Prepared by: David Bohonnon
I. Introduction – Admiralty Law
This seminar, as well as the handout material, is not designed to make the reader an expert in admiralty and maritime law. Rather, the intent is to provide a broad overview of admiralty and maritime law, with a particular emphasis on the type of issues most likely to be presented to the general practitioner. At the back of this booklet, the reader will find a bibliography of admiralty and maritime law source material which s/he can refer to for a more detailed discussion of any particular issue.
II. The Importance of Jurisdiction
When speaking of admiralty jurisdiction, the attorney must bear in mind that the term “jurisdiction” is multi-dimensional. If a particular matter is subject to admiralty jurisdiction, it means two things: (1) admiralty subject matter jurisdiction exists in the federal courts, and (2) there is a distinct difference in the substantive law and, perhaps, the rules of procedure that will be applied to a particular case.
The Constitution of the United States states in pertinent part, that “the judicial power [of the United States] shall extend to all cases in law and equity . . . [and] to all cases of admiralty and maritime jurisdiction . . . ” UNITED STATES CONSTITUTION ART. III, § 2, CL. 1. If a case “sounds in admiralty,” then admiralty subject matter jurisdiction of the United States District Courts will exist over the case at hand. Bear in mind that an admiralty case is one of the three types of cases that federal courts may hear, with the other two obviously being: federal question jurisdiction and diversity jurisdiction. A unique feature of admiralty jurisdiction, however, is that cases brought before the District Court based only upon admiralty jurisdiction (28 U.S.C. § 1333) are not heard before juries. This tradition has existed since well before the Constitution was drafted. This does not mean that a case which “sounds in admiralty” may only be brought under the court’s admiralty jurisdiction (28 U.S.C. § 1333). There are a myriad of situations where a claim, albeit admiralty in nature, may be brought under the court’s federal question (28 U.S.C. § 1331) or diversity (28 U.S.C. § 1332) jurisdiction. The net effect of a jurisdictional allegation for a basis other than solely court’s admiralty jurisdiction is that the case may be tried before a jury. Further, there are many situations in which a case that is admiralty in nature may be brought in a state court.
A second reason to determine whether a case sounds in admiralty or is otherwise subject to admiralty jurisdiction is to differentiate the substantive law to be applied 1 . This will be discussed in more detail infra. Generally, to the extent that the general maritime law provides substantive rules of decision, the general maritime law will be applied to the exclusion of state law or federal statutes.
Under the Savings to Suitors Clause, 28 USC 1331 (1) a maritime case may be brought in a state court 2 . The common reason for so doing centers upon a plaintiff’s desire for trial by jury. If a case may only be brought in federal court based on admiralty jurisdiction, i.e. federal question or diversity jurisdiction are not available, counsel can select a state forum and thus preserve trial before a jury. If a case that is maritime in nature is brought in a state court of general jurisdiction (i.e. the Massachusetts Superior Court) the case will, in fact, be tried before a jury under the procedural rules of the state court. The substantive law to be applied, however, will normally be the general maritime law, or federal common law, as opposed to state law. For example, look at the rule of comparative negligence. In Massachusetts, there is a modified comparative negligence rule; thus, if the plaintiff is 51% or more at fault, s/he is out of court. By contrast, in admiralty, the rule of pure comparative negligence will be applied. Pope and Talbot v. Hawn 346 U.S. 406, 74 S.Ct. 202 (1953). Under the Admiralty Rule, if the plaintiff is 90% at fault, plaintiff can still collect (assuming liability) 10% of his/her damages. (But see discussion of the application of substantive law infra at Section V)
A third reason why it is important to determine whether a case “sounds in admiralty” is that if the answer is in the affirmative, the plaintiff may have available interlocutory relief to obtain security for his or her claim provided by the Supplemental Rules for Certain Admiralty and Maritime Claims 3 . In addition, there are several other, minor differences in the Federal Rules of Civil Procedure which distinguish admiralty and maritime claims. These will be discussed infra. Matters that invoke relief under the Supplemental Rules, such as limitation of liability or in rem arrest, are exclusively committed to the U.S. District Court.
