Harvard Admiralty

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Admiralty and Maritime Law

Visiting Professor Peter L. Murray

Class 1 History and Admiralty Jurisdiction

February 1, 2007


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Welcome to Admiralty and

Maritime LawSpring 2007!

Why do you want to study Admiralty andMaritime Law?


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Why am I here?

First time teaching Admiralty Law. Took it with Mark Howe in Law School

For many of the same reasons you are taking itnow.

Practiced some admiralty law in Portland Maine forabout 20 years. Miscellaneous practice, casualty and PI, ship

financing and sale, liens

Admiralty has not been taught here for several

years Great example of ancient international privatelaw. comparative law and systematic approach

Historical element. .


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Course Logistics

Two credit course

Conventional exam with a paper option.

Paper topics to be cleared in advance.

Papers to be 30 pp. in academic style.

Some who need an additional credit:

Take exam and write a 30-page paper.

Take paper option and write 50 page paper. Note special makeup class on March 1 to

replace April 4 class.


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What is so special about Admiralty

and Maritime Law ?

A separate body of law to govern

transactions and activity connected with

venturing forth on the seas. An international body of private

customary law.

An ancient amalgam of civil law andcommon law doctrine and procedure,


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What is different about the sea??

Some factors:

Ships frequently travel between jurisdictions.

Land-based jurisdiction can attach to a ship

when it is in port.

Vessels are on voyages out of contact with

terrestrial authority.

Hazard of sea needs some specialprotections.


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Evolution of Legal Doctrine and

Institutions Does law evolve to meet the political,

social and economic needs of the social

order that sponsors it? Admiralty law as a systemic response to

the special conditions and needs of

seagoing commerce in the age of sail?As modified by later technological, political

and economic developments..


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American Admiralty Law

Represents a special and fascinating evolution.

Creation of a body of admiralty law by a new

nation on the international scene of trade and

commerce. Dealing with the British Admiralty Tradition.

Developing a national law under conditions of

extreme federalism. Evolution of legal institutions with changing social,

economic and technological conditions.


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Admiralty Law as Civil Law

Body of Special Law for Matters Maritime came

from the civil law world.

A world accustomed to thinking of law as abstract

principles. Arranged in consistent codes.

Rhodians, Justinian, Italian Cities

Roles of Oleron

Later - Laws of Visby

We will study these in greater detail next week.


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International Trade and Admiralty

Law

From the earliest times nations had sought trademonopolies.

Greeks, Romans, Venetians, English, Germans

(Hansa) sought trade monopolies in specificparts of the globe.

Spanish and Portugese purported to divide upthe entire world for purposes of trade and

colonization. Admiralty law to foster trade and support trade

monopolies.?


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English Admiralty Law

Reception of the Civil Admiralty Law in

England.

Blacke Book of Admiralty

The Admiralty Court.

Doctors Commons

Civil Law Doctors as practitioners

university trained jurists.

Contrast with common law courts and lawyers


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The Battle with the Common Law

Overlapping jurisdiction with in-personam

procedures applied to maritime claims.

Lord Coke and the Writ of Prohibition.

Restrictions on the Admiralty jurisdiction. In rem actions.

Limitation of liability, salvage, prize, maritime

insurance, etc.

Concept of Admiralty: (relating to the admiralty

court) and Maritime (relating to the sea).


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Admiralty Law in the Colonies

Vice Admiralty courts established in each

of the colonies.

Parallel to Chancery.

Restricted to traditional English admiralty

jurisdiction.

Terms of jurisdiction in colonial charters.

Appeal to London.


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Pirates, Smugglers and

Privateers

The Golden Age of Piracy16701730

Some before and afterward.

Prosecution of pirates in the coloniesadmiralty

jurisdiction. Smugglinga lucrative business.

Well established in 18thand early 19th Century

England.

Condemnation of smuggling vessels and goods.

Privateers

Became common latter part of 18thCentury

Condemnation and sale of prizes.


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The American Revolution

Individual states began to exercise admiraltyand maritime jurisdiction. State prize courts condemning seized enemy ships.

New Hampshire prize court and privateers.

Articles of Confederation did not establish anyseparate Federal courts. Authorized Congress to establish courts for the trial of

pirates

Authorized Congress to establish prize courts. States established and operated their ownadmiralty courts. Appeal to congress in prize matters.


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The American Constitution

Admiralty jurisdiction was one of the areas

of federal concern from the beginning.

Querywhat about admiralty jurisdiction

commended federal jurisdiction?

Criminal

Prize

Civilcommercial

In rem


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Piracy

Although now considered romantic, at thebeginning of the 18thCentury a serious socialproblem.

Caribbean pirates ventured up the east coast of

the American colonies. As far as Maine and Nova Scotia

Colonial authorities had difficulty dealing with thepirates.

Resources. Jurisdiction.

Although piracy had receded by the last quarterof the century, the memory was still bright


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Problem M-1

Prosecution for seizing a ship off the coast

of Africa.

