ADMIRALTY I FORCE: FALL 2010 Clint Mead HARTER ACT: (1893) U.S. to U.S.

shipments, unless K into COGSA, also U.S. and foreign shipments where COGSA doesnt apply (i.e. lightering where unload to smaller boat which is outside cogsas tackle to tackle scope) Applies to transportation of goods by water to or from a U.S. port, from the time a carrier receives cargo into its custody until proper delivery is made. Proper Delivery: carrier or its agent discharges the cargo onto a fit wharf, gives notification to the consignee, makes the cargo accessible to the consignee, and allows the consignee a reasonable opportunity to take possession of the cargo. Can also be turned over to designated authority pursuant to regulation or custom of the port. (doesnt apply to carriage of live animals) (1) Prohibits carriers from incorporating certain exculpatory clauses (2) Provides certain defenses to carrier (3) Requires the carrier issue a bill of lading to shipper upon request (1) Exculpatory Clauses: cant K out of liability for damage to cargo arising from (carriers) negligence, fault, or failure in proper loading, stowage, custody, care, or proper delivery (2) Defenses: only apply if carrier uses Due Diligence (due care) prior to the voyage to make the vessel seaworthy and to properly man, equip, and supply it. If the carrier used due diligence prior to the voyage then they are not liable for loss or damage to the cargo that is the result of: 1. Errors of navigation or management of the vessel; 2. Perils of the sea; 3. Acts of God; 4. Acts of public enemies; 5. Inherent defects, qualities, or vices of the cargo; 6. Insufficient packaging; 7. Seizure under process of law; 8. Loss resulting from any act or omission of the shipper or owner of the cargo; or 9. The saving or attempt to save life or property at sea including any delays resulting from this attempt - Carrier has burden of showing due diligence - this is one of the few places where an employer isnt held liable for employee negligence - Seaworthiness: means that a vessel is reasonably fit to carry the cargo she has undertaken to transport on the particular voyage. Includes materials, construction, equipment, officers, and crew. Consideration is given to the cargo to be transported, route to be travelled, and weather likely to be encountered, among other things. COGSA: applies to carriage of goods by sea to or from foreign ports and U.S. ports 1. Only applies to U.S.-Foreign Trade, no US to US trade (unlike Harter Act), but commonly K into cogsa for US/US trade 2. Applies tackle to tackle i.e. loaded over rail to time loaded back off, (Harter act applies through delivery), but commonly K into cogsa a. Preloading and postdischarge Harter Act applies if no K for COGSA 3. Applies to every bill of lading or similar document of title which is evidence of a contract of carriage of goods by sea to or from ports of the U.S., in foreign trade a. Doesnt apply to charter parties even when called a bill of lading unless K 1

4. Carrier: Owner, Charterer, or the Vessel itself (in rem liability) a. Sometimes can sue Owner and Charterer if BillOL is signed by the owner, or signed by charterer for the master as authorized in the charter party. (agency) 5. Carriers Duties: a. After receipt of goods and upon demand of the shipper carrier must issue BOL b. BOL must show quantity, weight, or number of packages, furnished in writing by the shipper, and apparent condition of goods i. Carrier is not bound to state quantity, weight, etc that it has no reasonable means of checking, or that it reasonably believes to be inaccurate ii. Carrier can also protect itself by qualifying statements with said to contain, shippers weight, load, and count, (Plastique Tags v Asia Trans Line) 6. Carriers Duty Relating to Vessel and Cargo a. Carriers duty before, and at the commencement of voyage to exercise due diligence: (section 1303(1) i. To provide a seaworthy ship; ii. To properly equip, man, and supply the ship; and iii. To make the holds, refrigeration and cooling chambers, and all other areas of the vessel where goods are carried, fit and safe for their reception, preservation, and carriage b. 1303(2): Exculpatory Clauses to avoid the duties of 1303(1) and (2) are prohibited, including benefit of insurance clauses requiring shipper to obtain insurance for carriers benefit 7. Immunities of Carrier (Unlike Harter, still get defenses despite lack of due diligence) a. Defenses notwithstanding loss or damage to cargo resulting from employee negligence i. Errors in navigation of the vessel ii. Errors in management of the vessel 1. i.e. collisions caused by faulty seamanship/poor judgment 2. no defense if knew or should have known in exercise of due care that master or crewmen were incompetent, or undermanned vessel 3. no defense if the error primarily puts cargo at risk, not vessel (see duty to care for cargo) iii. The fire defense 1. Once shown cargo was damaged by fire, burden shifts to shipper to show fire was caused by actual fault or privity of the carrier b. Defenses based on overwhelming outside forces i. Acts of war ii. Acts of public enemies iii. Arrest or restraint of princes (governments) iv. Quarantines v. Strikes or lockouts vi. Riots or civil commotions c. Loss or damage caused by overwhelming natural forces i. Perils of the sea

