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Course: Admiralty Law Outline Fall 2000
School: unknown
Year: 2000
Professor: unknown
Course Outline provided by Legalnut.com

Admiralty Law Outline

 

 

  1. Charter Parties

    1. Time charter: owner retains management and control of vessel

      1. Charterer designates the ports of call and cargo carried

      2. Designation of time

        1. Time can be designated as a "voyage" or more than voyage

        2. Time is usually designated in terms of "about"

          1. In the case of an underlap, it is possible for a charter to send the boat on another

          2. If there is an overlap, the charter hire is adjusted

      3. Implied Warranties

        1. Will furnish a seaworthy ship at commencement

        2. Declarations may count as warranties

      4. There can be a right to designate the port that the vessel will call

      5. Safe birth clause

      6. Clauses for modification

        1. Implied efficient operation

        2. Off-hire = suspension of rent when the vessel is down for repairs

        3. Frustration

        4. Consequential damages

          1. Charter ordinary can not recover for loss of use or profits caused by damage to the vessel

      7. Maters duties are conflicted

        1. Agent of shipowner

        2. Agent of Chaterer in handling of the cargo

        3. Protest clause: the charterer orders only actions that the master thinks are reasonable

    2. Voyage: voyage to a designated port (can be all of ship or just a part of it)

      1. Standardization

        1. Gencom

        2. Australian

        3. Usually stipulate that there is a duty to pay expenses and it is under COGSA

          1. Owner only needs to exercise due diligence to find a seaworthy vessel

      2. Cesser clause

        1. Usually charterers have to pay for dead freight

        2. Under a Cesser clause, the charter pays part of the fright in advance, and is relieved of any other obligations -- anything else the owner of the ship will get from the cargo (i.e. the lien on the cargo)

      3. Lateness

        1. If the vessel arrives late, the cargo must be loaded, unless frustration

        2. Can be contractually opted-out of substantial compliance (ie time is of the essence)

    3. Demise (owner of ship surrenders control of vessel

      1. All of the rights transfer (so even if there is a charter with a crew and a captain, it doesn't matter)

        1. Owner may be liable to third parties for pre-existing torts

      2. Similar to bailment: Chaterer bear the burden of producing evidence that the damage was caused by something other than his negligence

      3. Warranties

        1. Assumption that the ship is warranted to be seaworthy

  2. Bills of lading (carriage of goods) under COGSA and Harter -- these are common carriers, or liners

    1. Functions of BOL

      1. Shippers receipt

      2. Negotiable unless agreed otherwise (Pomorone Act)

      3. Can be used to borrow money on good while the goods are in transit

      4. Allocation of risks as provided by Harter Act (Brussels convention) -- also COGSA

        1. Carrier must use due diligence to send out a seaworthy vessel

        2. Carrier is not responsible for other things due to errors in navigation, or mismanagement

        3.  

      5. Visby convention tried to amend Brussels, but the US didn't sign

    2. Acts

      1. Harter: applies to all voyages

        1. Allocates risks from delivery to the carrier until redelivery to the consignee at a fit and customary wharf

        2. Allocates risks from delivery to the carrier until redelivery to the consignee at a fit and customary wharf

        3. On a voyage between an American port and a foreign port

          1. Hart Act applies from delivery to the shipper until loading and from unloading until delivery and the consignee

          2. COPGSA applies between loading and unloading

        4. On a voyage between American ports

          1. Harter act applies at all times between delivery and redelivery

        5. Hart act

          1. Due diligence

            1. Seaworthiness

            2. No absolute duty to be seaworthy

              1. Duty isn't necessary delegable

            3. Duty to use due diligence arises at to each shipper at the port at which his or her cargo is loaded

              1. Improper procedures do not necessary make the vessel unseaworthy

            4. Carrier is responsible to load, hardly carry, the goods -- if they know what the goods are

              1. Clean bills of lading, which does not provide for storage on the deck requires storable below decks

            5. Carrier isn't responsible for loss arising from act, neglect, or default of the master, mariner, piliot or servants in the carrier

            6. Risks

              1. Shipper has risk of insufficiency of packing.

              2. Fire statute:

                1. Carrier exempted (either shipowner or demise charter) exempted by COGSA

                2. Usually need visible flame

              3. Act of god or peril of the sea: shipper bears the risks

                1.  