III. Determination of Admiralty Jurisdiction
A. The Old Approach [Ebb and Flow]
Very early on, American courts interpreted the admiralty jurisdiction to extend to matters occurring within the ebb and flow of the tide. Thus, any matter of tort, contract, or otherwise of commerce, the resulting dispute was subject to admiralty jurisdiction if occurring within the ebb and flow of the tide. De Lovio v. Boit, 7 F. Cas. 418 (No. 3776) (c.c.d. Massachusetts 1815) [Story, J.]. Indeed the decision is the equivalent in maritime law Marbury v. Madison. [See also, Jackson v. The Magnolia, 61 U.S. 296, 307, 15 L.Ed. 909 (1858)]. Eventually, the tidewaters approach, as defined in De Lovio v. Boit, was extended to include all navigable waters. Thus, any estuarian area from which a vessel of any sort, including a raft, could navigate to the open sea was considered navigable waters and any events occurring thereon were subject to the admiralty jurisdiction. The Thomas Jefferson, 23 U.S. 428, 6 L.Ed. 358(1825) (involving a claim for seaman’s wages on a vessel on the Missouri River). (For an excellent discussion, see HEALY AND SHARP, ADMIRALTY CASES AND MATERIAL c. 1, § B-1: From Tidewaters to Navigability, West Publishing, (1986).
B. The New Approach [Significant Relationship to Traditional Maritime Activity]
In more recent years, the test as to whether a particular matter sounds in admiralty has developed less from the tidewaters and navigability approach, and more from the “significant relationship to traditional maritime activity ” approach. This test was set forth in Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). The case involved an aircraft taking off from an airport in Cleveland, Ohio, en route to Portland, Maine. In the course of take-off, the aircraft encountered a flock of birds, causing an engine to fail and the aircraft to crash into Lake Erie. Suit was brought in admiralty. The defendant suggested that the case should not be in admiralty, as the tort occurred over dry land and it was simply fortuitous that the aircraft crashed in navigable waters. On appeal, the Supreme Court disregarded earlier approaches based upon navigability or tidewaters, and suggested a new approach that, in order for a matter to sound in admiralty, particularly, in tort, the conduct involved must bear a significant relationship to traditional maritime activity. Thus, neither the particular action involved, nor the locality was definitive in terms of admiralty jurisdiction. In the case at hand, the Court found that, unlike a flight, perhaps from Boston to London, which would be the modern-day successor to a voyage by sea, the particular conduct in question, a domestic flight from Cleveland, Ohio, to Portland, Maine, was not. Thus, admiralty jurisdiction was denied.
Reviewing a case involving the issue jurisdiction, the attorney must consider, in reading these cases, why admiralty jurisdiction was alleged and contested. It may well be that the plaintiff’s decision was driven by some of the other substantive aspects of admiralty law, such as no fixed statute of limitations, lack of trial by jury, or the rule of pure comparative negligence.
A second case of import is Foremost Insurance Co. v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982). Foremost involved a collision of two pleasure vessels on “navigable waters.” The collision occurred on the Amite River in Louisiana. Suit was filed in federal court. Defendants attempted to dismiss the case for want of admiralty jurisdiction. On appeal, the Supreme Court affirmed the lower court’s finding that the location of the casualty involved a section of the Amite River which was, in fact, navigable, thus dispensing with any further discussion of locality. The Court went on to the find that, under the Executive Jet test, the activity involved did not necessarily have to be “commercial” maritime activity, but, rather, simply the activity must bear a substantial relationship to traditional maritime activity, although that activity may not necessarily have to involve maritime commerce. See also, Finneseth v. Carter, 712 F.2d 1041 (6th Cir. 1983)(finding in similar circumstances that a collision between two pleasure craft on a lake that was land-locked due to an Army Corps of Engineers dam, was subject to admiralty jurisdiction, as the lake, despite the dam, was susceptible of being used as a highway of interstate commerce. The lake in question bordered the states of Kentucky and Tennessee and was formed when the Army Corps of Engineers built a dam on the Obey River.) See also, Sisson v. Ruby, 497 U.S. 358,1990 AMC 1801 (1990), for a detail discussion on the application of admiralty jurisdiction to recreational vessel torts.
