Maritime Law

Admiralty Jx groundwork

"general maritime law" is judge made law, not statutory OJX in admiralty to federal courts, except saving to suitors clause

Admiralty Jx in Torts cases

(1) locus: the tort occurred on navigable waters or injury or damage which was sustained on land was caused by a vessel in navigable waters (2) nexus: the tort bore some relationship to traditional maritime activity. The nexus requirement is met when a potential hazard to maritime commerce arises out of an activity that bears a substantial relationship to traditional maritime activity

Navigable Waters

(1) the water is presently used or capable of being used for interstate maritime commerce: the transportation of goods or passengers by watercraft, (2) the water runs through two states or empties into the sea. Has to be navigable in fact for Mari jx, not historically navigable waterways that are only navigable during certain seasons of the year are still within the maritime jurisdiction of the federal courts

Who is a JASM?

1. Employee 2. Employment is in connection with a vessel or an identifiable group of vessels under common ownership, contributing to the function of the vessel or the accomplishment of its mission - must be substantial in duration and nature (30% of time on board vessel in navigation) 3. Vessel in navigation

Who is a Jones Act Employer?

1. Luaritizen test for determining whether a particular ship owner should be held to be an employer for the Jones Act: (1) place of the wrongful act, (2) law of the flag, (3) allegiance or domicile of the injured seaman, (4) allegiance of the defendant ship owner, (5) place where the contract of employment was made, (6) inaccessibility of a foreign forum, (7) the law of the forum. This test is not exhaustive or mechanical. But Hellenic Lines situations

Jones Act Wrongful Death

1. Provide the exclusive remedy for the wrongful death of a seaman in territorial waters. 2. Offers negligence remedy for death of a seaman on the high seas. a. Does not preclude recovery for seaman's wrongful death due to unseaworthiness under DOSHA. 3. Where it applies, the Jones Act allows recovery only for pecuniary loss and not for loss of society, etc. in wrongful death action.

Scindia: the three duties of vessels/shipowners in stevedoring situations

1. Turnover Duty duty of due care under the circumstances to turn over the ship and its equipment in such condition that an expert and experienced stevedoring contractor, mindful of the dangers he should reasonably expect to encounter, arising from the hazards of the ship's service or otherwise, will be able by the exercise of ordinary care to carry on cargo operations with reasonable safety to persons and property; as well as a narrow duty to warn of preexisting hazards on the ship 2. Active Duty Once cargo operations are under way, the ship owner must use reasonable care to prevent injury to longshoreman from hazards and equipment under the active control of the vessel during the stevedoring operation. 3. Duty to Intervene Once cargo operations are under way, the ship owner has no duty to exercise reasonable care to discover dangerous conditions that develop within the confines of the cargo operations that are assigned to the stevedore. But, if there is a latent condition that only the ship owner knows about that would not be apparent to the longshoreman, the ship owner has a duty to intervene.

Maritime Torts: SoL

3 years; DOES NOT apply to an action for maintenance and cure.

Maritime Liens

A maritime lien is a special property right in a vessel given to a creditor by law as security for a debt. Maritime liens are possible in both in rem and in personam proceedings. Liens are not effective until they are recorded, meaning others can get liens ahead of you if they are not recorded. If there is no preferred ship mortgage, then a lien can't be granted. A preferred ship mortgage is a ship mortgage that is recorded. A seaman's claim for personal injuries under the Jones Act is not subject to a lien. The US has not signed any of the three international lien treaties (pg. 8-5).

LSman suits against shipowners

A maritime worker (longshoreman) may sue a vessel owner under 905(b) for negligence. 905(b) is a maritime tort that must fall within maritime jx Must be a vessel for purposes of maritime jx - must be capable of navigation or its special purpose or use in the water. P gets a jury trial in a 905(b) action. Concurrent jx for a 905(b) action, so P can bring it in state or federal ct.

Aggravation of Original Injury

A negligent employer is liable not only for the initial injury but for subsequent negligent medical care necessitated by the original injury.

Proximate cause and superseding cause

A negligent party can owe nothing in a lawsuit if there is an independent, intervening cause.

Borrowed Servant Doctrine

A person may be a member of the crew of a vessel, and therefore, a Jones Act seaman even though he is employed by an independent contractor rather than the ship owner. John Cooker is a chef. He works for Johnson Catering, which was hired by the Princess cruise to prepare their meals onboard the vessel Wanda. He burns himself with grease negligently left by Joanie Cleaner. He receives his paycheck from Johnson's. He is a Jones Act seaman.

Duration of Obligation

A shipowner is required to furnish M+C until the disabled person has been cured or the disability has been declared permanent. "Maximum Medical Improvement" No obligation to make disability payments for the rest of his life A shipowner's duty to furnish M+C continues from the date when the seaman leaves the ship to the date when a medical diagnosis is made that the seaman's injury was permanent and therefore incurable, even if that diagnosis shows that the injury was permanent immediately after the accident

Survival Action

A survival or survivorship action is for the recovery of claims the decedent could himself have asserted; the decedent's representative recovers for such items as pain and suffering before death, medical expenses and lost wages A survival action in a case of a death that takes place more than three miles from the shore of any state (or the territories or dependencies of the US) is preempted by DOSHA, and therefore decedent's representative may recover only pecuniary damages. Decedent's representative may not recover, for example, loss-of-society, survivors' grief, or decedents' pre-death pain and suffering damages.

