Admiralty Final Exam Outline – Hyde – Fall 2011
Download 190.8 Kb.
|
| § 1304(2)(c)
The carrier isn’t responsible for loss or damage resulting from perils of the sea. Wemhoener Pressen RULES!!! Delivery Definition Delivering the goods to OR placing the goods at the disposal of the party entitled to receive them Himalaya Clause Extends COGSA protection to 3rd party beneficiaries that it subcontracts (Carriage Until Delivery) May v. Hamburg HARTER ACT The owner must do what lies by the extension of DUE DILIGENCE to make the vessel safe and sound! If the management of the ship is in the hands of the master and crew, he will be relieved of liability for SUPERVENING LOSSES, provided ONLY that his own duty has been fulfilled at the beginning General Allocation of Risks between Shipper and Carrier International Navigation Issue Was the Indiana (ship) unseaworthy at the time of beginning voyage or was failure to securely fasten the port covers and keep them fastened an error in the management of the vessel H The ship owner is liable even for the failure of servants in keeping the covers fastened because the ship was unseaworthy at the time the ship left the port RULE!!! When the owner has a chance to act, the owner will be held liable because he can have influence on the operation of the ship Allocation of Risk FIRE Westinghouse Electric The crew hears a noise in a deck below where they were transporting cargo, but the deck was blocked with flour RULES!!! Owner bears the burden of proving that he used due diligence to provide a seaworthy ship or that any unseaworthy condition did not cause the fire Owner is NOT liable UNLESS the supervision of owner is negligent Burden is on the cargo owner to prove the causes of the fire and that the causes are in PRIVITY with the neglect of the ship owner (preponderance of the evidence) Proof of Loss Allocation of Burdens Plastique Tags In order to have a prima facie claim of what the goods were, the bill of landing must: NOT contain any limited language such as “shippers load and count” MUST contain terms that the carrier can verify Clean Bill of Lading is prima facie document for what s being shipped as cargo Peril of Sea Defense Main thing is the violence of winds, but it is rarely successful now because technology can avoid most damages Salt Water damage to cargo gives the presumption of unseaworthiness Damages Measure of damages in shipping contracts is value of the goods at DESTINATION on the DATE OF ARRIVAL It is proved by a transaction receipt If the TOTAL VALUE of the goods is NOT specified then the goods will be $500 per package Look at the Bill of Landing where the Number of Packages is displayed Deviation and its Effects Two Types of Deviation Quasi Deviation Something that is a FUNDAMENTAL BREACH of the contract to carriage Storing Containers on deck is customary today SO NOT A DEVIATION Pure Deviation Geographical Concept Ship does NOT do that it’s supposed to on the normal course of its voyage EX Instead of going thru Panama Canal it surrounds South America Exculpatory Clauses Private parties can arrange WHICHEVER way they want to Allows arbitration outside the US Collision Fault Could the collision have been adverted by reasonable care and maritime skill? Inevitable Accident Party charged could not possibly prevent it by exercise of ordinary case, caution, and maritime skill Generally caused by an act of God or unforeseeable event Inscrutable Evidence is so conflicting that it is impossible to determine to what direct and specific acts the collision is attributable. It is difficult nowadays NOT TO HAVE FAULT because technology has made it easier to see through fog, darkness, etc. Error in Extremis An emergency “NOT of one’s own making” is a circumstance to be considered in determining whether a person acted reasonably If a vessel is placed in sudden danger without fault, it is NOT condemned if it takes an erroneous action Presumptions Louisiana Drifting vessel that becomes unmoored and hits something is presumptively at fault Burden then shifts to the drifting vessel to prove that it was something not within its power to stop that caused the damage (Inevitable Accident or Act of God - I.E. Error in Extremis) Must show that human skill/precision could not prevent the accident Pennsylvania (Statutory Fault) A mariner is presumed to be following regulations If vessel that is involved in the collision was violating a statutory rule intended to prevent collisions at sea, burden shifts to the violating vessel to show its fault could not have been the cause of the accident Burden of proof shifts to the violator to prove (1) that it DID NOT cause the