Cases of Admiralty and Maritime Jurisdiction
Cases of Admiralty and Maritime Jurisdiction
The admiralty and maritime jurisdiction of the federal courts had its origins in the jurisdiction vested in the courts of the Admiral of the English Navy. Prior to independence, vice-admiralty courts were created in the Colonies by commissions from the English High Court of Admiralty. After independence, the States established admiralty courts, from which at a later date appeals could be taken to a court of appeals set up by Congress under the Articles of Confederation.781 Since one of the objectives of the Philadelphia Convention was the promotion of commerce through removal of obstacles occasioned by the diverse local rules of the States, it was only logical that it should contribute to the development of a uniform body of maritime law by establishing a system of federal courts and granting to these tribunals jurisdiction over admiralty and maritime cases.782
781 G. GILMORE & C. BLACK, THE LAW OF ADMIRALTY ch. 1 (1957).
782 Nothing really appears in the records of the Convention which sheds light on the Framers’ views about admiralty. The present clause was contained in the draft of the Committee on Detail. 2 M. Farrand, supra at 186-187. None of the plans presented to the Convention, with the exception of an apparently authentic Charles Pinckney plan, 3 id. at 601-04, 608, had mentioned an admiralty jurisdiction in national courts. See Putnam, How the Federal Courts Were Given Admiralty Jurisdiction, 10 CORNELL L.Q. 460 (1925).
The Constitution uses the terms admiralty and maritime jurisdiction without defining them. Though closely related, the words are not synonyms. In England the word maritime referred to the cases arising upon the high seas, whereas admiralty meant primarily cases of a local nature involving police regulations of shipping, harbors, fishing, and the like. A long struggle between the admiralty and common law courts had, however, in the course of time resulted in a considerable curtailment of English admiralty jurisdiction. A much broader conception of admiralty and maritime jurisdiction existed in the United States at the time of the framing of the Constitution than in the Mother Country.783 At the very beginning of government under the Constitution, Congress conferred on the federal district courts exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it; ....784 This broad legislative interpretation of admiralty and maritime jurisdiction soon won the approval of the federal circuit courts, which ruled that the extent of admiralty and maritime jurisdiction was not to be determined by English law but by the principles of maritime law as respected by maritime courts of all nations and adopted by most, if not by all, of them on the continent of Europe.785
783 G. Gilmore & C. Black, supra at ch. 1. In DeLovio v. Boit, 7 Fed. Cas. 418 (No. 3776) (C.C.D. Mass 1815), Justice Story delivered a powerful historical and jurisprudential argument against the then-restrictive English system. See also Waring v. Clarke, 46 U.S. (5 How.) 441, 451-459 (1847); New Jersey Steam Navigation Co. v. Merchants’ Bank of Boston, 47 U.S. (6 How.) 34, 385-390 (1848).
784 § 9, 1 Stat. 77 (1789), now 28 U.S.C. § 1333 in only slightly changed fashion. For the classic exposition, see Black, Admiralty Jurisdiction: Critique and Suggestions, 50 COLUM. L. REV. 259 (1950).
Although a number of Supreme Court decisions had earlier sustained the broader admiralty jurisdiction on specific issues,786 it was not until 1848 that the Court ruled squarely in its favor, which it did by declaring that whatever may have been the doubt, originally, as to the true construction of the grant, whether it had reference to the jurisdiction in England, or to the more enlarged one that existed in other maritime countries, the question has become settled by legislative and judicial interpretation, which ought not now to be disturbed.787 The Court thereupon proceeded to hold that admiralty had jurisdiction in personam as well as in rem over controversies arising out of contracts of affreightment between New York and Providence.
Power of Congress To Modify Maritime Law.—The Constitution does not identify the source of the substantive law to be applied in the federal courts in cases of admiralty and maritime jurisdiction. Nevertheless, the grant of power to the federal courts in Article III necessarily implies the existence of a substantive maritime law which, if they are required to do so, the federal courts can fashion for themselves.788 But what of the power of Congress in this area? In The Lottawanna,789 Justice Bradley undertook a definitive exposition of the subject. No doubt, the opinion of the Court notes, there exists a great mass of maritime law which is the same in all commercial countries, still the maritime law is only so far operative as law in any country as it is adopted by the laws and usages of that country.790 The general system of maritime law which was familiar to the lawyers and statesmen of the country when the Constitution was adopted, was most certainly intended and referred to when it was declared in that instrument that the judicial power of the United States shall extend ‘to all cases of admiralty and maritime jurisdiction.’ But by what criterion are we to ascertain the precise limits of the law thus adopted? The Constitution does not define it ... .
785 E.g., DeLovio v. Boit, 7 Fed. Cas. 418 (No. 3776) (C.C.D. Mass. 1815) (Justice Story); The Seneca, 21 Fed. Cas. 1801 (No. 12670) C.C.E.D.Pa. 1829)(Justice Washington).
786 The Vengeance, 3 U.S. (3 Dall.) 297 (1796); The Schooner Sally, 6 U.S. (2 Cr.) 406 (1805): The Schooner Betsy, 8 U.S. (4 Cr.) 443 (1808); The Samuel, 14 U.S. (1 Wheat.) 9 (1816); The Octavig, 14 U.S. (1 Wheat.) 20 (1816).