WDA Defined

A wrongful death action is brought for the benefit of the decedent's family and other dependents; the amount of recovery is determined by what the members of the protected class would have received from the decedent during his life. Brought by the "personal representative of the estate", which may include the spouse, the administrator, or the executor of the estate.

Who is covered by LHWCA?

A. LHWCA applies to "maritime workers" but not "members of the crew" 1. "Maritime workers" = longshoremen a. LHWCA is a no fault scheme. A worker's comp situation. 2. "Members of the crew" = Jones Act seamen a. Under the Jones Act, have to show liability: have to sue for negligence, or unseaworthiness

Doctrine of Error in Extremis

Allision = one ship running into a stationary ship There is a presumption of negligence against all parties participating in the management of the vessel when the vessel allides with a stationary object. BUT, doctrine of error in extremis if you make a mistake in a super extreme situation because you're trying to escape or fix it, its forgivable "Last clear chance" kind of rule where a navigator, suddenly realizing that a collision is imminent by no fault of his own, in confusion and excitement of the moment, does something which contributes to the collision or omits to do something by which the collision might be avoided, such act or omission is ordinarily considered to be in extremis and the ordinary rules of strict accountability does not apply.

Contribution and Indemnity

An employer who pays M+C is entitled to seek complete indemnity from a third party tortfeasor (including a prior employer) whose fault was the sole cause of the seaman's injuries. Or, if jointly negligent, only for the amount the third party is proportionately liable

Towage Contract

Arises when one vessel is employed to expedite the movement of another.

Punishing for being a dick about M&C

Attorneys fees are available if employer was CALLOUS and RECALCITRANT in (refusal to) pay M&C Punitive damages for the willful and wanton disregard of the maintenance and cure obligation are available as a matter of general maritime law.

Options for getting around M&C

Can K out of M&C Health plan can take the place of M&C obligations

Osceola CoA's

Can sue in personam for: a. Maintenance and cure. Seamen can't recover for injuries sustained through the negligence of other crew members beyond expense of maintenance and cure. b. Unseaworthiness Shipowner has a duty to provide a safe place to work c. Negligence (Jones Act) Can sue the vessel (in rem) a. By arresting the vessel

Cargo and USW

Cargo itself not subject to doctrine of unseaworthiness RULE - Cargo storage gear (such as plastic sleeve of one of the boxes of sodas), but not the cargo itself, must be seaworthy.

Tug/Tow exculpatory clauses

Clause exculpating tug from damage to tow is invalid, but you can get around it by including the tug on the tow's insurance plan

both to blame clauses invalid

Clauses in bill of lading by which carriers attempt to obviate indirect liability to cargo by providing that cargo should bear the costs of a collision where both ships are at fault (including claims of cargo paid by the carrying ship to the non-carrying ship) are invalid and unenforceable.

DOHSA Fundamentals

Comes into play any time there is a death more than a marine league away from shore (3 miles). Both DOSHA unseaworthiness and Jones Act negligence can offer a remedy for death of a seaman on the high seas. DOSHA only allows recovery of pecuniary damages. Punitive damages are not recoverable under DOSHA. DOSHA applies to maritime torts only, so maritime jurisdiction is required. Text of DOSHA found on pg. 4-127.

Pilots

Compulsory pilots do not enjoy seamen status Pilot doesn't have a permanent attachment to a vessel or fleet of vessels. Go read Bach

Saving to Suitors Clause

Concurrent maritime jx between states and fed, to extent that exists 28 USC § 1333 gives exclusive jx in admiralty and maritime cases to the federal courts, "saving to suitor in all cases all other remedies to which they are entitled." If there's a maritime issue that can be resolved through the common law, you can bring it in state court

Contracts for Maritime Insurance

Contracts for maritime insurance are within admiralty jurisdiction b/c they are intertwined with maritime activities, despite being made on land and performed (by payment of the loss) on land.

Doctrine of Inevitable Accident

Could the collision have been prevented by the exercise of ordinary care, caution and maritime skill? If not - if both colliding vessels were exercising the care, skill, and caution required by prudent navigation - the collision is the result of an inevitable accident, and neither vessel is at fault.

Work Platforms

Courts recognize a distinction between "work platforms" that are designed for primarily stationary residence and true vessels. Three factors: i. Whether the structure was constructed to serve primarily as a work platform. ii. Whether or not the structure was moored or otherwise secured at the time of the accident. iii. Whether the transportation function of the structure went beyond theoretical mobility and occasional incidental movement. If hard to move, not often moved, restricted to incidental movement, made to serve/exploit individual locations, not a vessel.