collision and (2) that it COULD NOT have caused the collision If both vessels that collide are violating regulations the damages are allocated according to comparative fault (Indian River Towing) The Court will enforce local custom only when it is firmly established/well understood and NOT IN CONFLICT with COLREGS or Inland Rules (Antillen) Oregon If your ship hits a stationary object you are presumed to be at fault COLREGS (International Rules for Prevention of Collision at Sea) Vessel Under Command Has a master on board and is moving in a general direction Assumed to be maneuverable If the vessel is over 15 meters in range a look out is required AT ALL TIMES! A mariner should take all measures to avoid collisions – RULE 8 Operate the vessel in accordance with the rules and have good seamanship Make maneuvers that are large enough to be understood by others in your traffic pattern Crossing Situations Person behind is the give-way vessel (directed to keep out of the way of the other) and the person in front is the Stand-On Vessel (Directed to keep course and speed) Overtaking vessel shall keep out of the way of the vessel being overtaken Head On Situations Both must alter the course to starboard (right) so that they can pass on the port side of the other. Must pass port to port Crossing Situations When two power driven vessels are crossing, the vessel which has the other on the starboard (right) side must give way and avoid crossing ahead of her. Saying “If to starboard red appear, tis your duty to keep clear!” Damages Resitutio Integro Principle stating that you put the injured party to the same position it was in before the collision took place Total Loss of Vessel i.e. When Cost of Repairs exceed the market value of the vessel Measure of damages is the MARKET VALUE at the time of destruction Market Value is established by figuring out negotiation between willing seller and buyer, and looking at recent sales NOTE!!** Will NOT be able to get detention damages (loss of use) Partial Damage i.e. When Repair Damage is Less than Total Amount of Vessel Will be able to receive repair damage AND detention damage ***This amount could be more than the total value of the vessel Comparative Negligence You total damages (including tow and tug) and then you divide the damage by the degree of fault each party was allocated Comparative Fault If the collision was caused by more than one ship, then the amount of negligence will be divided between each percentage of fault US v. Atlantic Mutual RULE Common Carriers CANNOT stipulate for immunity of their own negligence of negligence of their agents Carrier CANNOT hold itself non-responsible for its own negligent acts Wreck Removal 33 USC § 409 – Not lawful to sink or let a vessel or craft be sunk in navigable channels that endangers navigation When a vessel is sunk, it is the duty of the owner, operator, or lessee to mark immediately and keep the wreck marked Duty to Commence Immediate Removal – Failure is considered abandonment If the government removes the vessel, the owner must reimburse Limitation of Liability – 46 USC § 181 Definition Limits owner’s liability to value of vessel and cargo after an accident. Two Step Determination of whether a ship-owner is entitled to Limitation of Liability Determine what acts of negligence or conditions of unseaworthiness caused the accident Determine whether the ship-owner had knowledge or privity of those same acts of negligence or conditions of unseaworthiness Free From Fault Signal Oil Facts Indemnity Clauses Williams Tort Indemnity to Sun and McDermott McDermott had Indemnity to Sun Sun had indemnity to SLAM Williams Tort Indemnity to Slam Williams barge fouled anchor on an obstruction Ship superintendent ordered a dislodge technique that retrieved a chunk of SLAM Pipeline Personal Contract Doctrine If you can prove that the owner of the vessel entered into a contract for some personal service (separate from the cargo interest) then it is not subject to Limitation of Liability. Concursus Mediterranean Shipping MSC was chartering a ship that broke in half and where POL and ACL had slot charters Personal Contract Doctrine EXCEPTION It is not enough to show that the ship-owner entered into the contract personally, but WHETHER the obligation and breach were one where the ship-owner was personally bound to perform RATHER than one which was to be delegated to agents and servants When an owner personally warrants the seaworthiness of the vessel, the owner has made a personal contract and is not entitled to Limitation of Liability Privity/Lack of Knowledge If the owner can prove that he/she is free of fault then they can apply