Courts have often scrutinized the activities involved in recreational vessel matters in more detail than commercial vessels in order to determine whether a particular claim is subject to the admiralty jurisdiction. For example, in Bubla v. Bradshaw, 795 F.2d 349, 1987 AMC 1333 (4th Cir. 1986), the court determined that the electrocution of a marine surveyor aboard a vessel due to a defective electrical system at the marina within which the vessel was moored was subject to the court’s admiralty jurisdiction. The court went on to establish a four point test to determine the existence of admiralty jurisdiction, including: (1) the functions and roles of the parties; (2) the types of vehicles and instrumentalities involved; (3) the causation and type of injury; and (4) the traditional concepts of the role of admiralty law. By contrast, in Delta Country Ventures, Inc. v. Magana, 986 F.2d 1260 (9th Cir. 1992), the court determined that an injury to a diver diving off a houseboat on navigable waters did not bear a sufficient relationship to traditional maritime activity and, therefore, found admiralty jurisdiction lacking. In a more recent case, however, the Eleventh Circuit found that in a products liability claim against the manufacturer of a high speed boat for failing to install handholds, maritime law (not state law) would apply. Specifically, the court found that the three (3) year maritime statute of limitations (46 U.S.C. App. § 763a) preempted the four (4) year Florida statute of limitations for tort. Mink v. Genmar Indus., Inc., 1995 AMC 37, 29 F.3d 1543 (11th Cir. 1994)
IV. Specific Types of Admiralty Jurisdiction
A. Contract Jurisdiction
Various types of contracts involving shipping or boating are subject to admiralty jurisdiction, as they are considered maritime contracts. The reader should note that, unlike land-based law, there is no statute of frauds in admiralty. Kossick v. United Fruit, 365 US 731, 81 S.C. 886 (1961). Two notable exceptions exist: contracts to build a vessel and contracts to sell a vessel are not subject to admiralty jurisdiction. Thames Towboat v. The Schooner Francis MacDonald, 254 U.S. 242, 41 S.Ct. 65 (1920); MacDougall’s Cape Cod Marine Service v. One Christina 40′ Vessel, 721 F. Supp. 374 (D. Mass 1989), aff’d, 900 F.2d 1990, 1990 AMC 1643 (1st Cir. 1990). The reason behind this rule is that contracts to build or to sell vessels are not associated with ongoing maritime commerce or activity, but, rather, preliminary to a maritime venture. They generally occur prior to the ship breaking ground on a voyage and are fully executed before the vessel leaves port.
Traditionally, admiralty contact jurisdiction extends to matters involving commercial arrangements surrounding manning, supplying, or operating vessels of whatever nature; the actual work of the vessel, such as carrying passengers or cargo for hire; the services connected with the operation of the vessel, such as repair, salvage, insurance, or crew’s wages; the rental of vessels [better known as charter]; and any other contractual relationships involving either the operation of vessels or maritime commerce. The term “vessel” is defined under federal law as anything capable of being used as a means of transportation by water. 1 U.S.C. § 3; DiGiovanni v. Traylor Bros. Inc., 959 F.2d 1119 (1st Cir. 1992), cert. denied,
(1) Types of Contracts
(a) Storage of Vessels
Storage of vessels not permanently withdrawn from navigation are within the admiralty and maritime jurisdiction of the federal courts. See Royal Ins. Co. v. Long Beach Marine Landing, 1989 AMC 2090 (S.D.N.Y. 1987); see also Sisson v. Ruby, 497 U.S. 358, 1990 AMC 1801 (1990) and MacDougall’s Cape Cod Marine Service, 900 F.2d 408. (1st Cir 1990) For example, in Ziegler v. Rieff, 637 F. Supp. 675, 1987 AMC 241 (S.D.N.Y. 1986), the court upheld an oral contract for the winter storage of a yacht. See also Rogers v. Yachts America, Inc., 1983 AMC 417 (D.Md. 1982).
(b) Marine Insurance Contracts
Generally, contracts of marine insurance (i.e. between assured and underwriter) are subject to admiralty jurisdiction. See Insurance Co. v. Dunham, 78 U.S. 1 (1870); Reliance Ins. Co. V. Wilson, 1990 AMC 2672 (N.D. Calif. 1990). The subject of the insurance, however, must be a vessel, cargo, or other maritime interest or property. Jurisdiction vests not by simply insuring something marine but by insuring maritime property. See, e.g., Royal Ins. Co. v. Pier 39 Ltd., 738 F.2d 1035 (9th Cir. 1984)(floating docks). With regard to marine insurance contracts, perhaps the most common action involves coverage disputes between brokers, underwriters, and the insured. Marine insurance contracts, i.e. the terms and conditions of a marine insurance policy (meaning an ocean marine policy as opposed to an inland fire and marine policy), are not subject to state regulation. Thus, the particular terms of the policy are governed by the substantive law of the general maritime law.
The individual practices of underwriters, brokers, and adjusters, in placing insurance and handling claims, however, are governed by state law, as that field is not addressed under the general maritime law. See Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310, 75 S.Ct. 368, 99 L.Ed. 337 (1955)(holding that state statutes as well as common law developed under those statutes regulating the practice of insurance brokers and adjusters is applicable in cases involving marine insurance policies). See also Equilease Corp. v. M/V Sampson, 793 F.2d 598 (5th Cir. 1986)(holding that a claim for the failure of a vessel owner to reimburse insurance broker for prepaid insurance premiums is subject to the admiralty jurisdiction.