1. perils of the sea is a term of art not uniformly defined, the generally accepted definition is a fortuitous action of the elements at sea, or such force as to overcome the strength of a well-found ship or the usual precautions of good seamanship Taisho Marine v Sea Land Endurance ii. Acts of God d. Loss or damage attributable to faults of the Shipper i. Acts or omissions of the shipper or its agents ii. Wastage in bulk or weight iii. Losses resulting from inherent vice of the goods 1. Food spoiling, chemicals, spontaneous rusting, etc iv. Insufficiency of packaging or making e. Loss or damage occurring despite Carriers exercise of Due Care (Q Clause) i. Loss or damage resulting from unseaworthy condition not discoverable through the exercise of due care ii. Loss or damage from latent defects iii. Where carrier, servants, and agents exercised due care and loss was from the conduct of others or other circumstances for which it wasnt responsible 8. Seaworthiness: a. Carrier or Owner not liable for unseaworthiness except when caused by lack of due diligence to make the ship seaworthy, i.e., (to see that the ship is properly manned, equipped, and supplied, and to make the holds, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage, and preservation) i. i.e. only responsible when negligent in failing to discover or remedy the defective condition causing the damage. 9. Carriers Duty to Care for Cargo a. A carrier is under a continuing duty throughout the voyage to properly care for the cargo 10. Deviation: a. an intentional and unreasonable change in the geographic route of the voyage as contracted for i. Only liability for Unreasonable Deviations, not reasonable ones i.e. to safe life or property, etc ii. Includes overcarriage, misdelivery, and unauthorized carriage of cargo on deck iii. Deviation to load or unload cargo or passengers is presumptively unreasonable iv. Must be causal connection between deviation and damage, if so no cogsa defenses or limitation of liability 11. Damages and Limitation of Liability a. Damages based on market value of the goods at the port of destination (Santiago v Sea Land Services) b. COGSA Limitation of $500 per package or customary freight unit (look to contract of carriage for freight unit) 3

c. Packages: i. Anything completely enclosed to facilitate its transportation: boxes, crates, anything fully wrapped in tarps, etc (look to intent of the parties as evidenced in the BOL) (10 boxes of electrical equip in one package/containter = 10 packages) ii. Cannot set lower limit than 500, but if declare higher value on BOL will not be limited to 500, also can only recover up to actual loss on each package. d. Delay i. No specific cogsa damages for delay, but under general maritime law can recover for unreasonable delay 1. Usually unreasonable when carrier has specific knowledge of shippers need for delivery within a time frame or for a particular purpose (Hellenic Lines v U.S.) 12. Burden of Proof (ping pong) a. BOL is prima facie evidence of receipt by the carrier of the goods described b. If Shipper produces clean BOL and goods are damages or not produced, burden shifts to carrier to defend i. Circumstances must be consistent with the evidentiary presumptions of BOL 1. Clean BOL only shows condition of packaging, not goods themselves, so need a little more for shipper to meet burden of proof 2. Nature of the damage to container (seawater, etc), or proof goods were delivered undamaged needed c. 1) cargo interest (shipper) makes prima facie case by producing clean BOL and showing goods were delivered to cogsignee in damaged condition d. 2) carrier responds by either: i. Showing that the loss or damage was caused by unseaworthiness despite their due diligence; or ii. Showing that cargo loss or damage was covered by one of the immunities/defenses of COGSA e. 3) the shipper tries to rebut the defense by showing facts that establish: i. A lack of due diligence; ii. The inapplicability of the immunities claimed; or iii. Negligence on the part of the carrier, unless statutorily exempted 13. Concurrent Causes a. If two or more causes of cargo damage, and one is covered by an exculpatory factor(defense), burden is on carrier to show that the loss or percentage of loss was caused by the exculpated factor i. i.e. improper stowage and collision: must show it would have been damaged by the collision despite improper stowage 14. Notice of Loss or Damage a. Person entitled to take delivery should give carrier written notice of loss or damgage, including description of the damage before goods are removed