for Limitation of Liability If on the other hand the owner should have known or been aware of acts of negligence or unseaworthiness then they CANNOT claim Limitation of Liability Wrongful Death Survival Actions v. Wrongful Death Survival Actions Brought by decedent’s estate. Estate sues for what decedent would have been able to recover if he survived. Typically includes pain and suffering. NOTE*** Survival Actions are permitted under General Maritime Law ONLY in cases for non-seafarers within 3 Nautical Miles. They arise by supplementing the General Maritime Law with state survival actions under the principles of Yamaha. Wrongful Death Actions Brought by those with a relationship to the decedent that is of such nature that the decedent’s death will impact them economically. Typically does NOT include pain and suffering, but rather would be the source of loss of economic support damages. DAMAGES UNDER GENERAL MARITIME COMMON LAW (Moragne/Gaudet) Lost Earnings Impairment of Earning Capacity Medical Expenses incurred and to be incurred Other Economic Loss Pain and Suffering Mental Anguish Loss of enjoyment of life NOTE*** Whether these damages are available depends on whether the cause of action under General Maritime Law is superseded by one of the many potentially applicable statutes. Punitive Damages Available under General Maritime Law for cases in which the wrong is essentially the civil equivalent of a crime. NEVER RECOVERABLE FOR Jones Act Cases Seaman Supplementing a Jones Act Claim within 3 Nautical Miles with a General Maritime Law unseaworthiness claim (Miles) Non-Dependent Parents in wrongful death actions. Non-Pecuniary Damages Loss of Care, Comfort, Companionship Loss of Society NOT Permitted in the following Circuits: 2, 5, 6, 11. Permitted in 9th Circuit Harrisburg Court stated that maritime law was derived from British Common Law! RULE!! NO WRONGFUL DEATH ACTION in Admiralty Jurisdiction Two Statutes of Wrongful Death Jones Act Death & Personal Injury suit by Seaman v. Employer EVERYWHERE! Can sue employers or operators of the vessels for wrongful death Does not contain a provision for Non-Pecuniary Damages DOHSA (Death on the High Seas Act) Death outside 3 Nautical Miles from US land Does not contain a provision for Non-Pecuniary Damages Moragne Overturns Harrisburg RULE!! WRONGFUL DEATH ACTION permitted under Admiralty Jurisdiction Gaudet In Moragne action inside 3 Nautical Miles Can get DOHSA type damages and also certain non-pecuniary damages! RULE!! Asserted available damages under General Maritime Law (GML) CAN INCLUDE pecuniary and non-pecuniary NOTE** Π s will want to get around statutes to get General Maritime Law damages Higgenbotham RULE!! Gaudete damages (non-pecuniary) CANNOT be used to supplement DOHSA damages in cases of death occurring outside 3 Nautical Miles Tellentire RULE!! If you have a case that occurs on the High Seas you CANNOT use State Law to supplement DOHSA So you cannot use State Law to gain pecuniary damages Miles Attempt by decedent seaman’s mother to bring Moragne/Gaudet action for death of seaman inside 3 Nautical Miles on basis of unseaworthiness with General Maritime Law Damages to supplement Jones Act claim. RULE!! A seaman’s beneficiaries CANNOT recover non-pecuniary damages inside 3 Nautical Miles. It would NOT be fair for a Seaman not to be able to recover these damages (Only Subject to Jones Act and Unseaworthiness) and for his beneficiaries to be able to do so. Yamaha RULE Non-seaman and non-harborworkers who are injured or killed inside 3 Nautical Miles can claim damages based on State Law. State Law will be used to supplement General Maritime Law. NOTE*** Seaman is covered under Jones Act (so he CANNOT supplement) and Longshoremen and Harborworkers are covered by LHWCA so they cannot supplement! Where We Stand Today!!! Inside 3 Nautical Miles Seaman v. Employer Jones Act and General Maritime Law (Moragne/Gaudet) Unseaworthiness govern However, can ONLY receive Jones Act Damages Seaman v. Non-Employer Moragne/Gaudet – General Maritime Law governs Longshoreman v. Employer LHWCA governs Longshoreman v. Non-Employer Vessel Owner LHWCA Act §905(b) governs Longshoreman v. Non-Employer & Non-Vessel Owner Moragne/Gaudet – General Maritime Law governs Non-Seafarer Moragne/Gaudet – General Maritime Law governs High Seas (Outside 3 Nautical Miles) Seaman v. Employer Jones Act & DOHSA unseaworthiness govern Seaman v. Non-Employer DOHSA governs Longshoreman DOHSA governs Non-Seafarer DOHSA governs Seaman Remedies Robeson Test (Is X a Seaman?) (McDermott Int & Chandris) Determine whether the seaman contributed to the function of the vessel or