Category: Admiralty


A New Maritime Law Agency

120px-Oregon_-_sinking_-_Currier&Ives_(1883)One frustration of teaching Admiralty is that much of the law governing ships is obsolete.  Some of the foundational statutes include the Limitation of Liability Act (1851) and the Jones Act (1920), which have been widely criticized as out of date.  Though the federal courts have broad common lawmaking power in this area, many of the Supreme Court’s decisions also rest on legal and factual assumptions that are faulty. (I might give some examples in a subsequent post.)

Why is this the case?  Part of the answer is that admiralty is not a priority for either Congress or the Court.  The decline of maritime commerce (in relative terms) explains this, though there is also some contingency at work.  The BP oil spill from 2010 exposed many flaws in the regulatory regime, but the Administration’s decision to develop a one-off remedy via a compensation fund rather than seeking a legislative response to the crisis kept everything frozen in amber.

Another answer is that maritime law missed out on the administrative law revolution of the 1930s.  There is a Federal Maritime Commission (an early version of which was run by Joseph Kennedy), but the FMC’s  jurisdiction is narrow.  Administrative agencies, of course, play a crucial role in updating statutes (with the help of Chevron deference) and raise the profile of problems with current law.  It is difficult to imagine environmental law without the EPA or communications law without the FCC (consider net neutrality as an example).  It’s probably time for Congress to make the Federal Maritime Commission a full-fledged agency.


Controlling Ghosts

According to a story in The Economist that Deven just flagged, shippers are experimenting with the use of “ghost” vessels without crews to move cargo.  Reasons include greater safety and lower costs, in part because crews make errors and good crews are expensive.  The article has a short section on “rules of the sea” and offers the view of one engineer that there shouldn’t be any legal problems where humans control the vessels from shore.

As it happens, I discuss a version of this issue in Robotics and the New Cyberlaw (at *131):

Craig Allen, a maritime law scholar, recently considers whether unmanned submarines with autonomous capabilities qualify for the full panoply of writes generally afforded vessels in international waters.  International law [e.g., UNCLOS VII, Art. 94(1)] premises these rights on the ability of a flag state to retain, again, “effective control” over the behavior of the vessel and crew.  This has been taken to mean that there are one or more people in charge of the vessel who are beholden to the flag nation in the right ways. The question of whether autonomous systems are beholden to the United States is not (merely) academic: A nation such as China has a strategic incentive to disqualify underwater American military equipment that patrols its sea shelf, such that international bodies may have to confront the question sooner rather than later.

I suspect that remote piloting of vessels will only be the first step—just as so-called “platooning,” where a professional controls multiple vehicles following closely behind, is likely to precede broader deployment of driverless cars.  I wonder whether even the initial deployment will not have some level of autonomy that kicks in where, for instance, contact with the ship is severed.  Certain classes of military drones return to base if they lose contact with the pilot.  Moreover, there are already smaller research vessels that navigate the “high seas,” where these obligations pertain, and collect or relay data without human intervention.  In any event, this issue of effective control—whether in tort, criminal, or apparently maritime law—is one of the ways robotics will pose challenges for law and institutions in the near term.


What is a Vessel?

So naturally I was interested in Monday’s oral argument on the question of what counts as a vessel for certain purposes in admiralty.  This is a fun exercise in class, as you quiz students about things like floating casinos or sofas.  (Why the Supreme Court decided to take this issue is a mystery.)  The main takeaway for me, though, is that it shows how uncomfortable the Justices are when they must make common law.  The Chief Justice’s comment about searching for a clear test is not the mentality of a common-law judge who concentrates on the factual context and embraces uncertain boundaries most of the time.  (Basically, the definition of a vessel is one of those “totality of the circumstances” kind of situation.)

This lack of common-law experience is not surprising, as admiralty is the only true area of federal common law.  And none of the current Justices have ever served on a state court or done much with maritime jurisdiction.  We’ll see what they come up with in Lozman.  That will be an excellent addition to my Spring Admiralty syllabus!