b. Failure to give notice is prima facie evidence of goods delivered as described in BOL c. When loss or damage not apparent notice must be given within three days of delivery d. Failure to give notice does not preclude shipper from bringing suit i. Up to 12 months after delivered or should have been delivered under COGSA (Harter act uses doctrine of laches 3 years) 15. Extension of the application of COGSA a. Can K to apply prereceipt and postdelivery, but do not get errors of navigation and management or fire defenses when goods damaged on land b. Himalaya Clauses allowed (extending benefits of COGSA to other parties of the transaction i.e. agents, contractors, stevedores, terminal operators, etc) i. Scrutinized strictly, only enforced where clear and explicit as to the beneficiaries, especially with regard to independent contractors ii. Some benefits only available to carrier itself, including errors in navigation and management, and unseaworthiness limitations (Vistar v Sea Land Express) 16. Juristiction and Choice of Law Provisions a. Choice of Law Clauses including Foreign Arbitration Clauses generally upheld (Vimar Seguros v M/V Sky Reefer), including express clauses invoking foreign law, as long as it increases carrier liability as compared to COGSA CHARTER PARTIES 1. Charter comes into existence when there is a meeting of the minds on the essential terms of the charter 2. Voyage Charter, Time Charter, & Demise Charter 3. Voyage Charters a. Agreement by vessel owner to carry cargo from one port to another on a particular voyage or voyages b. Voyage charterers are not carriers, basically this is a K of carriage c. Vessel is manned and navigated by owners crew d. Voyage charter can be used as a contract of affreightment/carriage e. Only acquires the carrying capacity of vessel; not responsible for: i. Maintenance, repairs to vessel, or injuries to 3rd parties ii. Not usually responsible for expenses i.e. bunkers 4. Time Charters a. K for the use of the carrying capacity of a particular vessel for a specified period of time b. Time charterer or Owner could be carrier who signed BOL? (for the master?) c. Vessel is manned and navigated by Owners crew d. Unlimited voyages within the time of the time charter period e. Vessel under charterers orders as to ports, cargo carried, etc f. Master and Crew still employees of owner g. Charter not responsible for maintenance, repairs, or injuries to 3rd parties h. Time charterers usually pay expenses of operation, i.e. bunkers 5. Demise Charters/Bareboat Charters a. Charter becomes owner pro hac vice for duration of the charter 5