Comparative fault

Damages under the Jones Act are allocated via a system of comparative fault. If an injured seaman is found to be 65% responsible for the accident that caused the injury, then he can only claim 35% of the damages the ship owner would normally be required to give. Doctrine of comparative fault applies in products liability suits under maritime jurisdiction, noting that the majority of courts have held comparative liability applicable in strict liability cases.

Operational Negligence

Doesn't equate to USW An isolated, negligent act of another worker does not constitute unseaworthiness. Unseaworthiness does not arise until a negligent act becomes a "condition" of the ship, her appurtenances, her cargo, or her crew.

Jones Act Negligence

Employer as well as seaman has a DUTY of reasonable care under the circumstances. BREACH of that duty PROXIMATE CAUSE, just need a scintilla of evidence to show causation, featherweight burden of proof for showing proximate cause "a" cause, not "the" cause DAMAGES Limited to pecuniary damages, punitive not available

USW is strict liability

For an unseaworthiness cause of action must prove that there was some condition on the ship that was not reasonably fit for its intended purpose. No actual or constructive notice of the condition to the ship owner is needed. RULE - Under the maritime law there is an absolute obligation to provide a seaworthy vessel, unrelated to the standard of ordinary care in a personal injury case.

Locus Test

For purposes of maritime location, appurtenances of the vessel, such as the gangplank, count as part of the vessel, even if they extend over the dock. The Admiralty Extension Act: damage done by a vessel in navigable waters subject to admiralty jurisdiction even if that damage is done on land. So the locus requirement is met if the negligence leading to P's accident took place on a vessel, even if the actual accident then occurred on land. Negligence on ship + accident on land = Mari Jx

Exclusive Liability of Employer

General rule that longshoreman can't sue employers for negligence. 905(a). Limited to comp benefits from the employer. BUT, longshoreman can sue employer for negligence if the employer is also the owner (or owner pro hac vice, such as bareboat charterer) of the VESSEL, and the longshoreman is injured on the vessel, which is on the water

Wage Penalties

If D fails to pay wages due P Seamen may recover double wages for each day that payment is delayed without sufficient cause. District courts do not have discretion to limit or adjust such a recover.

Mixed K's

If K is primarily maritime and the non-maritime aspects are incidental, qualifies for Mari jx Mari jx exists if the court can enforce the maritime provisions of the K without prejudicing the rest of it

Examples of where either statute might apply

If P brings suit against his employer under Jones Act but the court finds he is a longshoreman or harbor worker. If SoL has not run, he may claim benefits under LHWCA (or under state statute, if applicable). And if the court determine he IS a seaman under the Jones Act but is not entitled to recover (if perhaps the employer is free of fault), this does not bar a later claim for compensation under the LHWCA. a. If P claims benefits under LHWCA and the ALJ found he was a seaman, if the SoL has not run he may now sue his employer under the Jones Act. Same if ALJ finds he is a longshoreman/harbor worker but the federal court sets aside award of benefits on grounds that he is a seaman. If P recovers under LHWCA, cases have held that he is not estopped from claiming recovery under the Jones Act No need to accord finality to ALJ's finding re his status. One court has found, however, in such a case that P was as a matter of law not a seaman.

Choice of Applicable Law

If a contract is "maritime and local", in the sense that application of state law would not disturb the uniformity of maritime law, state law may apply.

Embeddedness

If a vessel is embedded in or attached to the land (river/sea bottom), title to it rests with the owner of the land

Cargo Loss

If extraordinary sacrifices are made or expenses incurred by a party, such as damage to vessel, cargo, or freight inflicted deliberately by the master or operator of the vessel, in order to avert an impending peril that threatens the entire voyage, the party suffering the loss has the right to contribution from all those who participate in the venture.

Stevedore's Lien cont.

If the longshore worker commences suit in timely fashion against the third party, the employer may assert a judicially-created lien against any recovery for the full amount of its compensation payments. The stevedore's lien is not reduced by the proportionate share of the longshoreman's expenses in obtaining recovery from the ship owner, the stevedore is entitled to be reimbursed for the full amount of the compensation payments.

Tug/Tow Liability to third parties

If there is an allision, it's the tugs fault if they are negligent. They are the active tortfeasor.

Old LWHCA stuff

If there's an injury on the water, that was exclusive federal jx. If on land, that was state jx. State law applied only landward of the Jensen line. If the injury of a non-seaman maritime worker occurred on navigable waters but arguably fell within the "maritime but local" exception, there is concurrent state and federal jx, and claimant's choice of federal or state remedy should be upheld. compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel).

Collision fundamentals

If two vessels collide, then their damages are allocated according to comparative fault, but damages for cargo and passengers can be determined by joint and several liability. The doctrine of General Average = everyone shares the loss with respect to the percentage owned (if I own 10% of the ship that sustains $10,000 in damage, I am responsible for $1,000 of that damage). If you have a collision w/ another vessel, there is a duty to stand by.