accomplishments of its mission Contribution must have been for substantial duration and actions must have been of maritime nature If you spend more than 40% or more of the time at sea on a vessel and in assistance of the vessel, then you may qualify as a seaman for maintenance and cure benefits Timeline From time employed until time of injury Maintenance and Cure Definition Maintenance Money paid to the seaman from the moment of injury until the time when he/she begins working ($22 a day) Cure Doctor and Medical Bills paid until you have reached a MAXIMUM medical improvement Maximum Medical Improvement You cannot get any better! Maintenance and Cure Privilege Seaman is entitled to maintenance and cure regardless of fault Seaman gets paid maintenance and cure by the owner of the vessel regardless of where the injury takes place Maintenance and Cure is SEPARATE from anything else NOTHING CAN BE DEDUCTED OR CAN OFFSET MAINTENANCE AND CURE DAMAGES Ways of losing maintenance and cure If seaman lies in a physical about something what will render them unfit for seaman duties Failure to assist others in an attempt to reach maximum medical improvement Ship-owner who refuses to pay this can be sued and seaman can recover punitive damages Unseaworthiness Owed to seaman NOT passengers! Duty of Operator or Owner Provide vessel “reasonably fit for its intended use” ***NOTE*** The Standard is NOT PERFECT, but REASONBLE FIT (Colon) Strict Liability Offense (Vargas) If the ship is not reasonably fit for use, the operator or owner is strictly liable for damages caused to the seaman Unseaworthiness is a condition NOT an act! If the unseaworthiness did not arise from the activity of the owner or operator, they can still be liable i.e. An owner or operator hiring a violent employee An owner CANNOT be held liable under unseaworthiness for a third party’s single and wholly unforeseeable act of negligence Jones Act Negligence – 46 App. USC § 688 Proximate Causation “In Whole or In Part” It does NOT matter, you are still negligent Rogers Whether the employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought Duty Reasonable Care under the Circumstances Gautreaux H Jones Act employers and seaman are to be expressly bound to a STANDARD of ordinary prudence under the circumstances Jones Act NEVER alters the “Reasonable Man Standard” ***NOTE*** Circumstances of seaman employment include his reliance on the employer to provide a safe work environment, the seaman’s training, experience, and education. Per Se Negligence Kernan RULE If the owner violates a statute that causes the death or injury of a seaman NEID Claims Subject to Zone of Danger Test Limits recovery for emotional injury to those Π ’s who sustain a physical impact as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by that conduct Agency is Allowed Hopson v. Texaco Company had a duty to transport sick seaman to the US Consulate and they hired a private taxi company H Because the company had a duty to take seaman to the US Consul they were held to be liable for the negligence of the private taxi driver Contributory Negligence Standard (Norfolk) Requires evidence of some negligent act by the Π other than knowledgeable acceptance of a dangerous situation SEAMAN v. LONGSHOREMAN You can only be one of them! Seaman get Maintenance and Cure Longshoreman get Longshoreman Compensation (Like Worker’s Comp) All you need to show is that you have been injured and not prove liability General Maritime Tort Law Duty of Reasonable Care under the Circumstances Kermarec Π on board ship to visit friend, slips, and gets injured H Owner of the ship owes everyone on board a DUTY OF REASONABLE CARE UNDER CIRCUMSTANCES Π could not recover unseaworthiness because he is not a crew member, just negligence This has come to be the standard for people who are NOT protected under DOHSA or Jones Act Admiralty Law will not recognize the differences between licensees and invitees when determining the standard for care Higher Duty of Care to Passengers in Common Carriers? Depends on the Nature of the Hazard Uniquely maritime in nature (hole in deck) v. normal (broken stool on ship’s restaurant) Usually held to the Standard for a Common Carrier Disclaimers to Negligence An owner cannot disclose negligence or unseasworthiness because this would be void against public policy. Product Liability General Maritime Law incorporates product liability, including STRICT LIABILITY (East River SS Corp) Manufacturer in commercial relationship has no duty under either negligence or strict liability to prevent the product from injuring itself However, tort claim is available if defective product causes