i. Obtains control over not just carrying capacity, but also the management and navigation of vessel b. Charterer responsible for maintenance, repairs, damages to 3rd Parties c. Owner usually not liable In Personam (but might be In Rem) 6. Misrepresentation a. Includes fraud or intentional misrepresentation, as well as any nonconformity to factual representations made by owner in charter party b. Can seek damages or termination/rescission of the charter party i. Termination before accepted by charterer ok ii. Termination after delivery only ok if material breach on the part of the owner 7. Warranties: a. Warranty of Seaworthiness i. All charter parties assumed to have guarantee of seaworthiness (implied warranty), unless specifically K out of it ii. Charter does not get this benefit if knew of unseaworthy condition and Kd anyway iii. Can repudiate only where breach is so substantial as to defeat or frustrate the commercial purpose of the charter b. Size and Speed: i. Can recover damages for breach of express warranty of size and speed ii. Termination before accepted by charterer ok iii. Termination after delivery only ok if material breach on the part of the owner 8. Off Hire Clauses a. Charterers duty to pay ceases in the event it is deprived of the use of the vessel, either in whole or in part, as a result of some deficiency of the vessel, its equipment, or the crew b. Mutual Exceptions Clauses: i. Owner is not responsible for nonperformance of the charter when it is included in a mutual exceptions clause, i.e. restraint of princes/govs, acts of God, acts of public enemies 9. Safe Port and Safe Berth Provisions (in time and voyage charters) a. Express and implied obligations of charterer to only use safe ports/berths i. Master of vessel may refuse to proceed to unsafe port without causing owner to be in breach of charter party ii. Charterer can be liable for damages (to vessel etc) caused by proceeding to an unsafe port/berth 1. Split on whether strict liability (2nd cir.) or only duty of due diligence when selecting port/berth (5th cir.) 10. Demurrage and Detention a. Owners want voyage charters to be over as quickly as possible b. Laytime: i. The time allowed for loading and unloading the vessel during which the charterer is not charged any excess of the agreed rate of charter hire

ii. Exceeding laytime will result in being charged Demurrage under K, usually a set amount of time, once on Demurrage it continues to run regardless of conditions that would have stopped laytime arise. iii. Detention is the legal remedy giving damages for exceeding demurrage, but must show sustained damages, i.e. opportunity costs 11. Overlap and Underlap a. Right to reasonable underlap/overlap: right to pay only K price, not market price for overlap, or to quit paying early for underlap b. Reasonableness depends on whether additional voyage would cause more days Over than Under i. i.e. 4 days early vs. 6 days late means underlap is reasonable, over is not 12. Liability of Owner a. Charter party disputes or damages resolved under K law unless K into COGSA or if under COGSA by matter of law where Owner issues BOL to charterer who issues to consignee PERSONAL INJURY AND DEATH 1) Seamen; 2) Non-Seamen Maritime Workers 3) Offshore Oil Platform Workers 4) Passengers No Right to Jury Trial unless Fed (Diversity), or through Jones Act 1. Seaman versus: a. Employer: Jones Act Negligence: anywhere b. Shipowner: Unseaworthiness; DOHSA beyond 3 miles; Moragne GML within 3m c. 3rd Party Tortfeasor: Negligence or products liability: +-3m DOHSA OR Moragne d. No action under state law: federal remedies are exclusive 2. Longshoremen and Harbor Workers versus: a. Employer: statutory death benefits under LHWCA b. Vessel: 905(b) action: Admiralty claim DOHSA beyond 3m.: Moragne within 3m c. 3rd Party Tortfeasor: 933 Admiralty claim: +-3miles DOHSA OR Moragne d. 3rd Party Tortfeasor: Non-Admiralty cliam: 933 State Law 3. Offshore Platform Worker on Continental Shelf a. Same as Longshore and Harbor Workers 4. Offshore Platform Worker Not on Continental Shelf versus: a. Employer: State Workers Compensation b. 3rd Party Tortfeasor: +-3miles DOHSA OR Moragne c. If not maritime state remedies 5. Non Seafarers such as Passengers a. Against anyone: DOHSA if beyond 3 miles; Moragne within 3; State Damages 1. DAMAGES a. Loss of past and future wages b. Loss of future earning capacity c. Pain, suffering, and mental anguish, and related expenses d. Also, prejudgment interest in admiralty cases e. Sometimes, rarely, loss of consortium or loss of society, and punitive damages, but rare since Miles v Apex Marine (1990) SEAMAN STATUS: two requirements (Chandris, Inc. v Latsis) 7