Contribution and Settlement

In a joint tortfeasor situation, if the P settles with one or more tortfeasor, the final judgment of liability against the non-settling tortfeasors is reduced by the proportionate share (%) of negligence attributable to the settling parties, and NOT reduced by the dollar amount of the settlement.

Pennsylvania Rule

In a maritime accident, if a vessel is guilty of any statutory violation it presumed to be at fault, and it has the burden to show not merely that her fault might not have been a cause but that it COULD NOT have been cause. must prove that there was actually no way that the ship (and its conduct) could have caused the accident. Where both parties to maritime collision are guilty of statutory fault, under the Pennsylvania Rule the court must find that the statutory fault of BOTH vessels contributed to the accident, unless it finds that the fault of either (or of both, for that matter) COULD NOT have been a cause of the collision. If neither vessel is exonerated from collision-causing statutory fault, comparative fault applies.

Moragne and State WD actions

In cases involving the death of nonseafarers in territorial waters, the Moragne wrongful death claim DOES NOT supply the exclusive remedy. State wrongful death statutes are applicable to nonseafarers' deaths within territorial waters, including the damages available under them.

Identifiable group of vessels

In deciding whether there is an identifiable group (fleet) of vessels for seaman status determination, question is whether the vessels are subject to common ownership or control. Requisite link to a vessel or group of vessels is not established by vessels' mere use of the same hiring hall which draws from the same pool of employees. Fleet of vessels must be under common ownership or control.

What counts as "in service of the vessel?"

Includes shore leave. Any time seaman may be away from the ship but is subject to the "call of duty" The shipowner is responsible for sickness/injuries/death that occur between the date specified in the agreement for reporting to duty and the termination of the engagement. There is an exception for injury incurred otherwise than in the service of the ship, but this exception does not include shore leave - a sailor injured on shore leave is still entitled to maintenance and cure. Shore leave is an indispensable part of the maintenance of a functioning vessel. Vacations sever responsibility to the vessel. Not answerable to the call of duty.

The Jones Act Fundamentals

Incorporates the Federal Employees Liability Act. 3 yr SoL (for other than M+C). Ship owners are vicariously liable for medical malpractice subsequent to an injury/accident. Jones Act suits must be in personam. Negligence under General Maritime Law is a higher standard than in Jones Act cases. In Jones Act cases, the slightest bit of causation will make the ship owner liable. Jones Act cases get a jury trial, unlike the general maritime law.

Contribution and Indemnity Fundamentals

Indemnity If injuries sustained by longshoreman caused in whole or part by negligence of ship owner, injured worker may receive compensation under LHWCA from his employer AND may sue the ship owner. Employer may also sue the third-party tortfeasor (ship owner) to recover payments made to the employee under the LHWCA. Shipowner indemnifies stevedore

Other Maritime K Examples

K between seamen and vessel K for carriage of cargo or people K for shipping containers (function as the hold of the ship) K for stevedoring services BUT executory K's are NOT maritime K "Agency Contract's" MIGHT be maritime K's, a third party being involved doesn't override the nature/subject matter of the K

Recovery under DOHSA

Limited to i. Loss of support ii. Loss of services of the deceased iii. Loss of nurture, guidance, case, and instruction iv. Loss of inheritance v. Funeral expenses May not include non-pecuniary and punitive damages: i. Survivor's grief, bereavement, and mental anguish ii. Loss of society and consortium iii. Decedent's pre-death pain and suffering

LHWCA Fundamentals

Longshoremen can sue their employer as well as the ship owner under the LHWCA. Prior to 1972, the ship owner was liable for everything under the warranty of unseaworthiness. The 1972 amendments gave longshoremen better benefits but prevented them from bringing suits for unseaworthiness (they are only allowed suits for negligence). Longshoremen may still, however, use unseaworthiness as a standard for strict products liability cases.

Scope of maintenance

Maintenance amount is calculated with regard to the seaman's living expenses, and not those attributable to other members of his family (so 1/2 of daycare because the other spouse is also responsible, but all of the rent because it's likely the seaman would pay that amount even if living alone).

M&C and health plans

Maintenance: need not be paid concurrently with a disability plan pursuant to a collective bargaining agreement, unless the benefits are a form of "deferred compensation." Cure: employer incurs no further obligation to pay for medical treatment which has already been paid for by a welfare plan or by insurance pursuant to a collective bargaining agreement.

Contract to Lease/Charter a vessel

Maritime Charter with an option to buy: during the charter, maritime jx. When it becomes time to buy, if you could sever it and the only cause of action was for sale of a vessel, no maritime jx. If you pled it as a mixed contract, is maritime jx.

Contract for Repair of a Vessel

Maritime but contract to procure repair of a vessel (i.e. I hire you to find me a repair shop for my boat) = not maritime.

Contract to Provide Catering to Ship

Maritime, providing necessities to a vessel

How maritime liens derive

Most maritime claims derive from tort, contract, or from peculiarly maritime operations, such as salvage, give rise to maritime liens. Not for personal injury USW yes

K's for supplies

Must be for NECESSITIES, "coal that they might thereafter require" wasn't enough

Whats a "maritime worker?"