788 Swift & Co. Packers v. Compania Columbiana Del Caribe, 339 U.S. 684, 690, 691 (1950); Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 285 (1952); Romero v. International Terminal Operating Co., 358 U.S. 354, 360-361 (1959). For a recent example, see Moragne v. States Marine Lines, 398 U.S. 375 (1970); United States v. Reliable Transfer Co., 421 U.S. 397 (1975). Compare The Lottawanna, 88 U.S. (21 Wall.) 558, 576-577 (1875) (But we must always remember that the court cannot make the law, it can only declare it. If, within its proper scope, any change is desired in its rules, other than those of procedure, it must be made by the legislative department). States can no more override rules of judicial origin than they can override acts of Congress. Wilburn Boat Co. v. Firemen’s Fund Ins. Co., 348 U.S. 310, 314 (1955).
789 88 U.S. (21 Wall.) 558 (1875).
One thing, however, is unquestionable; the Constitution must have referred to a system of law coextensive with, and operating uniformly in, the whole country. It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign states.791
It cannot be supposed that the framers of the Constitution contemplated that the law should forever remain unalterable. Congress undoubtedly has authority under the commercial power, if no other, to introduce such changes as are likely to be needed.792 That Congress’ power to enact substantive maritime law was conferred by the commerce clause was assumed in numerous opinions,793 but later opinions by Justice Bradley firmly established that the source of power was the admiralty grant itself, as supplemented by the second prong of the necessary and proper clause.794 Thus, [a]s the Constitution extends the judicial power of the United States to ‘all cases of admiralty and maritime jurisdiction,’ and as this jurisdiction is held to be exclusive, the power of legislation on the same subject must necessarily be in the national legislature and not in the state legislatures.795 Rejecting an attack on a maritime statute as an infringment of intrastate commerce, Justice Bradley wrote: It is unnecessary to invoke the power given the Congress to regulate commerce in order to find authority to pass the law in question. The act was passed in amendment of the maritime law of the country, and the power to make such amendments is coextensive with that law. It is not confined to the boundaries or class of subjects which limit and characterize the power to regulate commerce; but, in maritime matters, it extends to all matters and places to which the maritime law extends.796
790 88 U.S. at 572.
791 88 U.S. at 574-75.
792 88 U.S. at 577.
793 E.g., The Daniel Ball, 77 U.S. (10 Wall.) 557, 564 (1871); Moore v. American Transp. Co., 65 U.S. (24 How.) 1, 39 (1861); Providence & N.Y. S.S. Co. v. Hill Mfg. Co., 109 U.S. 578 (1883); The Robert W. Parsons, 191 U.S. 17 (1903).
794 Butler v. Boston & S. S.S. Co., 130 U.S. 527 (1889); In re Garnett, 141 U.S. 1 (1891). The second prong of the necessary and proper clause is the authorization to Congress to enact laws to carry into execution the powers vested in other departments of the Federal Government. See Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21, 42 (1934).
796 In re Garnett, 141 U.S. 1, 12 (1891). See also Southern Pacific Co. v. Jensen, 244 U.S. 205, 215 (1917); Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 160 (1920); Crowell v. Benson, 285 U.S. 22, 55 (1932). The Jones Act, under which injured seamen may maintain an action at law for damages, has been reviewed as an exercise of legislative power deducible from the admiralty clause. Panama R.R. v. Johnson, 264 U.S. 375, 386, 388, 391 (1924); Romero v. International Terminal Operating Co., 358 U.S. 354, 360-361 (1959). On the limits to the congressional power, see Panama R.R. v. Johnson, 264 U.S. at 386-387; Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21, 43-44 (1934).
The law administered by federal courts in admiralty is therefore an amalgam of the general maritime law insofar as it is acceptable to the courts, modifications of that law by congressional amendment, the common law of torts and contracts as modified to the extent constitutionally possible by state legislation, and international prize law. This body of law is at all times subject to modification by the paramount authority of Congress acting in pursuance of its powers under the admiralty and maritime clause and the necessary and proper clause and, no doubt, the commerce clause, now that the Court’s interpretation of that clause has become so expansive. Of this power there has been uniform agreement among the Justices of the Court.797
797 Thus, Justice McReynolds’ assertion of the paramountcy of congressional power in Southern Pacific Co. v. Jensen, 244 U.S. 205, 215 (1917), was not disputed by the four dissenters in that case and is confirmed in subsequent cases critical of Jensen which in effect invite congressional modification of maritime law. E.g., Davis v. Department of Labor and Industries, 317 U.S. 249 (1942). The nature of maritime law has excited some relevant controversy. In American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 516, 545 (1828), Chief Justice Marshall declared that admiralty cases do not arise under the Constitution or laws of the United States but are as old as navigation itself; and the law, admiralty and maritime as it has existed for ages, is applied by our Courts to the cases as they arise. In Romero v. International Terminal Operating Co., 358 U.S. 354 (1959), the plaintiff sought a jury trial in federal court on a seaman’s suit for personal injury on an admiralty claim, contending that cases arising under the general maritime law are civil actions that arise under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. Five Justices in an opinion by Justice Frankfurter disagreed. Maritime cases do not arise under the Constitution or laws of the United States for federal question purposes and must, absent diversity, be instituted in admiralty where there is no jury trial. The dissenting four, Justice Brennan for himself and Chief Justice Warren and Justices Black and Douglas, contended that maritime law, although originally derived from international sources, is operative within the United States only by virtue of having been accepted and adopted pursuant to Article III, and accordingly judicially originated rules formulated under authority derived from that Article are laws of the United States to the same extent as those enacted by Congress.