The 100th Anniversary of the Titanic

Naturally, on this day my thoughts turn to the litigation surrounding Titanic.  Among the leading examples are:

1.  Oceanic Steam Nav. Co. v. Mellor, 233 U.S. 718 (1914).  The Supreme Court, in an opinion by Justice Holmes, held that Limitation of Liability Act applied to tort claims brought in the United States against the vessel’s owner.

2.  R.M.S. Titanic, Inc. v. Abandoned and Wrecked Vessel, 435 F.3d 521 (4th Cir. 2006). This opinion rejected the application of the law of finds to objects recovered from the site.

3.  R.M.S. Titanic, Inc. v. Abandoned and Wrecked Vessel, 286 F.3d 194 (4th Cir. 2002).This opinion addressed the salvor’s attempt to sell certain artifacts from the site.

4.  R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943 (4th Cir. 1999).  This opinion examined the salvor’s effort to claim exclusive rights to the site.

5.  Marex Titanic, Inc. v. The Wrecked and Abandoned Vessel, 2 F.3d 544 (4th Cir. 1993).  This one resolved a dispute between rival salvors.


Unseaworthiness and Product Liability

I thought I’d make the following observation for those of you who study or work on product liability issues.  The maritime equivalent of product liability is the unseaworthiness action, which is based on the vessel owner’s provision of a defective ship. (There is also a contract version of unseaworthiness.) Much like product liability, the unseaworthiness tort action evolved from nothing, to negligence, and then to strict liability, which is the current rule.  I don’t know enough about the details of what makes a ship unseaworthy to know if there are some useful analogies or insights in that doctrine for product liability, but it’s worth a look.


The Greatest Supreme Court Opinion?

This week in my Admiralty class I taught my favorite case–Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970). This unanimous opinion, written by Justice John Marshall Harlan, held that a wrongful death action existed in general maritime law. Moragne overruled The Harrisburg, an 1886 case that followed the common law and said that there was no wrongful death remedy in admiralty. Many scholars believe that this is the best Supreme Court opinion, if by best you mean”most professional.”

Among the reasons this is worth reading (even if you don’t care about admiralty):

1.  Moragne goes into the history of wrongful death and explains why the common law did not provide a remedy.  The answer is that the “felony-merger” doctrine in England held that all property owned by a convicted murderer went to the Crown.  Thus, there could be no recovery by a private party.  Even though no such doctrine existed here, our courts blindly adopted the English rule.

2.  The Court grounds its decision to overrule its precedent by doing an exhaustive review of the erosion of the “no wrongful death” rule, by looking at state statutes, Acts of Congress, international law, and academic criticism.

3.  The Court explains why Congress’s decision to create a wrongful death remedy in international waters (in the Death on the High Seas Act) does not preclude the creation of a judicial equivalent in territorial waters where state law does not do so.  That part of the opinion involves a thoughtful discussion of federalism, statutory interpretation, and the evolution of the admiralty remedy of unseaworthiness (which I’ll talk more about next week).

4.  The Court then concludes by offering a detailed explanation about why stare decisis does not counsel in favor of sticking with precedent in this instance, largely because the current rules promotes uncertainty and leads to all sorts of inconsistent outcomes in similarly situated cases.

Take a look sometime–you’ll be glad you did.


The Steamboat Magnolia

Speaking of Admiralty, I want to highlight a terrific symposium that the Saint Louis University Law Journal did on “Teaching Admiralty” in its Winter 2011 Issue.  There are many fantastic essays here, but my favorite was Joel Goldstein’s piece on The Steamboat Magnolia, which is a case that many people (including me) now use to introduce the course.  See Jackson v. The Steamboat Magnolia, 61 U.S. (20 How.) 296 (1857). It’s a fascinating case that delves deeply into constitutional law and jurisprudence–you should read it.