1. 1) Substaintial connection to identifiable fleet of vessels or vessel in navigation (Chandris, Inc. v Latsis) a. Look to Duration and Nature of work i. Look at entire period of employment, not a snapshot approach ii. Less than 30% of work on vessel makes not a seaman generally iii. If working on land was it a permanent change of status (land v sea) b. Fleet of Vessels need an element of common control or ownership 2. 2) Must contribute to the function of the vessel or further the mission of the vessel (McDermott Intl, Inc. v Wilander) a. Simply must be doing the ships work 3. Vessel: a. Primarily look to purpose for which constructed and business in which its engaged (Blanchard) b. Anything used or capable of being used as a means of transportation on water (Dutra) c. Does not include structures used primarily as work platforms that are permanently moored or affixed to the seafloor i.e. oil platforms, dry docks, dead ships (removed from service) 4. Situs of Injury: a. Can happen on water or land as long as in the course of their employment at the moment of the accident SEAMANS REMEDIES: M&C; Negligence (Jones Act); and Unseaworthiness 1. Maintenance and Cure (also Wages): Only available to Seamen; paid by their Employer or In Rem a. Right to: Medical Treatment; Support (room and board); Wages (till end of voyage) b. No fault needed; Ps contributory negligence irrelevant/doesnt disqualify c. Must be injured while in the service of the ship (Warren v U.S.) (shore leave where could be called back to work at any point in service of the ship) d. Willful Misconduct or Concealment of preexisting condition can disqualify e. Amount for M&C: (Ritchie v Grimm) i. Food and utilities calculated just for Seaman, but rent ok if have family ii. Must be reasonable for the community in which he lives iii. Cure up until Maximum Med Improvement (MMI), not a permanent solution iv. Punitive and Attnys Fees: if callous of willful withholding of M&C, but Punitives rare since Miles v Apex Marine f. Last Employer Rule: last employer pays so seamen promptly receives M&C (Gauthier v Crosby) g. Employer can recover M&C from at fault 3rd party (Black v Red Star) h. Ked/union bargained M&C ok unless unreasonable i.e. disability and med. Benefits if clearly Ked to do so (Farrell) i. Wages: paid through end of voyage j. Wage Penalty: entitled to double wages each day they were improperly withheld 2. Negligence (Jones Act) only for Seamen

a. Negligence action against employer including wrongful death and survival actions; stems from FELA (RR Workers) b. Right to jury trial c. Non removal from state court if filed there d. 3 year statute of limitations e. Employer: (Jones act is only against employer) i. Burden of proof showing employment relationship is on P ii. Most important factor is the right of control iii. Borrowed Servant Doctrine: look to control, when acting as crewmember for not literal employer f. Standard of Care and Causation: i. Duty of Care: employer must exercise reasonable care under the circumstances (Gautreaux) ii. Employer must provide a safe place to work and to supply the seaman with the proper tools and equipment iii. Contributory Negligence of seaman: standard of reasonable care iv. Violation of Statutory Duty: Strict Liability/Negligence Per Se 1. When violation of a statutory duty (Coast Guard Regulation, etc, but not OSHA) causes seamans injury, employer is liable without regard to their actual negligence (Kernan v American Dredging) v. Comparative Fault: applies and will reduce seamans damages proportionately except when employer violates a safety statute or regulation g. Foreign Seamen i. Must be sufficient contacts to allow application of Jones Act, when considering choice-of-law look to: (Hellenic Lines, Ltd. v Rhoditis) 1. The place of the wrongful act 2. The law of the vessels flag 3. The allegiance or domicile of the injured seaman 4. The allegiance of the shipowner 5. The place of the k 6. Inaccessibility of the foreign forum 7. The law of the forum 8. The vessel owners base of operations 3. Unseaworthiness a. Vessel and appurtenances must be reasonably fit for their intended use (Allen v Seacoast Prods., Inc.) b. Unseaworthy condition must have been the proximate cause of the seamans injury or death c. Strict Liability: no fault needed, absolute and non-delegable d. Can bring against In Personam (owner or demise charterer), or In Rem (vessel) e. Vessel Owners and Owners Pro Hac Vice (Demise Charterers) owe duty to seamen to provide a seaworthy vessel i. the vessel and her owner are liable for injuries received by seamen in consequence of the unseaworthiness of the ship, or failure to supply and

