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I.

Subject Matter Jurisdiction


A. Is it on Navigable Waters?
1. Historical Development: British law said that it was the ocean and anything affected
by the ebb and flow of the tide. This was no good for America (Mississippi is
navigable but not affected by the tide).
2. Navigable waters: a waterway capable of being used in its ordinary condition as a
highway for commerce. The Daniel Ball
a. Use – actually in use or susceptible to use in the future are okay
1) The stream is only navigable waters up until the point it becomes unable to
bear commerce (i.e. to the first dam).
2) Structures attached to land are “extensions of land” (bridges, piers, oil rigs)
unless they are primarily used for navigation.
3) No matter that it used to be navigable, but isn’t now. No more federal interest
in regulating activity over that water. LeBlanc v. Cleveland
b. Highway - It has to be capable of interstate commerce (inland lakes don’t count).
c. Commerce – something more than pleasure fishing and pleasure boating. Has to
be able to be used by boats capable of carrying goods and passengers.
3. The fact that a waterway has become unnavigable does not change Congress’s power
to regulate it under the commerce clause. Land and Lake Tours v. Louis.
B. Torts
1. Three-prong test: (Grubart and Extension Act of 1948)
a. Locality test: Did it occur on navigable waters?
1) See above.
b. Nexus Test: Two prongs:
1) Could it have potentially disrupted maritime commerce?
 Pleasure boating accidents fall into this because of their potentially
disruptive nature.
2) Is the general character of the activity substantially related to traditional
maritime activity (this is a given when a vessel is involved)
2. The extension act says that maritime tort jurisdiction extends to all damages caused
by a vessel on navigable water notwithstanding that such damage be done on land
a. Use proximate cause to determine whether the vessel was the cause
b. The Death on the High Seas Act may make any death occurring on the high seas
have the requisite maritime flavor
3. When a product is negligently installed and it damages itself, the shipbuilder is liable
in K. If it injures someone
C. Contracts
1. The key is what the subject matter of the K was.
a. Bottomry bonds - admiralty
b. Respondentia loans – admiralty
c. Insurance against losses at sea? – admiralty. These guard against dangers of the
sea. New England Mutual Marine Ins. Co. v. Dunham.
d. Contracts to FURNISH repairs or stevedoring – admiralty (contracts to
PROCURE them are not). Kynoch v. The Propeller SC Ives
1) Its okay for it to be drydocked. North Pacific Steamship Co. v. Hall Bros
e. Seaman’s K of employment – admiralty
f. Ks to insure, supply, load, unload, tow, pilot, dock, or LEASE a vessel –
admiralty. Boat insurance is always admiralty because vessels are only maritime.
La Reunion Francaise SA v. Barnes.
g. K to BUY a vessel is not admiralty
2. Navigability is not usually an issue. La Reunion Francaise SA v. Barnes. If the
vessel cannot be used on navigable waters, then it is not admiralty (floating dock and
houseboat are not admiralty Ks).
3. Mixed Ks – these are tough. What is the primary purpose of the K? Are the maritime
and non-maritime parts separable?
a. This isn’t usually a problem, though. Good K parties will usually put the
substantive law they want into the K.
4. When in doubt: is this a situation where we want to protect a favored class? Would
only a federal rule do? Do we think the parties expected to be governed by a uniform
admiralty law.
D. Criminal Jurisdiction:
1. 18 USCA §7
a. It has to be on waters governed by admiralty (but out of state’s reaches), and
b. It has to belong to the US or any citizen or corp
c. Or it must be a US registered vessel that is on the Great Lakes or any connecting
waterway.
2. mandatory death sentence for murder in the 1st degree in admiralty.
3. Basic rule: states may give up admiralty jurisdiction for some things, but not the right
to prosecute crimes in its territory. And states can go after foreign vessels in their
jurisdiction.
a. Florida has changed this (see pg. 121)
E. Vessels
1. 1 USCA §3 says a vessel is “watercraft or artificial contrivance used or capable fo
being used as a means of transportation on water.” See 134-140.