(c) Salvage, Supply, and Repair Contracts
Claims for pure salvage or claims for contractual salvage are subject to maritime jurisdiction. This will be dealt with in more detail infra. The question sometimes arises, however, as to whether certain services are actually “salvage” or simply repairs to a vessel. Any contract to supply “necessaries” to a vessel in navigation is subject to the admiralty jurisdiction, regardless of whether the contract is oral or memorialized in writing. An import result of a contract for providing repairs or supplies to a vessel being maritime in nature is that the contract also gives rise to a maritime lien against the vessel. Maritime liens will be dealt with in more detail below; however, any person who supplies necessaries to a vessel may sue in admiralty to collect for their goods or services. The Joseph Warner, 32 F. Supp. 532 (D. Massachusetts 1939); The Gazelle, 10 F. Cas. 127 (No. 5289) (D. Massachusetts 1858); Piedmont & Georges Creek Coal Co. v. Seaboard Fisheries, 254 U.S. 1, 41 S.Ct. 1, 65 L.Ed. 97 (1920)(holding that supplying fuel to the owners of a fleet of vessels did not beget a maritime lien as the potential lienor supplied the fuel to the owner and relied on the credit of the owner as opposed to supplying the fuel to a vessel and relying specifically on the “credit of the vessel”). See Maritime Lien Act. 46 U.S.C. § 31341 et seq.
(d) Contracts for the Carriage of Passengers or Goods by Water
Contracts for the carriage of passengers or cargo are subject to the admiralty jurisdiction. With regard to cargo, the contract of carriage of goods (normally found in a bill of lading) is by its very nature maritime. Leathers Best, Inc. v. The Mormaclynx, 451 F.2d 800 (2d Cir. 1971). In the case of “passengers” the term generally refers to those who have paid some consideration for their embarkation aboard the vessel (46 U.S.C. § 2101)[but note there are exceptions for certain types of vessels, such as sail training vessels or ocean research vessels]. Id. Most problems that arise from passenger contracts are the result of personal injury, and, thus, sound in tort. The practitioner should, however, be aware that the contract of carriage as embodied in the passenger ticket may control certain aspects of the tort claim in terms of notice of claim, statute of limitations, and venue of the suit. See Shute v. Carnival Cruise Line, Inc., 499 U.S. ___, 1991 AMC 1696 (1991)(upholding forum selection clauses); Muratore v. M/S Scotia Prince,845 F.2d 345 (1st Cir. 1988)(discussing a one year time for suit provision pursuant to 46 U.S.C. § 183b(a) and a fair notice to passengers provision).
(e) Product Liability Claims
Products liability claims, be they contract, tort, or hybrid claims, are subject to the admiralty jurisdiction if the acts complained of occurred within the maritime context. Sperry Rand Corp. v. Radio Corporation of America, 618 F.2d 319 (5th Cir. 1981); Kelly v. Bruno and Stillman Yacht 1981 AMC 104 (D.N.H. 1980). Although product liability claims are recognized under the general maritime law, they may be subject to different standards of review than non-maritime claims. For example, the United States Coast Guard has statutory authority under the Boating Safety Act of 1971 to issue regulations relative to recreational boating safety. The fact that the Coast Guard specifically decided not to issue regulations requiring propeller guards on recreational vessels preempted a claim against a boating manufacturer. See Carstensen v. Brunswick Corp., 1996 AMC 248, 49 F.3d 430 (8th Cir. 1995). There are, however, many pieces of gear, fitting, and other contraptions that may well be installed aboard a vessel which could cause harm or injury to the uninitiated, the unaware, or the just plain stupid. Those claims are subject to admiralty and maritime jurisdiction.
(f) Claims Against Marinas
Claims often arise in a recreational boating context where the vessel has been placed at a slip or mooring at a marina and sustained damage due to weather and sea conditions, or as a result of theft or vandalism. The vessel owner or its underwriter often tries to make a claim against the marina based upon the common law of bailment. Most of these cases have been dismissed due to the fact that the marina owner/operator did not have exclusive control of the vessel. In general terms, cases have upheld dismissal of the claim against the marina owner/operator due to the lack of exclusive control. The attorney should also be aware of the fact that many marina contracts may constitute contracts of adhesion relative to absolving the marina of any liability for its own negligence. Indeed, many of these contracts contain “name and waive” provisions requiring the vessel operator to name the marina as an additional named insured and waive any subrogation claim against the marina as a result of personal injury to the vessel owner’s invited guests who may slip and fall on the marina premises. A contract to moor a vessel at a marina is considered an admiralty and maritime contract. Despite that, many recreational boating insurance policies exclude contractually incurred liability on the part of the vessel owner unless the underwriter has been made fully aware of the agreement and has agreed to assume that risk. In general terms, the courts have refused to enforce these contracts and only hold the marina liable for damage to the vessel during the period of the contract if the marina had sole and exclusive control of the vessel without any control on the part of the vessel owner. Royal Ins. Co. V. Manna, 1994 AMC 103 (Mo…App. 1993); see also Snyder v. Four Winds Sailboat Center, Ltd., 701 F.2d 251, 1983 AMC 1510 (2d Cir. 1983).