keep in order the proper appliances appurtenant to the ship. (The Osceola (1903)) f. Equipment must be an appurtenance of or attached to the vessel or otherwise under the vessels control, not shore based equipment (Feehan) i. Can be improperly stowed cargo ii. Deficiencies in cargo arent unseaworthiness, but deficiencies in packaging are (loose plastic wrap on soda case (Martinez v Sealand)) g. Extends to manning the vessel (properly man and equip) includes: i. Incompetent master or crew ii. Inadequately manned (not enough crewmen for safely carry out purpose) iii. Employment of a crewman of savage disposition who assaults another crewman (Gutierrez) can be unseaworthiness h. Operational Negligence: an isolated act of negligence by an otherwise qualified fellow worker does not constitute negligence (Usner) i. Comparative Fault: applies and will reduce seamans damages proportionately except when employer violates a safety statute or regulation j. Sieracki Laibility (Seas Shipping v Sieracki (1946)) i. Unseaworthiness claim for workers who fall into the crack between seamen and longshore workers ii. Workers doing a seamans work and incurring a seamans hazards 1. Especially for independent contractors who are exposed to the same dangers as the crewmen directly employed by the vessel i.e. river pilots iii. Split in circuits, 5th circuit still good law, 9th cir. is not iv. Sieracki seamen usually sometimes have a negligence action under general maritime law as well NON-SEAMEN MARITIME WORKERS (Workers Comp and LHWCA) 1. Longshore and Harbor Workers Compensation Act (LHWCA) a. Essentially a Federal workers comp statute where covered workers accept less than full damages for work related injuries in exchange for guaranteed benefits that are paid for every work related injury regardless of fault i. Must have an employer; indep. Contractors (pilots) use sieracki b. Scope of Coverage: Status & Situs Requirements i. 1) Status Requirement 1. any longshoreman or other person engaged in longshoring operations, and any harbor worker including a ship repairman, shipbuilder, and ship breaker 2. Essentially anyone engaged in maritime employment who is engaged in activities which are an integral part of loading, unloading, repairing, building, or disassembling a vessel 3. Where a workers job assignment requires work in or on navigable waters and is actually injured on navigable waters it satisfies the Status Requirement, a. as it would have been the sole criteria before 1972, and amendment was intended to expand coverage

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b. Must be more than mere presence on water when hurt (fortuitously or transiently on navigable waters) 4. Occupations excluded from coverage: a. Employed exclusively for office clerical, secretarial, security, or data processing work b. Employed by a club, camp, recreational operation, restaurant, museum, or retail outlet c. Employed by a marina and not engaged in construction, replacement, or expansion of such marina d. Individuals who 1: are employed by suppliers, transporters, or vendors, and 2: are temporarily doing business on the premisis, and 3: not engaged in work normally performed by employees of that employer e. Aquaculture workers f. Building, repairing, or dismanteling recreational vessels under 65 feet g. See page 306, etc ii. 2) Situs Requirement 1. Injury takes place on the navigable waters of the US a. Includes any adjoining pier, wharf, drydock, terminal building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel. 2. Injury on actual nav waters satisfies Status test as well c. When either State work comp or LHWCA; P gets to choose i. Can make up the difference by filing the other claim and receiving the extra amount, i.e. file 80 state claim, file LHWCA which would be 100 but get 20 (Sun Ships, Inc. v Pennsylvania) d. Some Jones Act seamen are also LHWs and vice versa, its ok to go from one to the other, just no double recovery, i.e. must discount by what was already received (Southwest Marine v Gizoni) e. Remedies under LHWCA i. LHWCA compensation is exclusive remedy against employer, with limited exceptions ii. Does not depend on employer fault or reduce with P comparative fault iii. Except no recovery if injury was caused solely by Ps intoxication or willful intention to injure/kill himself iv. Benefits according to fixed schedual which include: 1. Medical expenses 2. Disability benefits 3. Rehabilitation benefits 4. Percentage of average weekly wage v. Tort actions against 3rd parties are preserved for P under LHWCA vi. 905(b) right to sue vessel as 3rd party in action for vessel negligence 1. 3 duties vessel (owner) owes longshoremen (Scindia Steam Navigation v De Los Santos) 11

