge 139Claims Subject to Limitation 140Choice of Law 141

    Chapter 6: Towage 143Towage Contracts 143Duties of Tug 144Duties of Tow 145Liability of the Tug and the Tow to Third Parties 146Exculpatory and Benefit-of-Insurance Clauses 146

    Chapter 7: Pilotage 149Introduction 149Regulation of Pilots 150Liability of Pilots and Pilot Associations 151Exculpatory Pilotage Clauses 152

    Chapter 8: Salvage 153Introduction 153Elements of Pure Salvage Claims 154Salvage and Finds Distinguished 156Salvage Awards 157Misconduct of Salvors 159Contract Salvage 160Life Salvage 161

    Chapter 9: Maritime Liens and Mortgages 163Liens 163Property to Which Maritime Liens Attach 164Custodia Legis 165Categories of Maritime Liens 165

    Contract Liens 166Preferred Ship Mortgage 168Liens for Necessaries 168

  • Contents


    Persons Who May Acquire Maritime Liens 171Priorities of Liens 171

    Ranking of Liens 171Governmental Claims 174

    Conflicts of Laws 174Extinction of Maritime Liens 175

    Destruction or Release of the Res 175Sale of the Res 175Laches 176Waiver 177Bankruptcy 177

    Ship Mortgages 177

    Chapter 10: Marine Insurance 181Introduction: Federal or State Law 181Interpretation of Insurance Contracts 183Limitation of Liability 183Burden of Proof 183Insurable Interest 184Types of Insurance 184

    The Hull Policy 185Protection and Indemnity Insurance 187Pollution Insurance 187Cargo Insurance 188

    Subrogation 188

    Chapter 11: Governmental Liability and Immunity 189The Federal Government 189

    The Suits in Admiralty Act 189The Public Vessels Act 190The Federal Tort Claims Act 190

    State and Municipal Governments 191Foreign Governments: The Foreign Sovereign Immunities Act 192

    Chapter 12: General Average 195Introduction 195The General Average Loss: Requirements 195The YorkAntwerp Rules 196General Average, Fault, and the New Jason Clause 197The General Average Statement 197

  • Admiralty and Maritime Law


    Selected Bibliography 199

    Cases 203

    Statutes 227

    Rules 235

    Index 237

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    As this monograph demonstrates, admiralty and maritime law cov-ers a broad range of subjects. This field of law has its own rules relat-ing to jurisdiction and procedure. Classically, maritime law was a spe-cies of commercial law, and in many countries it is still treated assuch. Thus, this monograph includes topics such as charter parties,carriage of goods, and marine insurance. There are also areas of mari-time law that are peculiar to the subject matter. The law of collision,towage, pilotage, salvage, limitation of liability, maritime liens, andgeneral average are unique to maritime law. In addition, the UnitedStates has developed its own law of maritime personal injury anddeath. All references are to U.S. courts unless noted otherwise.

    I would like to thank Judge Eldon Fallon (U.S. District Court forthe Eastern District of Louisiana), Judge Sarah S. Vance (U.S. DistrictCourt for the Eastern District of Louisiana and member of the Boardof the Federal Judicial Center), and Judge W. Eugene Davis (U.S.Court of Appeals for the Fifth Circuit) for their invaluable assistancein reviewing the draft of this monograph.

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    chapter 1

    Jurisdiction and Procedure inAdmiralty and Maritime Cases

    IntroductionArticle III of the U.S. Constitution defines the boundaries of subject-matter jurisdiction for the courts. Specifically, it extends the judicialpower of the United States to all Cases of admiralty and maritimeJurisdiction. This grant of judicial power has been implemented byCongress in 28 U.S.C. 1333, which states that The [United States]district courts shall have original jurisdiction, exclusive of the Courtsof the States, of (1)any civil case of admiralty or maritime jurisdic-tion.... In current usage the terms admiralty jurisdiction andmaritime jurisdiction are used interchangeably. The Constitutiondoes not enumerate the types of matters or cases that fall withinthe terms admiralty and maritime jurisdiction.

    The Admiralty Clause in Article III does not disclose or even pro-vide the means for ascertaining whether a particular dispute is an ad-miralty or maritime case. This task has been performed primarily bythe courts and, to a lesser extent, by Congress. Also, the Constitutiondoes not specify the legal rules to apply in resolving admiralty andmaritime disputes. It does not even point to the sources of substantivelaw that judges should consult to derive such rules. This task also hasbeen performed primarily by the courts and, to some extent, by Con-gress. In this regard, federal courts have not merely created rules to fillgaps or to supplement legislation as they have in other areas; theyhave played the leading role in creating a body of substantive rulesreferred to as the general maritime law.1 Thus, as will be discussedlater, the power of federal courts to entertain cases that fall withinadmiralty and maritime jurisdiction has required courts, in the exer-

    1. Robert Force, An Essay on Federal Common Law and Admiralty, 43 St. LouisU. L.J. 1367 (1999).

  • Admiralty and Maritime Law


    cise of their jurisdiction, to formulate and apply substantive rules toresolve admiralty and maritime disputes.

    No federal statute provides general rules for determining admi-ralty jurisdiction. No statute comprehensively enumerates the variouscategories of cases that fall within admiralty jurisdiction. With