Admiralty and Maritime Cases.—Admiralty and maritime jurisdiction comprises two types of cases: (1) those involving acts committed on the high seas or other navigable waters, and (2) those involving contracts and transactions connected with shipping employed on the seas or navigable waters. In the first category, which includes prize cases and torts, injuries, and crimes committed on the high seas, jurisdiction is determined by the locality of the act, while in the second category subject matter is the primary determinative factor.798 Specifically, contract cases include suits by seamen for wages,799 cases arising out of marine insurance policies,800 actions for towage801 or pilotage802 charges, actions on bottomry or respondentia bonds,803 actions for repairs on a vessel already used in navigation,804 contracts of affreightment,805 compensation for temporary wharfage,806 agreements of consortship between the masters of two vessels engaged in wrecking,807 and surveys of damaged vessels.808 That is, admiralty jurisdiction extends to all contracts, claims and services essentially maritime.809 But the courts have never enunciated an unambiguous test which would enable one to determine in advance whether a given case is a maritime one or not.810 The boundaries of admiralty jurisdiction over contracts—as opposed to torts or crimes—being conceptual rather than spatial, have always been difficult to draw. Precedent and usage are helpful insofar as they exclude or include certain common types of contract....811
798 DeLovio v. Boit, 7 Fed. Cas. 418, 444 (No. 3776) (C.C.D. Mass. 1815) (Justice Story); Waring v. Clarke, 46 U.S. (5 How.) 441 (1847).
799 Sheppard v. Taylor, 30 U.S. (5 Pet.) 675, 710 (1831). A seaman employed by the Government making a claim for wages cannot proceed in admiralty but must bring his action under the Tucker Act in the Court of Claims or in the district court if his claim does not exceed $10,000. Amell v. United States, 384 U.S. 158 (1966). In Kossick v. United Fruit Co., 365 U.S. 731 (1961), an oral agreement between a seaman and a shipowner whereby the latter in consideration of the seaman’s forbearance to press his maritime right to maintenance and cure promised to assume the consequences of improper treatment of the seaman at a Public Health Service Hospital was held to be a maritime contract. See also Archawski v. Hanioti, 350 U.S. 532 (1956).
800 Insurance Co. v. Dunham, 78 U.S. (11 Wall.) 1, 31 (1871); Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310 (1955). Whether admiralty jurisdiction exists if the vessel is not engaged in navigation or commerce when the insurance claim arises is open to question. Jeffcott v. Aetna Ins. Co., 129 F.2d 582 (2d Cir.), cert. denied, 317 U.S. 663 (1942). Contracts and agreements to procure marine insurance are outside the admiralty jurisdiction. Compagnie Francaise De Navigation A Vapeur v. Bonnasse, 19 F.2d 777 (2d Cir. 1927).
801 Knapp, Stout & Co. v. McCaffrey, 177 U.S. 638 (1900). For recent Court difficulties with exculpatory features of such contracts, see Bisso v. Inland Waterways Corp., 349 U.S. 85 (1955); Boston Metals Co. v. The Winding Gulf, 349 U.S. 122 (1955); United States v. Nielson, 349 U.S. 129 (1955); Southwestern Sugar & Molasses Co. v. River Terminals Corp., 360 U.S. 411 (1959); Dixilyn Drilling Corp. v. Crescent Towage & Salvage Co., 372 U.S. 697 (1963).
803 The Grapeshot, 76 U.S. (9 Wall.) 129 (1870); O’Brien v. Miller, 168 U.S. 287 (1897); The Aurora, 14 U.S. (1 Wheat.) 94 (1816); Delaware Mut. Safety Ins. Co. v. Gossler, 96 U.S. 645 (1877). But ordinary mortgages even though the securing property is a vessel, its gear, or cargo are not considered maritime contracts. Bogart v. The Steamboat John Jay, 58 U.S. (17 How.) 399 (1854); Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21, 32 (1934).
804 New Bedford Dry Dock Co. v. Purdy, 258 U.S. 96 (1922); The General Smith, 17 U.S. (4 Wheat.) 438 (1819). There is admiralty jurisdiction even though the repairs are not be be made in navigable waters but, perhaps, in dry dock. North Pacific SS. Co. v. Hall Brothers Marine R. & S. Co., 249 U.S. 119 (1919). But contracts and agreements pertaining to the original construction of vessels are not within admiralty jurisdiction. Peoples Ferry Co. v. Joseph Beers, 61 U.S. (20 How.) 393 (1858); North Pacific S.S. Co., 249 U.S. at 127.
805 New Jersey Steam Navigation Co. v. Merchants’ Bank of Boston, 47 U.S. (6 How.) 344 (1848).
806 Ex parte Easton, 95 U.S. 68 (1877).
807 Andrews v. Wall, 44 U.S. (3 How.) 568 (1845).
810 E.g., DeLovio v. Boit, 7 Fed. Cas. 418, 444 (No. 3776) (C.C.D. Mass. 1815) (Justice Story); The Steamboat Orleans v. Phoebus, 36 U.S. (11 Pet.) 175, 183 (1837); The People’s Ferry Co. v. Joseph Beers, 61 U.S. (20 How.) 393, 401 (1858); New England Marine Ins. Co. v. Dunham, 78 U.S. (11 Wall.) 1, 26 (1870); Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21, 48 (1934).
Maritime torts include injuries to persons,812 damages to property arising out of collisions or other negligent acts,813 and violent dispossession of property.814 The Court has expresed a willingness to recogniz[e] products liability, including strict liability, as part of the general maritime law.815 Unlike contract cases, maritime tort jurisdiction historically depended exclusively upon the commission of the wrongful act upon navigable waters, regardless of any connection or lack of connection with shipping or commerce.816 The Court has now held, however, that in addition to the requisite situs a significant relationship to traditional maritime activity must exist in order for the admiralty jurisdiction of the federal courts to be invoked.817 Both the Court and Congress have created exceptions to the situs test for maritime tort jurisdiction to extend land-ward the occasions for certain connected persons or events to come within admiralty, not without a little controversy.818
812 The City of Panama, 101 U.S. 453 (1880). Reversing a long-standing rule, the Court allowed recovery under general maritime law for the wrongful death of a seaman. Moragne v. States Marine Lines, 398 U.S. 375 (1970); Miles v. Apex Marine Corp., 498 U.S. 19 (1991).