NOT: a. Master or member of the crew of any vessel (seamen). b. Employees/officers of federal/state/foreign government. c. Any person engaged by the master to load or unload or repair any small vessel under eighteen tons.

Nexus Test

No admiralty jurisdiction for claims arising from airplane accidents unless the wrong bears a significant relationship to traditional maritime activities Executive Jet: No such significant relationship where land-based aircraft flying between points within the continental U.S. fell into navigable waters of Lake Erie but where an aircraft is considered to be "performing a function traditionally performed by water-borne vessels," the connection or nexus test may be satisfied Part of the question for nexus is whether it can effect maritime commerce

State JX: In Rem

No state jx for in rem actions In rem action was not known to common law, its an equitable thing, and maritime is the province of equity States can use forum non conveniens without preempting/altering federal maritime law, uniform application of FNC not necessary for maintaining Mari uniformity

Property Subject to Salvage

No structure which is not a ship or a vessel is a subject of salvage. However, this has been broadened to include a seaplane, which is designed for water use, fish trap frames, which are designed to float upon and be transported across a water surface, and even money found on a floating body, since the individual, prior to his death, had embarked upon a maritime adventure

M&C Details

Not an exclusive remedy, can purse MC and other things simultaneously Charterers are only liable if P establishes existence of a demise charterer, who assumes full control of the vessel and with it owner's responsibility for maintenance and cure. Commuter seaman may recover for maintenance and cure depending on: (1) whether or not the seaman was on authorized shore leave when injured, and i. Irregular, incidental. Not just when off a regular shift. (2) whether or not the seaman was answerable to the call of duty. i. Legal obligation, bound to the vessel. $8 a day is a judicially recognized amount for maintenance M&C IS AVAILABLE TO SEAMEN, NOT LONGSHOREMEN

Oceanographic Research Personnel

Not covered by JA, but covered under general maritime law

Contract to Contribute to Seamen's Union Pension

Not maritime

Contract for Construction of Vessel

Not maritime K for building a ship or supplying materials for her construction is not a maritime contract,

Pre-existing injury: the last ship rule

Origin or cause of a seaman's disability, fact that it preexisted the voyage, originated on another vessel, or even was due to the fault of another vessel are all irrelevant to the ship owner's obligation to pay M+C, as long as a seaman believed in good faith that he was fit for duty.

Duty of Tug and Tow

Owner of barge is responsible for seaworthiness of barge. Towing vessel must exercise such reasonable care and maritime skill as prudent navigators employ for the performance of similar service.' Tug captain is responsible for his tow and must act as a prudent navigator under the circumstances, including knowledge he should have had.

State pilotage law

Pilotage can be controlled by State law even though it preempts Federal maritime jurisdiction and uniformity of general maritime law. At least 23 states have laws requiring vessels entering or departing their ports to take on board a local pilot or to pay some sort of penalty

Pilotage fundamentals

Pilots control the ships and guide them into ports, bays, inlets, rivers and harbors. States usually have jurisdiction over pilot regulations. Pilots have to be licensed. States are allowed to require that local pilots steer all boats into port. ' A person taken on board at a particular place for the purposes of conducting a ship through a river, road, or channel or from or into port. 2. A pilot is a compulsory pilot only where the requirement is imposed by law.

Jx and aviation torts

Possible in situations where the plane is performing a function that would otherwise be performed by a vessel

Jx and products liability

Products liability claims have to satisfy nexus and locus tests Product must be salty Just being on a ship doesn't cut it, has to be something used for a traditional maritime activity (compass, life preserver..?)

State WD Statutes

Provide remedies for within territorial waters

Registered Vs. Enrolled vessels

Registered vessels = foreign vessels coming into state ports, under state/local control, compulsory pilot 1. Enrolled vessels are domestic, US vessels traveling between US ports, federal control noncompulsory pilot

Modern LHWCA: Concurrent Jx

Remember, this is workmans comp. There's fed and state options available Concurrent jurisdiction applies. State workers compensation laws can apply to land-based injuries covered by the LHWCA. A longshoreman injured on a pier can elect to proceed under state law or LSHWA. A longshoreman is precluded from obtaining both state and federal compensation benefits. Can file in both state compensation and federal forums, but can't obtain both benefit. The 1972 amendments take out the language of exclusive federal jurisdiction and provide support for concurrent state jurisdiction. LHWCA doesn't supplant/preempt state benefits, it supplements them.

Requirements for LHWCA coverage

SITUS: injury must be a result of something on navigable waters, including 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, or building a vessel STATUS: Employee = "any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker." Focus for status is on occupation, not location. what's the nature of their work? Persons involved in any portion of moving cargo from ship to land transportation are engaged in maritime employment. The "status" requirement of the LHWCA extends only to those who are engaged in the loading, unloading, construction, or repair of ships.

Who can bring a USW claim?

