Admiralty Final Exam Outline – Hyde – Fall 2011
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- Three pronged test There must be a vessel The incident must occur on or over navigable waters ( Situs
- ONLY REQUIREMENT FOR A VESSEL That it “be used or is capable of being used as a means of transportation on water”
- WATERS Waters are navigable when they are used or are susceptible of being used as highways for commerce over which trade and travel may be conducted
- Extension of Land Doctrine
- Savings to Suitors” Clause Judiciary Act §9
- NO LONGER APPLIES ) Can I pursue State Common-Law Remedy Maritime Law applies if Is there a Statute
- TEST FOR MARITIME CONTRACTS LOOK AT (1) Nature and (2) Character of the Contract
- Holding
- MIXED CONTRACTS - Prime Objective Test
- Subject and Nature
- Two tests for Maritime Jurisdiction
- NEXUS ) The court must also consider whether the event had the POTENTIAL to affect maritime commerce
- Potential Disruptive Impact
- Unless the balance is strongly in favor of the defendant, the Π ’s choice of forum should rarely be disturbed
- Venue – 28 U.S.C. § 1391 State Court You will ALWAYS
- DOCUMENTED
- 26 USC § 1325
- CLOSE TO STRICT LIABILITY STANDARD
- Rule!! You CANNOT contract out of liability for your own negligence Charter (3 Types)
- Think of Destination and Physical Location of the Voyage
| Admiralty Final Exam Outline – Hyde – Fall 2011
Basis for Admiralty Jurisdiction U.S. Constitution, Article II, § 2 Judicial power shall extent to ALL cases of admiralty and maritime jurisdiction U.S. Constitution, Article III Impliedly contained three grants: Empowered Congress to confer admiralty and maritime jurisdiction on the “Tribunals inferior to SCOTUS” which were authorized by Art. I, §8, cl. 9. Empowered the Federal Courts in their exercise of the admiralty and maritime jurisdiction which had been conferred on them, to draw on the substantive law “inherent in the admiralty and maritime jurisdiction” and to continue the development of this law within Constitutional Limits Empowered Congress to revise and supplement the maritime law within the limits of the Constitution. Test for Admiralty Jurisdiction Almost all Admiralty Cases are Federal because there is need for uniformity!! Exception Savings to Suitors Allows State law in certain cases keeps the Federal Admiralty Law from preempting State Law when a suit is brought at the State Level Three pronged test There must be a vessel The incident must occur on or over navigable waters (Situs) The incident has to bear significant relationship to traditional maritime activity (Nexus) What is a VESSEL? Dead Ship Doctrine (Goodman) A ship loses its status as a vessel when it function is SO CHANGED that it has no further navigation function EX Riverboat renovated to be use as restaurant but still docked Merely because a boat’s registration has expired or because a boat is in need of repair does NOT mean it has no further navigation function (Goodman) Similar to a boat on a drydock ONLY REQUIREMENT FOR A VESSEL That it “be used or is capable of being used as a means of transportation on water” (DUTRA) Vessel v. Non-Vessel? Non-Vessel Offshore platform that was towed out and would not be towed somewhere else for 25 years Riverboat Casino moored to shore Resort community barge with a pool and plumbing to shore What are NAVIGABLE WATERS? Waters are navigable when they are used or are susceptible of being used as highways for commerce over which trade and travel may be conducted (Daniel Ball) Admiralty jurisdiction extends to all areas within the ebb and flow of the tide (mean high water mark), regardless of whether those areas are actually covered by water at the time of the alleged event Land which is actually covered by the tide most of the time is the mean high water mark. Hassinger Three friends sailing and beaching a boat when they hit power lines with the mast Extension of Land Doctrine Prevents recovery in admiralty for damages to piers, docks, wharves, and similar structures extending over navigable waters and for personal injuries suffered by persons while upon such structures UNLESS (1) caused by a vessel (2) on navigable waters. Scope of Admiralty Jurisdiction You have preemption Federal Maritime Law will trump State Law If there is a void then you can fill it with State Law, but you CANNOT use State law there is conflict with Federal Maritime Law Actions based on maritime activity are to be held under maritime jurisdiction (i.e. uniformity) Southern Pacific Petitioner was taking supplies off the ship and died as a result of broken neck NY Law stated the widow and children were subject to compensation Chelentis Petitioner injured when a superior had told him to go on deck at time of high winds Brought claim on common law negligence at the State level and argued that he was not limited to maritime law damages for wages of maintenance and cure H Petitioner was engaged in maritime work, under a maritime contract, and his injuries were maritime