(g) Liability of Repairers
In the admiralty context, the liability of persons who repair vessels is set by the general maritime law. The duty owed by a repairer is a duty of workmanlike service/performance. While this may sound like a strict liability warranty, it is not. Indeed, the duty is based upon a negligence standard. As described in one case, the duty of the vessel repairer is to perform the repairs in a workmanlike manner given the nature of the vessel and its intended service. Sequeros Ilimani, S.A. v. M/V Popi P, 929 F.2d 89 (2nd Cir. 1991).The attorneys should be award that although it sounds like a products liability claim, the duty of the repairer in this type of case is one based upon reasonableness or negligence, rather than on strict product liability or breach of an absolute warranty.
B. Admiralty Jurisdiction over Maritime Tort
Maritime torts are generally considered actionable when they occur on navigable waters and have some nexus with traditional maritime activity. See, generally; CHARLES M. DAVIS, MARITIME LAW DESK BOOK pp 8-11 (Compass Pub. 1991) (general discussion of maritime tort jurisdiction). Maritime torts can occur in a variety of ways. They involve claims for personal injury by crewmembers, other maritime workers, passengers, and occasionally bystanders. The locus of the tort must always occur on, in or over the navigable waters. See Executive Jet, infra, Victory Carriers, Inc. v. Law, 404 U.S. 202 (1972) and Carey v. Bahama Cruise Lines, Inc., 864 F.2d 207 (1st Cir. 1986). In addition, the activity giving rise to the injury must bear a nexus to traditional maritime activity. Executive Jet, infra.
A maritime tort is basically the same as a land-based tort that meets the locality and nexus tests described above. Maritime torts involve personal injury; damage to vessels (by collision or grounding); injuries to persons including crew members, maritime workers, passengers, swimmers, on some occasions innocent bystanders; products liability; damage to land-based structures by negligent operation of vessels; pollution damage to property; products liability claims, see Sperry Rand Corp. v. INA, supra. In addition, admiralty jurisdiction has been extended to cases involving more recently developed cases of tortious liability, including interference with contractual relations. Carroll v. Protection Marine Indemnity, 512 F.2d 4 (1st Cir. 1975).
If admiralty jurisdiction exists over a particular claim, supplemental jurisdiction of the federal courts will also apply. Basically, supplemental jurisdiction or, what was formerly known as pendent or ancillary jurisdiction, will allow the plaintiff to bring a state law claim in an admiralty case where the jurisdiction is based upon admiralty, federal question, or diversity, if the events giving rise to both claims arise out of a common nucleus of operative fact. See Bender Ship Building and Repair Co., Inc. v. C.N. Lloyd Brasileiro, 874 F.2d 1551 (11th Cir. 1989). An excellent example of such a pendent claim would be a suit by a vessel owner against the insurance underwriters for failing to pay a claim. Although the substantive interpretation of the policy could be governed by the general maritime law, the plaintiff might also seek to bring a pendent claim under state consumer protection statutes for unfair practices by the insurance company. Even though there is no independent basis for the state law claim, it arises out of the same operative facts that give rise to the claim under the marine insurance contract. Thus, it is pendent to the admiralty claim and may be heard by the court in the interests of judicial economy.
If a case sounds in admiralty, it follows that federal subject matter jurisdiction exists pursuant to 28 U.S.C. § 1333. If, however, a separate and distinct basis for federal subject matter jurisdiction also exists, plaintiff (or perhaps defendant upon removal) may receive a jury trial. For example, if diversity or federal question jurisdiction also exist in a case that otherwise sounds in admiralty, counsel may plead the independent basis for jurisdiction. The only time a plaintiff is limited to admiralty subject matter jurisdiction in federal court is when he or she is seeking interlocutory relief provided under the Supplemental Rules for Certain Admiralty and Maritime Claims, such as in rem arrest, maritime attachment or garnishment, or limitation of liability. See Taylor v. Carryl, 61 U.S. 583 (1858); Madruga v. Superior Court, 346 U.S. 556, 560 fn. 12, 74 S.Ct. 298 (1954); HEALY AND SHARP, CASES AND MATERIALS ON ADMIRALTY, ch. 1, § D, pp. 72-74 (West 1986).