Massachusetts sheriff and courts?

New Federal Admiralty and Maritime

jurisdiction?

U.S. Marshal

Where was the law going to come from?

Criminal procedure in admiralty court?


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U.S. Constitution

Article III, Section 2:

the judicial power shall extend to all cases

of admiralty and maritime Jurisdiction

What is the meaning of and maritime?

Effort to escape the strictures of English

Admiralty Law?


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Maritime crimes.

Petty crimes within the jurisdiction of the newly

established District Courts.

Major crimes within the jurisdiction of the Circuit

Courts: Supreme Court justice and district judge.

Except for the District of Maine where the District

Judge was given the powers of the Circuit Court

Concession to geography Thus allowing the trials of Hanson, etc.

Jury trial preserved for maritime crimes.


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Reception of Admiralty Law in the

U.S.

No formal federal reception of English

Admiralty law.

Compare reception of English common law bystates.

American courts did not want to be bound by

English strictures.

Admiralty and maritime law was international

and hence did not need to be adopted


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Admiralty Jurisdiction


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Admiralty Jurisdiction

Subject matter jurisdiction Matters within the admiralty jurisdiction and without

Internationally

In the United StatesStateFederal

Physical Jurisdiction Jurisdiction over the res?

Jurisdiction over the personae?

Compare with territorial jurisdiction in non-admiraltymatters

Subject matter jurisdiction in admiralty may bebased on geographic considerationsi.e. on oroff the water.


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Other Characteristics of Jurisdiction

Jurisdiction by virtual of nationality

Of vessel?

Of crew member?

Jurisdiction by virtue of location of

particular activity

Nautical activity

Land-based activity

Compare long arm statutestort and contract


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Overlapping and Multiple

Jurisdiction

Many sovereigns may acquire jurisdictionto adjudicate the same maritime issue.

Internationally

Within the USState v. Federal

Forum shopping??

Remedies:

Uniformity of Maritime law

Forum non conveniens


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Lets look at some cases

Development of notions of admiralty

jurisdiction in the US.

Related to our particular constitution and

federalism.

In jurisdictions with national legal systems

in which maritime cases are tried in the

ordinary courts this jurisdictional issue can

be simpler.


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The Genesee Chief (p. 48)

What kind of jurisdiction are we concernedwith here?

Subject Matterlinked to things occurring on

a particular kind of place? Territorial usually associated with power of

sovereign?

Why would the plaintiff seek to use the

admiralty jurisdiction?

In rem proceedingcompared with state

remedies.


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Ancient English doctrine

Admiralty jurisdiction is bounded by therise and flow of the tide

Logical basis? Arbitrary?

Ability of vessel to gain the open sea wasbased on rise and flow of tide.

Aspects of ocean navigation and trade thatrequired peculiar institutions of admiralty werebounded by the tide.

Direct participation by foreign ships waslimited to tidewater.


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Why a different result in the US?

There were areas in the US that involved

the same issues of foreign commerce and

remote voyages as did the tidal rule

Some of these were beyond the tides

Great Lakes

Mississippi River

Other large rivers connected with the sea.

How about purely inland bodies of water?


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Navigable Waters

Must be more than a pondsome kind of

waters capable of bearing interstate

commerce

Lynch v. McFarland (p. 54)inland lake

connected to river with canoe or raft

connection with another state not

navigable waters of US.


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Vessels

Admiralty law organized around the concept ofthe vessel.. E.g. limitation of liability applies to vessels.

Not everything that floats on the water is avessel..\

Evansville &. Bowling Green Packet Co. (p. 59)wharf boat not a vessel for limitation purposes.

Keys Jet Ski, Inc. v. Kays (p. 61)Jet ski is avessel for limitation purposes.

How about a surfboard?


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DeLovio v. Boit

What was the issue? English courts had restricted the

jurisdiction of Admiralty over maritime

insurance contracts. Writs of prohibition designed to protect the

parties rights to jury trial in common law

courts over issues of construction of

maritime contracts.

Contracts are written on land to be

performed on land.


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Delovio v. Boit (contd)

What was the policy reason for having

admiralty jurisdiction over marine

insurance contracts? What would have been the

alternatives?

The role of Lloyds of London andmaritime insurers.


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Problem 7p. 80

Policy on motorboatincludes theftcoverage.

Motorboat is laid up on land in the

backyard. If boat is stolen, is there admiralty

jurisdiction over the resulting insuranceclaim?

Who wants admiralty jurisdiction and why? Could the suit have been brought in state

court?


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The Admiral Peoples (p. 80)

Passenger slipped on gangplank.

Why did it make a difference if

admiralty jurisdiction was present?

What are the policies that lie behind

the courts decision?

Court focuses on physical attribute that

generates the policy issue.


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Gutierrez v. Waterman SS Co. p. 82

Longshoreman slipped on beans improperly

stowed by shipboard personnel.

Why did plaintiff want admiralty jurisdiction?