Another Interesting Case That You’ve Never Heard Of

I am in the process of revising my admiralty syllabus, and one case that I’m going to teach next year is Kotch v. Board of River Boat Pilots Com’rs for the Port of New Orleans 330 U.S. 552 (1947).  It’s a fascinating case and I thought I’d give you a summary.

Large ships that enter a harbor or a major river generally must be steered by a pilot.  A pilot is a local person who knows where all of the sandbars, rocks, and channels are in a particular locale.  The captain of the vessel lacks this knowledge and would founder or crash without a pilot in command. Louisiana had a law providing that a new pilot could only be licensed if a current pilot took him on as an apprentice.  Some people who were denied an apprenticeship sued claiming that the pilots in the state were only hiring their relatives and friends.  This kind of cronyism, it was alleged, violated the Equal Protection Clause.

The Supreme Court, in a 5-4 vote, rejected this claim.  Justice Hugo Black wrote for the majority and said that there was a rational basis for allowing pilots broad discretion to select their apprentices because “[a] pilot does not require a formalized technical education so much as a detailed and extremely intimate, almost intuitive, knowledge of the weather, waterways and conformation of the harbor or river which he serves.”  As a result, “the advantages of early experience under friendly supervision in the locality of the pilot’s training, the benefits to morale and esprit de corps which family and neighborly tradition might contribute, the close association in which pilots must work and live in their pilot communities and on the water, and the discipline and regulation which is imposed to assure the State competent pilot service after appointment, might have prompted the legislature to permit Louisiana pilot officers to select those which whom they would serve.”

Justice Rutledge dissented and said that “[i]f Louisiana were to provide by statute in haec verba that only members of John Smith’s family would be eligible for the public calling of pilot, I have no doubt that the statute on its face would infringe the Fourteenth Amendment.” The Court’s decision approves “as constitutional state regulation [a statute] which makes admission to the ranks of pilots turn finally on consanguinity. Blood is, in effect, made the crux of selection.”

This is one of the few Supreme Court cases that directly addresses the legality of nepotism, and I think that it deserves further study.


AALS Panel on Admiralty and Maritime Law

As the AALS Section Chair for Admiralty and Maritime Law, I am sorry to announce that our panel at the upcoming Annual Meeting is cancelled.  This was due to the illness of one of the panelists and the ongoing labor dispute at the hotels where the conference will be held.


Thoughts on the Gulf Spill

In anticipation of the President’s speech tonight, I thought I’d make some observations about the situation in the Gulf.

1.  When I taught Admiralty last semester, I pointed out to my students that many of the statutes in this area are obsolete.  But, I quickly added, Congress won’t do anything about this until there’s a crisis.  Now we see a slew of proposals to amend the Jones Act, amend the Death on the High Seas Act, amend the Limitation of Liability Act, and overturn the Court’s decision on punitive damages in the Exxon Valdez case.  Maritime law is hot!  Of course, whether this sort of knee-jerk response leads to thoughtful changes is another matter, but overall it’s probably better that these neglected topics just get attention.

2.  The discussion about setting up a 9/11 style Fund (paid for by BP) to address claims arising from the disaster is intriguing.  It seems to me, though, that some new statute will required to make this work.  In particular, I’m not clear on how such a fund would interact with bankruptcy law.  Suppose BP puts $10 billion in escrow for the fund.  Then later they have to file for Chapter 11.  I don’t think that the fund would be immune from other creditors or that litigants would have priority over them (admittedly, though, some of my co-bloggers know far more about this than I do).

3.  A far less important point.  This crisis shows why the AALS Annual Meeting should not require such an early date for setting up panels.  Obviously, I’d like to do this year’s Admiralty Section panel on the spill.  But now I can’t — the deadline for setting up the panel was two months ago.  Granted, AALS can organize a separate one on the issue, but their rigidity with respect to the sections is rather irritating.