          2. No liability resulting from navigational faults or in management of vessel or losses arising from damages

          3. If an owner defaults, he can't claim the benefit of exculpatory language in the bill of lading, even though the unseaworthiess did not play any port in the loss or damage to the cargo

          4. No sol, but general rules of maritime ( i.e. unreasonable delay) apply

      2. Cogsa: applies only to risks of the voyage between loading at the point of departure and unloading at the point of destination

        1. Applies to 3very bill of lading which is evidence of a contract for the carriage of goods by sea to or from ports of the US

        2. Applies only to the risks of the voyage between loading at the point of departure and unloading at the port of destination

        3. Carrier's failure to use due diligence to send out a worthy vessel imposes liability upon it only if the unseawothy ness was a cause of the damage to the goods (i.e. under Harter doesn't need to be a cause of the damage to the cargo)

        4. Carrier can only limit is liability to $500 per package or freight unit

        5. COGSA has a one year SOL

        6. Carrier relieved from

          1. Acts of war

          2. Restraint of princes

          3. Strikes or lockouts

          4. Cathall

            1. Relief from liability from any other cause arising without the actual fault and privity of the carrier

      3. Stipulations

        1. If Harter applies

          1. Parities can stipulate the their rights will be governed by COGSA either from delivery to loading and unloading to redelivery (in voyages between American and foreign ports) -- frequently

          2. Coastwise opti9on: Or for the entire voyage in shipment between American ports

          3. Carrier may limits its liability to damage to any amount

        2. Impossible to stipulate to a foreign law

    3. Burdens of Proof

      1. Plaintiff must establish a prima facie case that the goods were damaged or lost while in the possession of the carrier

        1. Shipper can show that they were delivered in undamaged conditioned

        2. When the BOL is issued, it must show the apparent order and condition of the goods

        3. The shipper must also prove the failure of the carrier to redeliver the goods

        4. Burden on the shipper: If the defective or damaged condition could have been observed by the carrier at the time the goods were shipped, the shipper may have met his burden of establishing that the goods were received by the carrier in good condition by introducing the bill of lading reflecting receipt "in apparent good condition" the shipper must prove the failure of the carrier to redeliver the goods, or their receipt in a damaged condition -- COGSA will provide the carrier (not the shipper) with a favorable presumption

          1. If the shipper fails to give notice in writing, such removal shall be prima facie evidence of the delivery

        5. If there is a prima facie showing that the goods were damaged or lost in transit, the burden is own the carrier

          1. Could show that it was caused by vessel negligence

          2. Could show that the loss or damaged resulted from other causes for which it is not charterable under COGSA (i.e. unseworhiness)

          3. Could show that the damaged resulted from other causes which it is not charterable under COGSA

            1. Unseaworthiness which developed after ht e voyage began

            2. Pre-voyage unseaworthiness that could not have been discovered by due diligence

            3. Peril or fire of the sea

            4. Other cause: carrier bears burd3en of proving that neither the actual fault or privity of the carrier contributed to the loss or damage

          4. Damages could be divisible

    4. Deviation from bills of lading route

      1. route

        1. Common law: made carrier liable

        2. COGSA: no answer

        3. Recent

          1. Could oust the contract (but there is a $500 per package limitation)

      2. Stowage

        1. If BOL specifies storage above deck, COGSA doesn't apply

          1. Cl: carrier liable for negligence causing damage to the goods

        2. If it is a clean BOL, the courts will determine where it is best to store things

    5. Damages

      1. Common law: carrier is libel for the market value of lost cargo at destination

        1. If cargo was damaged for difference between market value and value damaged at destination

        2. Allowance for limitation of liability

      2. Harter: Common law provisions probably valid, if the shipper could pay a higher price

        1. Limitation on liability can't be so low as to violate public policy

      3. COGA: limits to 500 per package

        1. Carrier must give the shipper an opporuntiyt to declare the value of the goods

    6. If a limitation a bill of lading is limited to under $500 per package or customary freight unity is valued under Harter, but not COGSA