2. It’s a vessel when the keel touches the water.
3. The vessel must not be acting as a work platform or “withdrawn from navigation.
Pavone v. Mississippi Riverboat Amusement Corp
a. Work platforms are:
1) Constructed and primarily used as such
2) Were moored or otherwise secured at the time of the accident, and
3) Although were capable of movement and sometimes moved, transportation
was incidental to their primary purpose.
4. When in doubt:
a. Is it attached to the shore or the bottom?
b. Is it registerd and equipped for navigation?
c. When and how does it move?
d. Is it subject to the perils of the sea?
e. Could its function be relegated to a land-based operation?
F. Who is a seaman?
1. Jones Act recovery depends on it.
2. The seaman must also be permanently assigned to a Jones Act vessel. Pavone v.
Mississippi Riverboat Amusement Corp.
G. Savings to Suitors Clause
1. Judiciary Act of 1789 says that suitors have the right to common law remedies from
the states.
2. Jensen – what is “saved” is the right to maintain a maritime cause of action in a law
court (a state court or a federal court (rather on diversity grounds or federal
question)). If a matter is “in admiralty”, then maritime substantive law applies.
3. State courts are competent to dish out all maritime remedies except for in rem
proceedings (liens and preferred ship mortgages).
a. The exception would be when the ship would be attached for an in personam
action as security and possibly sold off to pay for the remedy. Rounds v.
Cloverport Foundry and Machine Co.
b. In rem actions are those in which the ship itself is treated as the offender
(Madruga). If the owners are sued to recover, its in personam.
H. Remedies
1. Admiralty will not enforce an independent equitable claim merely because it pertains
to maritime property. Pendant jurisidiction will exist when it makes sense to do so, of
course. Swift and Company Packers.
2. Admiralty courts can:
a. Give any and all remedies for an admiralty claim
b. Entertain non-admiralty claims that arise out of claims that are in admiralty (see
Archawski where a maritime K was broken, the fraud portion is okay to decide)
c. Engage in subsidiary actions that are in service to admiralty claims
3. Counterclaims would be okay – so long as FRCP 13 is followed and they are made
early in the process.
4. General principle: every encouragement should be afforded to those who are ready to
give to their ships constant employment –for the general interest of commerce. The
Annie H. Smith.
5. Arbitration claims and specific performance are enforceable in admiralty – you seize
the ship in libel and then proceed to arbitration (Marine Transit Corp. v. Dreyfus)
I. Procedure
1. Plaintiffs must be allowed to amend their complaint to keep it in federal courts Beeler
v. US
2. There is no right to a jury trial in admiralty (7th amendment is inapplicable), but if the
admiralty claim is pendant to a civil claim, then you might as well sue the jury for
both.
a. Courts disagree on whether you can transfer between admiralty and civil federal
courts to prevent the jury trial (see pg. 215)
b. Great Lakes Rule: if its an admiralty or maritime case relating to any matter of
contract or tort arising upon or concerning any vessel of 20 tons or larger,
enrolled or licensed for the coasting trade, and employed in the business of
commerce and navigation between places in different states upon the lakes and
navigable waters connecting said lake, the trial of all issues of fact shall be by jury
if either demands it. 28 USC 1873
c.
3. You can attach all the claims you want – the core claim will need to be admiralty –
under supplemental jurisdiction along with everything else coming out of a common
nucleus of operative fact (CNOF) (FRCP 18(a)) Fitzgerald v. US Lines Co.
4. Rule:
a. A maritime common law claim (within the admiralty power but not arising out of
a federal statute) may be brought as an admiralty claim under 28 USC §1333, and
unless the litigant seeks enforcement of a claim in rem, it also may be brought as
a law claim in federal court under “savings to suitors clause”. It may not be
brought as a law claim in federal court unless there is diversity jurisdiction
(complete diversity in citizenship and over $75,000) [general maritime tort and K
claims would fit here]
J. Attachment and Personal Jurisdiction
1. See notes