Seamen River pilots Not available to LSmen Once, the unseaworthiness remedy was extended to longshoremen - they were known as Sieracki seamen. But this is not the case today. 1972 amendment to LHWCA outlawed the doctrine of unseaworthiness for longshoreman. Also, shipowner cannot now sue the longshoreman's stevedore company for breach of unworkmanlike conduct Birnberg drew mad diagrams of this Punitive damages available for USW

Chandris

Seeks to define "employment related connection to the vessel" Seaman status is a jury question that is determined based on totality of circumstances.

Sieracki Seamen

Sieracki extended USW to LSmen "doing a seaman's work and incurring seaman's hazards" Now they only get LHWCA coverage

Requirements for coverage cont.

Situs without status = ok RULE - An employee injured on "actual" navigable waters of the US, as distinguished from the expanded situs under the 1972 amendment, is not bound to show that his employment bears a direct and substantial relationship to navigation or commerce. Status without situs = not enough RULE - P must be on a maritime situs at the time of injury to qualify for LHWCA

LHWCA v. JA

Sorta-Kinda Mutually Exclusive Being a LS type of job-title doesn't automatically exclude you from JASM status Acceptance of LHWCA benefits is not an implied waiver of a Jones Act claim. Double recovery is excluded, but its possible to be eligible under both

State Jx: In personam

State courts have concurrent jx over in personam actions, because thats what the common law is/does A P in such cases - including ordinary maritime tort and contract cases - may elect to proceed in admiralty or to bring an ordinary civil action, either in state court or in federal court under diversity. States have the right to fashion common law remedies so long as they are consistent with concurrent federal rules, can't preempt federal maritime law

Warranty of Workmanlike Conduct

Stevedore is not liable to ship owner for unworkmanlike conduct resulting in injury to the longshoreman. Per 1972 amendments to LHWCA, just like shipowner is not liable to longshoreman for unseaworthiness. Ended the triangle

Maintenance and Cure

The obligation of "maintenance" requires the shipowner to provide a seaman with his basic living expenses while he is convalescing Most calculate cost ashore, minority uses cost of living aboard ship "Cure" requires shipowner to pay medical expenses until "maximum medical improvement" is achieved M&C must be paid regardless of apportionment of fault or contributory negligence on P's fault

USW Fundamentals

The ship must be reasonably fit to fulfill its intended purpose (including the crew). Seaworthiness is a jury determination. Actions for unseaworthiness can be brought in rem or in personam. Strict liability.

DOHSA CoA

There is a cause of action for the death of any person (and the exclusive remedy for persons other than a seaman) caused by wrongful act, neglect or default occurring on the high seas more than 3 miles from the shore of any state or the territories or dependencies of the US. Applies in foreign territorial waters as well as on the high seas. Applies only to maritime torts. If within 3 miles, Moragne wrongful death claim under GML available, see below.

Moragne WD Action

There is an action under general maritime law for wrongful death caused by (negligence?) or unseaworthiness in territorial waters. DOSHA was not intended to preclude the availability of wrongful death claims under GML in situations not covered by DOSHA. A Moragne action is ONLY available for deaths in territorial waters. DOHSA is the exclusive remedy for death on the high seas and is not supplemented by the general maritime law. either in rem or in personam

Concurrent JX and DOHSA

There is concurrent jx for wrongful death claims under DOHSA, in that state courts have the right to entertain causes of action and provide wrongful death remedies both for accidents occurring on state territorial waters and, under DOHSA, for accidents occurring on the high seas. But DOHSA remedies preempt state law wrongful death statutes where DOSHA applies. Basically state courts can hear the claims but DOHSA preempts equivalent state statutes No jury trial in DOSHA action, generally speaking. But if P can find something to sue for with common law type remedies, might get a jury trial for everything. When claims carrying a right to jury trial are joined with admiralty claims and arise out of the same transaction or occurrence, all claims may be tried to a jury.

No Assumption of Risk in Maritime Law

There is no assumption of risk defense in maritime law - in the context of a Jones Act seaman's injury, a longshoreman's injury, in the context of a recreational boating accident involving personal injury, or in the context of a commercial collision.

"Connection with a vessel"

To be a seaman it is only necessary that a person have an employment related connection to the object of the enterprise in which a vessel in navigation is engaged. Need not relate to navigation, old rule. CONTRIBUTE TO THE MISSION A seamen can't "walk in and out of seamen status"

Collision Damages

Total loss Damages include (1) market value of vessel at time of loss (plus pending freight) and (2) pollution cleanup, salvage, wreck removal, and other incidental costs proximately resulting from the casualty. Damage other than total loss a. Damages include (1) cost of repairs (or diminution of value if no repairs are made), (2) detention, i.e. loss of earning for the period the vessel is out of service, and (3) incidental costs such as wharfage, pilotage, and salvage costs. Damages due to negligence of a third party RULE - Where a vessel under time charter is damaged by the negligence of a third person, the owner may recover any damages sustained through loss of charter hire. The charterer ordinarily may not recover against the third party for loss of use or profits caused by damage to the vessel.