815 East River Steamship Corp. v. Transamerica Delaval, 476 U.S. 858 (1986) (holding, however, that there is no products liability action in admiralty for purely economic injury to the product itself, unaccompanied by personal injury, and that such actions should be based on the contract law of warranty).
From the earliest days of the Republic, the federal courts sitting in admiralty have been held to have exclusive jurisdiction of prize cases.819 Also, in contrast to other phases of admiralty jurisdiction, prize law as applied by the British courts continued to provide the basis of American law so far as practicable,820 and so far as it was not modified by subsequent legislation, treaties, or executive proclamations. Finally, admiralty and maritime jurisdiction includes the seizure and forfeiture of vessels engaged in activities in violation of the laws of nations or municipal law, such as illicit trade,821 infraction of revenue laws,822 and the like.823
816 DeLovio v. Boit, 7 Fed. Cas. 418, 444 (No. 3776) (C.C.D. Mass. 1815) (Justice Story); Philadelphia, W. & B. R.R. v. Philadelphia & Havre De Grace Steam Towboat Co., 64 U.S. (23 How.) 209, 215 (1859); The Plymouth, 70 U.S. (3 Wall.) 20, 33-34 (1865); Grant-Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 476 (1922).
817 Executive Jet Aviation v. City of Cleveland, 409 U.S. 249 (1972) (plane crash in which plane landed wholly fortuitously in navigable waters off the airport runway not in admiralty jurisdiction). However, so long as there is maritime activity and a general maritime commercial nexus, admiralty jurisdiction exists. Foremost Ins. Co. v. Richardson, 457 U.S. 668 (1982) (collision of two pleasure boats on navigable waters is within admiralty juridiction); Sisson v. Ruby, 497 U.S. 358 (1990) (fire on pleasure boat docked at marina on navigable water). And see Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995), a tort claim arising out of damages allegedly caused by negligently driving piles from a barge into the riverbed, which weakened a freight tunnel that allowed flooding of the tunnel and the basements of numerous buildings along the Chicago River. The Court found that admiralty jurisdiction could be invoked. The location test was satisfied, because the barge, even though fastened to the river bottom, was a vessel for admiralty tort purposes; the two-part connection test was also satisfied, inasmuch as the incident had a potential to disrupt maritime commerce and the conduct giving rise to the incident had a substantial relationship to traditional maritime activity.
818 Thus, the courts have enforced seamen’s claims for maintenance and cure for injuries incurred on land. O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 41-42 (1943). The Court has applied the doctrine of seaworthiness to permit claims by longshoremen injured on land because of some condition of the vessel or its cargo. Gutierrez v. Waterman S.S. Corp., 373 U.S. 206 (1963); Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946); Mahnich v. Southern S.S. Co., 321 U.S. 96 (1944). But see Victory Carriers v. Law, 404 U.S. 202 (1971). In the Jones Act, 41 Stat. 1007, 46 U.S.C. § 688, Congress gave seamen, or their personal representatives, the right to seek compensation from their employers for personal injuries arising out of their maritime employment. Respecting who is a seaman for Jones Act purposes, see Southwest Marine, Inc. v. Gizoni, 502 U.S. 81 (1991); McDermott International, Inc. v. Wilander, 498 U.S. 337 (1991). The rights exist even if the injury occurred on land. O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. at 43; Swanson v. Mara Brothers, 328 U.S. 1, 4 (1946). In the Extension of Admiralty Jurisdiction Act, 62 Stat. 496, 46 U.S.C. § 740, Congress provided an avenue of relief for persons injured in themselves or their property by action of a vessel on navigable water which is consummated on land, as by the collision of a ship with a bridge. By the 1972 amendments to the Longshoremen’s and Harbor Workers’ Compensation Act, 86 Stat. 1251, amending 33 U.S.C. §§ 901-950, Congress broadened the definition of navigable waters to include in certain cases adjoining piers, wharfs, etc., and modified the definition of employee to mean any worker engaged in maritime employment within the prescribed meanings, thus extending the Act shoreward and changing the test of eligibility from situs alone to the situs of the injury and the status of the injured.
Admiralty Proceedings.—Procedure in admiralty jurisdiction differs in few respects from procedure in actions at law, but the differences that do exist are significant.824 Suits in admiralty traditionally took the form of a proceeding in rem against the vessel, and, with exceptions to be noted, such proceedings in rem are confined exclusively to federal admiralty courts, because the grant of exclusive jurisdiction to the federal courts by the Judiciary Act of 1789 has been interpreted as referring to the traditional admiralty action, the in rem action, which was unknown to the common law.825 The savings clause in that Act under which a state court may entertain actions by suitors seeking a common-law remedy preserves to the state tribunals the right to hear actions at law where a common-law remedy or a new remedy analogous to a common-law remedy exists.826 Concurrent jurisdiction thus exists for the adjudication of in personam maritime causes of action against the owner of the vessel, and a plaintiff may ordinarily choose whether to bring his action in a state court or a federal court.
821 Hudson v. Guestier, 8 U.S. (4 Cr.) 293 (1808).
824 Gilmore & Black, supra at 30-33. There are no longer separate rules of procedure governing admiralty, unification of civil admiralty procedures being achieved in 1966. 7 A J. Moore’s Federal Practice § .01 et seq (New York: 1971).