II. Maritime Liens


A. Liens on Cargo
1. A vessel and its operator can get a lien on the cargo for freight charges due, but its
only possessory (i.e. only while the stuff is still on the ship, though this can be Ked
around, or it may differ based on local custom).
a. It does not arise out of breach of a maritime K (say, for failure to deliver), so you
cant get a lien from that, just breach damages. Osaka Shosen Kaisha v. Pacific
Export Lumber Co.
1) This would also apply to passengers who have paid in advance for a cancelled
trip.
B. Liens on vessels
1. Express liens – the ship mortgage act provides for a preferred ship mortgage
a. Public policy – the fact that these are cognizable in court is important because it
fosters a merchant marine and investment that doesn’t depend on the successful
completions of voyages.
b. Its also a public lien – so its not really unfair to give it some preferential status
2. Implied Liens – these arise the moment the debt or damages is incurred, and can be
discharged only by an in rem proceeding in admiralty court.
a. Mariner’s lien for wages:
1) Masters of the ship now have a statutory right to a lien (just like the seamen).
b. Tort liens
1) Maritime torts committed in the operation of the vessel are covered.
2) BUT, seaman’s negligence claims (under the Jones Act) does not provide a
lien on the vessel.
c. Necessaries – this is the only contract claim that can create a lien
1) What is a necessary:
 Repairs, supplies, towage, and dry dock or marine railway. Supplies have
to reasonably necessary to the ship’s business (brochures for a cruise ship
and booze for a fishing vessel) 46 USC §31301(4) “What is the character
of the voyage?”; “What is traditionally taken on these voyages?”
2) It has to be authorized by the owner or person authorized by the owner. 46
USC §31301(a)(1). (the owner is the holder of the title. Diaz v. The
Seathunder). Typically the master is authorized to approve necessaries (ship’s
are to be self-sufficent) (see pg 472-3 for more specifics).
 The person probably must have some discretion and control over the use
or security of the vessel.
3) Other requirements Peidmont and Redcliffe
 It has to be actually delivered to that vessel
 Piedmont P’s lost because they couldn’t prove that some of their coal
went to the liened ship.
 It has to be on the ship’s credit
 If the supplier takes something else, it appears he doesn’t want a lien.
 The burden is on the one attacking the lien to overcome the
presumption of credit.
4) Charterers
 The Maritime Lien Act says that an officer or agent appointed by a
charterer can approve necessaries. Thus, they are presumed to have
authority
 You can K around this by saying the charterer cannot create liens on the
ship. But this requires that the supplier know about it (so he cant rely on
that authority)
5) The supplier does not have to exercise reasonable diligence to determine if
there is no authority if the person authorizing the supplies is one of the
presumed parties (owner, charterer, etc). Gulf Oil Trading Co. v. M/V Caribe
Mar.
3. Priority of liens:
a. Order
1) Expenses while under custody
2) Seamen’s wages (just the wages, and not late fees or interest)
3) Salvage and general average
4) Torts (not including Jones Act) (this is not in inverse order because the newest
torts don’t “preserve” the res like the other categories. The Frank G. Fowler
5) Necessaries
6) Contracts
7) State-created maritime liens
8) Non-maritime liens
b. Preferred Ship mortgages are superior to all but (1-4) AND PRE-EXISTING
LIENS
c. Within a class, the liens are paid off in inverse order (most recent first,oldest =
last). We want people to pursue these fast.
d. Voyage rule:
1) We don’t want availability of credit reduced, so we class-rank necessaries by
the voyage rule (i.e. its split between all suppliers on a voyage)
 Some eastern harbors use a 40 day rule
 Others go by the year (seasonal on the great lakes)
e. Pilotage may be a necessary or it may be a seaman’s wage
4. Extinguishment
a. Destruction of the ship before arrest: well, the lien is gone, but not the claim (go
after the owners in personam)
b. Dissolving of the ship: the lien travels with all the parts that are essential to
navigation and operation (the things that make the ship a ship), and anything that
belongs to the owner and are used for ornamentation.
c. Sale: if it is to a private party, they are stuck with it. If it is sold by the courts, its
fine.
d. Bonds: the owner, faced with arrest of the vessel, will post bond to secure any lien
claims against the vessel
1) Arrest is done by posting notice in a conspicuous place on the boat
(wheelhouse or mainmast)