Tug knew or should have know

Tug is not responsible for accidents which occur as result of unseaworthiness of its tow; however, tug is responsible if the alleged unseaworthiness is so apparent that it would be negligent for tug to attempt to proceed. Although a barge being towed may get into trouble because of inadequate maintenance by its owner, the tug that has it under tow has a duty to prevent the barge from sinking, if it can.

Instrumentality of injury

USW dependent on who's in charge of the condition that caused the injury If the shipowner was under a duty to make the instrumentality safe (as a cargo container), the claim is proper. If another party, such as a stevedore, was under a duty to make the instrumentality safe (such as a shoreside forklift), the claim is not proper.

Contribution

Under 905(b) a ship owner may not recover damages he had paid to a longshoreman from the longshoreman's employer under any theory of warranty, express or implied, in tort or contract. A negligent ship owner is liable to the injured longshoreman for the degree of fault that is not the longshoreman's own fault, including any percentage of fault attributable to the stevedore, if any, and the ship owner can't seek indemnity or contribution against the stevedore.

Jason Clause

Under a Jason clause in a bill of lading, general average is payable if it arises through negligence of the carrier for which he is exculpated by the Harter Act - for example, if damages result "from faults or errors in navigation or in management of the vessel". Basically: Jason clause says if the disaster was due to errors of navigation and the ship owner had seaworthy vessel, used due diligence, and it was properly equipped, then the general average will apply and cargo owner will have to contribute. Cargo owner always recovers 100%. When there is a collision and both vessels are at fault, the innocent cargo owner may recover his full damages from the non-carrying vessel (even if the non-carrying vessel is only, for example, 10% at fault).

Harter Act

Under the Harter Act, the carrier (vessel and owner) is relieved of liability to the cargo owner for damages resulting "from faults or errors in navigation or in management of the vessel" so long as the ship owner exercised due diligence to make the vessel in all respects seaworthy and properly manned, equipped, and supplied.

Thinking about causation

Under the Jones Act the test of a jury case is simply whether the evidence the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. There's different causation requirements for USW and JA, JA requires "slight causation" and USW requires a beefier proximate cause In either case its not a heavy burden, but you need to show that there was some causation. The fact that scrap metal is not secured does not cause an injury incurred by throwing it overboard.

Comparative fault; Seamen's duty of care

Under the Jones Act, the seaman as well as the employer has a duty of reasonable care under the circumstances. P's recovery is reduced to the extent that he is negligent and that such negligence is responsible for the injury. Gautreaux holds that the rule for seamen is RPP. Seamen are obligated to act with ordinary prudence under the circumstances. The slight negligence standard only means that it is harder for defendants to get summary judgment than it would normally be. Seamen are obligated to act with ordinary prudence under the circumstances.

Products Liability and USW

Under the LHWCA, longshoremen may not bring actions for unseaworthiness (strict liability) against shipowners. Also may not bring 905(b) products liability actions. But could sue for negligent design, under which a shipowner would be liable in his capacity as manufacturer, designer, or distributor of a defective product.

Vessel in Navigation

Vessel has to be in navigation at time of death for JA If an employee is engaged in the overhaul of a boat or boats that are not in navigation because they've been "laid up for the winter", the employee is not a seaman, even if he expects to operate the boat later, b/c the boat is not "in navigation." In determining whether ship under repair is still in navigation, for purposes of Jones Act, court should look at extent and nature of repair operations and who controls them. 3 yrs in dry dock = not in navigation Vessels 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 renovations are not.

What is a "vessel?"

Vessel traditionally refers to structures designed or utilized for transportation of passengers, cargo or equipment from place to place across navigable waters." (1) the purpose for which the craft is constructed and (2) the business in which it is engaged If the owner constructs or assembles a craft for the purpose of transporting passengers, cargo, or equipment across navigable waters and the craft is engaged in that service, that structure is a vessel. where the use of the craft in transporting passengers, cargo, or equipment was an important part of the business in which the craft was engaged, the craft is a vessel, even if it also served as a work platform. But if that traditional maritime function is merely incidental to its main purpose (work platform), no go.

Negligence per se for violation of statutory duty

Violation of a safety statute by a Jones Act employer constitutes negligence per se if the violation contributes to the injury, even if the injury was not an injury the statute was designed to prevent.

Wages

Wages are a basic component of M+C. If a seaman is entitled to M+C, he is entitled to wages for the length of his contract. A seaman under contract for a year can collect a year's lost wages as part of maintenance.

Stevedore's Lien

When a longshoreman is injured due to the negligence of another he does not need to choose either to receive benefits from his employer under the LHWCA or to sue the negligent third party. He may pursue both remedies. But... Assignment: (1) From the time he accepts an award of compensation under the LHWCA, the employee has SIX MONTHS to commence a third party action against a third party tortfeasor. (2) If he does not do so within the six month period, the acceptance of the compensation award operates as an ASSIGNMENT TO THE EMPLOYER of all rights of the injured longshoreman to recover damages from the third part. c. (3) If employer fails to bring the action within 90 DAYS of the assignment, he loses the right to bring any such action, and it reverts to the injured employee.