825 The Moses Taylor, 71 U.S. (4 Wall.) 411 (1866); The Hine v. Trevor, 71 U.S. (4 Wall.) 555 (1867). But see Taylor v. Carryl, 61 U.S. (20 How.) 583 (1858). In Madruga v. Superior Court, 346 U.S. 556 (1954), the jurisdiction of a state court over a partition suit at the instance of the majority shipowners was upheld on the ground that the cause of action affected only the interest of the defendant minority shipowners and therefore was in personam. Justice Frankfurter’s dissent argued: If this is not an action against the thing, in the sense which that has meaning in the law, then the concepts of a res and an in rem proceeding have an esoteric meaning that I do not understand. Id. at 564.
826 After conferring exclusive jurisdiction in admiralty and maritime cases on the federal courts, § 9 of the Judiciary Act of 1789, 1 Stat. 77, added saving to suitors, in all cases the right of a common law remedy, where the common law is competent to give it; . . . Fixing the concurrent federal-state line has frequently been a source of conflict within the court. Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917).
Forfeiture to the crown for violation of the laws of the sovereign was in English law an exception to the rule that admiralty has exclusive jurisdiction over in rem maritime actions and was thus considered a common-law remedy. Although the Supreme Court sometimes has used language that would confine all proceedings in rem to admiralty courts,827 such actions in state courts have been sustained in cases of forfeiture arising out of violations of state law.828
Perhaps the most significant admiralty court difference in procedure from civil courts is the absence of a jury trial in admiralty actions, with the admiralty judge trying issues of fact as well as of law.829 Indeed, the absence of a jury in admiralty proceedings appears to have been one of the principal reasons why the English government vested a broad admiralty jurisdiction in the colonial vice-admiralty courts, since they provided a forum where the English authorities could enforce the Navigation Laws without the obstinate resistance of American juries.830
Territorial Extent of Admiralty and Maritime Jurisdiction.—Although he was a vigorous exponent of the expansion of admiralty jurisdiction, Justice Story for the Court in The Steamboat Thomas Jefferson831 adopted a restrictive English rule confining admiralty jurisdiction to the high seas and upon rivers as far as the ebb and flow of the tide extended.832 The demands of commerce on western waters led Congress to enact a statute extending admiralty jurisdiction over the Great Lakes and connecting waters,833 and in The Genessee Chief v. Fitzhugh834 Chief Justice Taney overruled The Thomas Jefferson and dropped the tidal ebb and flow requirement. This ruling laid the basis for subsequent judicial extension of jurisdiction over all waters, salt or fresh, tidal or not, which are navigable in fact.835 Some of the older cases contain language limiting jurisdiction to navigable waters which form some link in an interstate or international waterway or some link in commerce,836 but these date from the time when it was thought the commerce power furnished the support for congressional legislation in this field.
828 C. J. Henry Co. v. Moore, 318 U.S. 133 (1943).
829 The Vengeance, 3 U.S. (3 Dall.) 297 (1796); The Schooner Sally, 6 U.S. (2 Cr.) 406 (1805); The Schooner Betsy, 8 U.S. (4 Cr.) 443 (1808); The Whelan, 11 U.S. (7 Cr.) 112 (1812); The Samuel, 14 U.S. (1 Wheat.) 9 (1816). If diversity of citizenship and the requisite jurisdictional amounts are present, a suitor may sue on the law side of the federal court and obtain a jury. Romero v. International Terminal Operating Co., 358 U.S. 354, 362-363 (1959). Jones Act claims, 41 Stat. 1007 (1920), 46 U.S.C. § 688, may be brought on the law side with a jury, Panama R.R. Co. v. Johnson, 264 U.S. 375 (1924), and other admiralty claims joined with a Jones Act claim may be submitted to a jury. Romero, supra; Fitzgerald v. United States Lines Co., 374 U.S. 16 (1963). There is no constitutional barrier to congressional provision of jury trials in admiralty. Genessee Chief v. Fitzhugh, 53 U.S. (12 How.) 443 (1851); Fitzgerald, 374 U.S. at 20.
831 23 U.S. (10 Wheat.) 428 (1825). On the political background of this decision, see 1 C. Warren, supra at 633-35.
833 5 Stat. 726 (1845).
834 53 U.S. (12 How.) 443 (1851).
835 Some of the early cases include The Magnolia, 61 U.S. (20 How.) 296 (1857); The Eagle, 75 U.S. (8 Wall.) 15 (1868); The Daniel Ball, 77 U.S. (10 Wall.) 557 (1871). The fact that the body of water is artificial presents no barrier to admiralty jurisdiction. Ex parte Boyer, 109 U.S. 629 (1884); The Robert W. Parsons, 191 U.S. 17 (1903). In United States v. Appalachian Power Co., 311 U.S. 377 (1940), it was made clear that maritime jurisdiction extends to include waterways which by reasonable improvement can be made navigable. It has long been settled that the admiralty and maritime jurisdiction of the United States includes all navigable waters within the country. Southern S.S. Co. v. NLRB, 316 U.S. 31, 41 (1942).