Regardless of federal subject matter jurisdiction, a case sounding in admiralty, at the discretion of the plaintiff, may be brought in a state court of general jurisdiction pursuant to the Savings to Suitors Clause (28 U.S.C. § 1333). If a plaintiff chooses this option, the action may only be removed by the defendant if certain requirements are met: diversity or federal question jurisdiction. Counsel should bear in mind that admiralty subject matter jurisdiction alone is not sufficient for removal of a case from state to federal court, Morales v. New Orleans Gulf Harbors Services Inc. 703 F Supp 501 (M.D.La. 1989). Similarly, state court actions that include seaman’s personal injury or death claim under the Jones Act are not removable. Sawyer v. Federal Barge Lines Inc., 577 F. Supp. 37 (S.D.Ill. 1982) (the Jones Act is intrinsically tied to the Federal Employees Liabilities Act).
D. Special Cases of Admiralty Tort Jurisdiction/Sovereign as Defendant
In cases involving a sovereign, counsel will find that the normal rules of forum selection in both federal and state jurisdictions are inapplicable because the defendant is a sovereign with complete or limited immunity. The old maxim still applies: “the king can do no wrong.” Indeed, a sovereign, be it the United States of America, a state or a political subdivision, or a foreign sovereign, may only be sued according to its own rules. The sovereign designates the playing field, sets the goal posts, hires the referees, and promulgates the rules of the game. In general, the sovereign is immune from suit, except to the extent that it has waived its immunity. That waiver of immunity guides all cases in tort against a sovereign.
(1) The United States as a Defendant
There are three ways to sue the United States for a claim sounding in admiralty: (a) Suits in Admiralty Act (SIAA), 46 U.S.C. § 741, et seq.; (b) the Public Vessels Act (PVA), 46 U.S.C. § 1346. (c) the Federal Torts Claims Act (FTCA), 28 U.S.C. § 1346. Each act has a different set of rules for the prosecution of suit. The basic provisions are described below:
(a) Suits in Admiralty Act (SIAA) 46 U.S.C. § 741 et seq.
- i. Applies to a vessel owned or operated by or for the United States. The vessel may not be arrested or attached under in rem or supplemental process pursuant to the supplemental admiralty rules.
- ii. The plaintiff may bring an action against the United States in personam for tort or contract if a private vessel owner or operator would be subject to liability for the same claim.
- iii. Jurisdiction of the claim is exclusive to the United States District Courts in admiralty.
- iv. A two year statute of limitations applies.
- v. No prior claim or notice of claim is required.
- vi. No jury is provided; proceedings will be in admiralty.
- vii. There are specific provisions for service of process of the claim against both the local United States Attorney, as well as the Attorney General of the United States, by registered mail (not certified mail).
(b) Public Vessels Act (PVA) 46 U.S.C. 781 et seq.
- i. No vessel arrest, similar to the provisions of the SIAA.
- ii. The act applies to damage caused by a public vessel, i.e. a vessel owned or operated by the United States; or for claims for towage of or salvage of a vessel of the United States.
- iii. A two year statute of limitations applies; there are no claims procedures.
- iv. There are special service of process requirements. The PVA applies to any and all claims for negligence against the United States, its agents and servants. The Act states that the United States will be liable to the same extent that a private person or corporation would be liable for the acts committed.
(c). The Federal Tort Claim Act (FTCA)
See, Federal Tort Claims Act, 28 U.S.C. § 1346 (but see 28 U.S.C. § 2671-2680 for the Tort Claims procedure)
- i) Notice of claim – within two years of the time the action arises, the Unites States or the operating agency controlling the instrumentalities giving rise to the claim shall be put on notice of the claim. Notice will be on an “SF 95” form to the agency in question. It is jurisdictional that a dollar amount be stated for the amount of the claim.
- ii) The claim will be filed with the appropriate agency head. After receipt of the claim, the United States has six months to settle or deny the claim. If no action is taken within six months, the plaintiff is free to file suit under the provisions of the Act. Filing of suit means suit in the United States District Court in the jurisdiction in the state in which plaintiff resides. Filing of the claim does toll the statute of limitations.
- iii) Cases under the FTCA will also be prosecuted by judge alone. The relationship between the Public Vessels Act and the Suits in Admiralty Act is often confusing. For a detailed discussion, see Canadian Aviator Ltd. v. U.S., 324 U.S. 215, 65 S.Ct. 639 (1945).