      1. Courts hold that the Harter Act springs back

      2. Others disagree

    7. Question of whether a bill of lading is valid with a charter party is still unresolved

  3. Liens – can be a provision that the charterer will not allow a lien on the vessel

    1. No liens are when the vessel is in the custody of the court

      1. Courts can authorize a continuation of services

    2. State law liens

      1. Old law was no home port maritime liens

    3. Maritime lien act: home port liens under admiralty law, enforceable in rem in admiralty – state law liens are of little relevance now

    4. Since liens are hidden, and there can be a prohibition of lien clause

      1. Old law: no liens arise when the charter knew, or had reason to know of the old lien

      2. Now, the law is that a lien will not arise if the lienor could have ascertained a lien

    5. Cargo

      1. Default: vessel has a lien on the cargo for the freight (e. g. possessory lien)

        1. Liens can exist past unloading, depending on the conduct

        2. This does not arise out of the contract itself

          1. Ship mortgages are not maritime contracts

            1. Could be loans secured on cargo or ship, but were discharged upon the completion of the voyage

      2. If there is a Cesser clause, they will look to the consignee

    6. Implied lien

      1. Arises the moment the debt occurs

        1. Can only be judicially discharged by an in rem proceeding

      2. Creation

        1. Seaman has a lien on the vessel for wages

          1. By statutes the master does to

          2. Maritime workers don't have liens against the vessel for compensation benefits

        2. Maritime torts, do too

          1. Seaman's negligence against his employer does not

 

      1. Salvage is secured by a lien

      2. General average is secured by a lien

      3. Necessaries are secure by liens

        1. Must actual be delivered to the vessel

        2. Supplier must rely on the credit of the vessel for payment

        3. Must be authorized by the owner

    1. Under the ship mortgage act there is now a preferred mortgage on a vessel

      1. Must be on documented vessel

      2. Must be on whole vessel

      3. Mortgagee must be citizen of US

      4. Can include more than one ship or nonmaritime property

      5. No limitation on interest

      6. Preferred statutes can be waved

      7. Substantial compliance is enough

      8. Ship mortgages can be enforced in rem or in persona

        1. In rem

          1. Same as implied maritime lien

          2. Actual notice must be given

          3. Self-help repossession must be given by state law

        2. In persona

    2. Extinction of liens

      1. Discharge by judicial sale

      2. Loss or destruction of vessel discharges lien – would be reinstated in salvaged

      3. Bankruptcy courts can discharge

    3. Priority of liens (class and time) -- last to accrue is first to be paid (all contract liens occurring in a certain period of time are paid at the same time)

      1. Court costs

      2. Seaman's wages

        1. Penalties may not be include

      3. Salvage

        1. Both contract and quasi-contracts

      4. Tort liens

  1. Seaman's employment (seaman are awards of admiralty)

    1. Owner and master, and vessel are both liable for wages

      1. No need to prepay court costs

    2. Double wages for non-payment

      1. Seaman can demand ½ of wages that are earned at any port

    3. Compromise of claims

      1. If, under all circumstances, the seaman would have done it

      2. Adequacy of consideration doesn't necessarily matter

    4. Mary Carter agreements: settling defendants can retain interest in Plaintiff's claim against the non-settling agreement