Admiralty and Federalism.—Extension of admiralty and maritime jurisdiction to navigable waters within a State does not, however, of its own force include general or political powers of government. Thus, in the absence of legislation by Congress, the States through their courts may punish offenses upon their navigable waters and upon the sea within one marine league of the shore.837
Determination of the boundaries of admiralty jurisdiction is a judicial function, and no State law can enlarge it, nor can an act of Congress or a rule of court make it broader than the judicial power may determine to be its true limits.838 But, as with other jurisdictions of the federal courts, admiralty jurisdiction can only be exercised under acts of Congress vesting it in federal courts.839
The boundaries of federal and state competence, both legislative and judicial, in this area remain imprecise, and federal judicial determinations have notably failed to supply definiteness. During the last century, the Supreme Court generally permitted two overlapping systems of law to coexist in an uneasy relationship. The federal courts in admiralty applied the general maritime law,840 supplemented in some instances by state law which created and defined certain causes of action.841 Because the Judiciary Act of 1789 saved to suitors common-law remedies, persons suing in state courts or in federal courts in diversity of citizenship actions could look to common-law and statutory doctrines for relief in maritime-related cases in which the actions were noticeable.842 In Southern Pacific Co. v. Jensen,843 a sharply divided Court held that New York could not constitutionally apply its workmen’s compensation system to employees injured or killed on navigable waters. For the Court, Justice McReynolds reasoned that the general maritime law, as accepted by the federal courts, constituted part of our national law, applicable to matters within the admiralty and maritime jurisdiction.844 Recognizing that it would be difficult, if not impossible, to define with exactness just how far the general maritime law may be changed, modified or affected by state legislation, still it was certain that no such legislation is valid if it works material prejudice to the characteristic features of the general maritime law, or interferes with the proper harmony or uniformity of that law in its international and interstate relations.845 The savings to suitors clause was unavailing because the workmen’s compensation statute created a remedy of a character wholly unknown to the common law, incapable of enforcement by the ordinary process of any court, and is not saved to suitors from the grant of exclusive jurisdiction.846
840 E.g., New Jersey Steam Navigation Co. v. Merchants’ Bank of Boston, 47 U.S. (6 How.) 344 (1848); The Steamboat New York v. Rea, 59 U.S. (18 How.) 223 (1856); The China, 74 U.S. (7 Wall.) 53 (1868); Ex parte McNiel, 80 U.S. (13 Wall.) 236 (1872); La Bourgogne, 210 U.S. 95 (1908).
841 The General Smith, 17 U.S. (4 Wheat.) 438 (1819); The Lottawanna, 88 U.S. (21 Wall.) 558 (1875) (enforcing state laws giving suppliers and repairmen liens on ships supplied and repaired). Another example concerns state created wrongful death actions. The Hamilton, 207 U.S. 398 (1907).
842 E.g., Hazard’s Administrator v. New England Marine Ins. Co., 33 U.S. (8 Pet.) 557 (1834); The Belfast, 74 U.S. (7 Wall.) 624 (1869); American Steamboat Co. v. Chase, 83 U.S. (16 Wall.) 522 (1872); Quebec Steamship Co. v. Merchant, 133 U.S. 375 (1890); Belden v. Chase, 150 U.S. 674 (1893); Homer Ramsdell Transp. Co. v. La Compagnie Gen. Transatlantique, 182 U.S. 406 (1901).
843 244 U.S. 205 (1917). The worker here had been killed, but the same result was reached in a case of nonfatal injury. Clyde S.S. Co. v. Walker, 244 U.S. 255 (1917). In Chelentis v. Luckenbach S.S. Co., 247 U.S. 372 (1918), the Jensen holding was applied to preclude recovery in a negligence action against the injured party’s employer under state law. Under The Osceola, 189 U.S. 158 (1903), the employee had a maritime right to wages, maintenance, and cure.
845 244 U.S. at 216.
846 244 U.S. at 218. There were four dissenters, Justices Holmes, Brandeis, Clarke, and Pitney. The Jensen dissent featured such Holmesian epigrams as: Judges do and must legislate, but they can do so only interstitially: they are confined from molar to molecular motions, id. at 221, and the famous statement supporting the assertion that supplementation of maritime law had to come from state law inasmuch as the common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi-sovereign that can be identified. It always is the law of some state. Id. at 222.
Congress required three opportunities to legislate to meet the problem created by the decision, the lack of remedy for maritime workers to recover for injuries resulting from the negligence of their employers. First, Congress enacted a statute saving to claimants their rights and remedies under state workmen’s compensation laws.847 The Court invalidated it as an unconstitutional delegation of legislative power to the States. The Constitution itself adopted and established, as part of the laws of the United States, approved rules of the general maritime law and empowered Congress to legislate in respect of them and other matters within the admiralty and maritime jurisdiction. Moreover, it took from the States all power, by legislation or judicial decision, to contravene the essential purposes of, or to work material injury to, characteristic features of such law or to interfere with its proper harmony and uniformity in its international and interstate relations.848 Second, Congress reenacted the law but excluded masters and crew members of vessels from those who might claim compensation for maritime injuries.849
The Court found this effort unconstitutional as well, since the manifest purpose [of the statute] was to permit any state to alter the maritime law, and thereby introduce conflicting requirements.850 Finally, Congress passed the Longshoremen’s and Harbor Workers’ Compensation Act, which provided accident compensation for injuries, including those resulting in death, sustained on navigable waters by employees, other than members of the crew, whenever recovery . . . may not validly be provided by State law.851
With certain exceptions,852 the federal-state conflict since Jensen has taken place with regard to three areas: (1) the interpretation of federal and state bases of relief for injuries and death as affected by the Longshoremen’s and Harbor Workers’ Compensation Act; (2) the interpretation of federal and state bases of relief for personal injuries by maritime workers as affected by the Jones Act; and (3) the application of state law to permit recovery in maritime wrongful death cases in which until recently there was no federal maritime right to recover.853
847 40 Stat. 395 (1917).
849 42 Stat. 634 (1922).
851 44 Stat. 1424 (1927), as amended, 33 U.S.C. §§ 901-950.