For suits that sound in admiralty, but do not apply to vessels either owned or operated by public vessels, the FTCA may be appropriate remedy. See Indian Towing v. U.S., 350 U.S. 61, 78 S.Ct. 122 (1955) (regarding the Coast Guard’s failure to maintain a navigational light and Kelly v. U.S., 531 F.2d 1144 (2d Cir. 1976)(regarding negligence of the United States in a search and rescue case). See also Brown v. U.S., 720 F.2d 199 (1st Cir. 1986)(involving a suit against the United States for failing to notify mariners of the lack of the United States Weather Service’s ability to obtain information from a broken weather buoy on Georges Bank [discussion of the discretionary function doctrine as a defense under the suits under the FTCA]).
IMPORTANT NOTE: The Admiralty Extension Act extends the admiralty or maritime jurisdiction of the United States District Courts to cases involving torts occurring on navigable waters which manifest damage on land. 46 U.S.C. § 740. For example, if a tow boat was towing a barge downstream and for some reason the barge swung to one side of the bank and damaged a pier facility or personal property on the pier, the tort may not necessarily manifest itself over the navigable waters. Nevertheless, the Admiralty Extension Act allows for a suit in admiralty. Essentially, the Act redefines the admiralty and maritime jurisdiction of the United States to include such causes of action. It is important to note that where a suit against the United States is subject to admiralty and maritime jurisdiction due to the Admiralty Extension Act, the Admiralty Extension Act places an additional notice requirement on suits under the SIAA or PVA. The claimant must provide notice to the United States within the prescribed statute of limitations. Moreover, the Admiralty Extension Act prescribes that no suit may be filed under either act until such notice is given and the United States has six months to either settle or deny the claim. The problem is that the Admiralty Extension Act does not provide that such notice shall toll the statute of limitations. Therefore, if a claim against the United States is based upon the Admiralty Extension Act, in conjunction with either the SIAA or the PVA, effectively, the statute of limitations for giving notice is eighteen months from the date the action arose.
V. Choice of Substantive Law
Despite the fact that the general maritime law is federal common law, many admiralty cases may be heard in state courts of general jurisdiction. 28 U.S.C. § 1333 provides that the District Courts shall have original jurisdiction exclusive of the courts of the states of any civil case of admiralty or maritime jurisdiction, ” savings to suitors in all cases all or the remedies to which they are otherwise entitled “.
Section 1333 has been interpreted as providing exclusive jurisdiction in the federal courts when seeking special relief, such as in rem arrest, pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims and the Federal Rules of Civil Procedure. Notwithstanding that, other maritime cases involving personal injury, property damage, collision, etc., may be brought in state court. Although somewhat confusing, the Savings clause saves to suitors their remedies at common law in the state common law courts. This does not mean that a common law state remedy is saved. An admiralty case brought in state court in most instances will require the application of the substantive general maritime law. The difference is that the case will be tried before a jury. Pre-emption requires that substantive maritime law (differs from applicable state law regarding the conduct upon which suit is brought) will apply.
If a case clearly sounds in admiralty, despite the fact that there are jurisdictional allegations of federal question and diversity, the substantive law of admiralty will apply. “With admiralty jurisdiction comes the application of substantive maritime law.” East River SS v. Delaval Turbine, 476 U.S. 858, 106 S.Ct. 2295, 2298-99, 90 L.Ed.2d 865 (1986). The general maritime law does not allow for claims under state law. An essential feature of maritime law is the need for uniformity in its application nationwide. Thus, the substantive law in admiralty cases is theoretically the same court to court, state to state. This concept is embodied in what has become known as “reverse Erie” doctrine, which is a mirror image of the rule enunciated in Erie RR Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