      1. Full disclose is require

  2. Salvage

    1. Contractual

      1. Only will be set aside of grossly exorbitant

    2. Equitable (pure)

      1. Requirements

        1. Long criteria

          1. Peril

          2. Risks

          3. Few potential rescuers

          4. Risks are great

          5. Temptation to take the property is strong

          6. Only maritime property

            1. No dry-docks

        2. Short criteria

          1. Value of property saved

          2. Value of property used

          3. Skills

          4. risks

        3. Must be direct and voluntary

          1. E. G. indirectly saving a ship by putting out a fire doesn't count

          2. One who cause a collision is under a pre-existing duty to help

          3. Ironically, one still get salvage, even though all are required to help

          4. Pre-existing duties of firefighters

            1. Usually don't get salvage unless extraordinary

            2. Navy sometimes claims slave

          5. Salvage can be refused if the owner is on board – but it is assumed that is is wasted (quasi-derelict)

          6. If there is any aid (e. g. radio message) that may be enough

        4. Towage

          1. If the towage did not merely expedite the voyage, but relieved it from present or danger, there could be a salvage towage award

      2. Old rule: Mails and non-negotiable bills are not under salvage (since the reward theoretically comes from a judicial sale)

      3. New rule: now mostly quantum meruit

    3. Liability

      1. Salved vessel is liable in rem

    4. Salvors are held to a reasonable person standard (salvors have to have the most "scrupulous fidelity)

    5. Other forms of wards

      1. Finds

        1. Federal government has asserted title to all wrecks firmly affixed

      2. Prize

        1. Prize (of enemy ships)

  3. General Average (can be secured by in rem lien)

    1. Reasons

      1. Maritime peril

      2. Lack of vessel fault

      3. Voluntary sacrifice

    2. Elements

      1. There is a danger to which both vessel and cargo are exposed

      2. Danger is inevitable

      3. Voluntary sacrifice

      4. Attempt to save is successful

      5. Party seeking contribution is free from fault

    3. Variations

      1. Can be which arise to part of the ship (damages)

      2. Those which arise out of extraordinary expense incurred for joint benefit

    4. Jason clauses

      1. General average is payable if it arises through negligence of the carrier, if he had been exculpated via the Harter act

    5. Insert York-Antwerp rules for calculating

  4. Collisions

    1. General duty of owner of the vessel to protect crew and passengers from harm (but the owners will become liable in persona)

      1. Inevitable or acts of gods there are no fault

    2. Colregs: Rules of the road (previous four rules 1) International, American, Great Lakes, other American

      1. Lights (rule 23)

        1. Only five ruling light

        2. S2white forward (one higher than the other)

        3. One white at the stern

        4. Green light mid on starboard

        5. Red mid on port)

      2. Steering (rule 14)

        1. Vessels meeting, neither has right of way

        2. Each must steer to the starboard or port side, so that the vessel pass port to port (each of the left of other) -- turn right so they go left

        3. If one vessel is overtaking, the overtaking vessel is burdened – the vessel overtaking is charged with the duty to maneuver safely

          1. The overtaken vessel has to maintain it course – rule 13

      3. Crossing -- rule 34

        1. Vessel on the right has right of way (stand on)

        2. Other vessel is required to whistle or blast to show the maneuvers

      4. Fog

        1. Rule 19: except where it has been determined that a risk of collision does not exist, every vessel which hears apparel forward of her the signal of another vessel, or which can not avoid a close quarters situation with a vessel forward of her beam, must reduce speed to the minimum at which it can be kept on course

        2. Periodic whistle blasts

      5. Lookout (rule 5)

        1. Proper lookout by sight and hearing

      6. Radar required if fit and operational – 7b

    3. Departure from the rule has to be shown with specific circumstances

    4. Presumptions

      1. Moving vessel hits a stationary object, the moving vessel is presumed to be at fault

      2. Sheering is presumed fault

      3. Major/Minor rule: if the fault of the vessel is, in itself enough to cause the damage, then then would not be divided damage