852 E.g., Maryland Casualty Co. v. Cushing, 347 U.S. 409 (1954) (state direct action statute applies against insurers implicated in a marine accident); Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310 (1955) (state statute determines effect of breach of warranty in marine insurance contract); Southwestern Sugar & Molasses Co. v. River Terminals Corp., 360 U.S. 411 (1959); Bisso v. Inland Waterways Corp., 349 U.S. 85 (1955) (federal rather than state law determines effect of exculpatory provisions in towage contracts); Kossick v. United Fruit Co., 365 U.S. 731 (1961) (state statute of frauds inapplicable to oral contract for medical care between seaman and employer).
853 Jensen, though much criticized, is still the touchstone of the decisional process in this area with its emphasis on the general maritime law. E.g., Pope & Talbot v. Hawn, 346 U.S. 406 (1953); Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959). In Askew v. American Waterways Operators, 411 U.S. 325, 337-344 (1973), the Court, in holding that the States may constitutionally exercise their police powers respecting maritime activities concurrently with the Federal Government, such as by providing for liability for oil spill damages, noted that Jensen and its progeny, while still possessing vitality, have been confined to their facts; thus, it is only with regard to suits relating to the relationship of vessels, plying the high seas and our navigable waters, and to their crews that state law is proscribed. Id. at 344. See also Sun Ship v. Pennsylvania, 447 U.S. 715 (1980).
(1) The principal difficulty here was that after Jensen the Supreme Court did not maintain the line between permissible and impermissible state-authorized recovery at the water’s edge, but created a maritime but local exception, by which some injuries incurred in or on navigable waters could be compensated under state workmen’s compensation laws or state negligence laws.854 The application of the State Workmen’s Compensation Acts has been sustained where the work of the employee has been deemed to have no direct relation to navigation or commerce and the operation of the local law ‘would work no material prejudice to the essential features of the general maritime law.’855 Because Congress provided in the Longshoremen’s and Harbor Workers’ Compensation Act for recovery under the Act if recovery . . . may not validly be provided by State law,856 it was held that the maritime but local exception had been statutorily perpetuated,857 thus creating the danger for injured workers or their survivors that they might choose to seek relief by the wrong avenue to their prejudice. This danger was susequently removed by the Court when it recognized that there was a twilight zone, a shadowy area, in which recovery under either the federal law or a state law could be justified, and held that in such a twilight zone the injured party should be enabled to recover under either.858 Then, in Calbeck v. Travelers Ins. Co.,859 the Court virtually read out of the Act its inapplicability when compensation would be afforded by state law and held that Congress’ intent in enacting the statute was to extend coverage to all workers who sustain injuries while on navigable waters of the United States whether or not a particular injury was also within the constitutional reach of a state workmen’s compensation law or other law. By the 1972 amendments to the LHWCA, Congress extended the law shoreward by refining the tests of employee and navigable waters, so as to reach piers, wharfs, and the like in certain circumstances.860
854 Western Fuel Co. v. Garcia, 257 U.S. 233 (1921); Grant-Smith-Porter Ship Co. v. Rohde, 257 U.S. 469 (1922); State Industrial Comm’n v. Nordenholt Corp., 259 U.S. 263 (1922); Miller’s Indemnity Underwriters v. Braud, 270 U.S. 59 (1926). The exception continued to be applied following enactment of the Longshoremen’s and Harbor Workers’ Compensation Act. See cases cited in Davis v. Department of Labor and Industries, 317 U.S. 249, 253-254 (1942).
856 § 3(a), 44 Stat. 1424 (1927), 33 U.S.C. § 903(a).
859 370 U.S. 114 (1962). In the 1972 amendments, § 2, 86 Stat. 1251, amending 33 U.S.C. § 903(a), Congress ratified Calbeck by striking out if recovery . . . may not validly be provided by State law.
860 86 Stat. 1251, § 2, amending 33 U.S.C. § 902. The Court had narrowly turned back an effort to achieve this result through construction in Nacirema Operating Co. v. Johnson, 396 U.S. 212 (1969). See also Victory Carriers v. Law, 404 U.S. 202 (1971). On the interpretation of the amendments, see Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977); Director, Office of Workers Compensation Programs v. Perini, 459 U.S. 297 (1983).
(2) The passage of the Jones Act861 gave seamen a statutory right of recovery for negligently inflicted injuries on which they could sue in state or federal courts. Because injured parties could obtain a jury trial in Jones Act suits, there was little attempted recourse under the savings clause862 to state law claims and thus no need to explore the line between applicable and inapplicable state law. But in the 1940s personal injury actions based on unseaworthiness863 were given new life by Court decisions for seamen;864 and the right was soon extended to longshoremen who were injured while on board ship or while working on the dock if the injury could be attributed either to the ship’s gear or its cargo.865 While these actions could have been brought in state court, federal law supplanted state law even with regard to injuries sustained in state territorial waters.866 The 1972 LHWCA amendments, however, eliminated unseaworthiness recoveries by persons covered by the Act and substituted a recovery for injuries caused by negligence under the LHWCA itself.867
861 41 Stat. 1007 (1920), 46 U.S.C. § 688. For the prior-Jones Act law, see The Osceola, 189 U.S. 158 (1903)
862 Supra, Cases of Admiralty and Maritime Jurisdiction.
863 Unseaworthiness is essentially a species of liability without fault, analogous to other well known instances in our law. Derived from and shaped to meet the hazards which performing the service imposes, the liability is neither limited by conceptions of negligence nor contractual in character.... [T]he owner’s duty to furnish a seaworthy ship is absolute and completely independent of his duty under the Jones Act to exercise reasonable care. Mitchell v. Trawler Racer, 362 U.S. 539, 549 (1960).