The Erie rule requires that a federal court sitting in diversity must apply the substantive law that would be applied by a state court of general jurisdiction in the state in which the federal court sits. In contrast, the “e;reverse Erie “e; doctrine requires that a state court of general jurisdiction, deciding a case sounding in admiralty, apply the general maritime law of the United States. Offshore Logistics v. Tallentire, 477 U.S. 207, 223, 106 S.Ct. 2485, 2495, 91 L.Ed.2 174 (1986)(” . . . the extent to which state law may be used to remedy maritime injuries is constrained by the so-called `reverse Erie’ doctrine which requires that substantive remedies afforded by the states conform to the governing federal maritime standards.”); Kermarec v. Compagnie Generale TransAtlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959)(requiring that SDNY, when hearing an admiralty case in which subject matter jurisdiction was based on diversity, was to apply the admiralty rule regarding the duty of care owed to a non-crew member on board the vessel instead of the New York rule, as a New York state court would be required to apply the admiralty rule.); Pope & Talbot v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 89 L.Ed. 143 (1953)(requiring the application of the admiralty rule of comparative negligence instead of the Pennsylvania rule in the case of an injured longshoreman); Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239 (1942) (requiring that a Pennsylvania court apply the admiralty rule as to burden of proof in upholding a seaman’s release); Chelentis v. Luckenback SS Co., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171 (1918)(a pre-Jones Act case refusing to allow an injured seaman to make a claim for negligence under a common law state cause of action when a seaman had no right to sue in negligence under the general maritime law); Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917) (held that the New York worker’s compensation statute could not apply to a maritime worker, as it conflicts with uniformity under the general maritime law); Carey v. Bahama Cruise Lines, 864 F.2d 201, 207 (1st Cir. 1988); Exxon Corp. v. The Chick Kam Choo, 817 F.2d 307 (5th Cir. 1987) rev’d on other grounds 486 U.S. 140, 108 S.Ct. 1684, 100 L.Ed.2d 127 (1988); Moore McCormack v. Amirault, 202 F.2d 893, 896-97 (1st Cir. 1953); Morris v. Massachusetts Maritime Acad., 409 Massachusetts 179, 565 N.E.2d 422, 424-25 (1991); Global Petroleum v. Northeast Petroleum, 405 Massachusetts 187, 539 N.E.2d 122 (19 )(holding that in an admiralty case the Massachusetts Superior Court must apply the law which would be applied by a federal court sitting in admiralty); Palumbo v. Boston Towboat, 21 Massachusetts App. 414, 487 N.E.2d 546 (1986); ROBERTSON, ADMIRALTY AND FEDERALISM 194 (The Law Applied in Maritime Cases After Jensen and Chelentis: An Overview) and 242 (Substantive Maritime Law After Jensen and Chelentis: Personal Injury Cases)(Foundation Press 1970).
Notwithstanding the foregoing analysis, there are always exceptions to the rule. The general maritime law will not always preclude the application of other substantive bodies of law in certain specific cases. See Ellenwood v. Exxon, ____ F.2d ____ (1st Cir. 1993) (1st Cir. 92-1473) (employment law), Wilburn Boat Co. v. Fireman’s Fund Insurance, §48 U.S. 310 (1955) (insurance law), Askew v. American Waterways Operators, Inc, 411 U.S. 325 (1973). See also discussion of Yamaha v. Calhoun, supra.
IMPORTANT NOTE: The attorney should pay particular attention in maritime personal injury cases to the existence of admiralty jurisdiction and the status of the potential plaintiffs and defendants. In the vast majority of personal injury cases involving recreational craft and marinas, the duty of care owed to the plaintiff will be that of ordinary care as set forth in Kermarec v. Compagnie Generale Transatlantique, 79 S.Ct. 406 (1959). In some cases, however, a careful review will determine that an injured plaintiff may hold status as a Jones Act seaman and, therefore, be entitled to remedies under the Jones Act or under the general maritime law for unseaworthiness. In addition, individuals employed on or near the navigable waters may also have available to them remedies under the Longshore and Harbor Workers’ Compensation Act. Lunsford v. The Fireman’s Fund Ins. Co., 635 F. Supp. 72, 1987 AMC 246 (E.D.La. 1986)(a woman employed as a part-time maid on a pleasure yacht to clean and order provisions qualified as a Jones Act seaman, even though she would not
1But, there are certain circumstances where, even though a case sounds in admiralty, state law may be applied. See, e.g., Yamaha Motor Corp. USA v. Calhoun, 1996 AMC 305, (U.S 1996)(on appeal from the Third Circuit Court of Appeals, reported at 1995 AMC 1). This case involved a wrongful death claim in a recreational boating context within the territorial seas of Puerto Rico. The Supreme Court held unanimously that, in the situation involving recreational boating within the territorial sea, state wrongful death and survival statutes would and could apply to the casualty, rather than the prescriptions of the general maritime law.
2 The district court shall have original jurisdiction, exclusive of the court of the states, of: (1) any civil case of admiralty of maritime jurisdiction, savings to suitors in all cases all other remedies to which they are entitled. 28 U.S.C. § 1333.
3Note: Invocation of the supplemental rules may only be done when the matter is brought on the Admiralty side of the U.S. District Court, as “pure admiralty” powers are exclusive to the U.S. District Courts. The Moses Taylor, 71 U.S. 411, 18 L.Ed. 397 (1867).