injury to OTHER PROPERTY Saratoga Fishing Co. Other property is ANYTHING that initial manufacturer did NOT sell, including things added by buyers who predate current owner There is NO NEED to establishing maritime nexus when tort takes place on the high seas Comparative Fault Applies in Product Liability Suits in Admiralty (Uniformity) Vicarious Liability Stoot (Potter cuts off fingers of seaman) RULE!!! Vicarious liability exists AS LONG AS THE EMPLOYEE IS ACTING IN THE COURSE AND SCOPE OF EMPLOYMENT Does the agent intent to act on the master’s behalf? Fact Based Analysis! Restatement of Torts § 245 Master subject to liability for intended tortuous harm by servant for act done in scope of employment, even if unauthorized and unexpected. BUT!! Comment C Master relieved of liability if servant had NO INTENT TO ACT ON MASTER’s BEHALF, even if mad due to events rising from employment Factors to Determine whether act is within scope of employment (Domar) Time, Place, Purpose of Act Similarity of Act to authorized acts Whether Act commonly performed by employer’s servants Extent the act departed from normal methods Previous relations between parties Whether employer would reasonably expect such an act to be performed Vicarious Liability can also be extended to intentional torts Causes in Fact In maritime tort law, Δ’s substandard conduct must be the cause in fact Either “But For” Cause or Substantial Factor of Harm DEFENSES Comparative Fault US v. Reliable Transfers Brought Comparative Fault Divided Damages Rule NOTE*** When Comparative Fault CANNOT be measured! Requires the equal division of property damage whenever both parties are found to be guilty of contributing fault, whatever the relative degree their fault may have been National Marine The Π’s conduct should be analyzed SOLELY under the principles of comparative fault There should be no distinction between assumption of the risk and contributory negligence ***NOTE*** Assumption of the risk is NEVER a complete bar and DOES NOT APPLY in Admiralty Superseding Cause Exxon Company v. Sofec Vessel broke away and the captain was able to keep it safe until he forgot to plot the ship’s position and ended up running aground H Proximate Cause and Superseding Cause apply in Admiralty RULE!!! Where the injured party is the sole proximate cause of the damage complained of, that party CANNOT recover in contract from a party whose breach of warranty is found to be a mere cause in fact of damage There is NO contribution allowed in joint several liability in maritime law ROBINS RULE!!! (Testbank Case) Economic loss unaccompanied by physical damage to a proprietary interest is NOT recoverable in maritime tort i.e. Someone whose restaurant was affected after a spill for lack of seafood CANNOT SUE Denies recovery for economic loss if that loss resulted from physical damage to property in which he had no proprietary interest EXCEPTIONS TO ROBINS RULE Talluma Visualizes the ship and the cargo as engaged in a common venture Once the cargo is on ship damage to one can result in economic damage recovered by the other MOST IMPORTANT CARGO MUST BE ON BOARD Domar Barge (Tug) that I own and the Tow that I am renting, but my barge is not working Joint and Several Liability, Contribution and Indemnity Joint Liability and Contribution still allowed in maritime law Indemnity Rises in Three Situations Relationship of indemnitor and indemnitee and duty owned Federal Marine Ship owner had to indemnify a stevedoring company for payment to widow after stevedore hurt on ship Special duty Ship owner had duty of care not to injury any of the companies longshoremen Both parties are liable, but there is a significant difference in parties’ conduct Tri-State Oil Where the owner’s liability based on passive conduct (allowing unseaworthiness to continue) and contractor’s based on actual conduct (installing defective elevator that caused injury) Owner was indemnified Differences in character of duty owed to the injured party Savoie Seaman’s employer owes special duty of maintenance and cure if he becomes disabled regardless of employer’s fault. Innocent employer indemnified by negligent 3rd party who caused the injury. Foreign Sovereign Immunity Prior to 1916 the Doctrine of Sovereign Immunity barred any suit by a private owner whose vessel was damaged by a vessel owned or operated by U.S. McCormick v. US TWO WAIVERS OF SOVEREIGN IMMUNITY Public Vessels Act Authorizes a libel in personam against the U.S. for damages caused by a public vessel of the U.S. and compensation for towage and salvage services rendered to a public vessel ( 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:
|