864 Mahnich v. Southern S.S. Co., 321 U.S. 96 (1944). See also Mitchell v. Trawler Racer, 362 U.S. 539 (1960); Michalic v. Cleveland Tankers, 364 U.S. 325 (1960); Waldron v. Moore-McCormack Lines, 386 U.S. 724 (1967).
865 Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946); Pope & Talbot v. Hawn, 346 U.S. 406 (1953); Alaska S.S. Co. v. Patterson, 347 U.S. 396 (1954); Gutierrez v. Waterman S.S. Corp., 373 U.S. 206 (1963); But see Usner v. Luckenback Overseas Corp., 400 U.S. 494 (1971); Victory Carriers v. Law, 404 U.S. 202 (1971).
867 86 Stat. 1263, § 18, amending 33 U.S.C. § 905. On the negligence standards under the amendment, see Scindia Steam Navigation Co., v. De Los Santos, 451 U.S. 156 (1981).
(3) In The Harrisburg,868 the Court held that maritime law did not afford an action for wrongful death, a position to which the Court adhered until 1970.869 The Jones Act,870 the Death on the High Seas Act,871 and the Longshoremen’s and Harbor Workers’ Compensation Act872 created causes of action for wrongful death, but for cases not falling within one of these laws the federal courts looked to state wrongful death and survival statutes.873 Thus, in The Tungus v. Skovgaard,874 the Court held that a state wrongful death statute encompassed claims both for negligence and unseaworthiness in the instance of a land-based worker killed when on board ship in navigable water; the Court divided five-to-four, however, in holding that the standards of the duties to furnish a seaworthy vessel and to use due care were created by the state law as well and not furnished by general maritime concepts.875 And in Hess v. United States,876 embracing a suit under the Federal Tort Claims Act for recovery for a death by drowning in a navigable Oregon river of an employee of a contractor engaged in repairing the federally-owned Bonneville Dam, a divided Court held that liability was to be measured by the standard of care expressed in state law, notwithstanding that the standard was higher than that required by maritime law. One area existed, however, in which beneficiaries of a deceased seaman were denied recovery.
869 Moragne v. States Marine Lines, 398 U.S. 375 (1970).
870 41 Stat. 1007 (1920). 46 U.S.C. § 688. Recovery could be had if death resulted from injuries because of negligence but not from unseaworthiness.
871 41 Stat. 537 (1920), 46 U.S.C. § 761 et seq. The Act applies to deaths caused by negligence occurring on the high seas beyond a marine league from the shore of any State. In Rodrique v. Aetna Casualty & Surety Co., 395 U.S. 352 (1969), a unanimous Court held that this Act did not apply in cases of deaths on the artificial islands created on the continental shelf for oil drilling purposes but that the Outer Continental Shelf Lands Act, 67 Stat. 462 (1953), 43 U.S.C.§ 1331 et seq., incorporated the laws of the adjacent State, so that Louisiana law governed. See also Chevron Oil Co. v. Huson, 404 U.S. 97 (1971); Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473 (1981). However, in Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986), the Court held that the Act is the exclusive wrongful death remedy in the case of OCS platform workers killed in a helicopter crash 35 miles off shore en route to shore from a platform.
872 44 Stat. 1424 (1927), as amended, 33 U.S.C. §§ 901-950.
874 358 U.S. 588 (1959).
875 Justice Brennan, joined by Chief Justice Warren and Justices Black and Douglas, argued that the extent of the duties owed the decedent while on board ship should be governed by federal maritime law, though the cause of action originated in a state statute, just as would have been the result had decedent survived his injuries. See also United N.Y. & N.J. Sandy Hooks Pilot Ass’n v. Halecki, 358 U.S. 613 (1959).
876 361 U.S. 314 (1960). The four Tungus dissenters joined two of the Tungus majority solely under compulsion of the Tungus ruling; the other three majority Justices dissented on the ground that application of the state statute unacceptably disrupted the uniformity of maritime law.
The Jones Act provided a remedy for wrongful death resulting from negligence, but not for one caused by unseaworthiness alone; in Gillespie v. United States Steel Corp.,877 the Court held that the survivors of a seaman drowned while working on a ship docked in an Ohio port could not recover under the state wrongful death statute even though the act recognized unseaworthiness as a basis for recovery, the Jones Act having superseded state laws.
Thus did matters stand until 1970, when the Court, in a unanimous opinion in Moragne v. States Marine Lines,878 overruled its earlier cases and held that a right of recovery for wrongful death is sanctioned by general maritime law and that no statute is needed to bring the right into being. The Court was careful to note that the cause of action created in Moragne would not, like the state wrongful death statutes in Gillespie, be held precluded by the Jones Act, so that the survivor of a seaman killed in navigable waters within a State would have a cause of action for negligence under the Jones Act or for unseaworthiness under the general maritime law.879
878 398 U.S. 375 (1970).
879 398 U.S. at 396 n.12. For development of the law under Moragne, see Sea-Land Services v. Gaudet, 414 U.S. 573 (1974); Miles v. Apex Marine Corp., 498 U.S. 19 (1990); and Norfolk Shipbuilding and Drydock Co. v. Garris, 532 U.S. 811 (2001) (maritime cause of action for death caused by violation of the duty of seaworthiness is equally applicable to death resulting from negligence). But, in Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1996), a case involving a death in territorial waters from a jet ski accident, the Court held that Moragne does not provide the exclusive remedy in cases involving the death in territorial waters of a nonseafarer—a person who is neither a seaman covered by the Jones Act nor a longshore worker covered by the LHWCA.
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