in nature; THUS he was not able to recover under common law negligence NOTE** He would have been able to recover under maintenance and cure (maritime damages), but he didn’t sue in admiralty Where a non-seaman, non-longshore worker involved in recreational activity is killed in territorial waters survivors may use State (local) law to recover damages (Yamaha Motor) “Savings to Suitors” Clause Judiciary Act §9 Allows State courts to entertain in personam maritime causes of action. A state court hearing a maritime case applies maritime law, unless maritime law would adopt state law as surrogate maritime law! Right to a Jury Trial Π can bring any claim to the State Court and have the right to a jury trial Wilburn Boat 3 Prong Test (NO LONGER APPLIES) Can I pursue State Common-Law Remedy? Maritime Law applies if Is there a Statute? Yes NO STATE LAW REMEDY (Apply Statute) Is there maritime law statute to which Congress has acted? No Is there a Judicial Rule? Yes NO STATE LAW REMEDY (Apply Judicial Rule) Is there a clearly articulated Judicial Rule on the subject? No Is there need for Uniformity? Yes NO STATE LAW REMEDY! No If there is room for States to legislate in the particular area then apply State Law Admiralty Law displaces State law as to implied warranty of seaworthiness in maritime insurance contracts (Thanh Long) Party can waive admiralty law if they do not invoke admiralty jurisdiction!! Summary of SCOPE Jenson Pre-emption There will ALWAYS be a Federal Preemption of State Law in a maritime contest Chelentis Saving to Suitors Clause Save the suitor a remedy at State common law IF the State common law is competent to give the remedy Is it prohibited? If it is NOT prohibited to the States then the States have the power to enforce Wilburn Three Pronged Test to know when you can use State Law Remedy Statute If there is a Statute NO STATE LAW REMEDY Clearly Articulated Rule If there is a clearly articulated rule that States must follow NO STATE LAW REMEDY Uniformity If there is NO room within the General Maritime Law to apply State law remedy at it will have a negative effect on uniformity NO STATE LAW REMEDY Garret Procedural Rules If you have a procedural rule that substantially affects the Maritime Rights of a Seaman or any maritime worker, then the General Maritime Law applies YOU CANNOT APPLY A STATE PROCEDURAL RULE!!! Seaman are the “Wards of Admiralty” History They have a tough job, are not paid well, and nobody loves them! It will always be that the seaman on commercial vessels live pretty bad lives Usually from 3rd World Countries Jurisdiction Over Contracts TEST FOR MARITIME CONTRACTS LOOK AT (1) Nature and (2) Character of the Contract (North Pacific) In matters of contracts always look at the subject-matter (does it have reference to maritime service or transactions?) Non-Maritime Contracts Procurement of Services to a Vessel Building a ship or supplying materials for construction is NOT deemed to be a maritime contract Contract for purchase of a ship that is out on the water is NOT a maritime contract Maritime Contracts American President Lines Packing of containers with reels of aluminum cables for damages during transportation of goods H Character and Nature of the contract is maritime The loading of containers in a manner suitable for ocean carriage could be viewed as a functional equivalent of loading cargo on a ship Carriage of Goods and Passengers Insurance and Salvage Services of Seaman and Officers Contracts for Vessel Supplies Agency Contracts (Exxon Corp. v. Central Gulf Lines) Everything involving an agency contract CAN come under admiralty if it fits the Nature and Character Test Holding There is no per se exception stating that agency contracts are non-maritime! NOTE** This case abolished the rule that contracts to procure services to a vessel are non-maritime Agency Contracts Maritime v. Non-Maritime Contract Leasing Containers to Vessel MARITIME (Foss Launch & Tug) Contract to make contributions to seaman’s union trust fund MARITIME (Nehring) Contract for storage of boats in land facility NOT MARITIME b/c no maritime nexus (Latin American Property) BUT!! Contract to store yacht for winter MARITIME b/c it was only seasonal to prevent the vessels seaworthiness (Roger Medina) MIXED CONTRACTS - Prime Objective Test (Norfolk) If the contract is Mixed with water and land transportation always look at the primary objective of the contract Norfolk Kirby was a manufacturer in Australia and they hired a coordinator to get goods from their plant to the U.S. Goods were to be shipped to GA and then to AL by train From Kirby Contractor Subcontractor Train crashed and goods were damaged in land H Maritime commerce has evolved along with the nature of transportation and is often inseparable from some land-based obligations As long as the Bill had a substantial amount of communications by water, this is a maritime contract For a Mixed Contract If the character of the contract is primarily maritime and the non-maritime