      4. Last clear chance is recognized in admiralty

    5. There are inland rules of the road as well

  5. Torts

    1. Collisions

      1. Intentional torts: will be vicarious liability

      2. Reckless disregard can get punitive damages

      3. Maritime law doesn't have distinction of trespasser, invitee, and licensee

    2. Injuries to seamen

    3. Maritime workers pursuant to 905b

    4. Pennsylvania Rule: if there is a violation of a statutory rule of behavior the burden shifts

    5. Joint tortfeasors are jointly and severally liable

    6. Robins bright line test:

      1. No damage for loss or of profits, unless property is damage

      2. Could be exception for seamen

    7. Generally there is comparative negligence

      1. Duty to mitigate also applies in admiralty

    8. Doctrine of laches does apply

    9. Can be survival damages

  6. Tort damages

    1. Damage to the vessel allows the owner to cover the cost of repairs

    2. No recovery from any vessel that has been lost or destined

    3. Cargo

      1. Brussels convention (US doesn't adhere)

        1. Cargo can't recover from non-carrying vessel

      2. Consignee can't recover from the carrying vessel the damage caused by negligence in the operation and management of the vessel

    4. If a consignee brings an action against a vessel involved in the collision other than the carrying vessel, Cogsa, and Harter doesn't apply, and the consignee can recover from a negligent non-carrying vessel

    5. Carrying vessel s will pay a portion of the damages to its cargo caused by a risk which COGSA and Harter allocate to the cargo

  7. Workers

    1. Seamen: tort principles

      1. Definition of seaman

        1. Member of crew

        2. Criteria -- needs to be an employment related connection to a vessel in navigation

          1. Worker with more or less permanent attachment

            1. Can be connected to a fleet of vessels

          2. A vessel in navigation

          3. Nature of his work is a seaman's work

          4. Minority: if the vessel is a special mission vessel, aids in the special mission of the vessel

          5.  

      2. Basis ideas

        1. Vessel owners liable if a seaman falls sick

        2. Liable for unseaworthyness of ship

        3. Seamen can't recover for the negligence of fellow workers beyond expense and maintenance and cure

        4. Maintenance and cure is the rule – can't recover beyond that for negligence or accident

          1. Has to be to maximum cure

            1. General rule is that the master picks the hospital

              1. The seaman can pick another hospital, and have the cost covered unless the employer proves that the seaman's choice caused the employer to incur medical expense in excess of these who he or she should have incurred

              2. Wrongful refusal of benefits can result in forfeiture

            2. Three year statute of limitations (no longer laches)

            3. When maximum cure is achieved, the condition terminates

          2. Maintenance is usually very low

            1. Only if the seaman can show that he incurred living expenses

        5. failure of provide cure is looked at very badly

          1. seaman gets atty.'s fees, etc.

        6. Generally, the seaman can file a claim a second time for more cure

          1. However, one court has placed the onus on the employer

      3. Mere horseplay is not willful misconduct

      4.  

      5. Injury

        1. Has to become manifest while the seaman is in the service of the ship

        2. Can be far afield, because a seaman is obligated at certain times to return to the ship when in a foreign part at the master's order

        3. Policy is that recreation is somewhat unique when vessels are away from home

        4. Questions of concealment of illness

        5.  

      6. If a seaman incurred injury or illness while in the service of the ship he or she was entitled to maintenance ad cure to furnish a safe place to work or live on the vessel

      7. General idea that the seamen have a duty owned to them by the master

      8. Jones act: FELA employers are liable via respondeat superior for the actions of fellow servants

      9. Maintenance and cure

        1. Wages to end of the voyage

        2. Medical expense

        3. Living expense during the period of treatment and convalescence

      10. Maintenance and cure is usually brought in persona as well as in rem (in rem has to be brought on the admiralty side)

        1. Depending on the procedure, the rights to join other parties for indemnification and contribution depend on it

      11. Can combine with Jones act unseaworthyness claims, and not doing so may be preclusive

        1. Jones act is entitled to a jury trial

          1. Jones act: personal injury to seamen may maintain an action for damages at law – which allowed for workmen's comp to seamen (divided authority as to how many employers a seamen can have)

