One frustration of teaching Admiralty is that much of the law governing ships is obsolete.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statutes include the Limitation of Liability Act (1851) and the Jones Act (1920), which have been widely criticized as out of date.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.