elements of the contract are incidental MARITIME! If a contract’s maritime obligations are separable from its non-maritime aspects and can be tried separately w/o prejudice to the other Admiralty will support trial of the maritime obligations Maritime Mixed Contracts v. Non-Maritime Mixed Contracts Contract to lease a vessel with an option to sell! BUT!! Contract for purchase and sale of vessel NOT MARITIME Contracts for care of passengers on a vessel MARITIME Distinction between repairs and rebuilding Rebuilding NOT MARITIME Contract to Buy Fish NOT MARITIME Entire contract is inland but needs shipping over water MARITIME Contract for offshore exploitation MARITIME Maritime Insurance Within Admiralty if the subject of insurance relates to Maritime Insurance Blanket Contract Employee/Independent contractor Contract in which the independent contractor indemnifies employer for ALL actions taken to perform the specific work orders issued Six Factors to Determine Subject and Nature of Contract (If Maritime, Indemnity Enforceable) What did the specific work order provide for at the time of injury? What did the work crew under the work order actually do? Was the crew assigned to work on vessel on navigable waters? Extent that the work being done is related to the mission of the vessel What is the principal work of the injured worker? What was the work being done at the time of injury? COGSA Test Two part test in deciding whether Federal or State Law applies to a Maritime Contract Look to see if there is a maritime context for the contract Look to see if there is an inherently local dispute Jurisdiction Over Torts By Statute Admiralty Jurisdiction Extension Act – 46 USC § 740 Established that the admiralty and maritime jurisdiction of the U.S. shall extend to and include ALL cases of damage or injury to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land. Jones Act – 46 App. USC § 688 A seaman injured in the court of employment or if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer, Death on the High Seas Act – 46 USC § 761 When death is caused by wrongful act or negligence more than a marine league from states on the high seas, personal representative of the decedent can bring suit for exclusive benefit of wife, husband, parent, child, or dependent relative against whoever would be liable if death had not occurred. Longshore Harbor Workers Compensation Act Two tests for Maritime Jurisdiction (Executive Jet) Locality (Executive Jet) Locality where the alleged tortuous wrong occurred MUST have been on navigable waters (SITUS) Relationship (Foremost) There must be a RELATIONSHIP between the wrong and some maritime service, navigation, or commerce, on navigable waters! (NEXUS) The court must also consider whether the event had the POTENTIAL to affect maritime commerce (Sisson) GRUBBARD TEST (USED TODAY) For Maritime Jurisdiction over Torts to exist Locality must have occurred on navigable waters Potential Disruptive Impact on Maritime Commercial Interests Substantial Relationship between activity giving rise to the incident and traditional maritime activity Difference Between Contracts and Torts Foreseeability Contract Situation The contract itself creates law before the parties so there is relatively little need for a court to state whether what a party is doing is agreeable Tort Situation In a tort situation a court needs to state the rights and responsibility of each party It is important for there to be coherent and substantive rules Choice of Law in Maritime Matters Hellenic Lines Factors to Determine if an employer falls under the Jones Act Place of the Wrongful Act Law of the Flag Allegiance or Domicile of the Injured Seaman Allegiance of the Ship Owner Place where the Contract of Employment was made Inaccessibility of a Foreign Forum Law of the Forum Liaw Su Teng When determining whether or not to dismiss for Forum Non Conveniens the following factors should be considered Availability of an adequate alternative forum Private Interests of Litigants Access to Sources of Proof Ease of Service of Process Availability of compulsory process to obtain attendance of witnesses Cost of obtaining attendance of witnesses Possibility of view of the vessel Enforceability of the Judgment Ability of a party to impeach other parties Public interests underlying the relationship between the forum and the dispute, and the familiarity of the forum with relevant law Zapata Off-Shore Unless the balance is strongly in favor of the defendant, the Π ’s choice of forum should rarely be disturbed Burden will fall on Defendant to incline the balance in his favor Judicial Jurisdiction and Procedure Venue – 28 U.S.C. § 1391 State Court You will ALWAYS use that State’s Venue Rules! Federal Court You can have Federal Rules governing venue OR you can have jurisdiction picked for you under a particular statute (i.e. Jones Act) EX Jones Act does NOT allow removal from State Court EX Carter Act & COGSA have to be brought in Federal Court If you bring