Affreightment Contract

When a tug and barge are owned by the same person (or when either the tug or barge is bareboat-chartered to the same person) and are utilized, by contract, to tow cargo from one point to another.

"In the course of employment"

When an employee subject to the call of duty is injured through the fault of others performing, under contract, operational activities of his employer (i.e., performing a vital part of the ship's total operations), such others are 'agents' of the employer within the meaning of FELA, and hence employer is liable under the Jones Act for those agents' negligence.

Moragne damages available

When seaman killed in territorial waters, Moragne WD actions applies as well as Jones Act negligence. BUT Jones Act precludes recovery under the general maritime law for non-pecuniary loss sustained by seaman's survivors. A wrongful death action under the GML survives against the estate of a deceased tort-feasor. a. For seamen, limited to pecuniary damages: a. Loss of support; b. Loss of services; and c. Funeral expenses.

Allocation of fault

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.

burden of proof

Where a barge sinks in calm water for no immediately ascertainable cause, in the absence of proof that the barge was improperly handled, the vessel's sinking is presumed to be a direct result of her unseaworthiness.

ship to shore allision

Where a moving vessel hits a stationary object, the moving vessel is presumed to be at fault.

Defenses to M&C

Willful misconduct or fraudulent concealment of a pre-existing condition is a defense. But, if a seaman disobeys orders and he is injured he still entitled to M+C, unless his conduct was flagrant.

Liability of pilots

a. A pilot may be liable to third parties for damage caused by his negligence. b. In the absence of a valid contractual provision to the contrary, a pilot may be liable for damage to the vessel he was piloting. Pilots associations aren't held liable though

DOHSA Liability

a. Based on negligence. b. Based on unseaworthiness if the decedent was a seaman. i. DOSHA provides the exclusive remedy for unseaworthiness when a seaman is killed beyond three miles. c. Based on intentional conduct. d. Based on products liability.

Prejudgement interest

a. Important aspect of a damage award in marine casualty cases. P must ask for it to be awarded it. b. An element of compensation, not a penalty. c. In the discretion of the trial judge, but should be "exercised with a view to the right to interest unless the circumstances are exceptional." Usually only denied where a party "deprives himself of interest" - unwarranted delay by counsel, or when parties assert claims or defenses in bad faith.

USW applies to

a. The hull of a ship, the ship's cargo-handling machinery, hand tools aboard the ship, rope and tackle, and, in general, all sorts of equipment/appurtenances either belonging to the ship or brought aboard by stevedores. b. Cargo storage gear, but not the cargo itself, must be seaworthy. c. The crew of a vessel. d. A ship may be unseaworthy if it does not have certain types of equipment, such as maps or lifesaving gear. e. If the captain lacks training and permits, then the vessel is unseaworthy.

The law of finds

a. The law of finds, and not the law of salvage, applies to a wrecked vessel which has been abandoned - one to which the owner has no intention of returning. Under the law of finds (unlike in salvage), title to abandoned property vests in the person who reduces that property to his or her possession.

Laches

available for actions that do not have a specific applicable statute of limitations, such as a maintenance and cure claim. (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.

Contract for Repair of a Vessel Explained

contracts for the repair of a ship are maritime contracts, regardless of whether the repairs are made while the ship is afloat, while in dry dock, or while hauled upon land. If it is dry docked it is only out of the water temporarily so it is still related to maritime activity (unless dry docked for 2 years while getting complete retrofit). When vessel is temporarily out of the water, it retains its character as a vessel in navigation. But if it's such major repairs, under the dead ship doctrine, that it loses its character as a vessel, then it may not be a ship anymore and admiralty jx may not apply. Fact-based determination.

OCSLA

controls on "the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures" erected thereon. a. provides a nonmaritime remedy. Within area covered by OCSLA, federal law controls but law of the adjacent State is adopted as surrogate federal law to the extent that it is not inconsistent with applicable federal laws or regulations.

Beneficiaries

decedent's wife, husband, parent, child, or dependent relative

Maritime Contract

determining whether a contract is admiralty depends on the nature and subject matter of the contract (having reference to marine service or marine transactions). Must have direct and proximate link with operation of ship, navigation, its management afloat, or to commerce or navigation on navigable waters, or to transportation by sea or to maritime employment. K's for construction or sale of ships are NOT Mari K's Oral k's are valid, no SoF in maritime law

Recovery for...fright?

emotional damages available under JA

Conditions for contribution for cargo loss

i. (1) there is danger to which both vessel and cargo are exposed; ii. (2) the danger is imminent and apparently "inevitable", which means there is no probably escape except by inflicting loss on one of the interests; iii. (3) there is voluntary sacrifice, such as jettisoning cargo or stranding the vessel; iv. (4) attempt to avoid the common peril is successful; and v. (5) the party seeking contribution from the owners of the other interests is free from fault.

Tug/Tow warranty of workmanlike performance

stevedore/tow impliedly warrants that it will perform its services in a workmanlike manner; if breach of that warranty caused the vessel owner damages, the vessel owner may recover indemnification from the stevedore.