Extension of Admiralty Jurisdiction Act46

U.S. C. 740.

Does it cover injury not done directly by a ship?

What policy of admiralty jurisdiction

applies?


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U.S. Admiralty Jurisdiction -

Contracts

Contracts directly and intimately related

to operation of a vessel and navigation. Mixed contracts also covered where non-admiralty part is incidental or severable.

How about some examples.


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Contracts for repairs of vessels?

Traditional English Doctrinework contractedto be done on navigable tidewaters is

maritimeon land not.

North Pacific SS Co. v. Hall Bros.contractfor repairs to vessel to be hauled out of the

waterheld a maritime contract.

Contrastcontract for the building of a vessel

non-maritime contract.

What is the difference in terms of policy?


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Contracts relating to seamen.

Seamens employment is a maritime contract. Seamen are the wards of admiralty.

Contract for the provision of medical services toinjured/sick seamen? Contracted and performed on land.

Kossick v. United Fruit Co.dispute aboutsufficiency of maintenance and cure in admiralty

jurisdiction - guarantee of performance of Public

Health Hospital. How about a malpractice claim by the seaman

against a doctor at the hospital?


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Borderline Contracts..

Contracts related to maritime contracts, leadingup to maritime contracts, etc., are often notmaritime. Preliminary contract doctrine.

Charter brokerage, insurance brokerage, agencyagreements.

No per se ruledepends on the nature andsubject matter of the contract.

Shipping Financial Services Corp. v. Drakos.(p.71)claim by charter broker for commissionnot maritime.


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Mixed Contracts.

Contracts for both maritime and non-maritime

services.

Non-maritime services must be insignificant to

preserve admiralty jurisdiction. Can they be separated?

Inbesa America, Inc. v. M/V Anglianon-

maritime cargo services significantno

admiralty jurisdiction.

Why is admiralty jurisdiction so important in

cases like this?


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Admiralty JurisdictionTort

Tort committed on navigable waters.

Extended to tort claims for damagescaused by vessels on navigable waters

but done or consummated on land. In addition to special statutory admiralty

jurisdictionswhich will be discussed in

connection with the substantive claimsinvolved.

E.g. Jones Act etc.


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How far does it go?

Does admiralty jurisdiction include pleasureboats in marinas or on lakes.

Navigable waters = yes, but how about

relationship to maritime commerce? Substitute for tides rule?

H20 Houseboat Vacations v. Hernandez(p.

99)accident on houseboat on Lake Havasunot in admiralty jurisdiction.

Why was someone seeking to bring this

case in the admiralty jurisdiction?


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Generalized test..

Two prong test. Prong 1did tortious conduct occur on

navigable water or was injury caused by vesselon navigable water.

Prong 2did incident have potentially disruptiveeffect on maritime commerceand did thegeneral characterof the activity bear asubstantial relationship to traditional maritimeactivity.

McClenahan v. Paradise Cruises (p.102)claimagainst SNUBA operator fell within admiralty

jurisdiction.


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What does admiralty subject matter

jurisdiction mean?

Court has power to entertain the case

when sole basis of jurisdiction is admiralty.

Court has power to employ specialadmiralty remedies such as:

Limitation,

in rem procedure


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Overlapping Jurisdiction

Dispute may be also within the jurisdictionof a non-admiralty court.

Not so important in countries where

admiralty jurisdiction is exercised by thesame courts that handle regular casese.g. France, Germany.

Important in England and US whereadmiralty courts and process are separateand different.


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Savings clause -

Provides that where there is common law

jurisdiction and a common law remedy is

sought maritime related claims otherwise

within the admiralty jurisdiction may beasserted at common law.

State courts or federal courts via diversity.

Maritime claim does not give rise to federalquestion jurisdiction.


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The difference?

Common law cases do not have benefit of

in remprocess, limitation of liability, or

other admiralty processes.

May be able to get a conventional attachment

Must be able to identify and serve opposing

party.

Maritime law is applied as applicable.

Jury trial is available.


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The result -

American federalism, the creation of an

exclusive admiralty jurisdiction in the

Federal Courts, and the difference

between Admiralty procedure and othercivil procedure (particularly jury trial) make

American admiralty law particularly

complex compared with the admiralty lawof other modern nations.


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Physical Jurisdiction of a particular

Admiralty Court -

Arrest of vesselphysical presence of

vessel in port of country to assert

jurisdiction.Arrest Convention of 1952recognizes right

of arrest.

Admiralty claims related to arrestingjurisdiction, voyage in question, collision can

be tried there.


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Jurisdiction other than in rem-

In personamjurisdictionbased on

minimum contacts of person with country

to assert jurisdiction.

Quasi in remfor in personamclaimwhere vessel or assets is in port of country

based on presence of vessel or other

assetsbut if owner defends judgment inexcess of value of assets possible.


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We will go into these complexities

repeatedly as this course

progresses.

Documents

Harvard Admiralty