either of these at the State Level the case will be transferred NOTE*** Think about whether you are applying the “admiralty” side or the “law” side If you have the “law” side then you have State Law Venue In Rem v. Quasi in Rem In Rem CLAIM AGAINST THE PROPERTY Usually for damage or collision EX While the vessel is in the jurisdiction you can “arrest” the vessel You can have a cause of action in personam, but at the same time you can “arrest” the vessel Post Surety Bond Must provide the court with some assurance that the cause of action will be successful Requires clear pleading of a case in a specific fashion that the Δ won’t ask for a more definite statement Arrest for the purpose of In Rem jurisdiction must be made while the vessel is in dock or anchored close enough to shore for Marshalls to actually be able to board the vessel Quasi in Rem PERSONAL LIABILITY CLAIM, MARITIME LIEN, OR OTHER LIENS “Attaching” the vessel to the value of the lien A state can have jurisdiction over a person without having in personam jurisdiction simply based on the fact that the person has an ATTACHMENT to a piece of property therein EX B has a vessel in TX but he lives in CO. He injures someone in TX and the injured party files a quasi in rem suit ATTACHING the vessel (property is attached to B) You are subjecting someone to a certain jurisdiction simply based in their attachment to a particular piece of property in that jurisdiction Odyssey Marine Issues Subject Matter Jurisdiction Two Pronged Test (1) Whether the RES belonged to a foreign state and (2) if it does, whether there is Federal Jurisdiction of the Res under FSIA Court found that vessel belonged to Spain and thus was immune under the FSIA from arrest, attachment, and execution Maritime Liens Definition A privilege claim upon maritime property (such as a ship) in respect of services rendered to, or the injured caused by that property Common Law Lien is the right of a creditor to retain the properties of his debtor until the debt is paid A maritime lien may attach to a vessel or to other maritime property, such as cargo, and may arise through contract or by operation of law Express Method Ship Mortgage Act Can create a Preferred Mortgage in a vessel Preferred Ship Mortgage Only given to DOCUMENTED vessel Must cover the WHOLE of the vessel Has to be completed by a US CITIZEN CANT be for more than 1 VESSEL NO limit on interest Mullane H Due to the lack of a recorded document, the bill of sale or conveyance of the vessel was rendered invalid against a seller’s judgment creditors ***Only things that can take preference over Preferred Ship Mortgages (The court will ALWAYS pay Court fees first!!)*** Preferred Maritime Liens Tort Stevedore Wages Crew Wages General Average Salvage 26 USC § 1325 You are allowed to get a judgment in personam against the person if the rem does not cover everything Implied Method Person providing goods or services to vessel in furtherance of voyage is entitled to a lien Lien for Necessaries Things reasonably needed in ship’s business and they vary according to each ship Persons presumed to have authority to procure necessaries Owner, Master, Person in Charge of Port, Officer or Agent appointed by owner, Charterer, Owner Pro Hac Vice, agreed buyer in possession of vessel. Epstein Π sells large quantity of cigarettes and alcohol to the captain of a ship who pays half the money up front and then refuses to pay him after the goods are shipped Π sells the owner of the ship for the amount missing and the owner claims (1) lack of knowledge H Δ did not give express, implied, or apparent authority for the captain to deal with the purchase of the goods and therefore, he is not subject to missing payment Express Authority Δ never gave express permission for the captain to buy goods Implied Authority Although captain has implied authority to purchase “necessities” for the ship and for other ships, these goods are NOT necessities b/c the captain had purchases similar goods in previous weeks NOTE*** The term “Necessity” in a maritime lien depends on business practices of the vessel itself Cruise TV’s may be necessities Tug Boat TV’s NOT a necessity Apparent Authority General Business Customs There is no custom about purchasing large amounts of cigarettes and alcohol Bank One v. Mr. Dean MV RULE A maritime lien for breach of charter attaches when the owner places the vessel at the charter’s disposal and remains inchoate until (1) perfected by a breach OR (2) is discharged by the undisturbed end of the charter Primacy In maritime liens, the LAST person will be the FIRST person to be paid back Shipping and Carriage of Goods Terms Tugs Tow boat who may either push or pull the barge Tows Usually large barges without any power Contract for Affreightment CLOSE TO STRICT LIABILITY STANDARD If you ship the goods in a tug/barge and they are in good shape but become damaged when reaching the port, then the TRANSPORTER will have to pay for the goods Regular v. Special Pilots Regular