a. 1)duty of exercising due care under the circumstances i. Have ship in condition where stevedores can safely do their job b. 2)if vessel (owner) actively involves itself in the cargo operations and negligently injures a longshoreman c. 3)if vessel(owner) becomes aware that stevedore is using unsafe practices, may be liable, in some situations, for failure to intervene f. 1 year statute of limitations for benefits, 3 year for 905(b) suit OFFSHORE WORKERS (who dont qualify as seamen or LHWs) 1. If not a Seaman, or a Longshore/Harbor Worker, then look to whether Fed. or State a. State Territorial Waters: State Law applies i.e. State Workers Comp claim i. Also can bring state tort claims of general maritime claims (just not against employer) b. Federal Waters: engaged in oil and mineral exploration apply Outer Continental Shelf Lands Act (OCSLA) i. OCSLA applies LHWCA to oil and gas workers in fed waters NONMARITIME PERSONS (i.e. Passengers) 2. Shipowners owe a duty to exercise reasonable care toward persons legally present on vessel a. Not legally present persons (stowaways) owner only owes duty of humane treatment, i.e. only liable for willful or wanton misconduct WRONGFUL DEATH Include: DOHSA; state wrongful death statutes; general maritime law; and jones act, LHWCA 3. DEATH ON THE HIGH SEAS ACT (DOHSA) (Fed. Waters) a. Wrongful death remedy for beneficiaries of decedents who die as a result of tortuous acts committed beyond state territorial waters i. Generally 3 miles from shore, commercial aviation accidents must be at least 12 miles offshore though. ii. Situs of the tortuous conduct where it effected the decedent, not the actual place of death b. Any tort claim including: intentional torts, negligence, and strict products liability c. Beneficiarys include: i. Wife, husband, parent, child, or dependant relative d. Remedies: only Pecuniary (financial) losses which include: i. Loss of support, loss of services, loss of nurture, guidance, care and instruction, loss of inheritance, and funeral expenses ii. No nonpecuniary losses: no loss of society, loss or consortium, or punitive damages iii. No survival action (predeath pain and suffereing), although Jones act does have survival action 4. GENERAL MARITIME LAW WRONGFUL DEATH(State Terr Waters) a. Moragne Action: Wrongful death remedy under general maritime law in state territorial waters (Moragne v States Marine Lines) b. Remedies 12

i. Probably the same as DOHSA since Miles v Apex: only pecuniary losses c. Beneficiaries Include: i. Decedents spouse, dependent children, parents, and dependent relatives 5. JONES ACT NEGLIGENCE FOR WRONGFUL DEATH a. Jones act provides beneficiaries with negligence action against employer b. Unseaworthiness or against non employers use DOHSA or Moragne 6. LHWCA a. Beneficiaries entitled to scheduled benefits b. Can bring 905(b) against vessel c. When caused by 3rd party negligence use either State Laws (on land), Moragne (state waters), or DOHSA (Fed waters) COLLISIONS 1. Collision (two vessels) and Allision (vessel and stationary object(docked vessel, bridge, warf)) is based on Proportional Fault (damages based on each parties fault) (U.S. v Reliable Transfer Co.) 2. Liability: a. No fault if unavoidable accident ex. Gales at night, dense fog, etc i. Could the collision have been avoided by the exercise of ordinary care, caution, and maritime skill? (The Jumna) b. Fault may arise because of : i. Negligence or lack of proper care or skill on the part of the navigators ii. A violation of the rules of the road (applicable rules of navigation) iii. Failure to comply with local navigational customs or usage iv. An unseaworthy condition or malfunction of equipment c. Must be proximate cause between the negligence and the collision/damage d. Error in Extremis i. When one vessel has created a situation putting another vessel in an emergency situation, they arent held liable for doing something wrong or for contributory negligence (negligence excused in imminent peril) 3. Presumptions: a. Pennsylvania Rule: i. When vessel violates a safety standard has burden of proving that its violation of the statute could not have caused the accident (per se negligence) b. Oregon Rule: i. When moving vessel strikes nonmoving vessel or stationary object the moving vessel is presumed to be at fault. 1. Can be rebutted by showing the stationary object was a hazard to navigation 4. Damages: a. Total Loss: i. Damages include market value of the vessel at the time of the loss, also pending freight, pollution cleanup, wreck removal, and other incidental costs 1. Loss of earnings and detention are not recoverable b. Partial Loss 13