III. Carriage of Goods


A. Bills of lading
1. when a common carrier receives goods for shipment, it will issue a bill of lading to
the shipper. It serves as:
a. a receipt
b. a contact setting terms for the shipment
1) it is negotiable (equal bargaining power usually between the parties)
2) it allocates risks for losses between the shipper and the carrier
c. the shipper may use it to borrow money on the goods while they are in transit,
pledging the bill to the lender
d. the shipper may use it to get payment by the folks who are to receive the shipment
2. The Harter Act
a. A carrier must use due diligence to send out a seaworthy vessel, and is
responsible for negligence in the handling of the cargo.
b. If it satisfies the due diligence requirement, the carrier isn’t responsible for
navigation errors or insuficency of packing, acts of god, or perils of the sea.
1) If it fails in this, its strict liability (though the unseaworthy condition did not
cause the damage)
c. It covers everything not in COGSA (i.e. between two US ports and between US
and foreign ports).
1) Between US and foreign ports: It will cover the periods between delivery to
the shipper and loading and between unloading and delivery to the consignee
2) Between US ports: between delivery and redelivery.
d. The parties can K to say that COGSA will apply during these times
e. The parties can limit liability to whatever they want
f. There is no statute of limitation
3. COGSA
a. This covers all bills of lading shipping goods by sea to or from ports of the US
between loading and unloading at the port of destination
b. The carrier must furnish a seaworthy vessel and must “properly and carefully
load, handle, stow, carry, keep, care for, and discharge the goods carried”.
Everything else is on the shipper’s head (unless Harter applies or the K during
Harter’s period)
c. The carrier’s failure to supply a seaworthy ship is only liable here if the
unseaworthy condition lead to the damage.
d. Parties cannot limit liability to less than $500 per package or customary freight
unit
e. There is a one-year statute of limitations
B. Seaworthiness:
1. Defined: the vessel is reasonably fit for its intended use (fit to carry the type of goods)
2. Construction of the vessel, its equipment, its master, and its crew. It may be
unseaworthy if it is loaded improperly, unable to handle expected sea conditions
a. If the weather was not unusual and there is damage, it is presumed unseaworthy
3. The duty of due diligence ends at each port, and starts anew when it leaves with the
old cargo and the new cargo
4. Negligence of the crew in the operation of the vessel is the shipper’s responsibility,
but it may make the ship unseaworthy (and then the responsibility of the carrier) if it
imperils just the cargo. If it just imperils the cargo and the ship, then it is the
shipper’s problem.
a. The shipper has to ensure the packing is enough to withstand ordinary hazards of
the voyage. (this is industry custom governed)
5. Fire liability is not on the carrier unless it was caused by the design or neglect of the
owner. The fire statute. COGSA says it has to be the actual fault or privity of the
carrier to incur liability by the carrier (basically the same thing)
C. Acts of God
1. a peril of the sea is: “a fortuitous action of the elements of the sea of such force as to
overcome the strength of a well-founded ship or the usual precautions of good
seamanship.
2. An act of god is: an accident due to natural causes directly and exclusively, without
human intervention, which could not have been prevented by any amount of foresight
and care reasonably to be expected from the carrier.
3. COGSA also lumps in: acts of war, restraint of princes, strikes or lockouts, and riots.
The carrier also can meet its burden of proof and show that anything that is caused
not by the carrier’s fault or privity is not its liability.
D. Burdens
1. PFC - The shipper has the burden of showing that the goods were damaged in the
carrier’s possession. (they were delivered fine and redelivered damaged) The bill of
lading must show the apparent order and condition of the goods under COGSA. Key
question is: could the carrier have seen they were damaged when it was loaded.
a. COGSA says that if the shipper fails to give notice of defects at the port of
discharge at the time they are given to the custodian, receipt is prima facie
evidence that they are as they were in the bill of lading. (if its not apparent, the
shipper has three days to notify the carrier)
2. Rebuttal – carrier can prove that the damage was caused by vessel negligence in
navigation or management, or it can show that it was due to unseaworthiness that
developed after the ship departed, unseaworthiness undetectable by due diligence,
fire, a peril of the sea, an act of god, or something else.
3. Surrebuttal – the shipper can show that it was really the fault or privity of the carrier
that damaged the goods.
4. If you cant divide the damage (say, from two incidents), the carrier is fully liable.
E. Deviation
1. Any deviation that causes damage to the goods, but for the deviation, is fully the
carrier’s liability.
2. COGSA implies that reasonable deviations are okay (salvage, weather), and it wont
breach the carriage K
3. Carrier is expected to proceed along customary shipping routes, and it is expected to
follow the specified storage guidelines for the goods.
a. NOTE: if it specifies storage above deck, COGSA does not apply
F. Damages:
1. Time – difference in selling price because of deviation (tough to prove…liquidated
damages?)
2. Metric – fair market value difference between loading and unloading
3. Cost of repair if this is less than FMV

IV. Salvage
A. Defined: 1989 salvage convention says:
1. any act or activity undertaken to assist a vessel or any property (not intentionally
attached to the shoreline, i.e. maritime property) in danger in any waters (navigable or
not)
a. The salvor must reasonably believe the vessel was in peril, an actual or
apprehended danger which might result in the vessel’s destruction
B. Who:
1. No pre-existing duties (fire boats, Coast guard, towing boats) unless efforts are
extraordinary (navy gets it a lot).
a. Towage is not salvage unless it relieved the vessel from present or reasonably
apprehended danger
2. Not the crew unless:
a. They have been ship wrecked, abandoned, discharged, or recapturing the boat
from hostile powers
C. What:
1. you have to show results, not just effort
2. you cant hog the job, misrepresent, or embezzle anything (clean hands)
3. You cant have been told not to help
4. if you were asked for help, you will win at least in K
5. The aid has to be directly to the vessel
6. You cant have had a hand (negligence) in causing the incident to begin with. You
have a duty to render aid to those people, anyway.
D. Award: (The Blackwell) (typically not more than ½ the value)
1. degree of danger
2. value of salvaged property (and environmental effects prevented)
3. risks incurred by the salvors
4. value of the property put at risk by the salvors
5. time and labor of the salvors
E. Life salvage doesn’t get anything
1. every master is bound, so far as he can without serious danger to his vessel and
persons thereon, to render assistance to any person in danger of being lost at sea
(there is no penalty for this, though)
2. Congress has said that salvors who save lives, a part of the services rendered on the
occasion giving rise to the salvage, are entitled to a fair share of the salvage award
made to salvors of the vessel and her cargo.
F. Finds
1. ownership rather than salvage
2. when is something abandoned? Look for:
a. affirmative action to assert ownership
b. behavior consistent with ownership or abandonment
c. affirmative action consistent with continued assertion of ownership
3. The US has asserted title to all abandoned shipwrecks which are imbedded in US
waters (now the states own them)

V. Seamen’s Remedies
A.

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