          2. Jones act applies to anything "in the service of employment"

          3. Employers under the Jones act are liable for the actions of co-employees

            1. Can avoid liability by saying that the employee is not an direct employee

              1. Is it a borrowed servant

              2. Does the other employee serve a vital part

          4. Jones act negligence is different because employer owes a high duty of care, and is liable if only for slight negligence

 

            1. There is however, comparative negligence – but some hold that the seamen's duty to protect himself is slight

          1. Three year statute of limitations

          2. Primary duty rule: (only in come places) if it was the seamen's primary duty to so something, and a duty that the injured persona had consciously assumed as a term of his employment

          3. Jones acts claims can be brought in state or federal court, but can't be removed from state to federal

            1. Unseaworthyness can be removed to the law side if diversity is present

        1. Duties of unseaworthiness

          1. Greater to others such as shippers and insurers

          2. Master has to furnish a ship that is reasonable adequate

          3. Seamen are entitled to conditions that are not unreasonable

        2. Duty of seaworthiness is owned to people who are not seamen, but are acting like them

        3. If an unseawothy condition arises without employer negligence, the Plaintiff must establish a lien against the vessel or the seaman is not an employee of the vessel owner

        4. Incompetent or crazy seamen are unseawothy ships

        5. Unseaworhty act must become a condition

        6. Comparative negligence will not defeat, but may diminish recovery

        7. No overlap

          1. Spouse can recover for loss of consortium

        8.  

    1. Nonseaman maritime worker: LWHCA (workmen's comp)

      1. If a longshoremen's injuries occurred on navigable waters, state law didn't applies --

      2. Employees

        1. Stats: engaged in maritime employment

        2. Situs: adjoining pier, wharf, dry dock, terminal, building, marine railway

          1. Could be illustrative or complete

          2. Probably broad

        3. Outer Continental Shelf lands act: applicable to injury to an employee occurring as a result of operation conduct on the shelf for the purpose of exploring for develop, removing or transporting by pipeline

      3. Employer: largely tautological(but needs to be foreseeable)

      4. Benefits

        1. Disability and rehab

        2. Employee who is permanently by partially disabled is entitled to 23 of his average weekly wages

      5. Sieracki Seamen; Unseaworthyness remedy old doctrine where longshore men provided that longshoremen where entitled to the relief of sailors, but not entitled to breach of Unseaworthyness

        1. People covered by Seracki: Americans who are working in international waters by an American cprp, seaman from one vessel on another vessel, federal and state employees who aren't under lhwca coverage, workers who aren't seaman or lwwca

        2. Now the longshoremen's right to recovery from the shipowner for negligence was preserved in 905b

    2. Nonmaritime worker: tort principles

    3. Other claims: state law

  1. Wrongful death (DOHSA) -- only on high seas

    1. Common law: no removal if tort victim died

    2. DOHSA: suit for wrongful death in admiralty limited to pecuniary loss

      1. Survival damages could be maintained only if could be a borrowing from the state

    3. Check this: under DOSHA can one recover for non-pecuniary loss

    4. Summary

      1. If a seaman is killed by employer negligence within or beyond three miles, his beneficiary can get under the Jones act only for pecuniary damages

      2. If a seaman is killed out of three miles, there are wrongful death benethts under DOHSA. Survival action is available depended on whether there is a maritime survival action which is not preempted b 765 dos doshsif a seaman is killed inside of 3 miles by an unseaworhty condition his beneficiary may recover wrongful death benefits under moragne – but not non-pecuniary damages – unless borrowing from an adjacent state

      3. Check Moragne ***

    5. Wrongful death class

      1. Jones

        1. 3 years

        2. federal /admiralty or state

      2. DOHSA

        1. 2 year

        2. admiralty

      3. Moragne

        1. Admiralty or state or diversity

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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