i. Damages include cost of repairs or diminution of value, loss of earnings for time the vessel is out of service, and incidental costs i.e. wharfage, pilotage, and salvage 1. Must prove loss for lost earnings recovery: show lost charter K, or earnings prior and after repairs c. Plaintiff must have a proprietary (ownership) interest in physically damaged property to recover from tortfeasor, i.e. charterer cant recover directly from tortfeasor, only owner (Robins Dry Dock) TOWAGE 1. Towage K v K of affreightment/carriage a. Towage is moving a vessel, carriage is moving goods i. If supply both towing vessel and barge this is K of affreightment b. Duty to exercise such reasonable care and maritime skill as prudent navigators employ for the performance of similar service (reasonable tower under the circumstances) c. Also duty of providing a seaworthy vessel; have proper lighting and obey navigational rules; maintain a watch over the tow during voyage; and to save tow from sinking if possible 2. Not just the Tug (tower), but also the Tow (towed vessel) has duty of seaworthiness and can be liable for damages PILOTAGE 1. Duty of Care: Reasonable Pilot under the circumstances; local pilots must be aware of local conditions 2. Compulsory Pilot a. Takes control of the movement of the vessel b. Is a compulsory pilotage if there are criminal penalties for failing to take on a pilot; must be obligation and penalty c. Pilot is solely at fault, but can be liable In Rem 3. Voluntary Pilotage(whenever not compulsory) a. Usually takes control but is an employee b. Owner liable for damage (right of control/employee) 4. Exculpatory Clauses a. Can immunize pilot and pilots employer from negligence (not allowed in Towage) SALVAGE 1. Two types of Salvage; Contract Salvage and Pure Salvage a. Brought either In Rem or In Personam b. 2 year statute of limitation c. Must be an actual ship or vessel (maritime property); but can recover for saving cargo, fuel, property, etc off of vessel d. Nexus: must be nexus between item salvaged and traditional maritime activity 2. Three Requirments for Pure Salvage (The Sabine) a. Marine Peril i. Need not be imminent, just reasonable apprehension of peril (Markakis) b. Salvage was Voluntary

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1. No reward for incidental or indirect service(i.e. put out dock with vessel attached, look at intent) 2. Dont need express acceptance by owner if any prudent man would have accepted 3. Firemen may not be voluntary, look to scope of employment c. Success in whole or in part i. no cure, no pay ii. No life salvage: no award for saving life iii. Any voluntary act which contributes to the vessels safety is salvage is there is peril (i.e. standing by to give aid if needed) 3. Salvage Awards: a. The Blackwall Factors: i. The labor expended by the salvors in rendering the salvage service; ii. The promptitude, skill, and energy displayed in rendering the sevice and saving the property iii. The value of the property employed by the salvors in rendering the service and the degree of danger to which such property was exposed iv. The risk incurred by the salvors in securing the property from the impending peril v. The value of the saved property*(most important) vi. The degree of danger from which the property was rescued b. Salvor may recover damages sustained to his property as well as expenses incurred in addition to the award c. Use market value of property, unless no market, then replacement value d. Award percentage of property value, 12.5%(high award) in Margate Shipping (NASA case) 4. Salvor Misconduct a. Must act in good faith and exercise reasonable skill and prudent seamanship i. For salvee to recover damages usually must be gross neg. or bad faith 5. Contract Salvages a. Enforced if fairly bargained for, even if it turns out to be a bad bargain b. no cure no pay ks tends to establish fairness i. Set aside if procured through fraud, misrepresentation, or other compulsion(Black Gold Marine)

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