Pilots are ordinarily an employee of the vessel’s operator and the vessel’s liability for his error is determined by respondeat superior principles Special Pilots are independent contractors and generally vessel operator is NOT liable, though ship might be liable in rem for torts. Agrico THREE TYPES OF CONTRACTS Towage A contract to tug! Contract for a tow boat to move a barge When one vessel is employed to expedite the movement of another Only possible if you own the barge yourself Rule!! You CANNOT contract out of liability for your own negligence Charter (3 Types) – Agreement by which owner agrees to place entire or part of a ship at a disposal of someone else Time Charter Contract for specific service of vessel (i.e. carrying goods) You control the boat for a specific time You are liable for own negligence as charterer NOT as owner Normally you as charterer pay fees associated with moving the vessel’s cargo (gas) Voyage Charter Use of vessel limited to a single or series of voyages between defined ports Bill of Lading, put containers on ship and good to go Subject to COGSA and Harter Act Himalaya Clause Downstream conveyer will be protected if the Owner has subjected the charter to the clause Owner retains control/operation and is responsible for ALL general expenses May be liable for damage to cargo due to fault chargeable owner Charter has burden of showing damage caused by breach of something specifically in charter party by proximate cause! Parties contract for who has the duty related to cargo Default owner is responsible for loading/unloading Bareboat Charter (Also Called Demise Charter) Full Possession/Control of Vessel You pay a lease and get the boat to operate it as you wish Must redeliver the boat in the same condition minus ordinary wear and tear. Owner Pro Hac Vice – Subject to same liabilities of the owner (Entitled to Limitation of Liability) You essentially own ALL THE LIABILITY You control the vessel if anything bad happens The charter is responsible in case an accident happens The vessel owner is still liable for injuries caused due to preexisting defects!!! Owner’s primary duty is to provide a seaworthy vessel Affreightment Contract for the movement of the tow and its contents Both tow and barge are both being provided and owned by the same person – tug and tow Subject to more exacting duties than towage HYPO If X contracts two parties, one to provide the barge and the other to provide the tow Then both parties have a contract of affreightment with X Two major statutes that cover shipment of cargo to and from the U.S. (Think of Destination and Physical Location of the Voyage) HARTER ACT Relieves owner of a ship from the consequences of careless or negligent acts in the navigation or management of the vessel, and from liability for losses caused by inherent defects or weakness in the vessel itself, provided the owner or his manager has taken ALL precautions to furnish a seaworthy vessel that has been adequately equipped and manned by a competent master and crew. APPLIES TO DOMESTIC SHIPMENTS!! From one US port to another US port Covers from when the cargo is taken in possession until it is delivered and there is NO cap per package. I.E. From Delivery Receipt by the Carrier to Delivery Itself NOTE*** Freedom from liability for negligent navigation or management of the vessel depends upon exercising DUE DILIGENCE to make the vessel seaworthy at the outset of the voyage, even if the vessel’s unseaworthiness might not have caused the loss. DEFENSES Errant Navigation Seaworthiness at the Beginning of Voyage (Just need Due Diligence) Fault of Management (Only if there is Due Diligence Pre-Voyage) Peril of Sea COGSA APPLIES TO INTERNATIONAL SHIPMENTS Covers Tackle to Tackle Goods are covered while on the ship Shipowner’s Limitation of Liability Liability will be capped to $500 per shipping package, and there is a 1 year statute of limitations for filing suit against the carrier NOTE*** Immunity from negligence is independent of the obligation to exercise DUE DILIGENCE to provide a seaworthy vessel at the outset, absent a causal relationship between the failure to exercise DUE DILIGENCE and the loss. Under Directory: outlines outlines -> Chabot College Fall 2010 Course Outline for Computer Application Systems 60 business software applications/general accounting outlines -> Adil Khan Contracts Midterm outline- waldron outlines -> Remedies for breach of promise (1) The Interests Protected outlines -> Basic Process for Assessing Damages: 97 Select interest that deserves vindication 97 a. Restitution 97 outlines -> Chapter Five: Written Documents 1 Unsigned Documents 1 outlines -> Cases and Materials on Contracts outlines -> College of Science and Health outlines -> Evidence outline outlines -> 2. Act, Omission, Status or Circumstances 4 Consequences and Causation 8 Introduction to Mens Rea and Intent 10 Levels of Fault 11 Download 190.8 Kb. Share with your friends:
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